Krambo Food Stores, Inc.

KRAMBO' FOOD STORES, INC. 369 decided to wait until ; after January to start new construction. , In the , meantime Albrecht sought employment from Sisk, another contractor. In quitting Select Foods and immediately going to work for DeLeon it cannot be seriously argued that he thereby intended to remove himself from the labor market . Moreover, his job with DeLeon was a higher-paying job and it -is reasonable to assume he expected to continue in this line of work. However, Albrecht was precluded from doing so by reason of DeLeon's decision not to commence new building at that time. Under the circumstances it cannot be said that Albrecht incurred willful losses (Harvest Queen Mill & Elevator Company, supra , p. 327; East Texas Steel Castings Company, Inc., 116 -NLRB 1336, 1347, 1367). Accordingly, the Respond- ent's contention in this respect is rejected. The Trial Examiner therefore concludes and finds that Albrecht is entitled to back pay, less net interim earnings , for the period April 1, 1955, to January 3, -1956. The Trial Examiner adopts the undisputed figures appearing in the General Counsel's amended back-pay specification and "Corrected Earnings" memorandum and com- putes Albrecht's back pay as follows: 2d quarter 1955: Gross back pay------------------------------------------------------- $899 44 Interim earnings------------------------------------------------------ Net back pay------------------------------------------------------- None $899.44 3d quarter 1955: Gross back pay ------------------------------------------------------- 913 28 Interim earnings------------------------------------------------------ $292.96 Expenses ------------------------------------------------------------- Net back pay--------------------------------------------------------- None 620.32 4th quarter 1955. Gross back pay------------------------------------------------------- 976 27 Interim earnings ---------------------------------------------- -------- $575.43 Expenses------------------------------------------------------------ Net back pay----------------- -- ----------------- None 400 84 1st quarter 1956: Gross back pay-------------------------------------------------- 14 64 Interim earnings--------- --------------------------------------------- Net back pay---------------------------------- None 14 64 Total amount net back pay----------------------------------------- 1.935.24 [Recommendations omitted from publication.] ,Krambo Food Stores, Inc. and Krambo Independent Union, Pe- titioner. Case No. _13-RC-550-5. November 7, 1957. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Allen P. Haas, hear- ing officer.- The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations here involved claim to represent certain employees of the Employer. 3. The unit sought by the Petitioner' includes all employees in the grocery and produce departments in the Milwaukee County, Wiscon- 119 NLRB No. 54. 476321-58-vol. 119-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'sin, stores. The contract, for this unit and all future stores in the county, was made effective by the Teamsters and the Employer as of March 17, 1957. The Employer takes no position on contract bar; Retail Clerks and the Petitioner contend that it is no bar. Teamsters Local 158 was chartered in December 1956. The "Allied Independent Union Division" was incorporated in Local 158 in 'January 1957 in circumstances described below. Allied Independent Unions, as such, have existed for approximately 10 years. Krambo -Food Store employees comprise 1 group or member unit of Allied- .apparently by far the largest, with approximately 400 members. Pursuant to a Board-ordered election in 1954, Allied was certified to represent the Krambo employees in the Milwaukee County stores., The 1955 contract between Allied and the Employer was duly opened for negotiation before its January 1957 expiration. Sorenson, Allied's president, testified concerning the ensuing contract negotia- tions which were conducted on December 4, 1956, and on January 17 and March 14, 1957. At the January 17 meeting Sorenson advised the Employer that affiliation of Allied Independent Unions with the Teamsters had occurred on January 12, as a result of action of the Allied executive board, of which he was chairman. _On March 12 the Employer received a claim for recognition by the Petitioner, a union formed as the result of dissatisfaction by Krambo employees with the action taken by Allied to affiliate with Teamsters. The Employer admits that it nevertheless continued with the contract negotiations and executed the new contract naming the Teamsters as the contracting union without making any effort to ascertain whether the affiliation of Allied with the Teamsters had been approved or ratified by the Krambo employees. Employee dissatisfaction with the affiliation was further brought to the Employer's attention in April, when Teamsters Local 158 requested the discharge of 21 employees at 1 of the Krambo stores, comprising most of the full-time employees at that store, for failure to pay dues as required by the union-shop provision in the contract. The Employer's investigation at that time apparently showed that there were many additional employees refusing to pay dues to the Teamsters. Picketing by the Teamsters followed but was terminated after 3 days. The Employer has not honored the Team- sters' discharge request. The petition herein was filed on April 23. The contract is dated March 17, 1957, but, as the record shows, was not actually executed and returned to the Employer by the Union until April 6. The Peti- tioner's attempts to file earlier petitions, on March 27 and April 4, were unsuccessful because, inter alia, it had not initiated compliance. In support of its position that the contract