Jewel Tea Co., Inc.

JEWEL TEA CO., INC ., EISNER FOOD STORES DIVISION 319 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- 'nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it will be recommended that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent has refused to bargain collectively with Lodge No. 113, International Association of Machinists, AFL-CIO, thereby interfer- ing with, restraining, and coercing its employees, it will be recommended that the Respondent cease and desist therefrom . It will be further recommended that the Respondent, upon request, bargain collectively with Lodge No. 113, International Association of Machinists, AFL-CIO, with respect to rates of pay, wages, hours of .employment, and other terms and conditions of employment of employees within the appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lodge No. 113, International Association of Machinists , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at Respondent's plant, excluding clerical and professional employees , guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Lodge No. 113, International Association of Machinists, AFL-CIO, was, on July 18, 1957, and at all times since has been, the exclusive representative of all employees in the appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with Lodge No. 113, International Asso- ciation of Machinists, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By said acts the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Jewel Tea Co., Inc., Eisner Food Stores Division and United Retail Workers Union (Independent), Petitioner. Case No. 13-RC-6478. August 4,1959 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, executed by the parties on March 23 , 1959, an election by secret ballot was conducted on April 11, 1959, under the direction and supervision of the Regional Director for the Thirteenth Region among the em- ployees in the appropriate unit. At the conclusion of the election, the 124 NLRB No. 35. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties were furnished a tally of ballots which showed that of approxi- mately 70 eligible voters, 38 cast valid ballots for, and 20 cast valid ballots against, the Union. There were no challenged ballots and 1 void ballot. On April 15, 1959, Retail Clerks International Association, AFL- CIO, hereinafter called the Retail Clerks, which was not a party to the stipulation, filed timely objections to the election. On April 21, 1959, following an investigation, the Regional Director issued and duly served upon the parties his report on objections, in which he recommended that the objections be overruled and that the Petitioner be certified as the bargaining representative of the employees in the appropriate unit. The Retail Clerks filed timely exceptions to the Regional Director's report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the stipulation of the parties, the objec- tions, the Regional Director's report on objections, and the Retail Clerks' exceptions. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization herein involved claims to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion 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 following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section .9 (b)' of the Act : All employees employed at the Employer's stores located in Mat- toon, Sullivan, Charleston, and Tuscola, Illinois, including employees in the stores' retail bakery departments, and including all part-time employees who have averaged 12 or more hours per week during the 6 weeks ending March 21, 1959, but excluding the store manager, all meat department employees, all bakery manufacturing employees, all. guards, professional employees, supervisors as defined in the Act, all maintenance employees, and all part-time employees who have aver- aged less than 12 hours per week during the 6 weeks ending March 21, 1959. 5. In its objections, the Retail Clerks contends that the Regional Director erred in failing to give it notice of the instant petition and thereafter refusing to postpone the election upon being notified of the Retail Clerks' interest among the employees in the unit involved and its desire to be placed on the ballot. JEWEL TEA CO., INC., EISNER FOOD STORES DIVISION 321 The record discloses that on November 1, 1958, the Retail Clerks notified the Regional Director of its interest in employees in this Employer's stores in the Champaign-Urbana, Illinois, area, and there- after, pursuant to notice from the Regional Director, participated in an election among employees in that area, which is 23 to 60 miles from the stores involved herein. Subsequently, on April 9, 1959, the Retail Clerks notified the Regional Director, in writing, of its interest among the employees in the unit herein involved and requested postponement of the election scheduled to be held'April 11, 1959. No evidence of interest was submitted with the April 9 letter. At approximately 3 p.m. on April 10, 1959, one authorization card was submitted, signed by an employee in the Charleston store. No additional cards