is a bar, Teamsters con- tends that the Allied affiliation was in accord with the constitution 1 See Krambo Food Stores, Inc., 107 NLRB 1544. KRAMBO FOOD STORES, INC. 371 and bylaws of the Allied Independent Unions, and in addition, that the employees had some notice of the possibility of affiliation at a, membership meeting on January 8, and that Krambo employees ac- tually ratified the affiliation action at a membership meeting on March 17. Article XIII of Allied Independent Unions' constitution provides that a majority vote of the executive board is sufficient for affiliation- affiliation being limited by that article, however, to organizations with compatible aims and conditioned upon the continuance of local au- tonomy for Allied 2 Allied's bylaws provide, in article VII, that each member group shall "delegate" the person to represent it on the Allied executive •board .3 The Krambo representative on the board was pres- ent at the meeting on January 12 when the executive board took its affiliation vote. However, it appears that the said Krambo representa- tive, who had been acting in that capacity for about 4 years, was never delegated or elected by the Krambo employees, but had either been appointed by Sorenson, or elected by other board members. It also appears that the Krambo representative received notice of the January 12 board meeting several days before the meeting, and had at least surmised its purpose, but that he made no effort before attend- ing the meeting to ascertain employee reaction to affiliation with the Teamsters. Sorenson had been president and Treichler secretary-treasurer of Allied for some years without the formality of election .4 Neither of a Constitution of Allied Independent Unions : Article XIII. Affiliation SECTION 1-The Union may cooperate or affiliate only with organizations whose aims and principles are compatible , providing such affiliations and/or cooperation does not endanger the independent status of the Union or deprive the Union of any of its local autonomy . A majority vote of those present at an Executive Board meeting shall be necessary for affiliation or disaffiliation . [Emphasis supplied.] 3 Bylaws of Allied Independent Unions : Article VII. Membership on the Executive Board SECTION 1 . Each Unit of Membership or Local shall be entitled to be represented by one member on the Executive Board and shall be entitled to two (2) votes for the first one -hundred - ( 100) members he represents or any portion thereof, and an addi- tional two ( 2) votes for each hundred members beyond the first one hundred (100). SECTION 2. Each Local or Membership Unit may select at its option one or more rep- resentatives to conduct the affairs of its unit or local. Each Local or Membership unit shall, however , delegate one member to serve on the Executive Board. Concerning elections and nominations , the constitution , in article VII, provides that elec- tions to membership on the executive board shall be by secret ballot ( section 1 ( a)), that local or unit representatives delegated to serve as members of the executive board shall be chosen by their respective membership at meetings called for that purpose ( section 1 (c) ), and that acceptance of such unit or local representatives shall be subject to approval by the officers of the Union (section 1 (d) ). 4 See Krambo Food,Stores, Incorporated, 106 NLRB 870, 872, where Sorenson is referred to as being president in 1950. Concerning officers , the Allied constitution provides for a 2-year term of office ( article. IV, section 3), that each officer shall hold office until his successor shall have been duly elected and qualified (article IV, section 4), and that election of officers shall be held at the biannual executive board meeting during the month of August in each even year (article VII, section 1 (b) ). 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these in is or has been an employee in any member unit. Both received employment contracts with Teamsters Local 158 about the time the affiliation action occurred. Sorenson's contract, in evidence, is dated January 17, 1957, and provides for services as a special con- sultant at an annual salary of $7,500 for a 5-year period, with $2,500 annual car expense. Treichler was not present at the hearing and the details of his contract are not established. On March 17 a membership meeting of Krambo employees was held. Sorenson called the meeting to order and presided during part of it. John Nichols, a Teamster representative, also presided. Witnesses estimate the attendance at anywhere from 40 to 100, which was above the usual attendance at such meetings. (As indicated above, the Krambo unit consists of approximately 400.) Approval of the 1957 contract with the Employer was voted, without change from the provisions of the 1955 contract except as to termination. Before this vote on the contract, a report was made by Sorenson on the action taken by the executive board on January 12 to affiliate with the Teamsters. The official minutes of the meeting, taken by Treichler as secretary, show no vote to ratify the Teamster affiliation. There is testimony that these minutes were read and approved at the next meeting on March 26, although the minutes of the latter meeting do not show this. Another set of minutes of the March 17 meeting was .introduced by the Teamsters which state that there was a motion to "reaffirm our faith in the Allied Independent Units' affiliation with Local 158 of the Teamsters" on which there was an "affirmative" vote. These minutes were introduced in evidence as having been taken by one Shirley Flagg for her personal use, but on cross- examination Flagg admitted that Nichols, the Teamsters representa- tive, had requested, before the March 17 meeting, that she take them as "acting secretary." At the March 26 meeting Flagg was elected recording secretary of the new Teamsters local. However, Treichler took the minutes of that meeting, this time signing them on behalf of Teamsters Local 158. Flagg could not recall whether the official minutes of the March 17 meeting were read and approved at the March 26 meeting but stated that that was customary. She admitted that she had never urged that the official minutes of the March 17 meeting be corrected. Testimony by individual members who attended the March 17 meeting is in conflict, both concerning notice of its purpose and opportunity to vote upon affiliation. The consensus as to notice was that those who attended were already aware when they arrived that .affiliation had occurred. No written notice of the meeting was offered in. evidence. As to, ratification of affiliation with Teamsters Local 158, some witnesses recalled a vote being taken, and some testified that none was taken. KRAMBO FOOD STORES, INC. 373- Teamsters Local 158 is holding meetings and processing grievances, and , in general acting as bargaining representative pursuant to the contract. The Petitioner has elected officers and also holds meetings. Apparently Allied Independent Unions, as such, is no longer active. The record. shows that one of its former units, made up of employees of Wolf's Cleaners, is now represented by its own independent union which was certified pursuant to an election, in which the Teamsters participated, conducted by the Wisconsin State Board. In the light of all the facts set forth above, particularly those with reference to the purported merger or affiliation of the certified Allied Independent Unions with Teamsters Local 158, we find that this contract should not bar an election to decide which of the unions is the: representative of the employees. Accordingly, we find that a question affecting commerce exists con- cerning the representation of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The contract unit presently covers 10 stores in Milwaukee County. An 11th Milwaukee County store, formerly a Kroger store, and a store in neighboring Waukesha County, about 10 miles from Milwaukee, are apparently covered under a single contract with the Retail Clerks. The Retail Clerks would add these 2 stores to the existing 10-store unit and waive their existing contract as a bar.. if the Board should find such unit appropriate. The Petitioner and the Employer do not oppose the proposed enlargement of the unit. The Teamsters contends that only the existing unit is the appropriate one. It appears that the overall Milwaukee operation of the Employer properly encompasses the two additional stores. Thus, all of the 12 stores obtain their stock from the same warehouse and all have the same supervision. There is some interchange of employees among stores, although each store does its own hiring. On the present record we find that the 12-store unit may be appropriate. However, in view of the bargaining history of the original 10-store unit, the employees in the 2 additional stores are entitled to a self-determination elec- tion as to whether they desire to be included within a 12-store unit.' Part-time employees working 15 or more hours a week have in the past been included in the unit. The contract specifically exempts from union-shop coverage those employees who work less than 15 hours. The Retail Clerks would include all part-time employees; the Teamsters has no objection. Apparently the Petitioner and the Employer also have no objection. The record indicates that regular part-time employees seldom work less than 1 day per week, that many who are students work additional hours or full time in the summer, 5 See Illinois Cities Water Company, 87 NLRB 109. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they have the same supervision, and that their duties are similar to those of other employees in the unit. Accordingly, we shall include <in the unit all regular part-time employees who regularly work 8 hours a week.' Assistant managers have been excluded from the contract unit. As the record shows that they act, in effect, as comanagers and have authority to hire and discharge in the absence of the store manager, we find that they are supervisors and shall exclude them front the unit. We.. shall direct elections in the following voting groups of em- ployees in the Employer's 12 stores in Milwaukee and Waukesha Counties, Wisconsin, excluding meat department employees, man- agers, assistant managers, confidential secretaries, and supervisors as defined in the Act : (1) All employees employed in the 10 stores in Milwaukee County exclusive of the Krambo Blue store. (2)'..All.employees employed in the Krambo Blue store and the Waukesha store. The appropriate unit which we find will be dependent upon the outcome of the elections. If a majority of the employees in voting group (2) vote against representation, they will be taken to have indicated their desire to be excluded from a unit in combination with the employees in voting group (1). If a majority vote for representa- tion, the two groups together will constitute a single appropriate unit. The Regional Director is instructed to issue certification of rep- resentatives or certification of results as dictated by the outcome of the elections herein. [Text of Direction of Elections omitted from publication.] MEMBER MURDOCK took no part in the consideration of the above Decision and Direction of Elections. 8 See C & H Foods, Inc., 100 NLRB 1483, 1485. Graphic Finishers, Inc. and New York Paper Cutters and Book- binders Union, Local 119, affiliated with International Broth- erhood of Bookbinders, AFL-CIO, Petitioner. Case No. s-RC- 8789. November 7, 1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John J. Carmody, 119 NLRB No. 50.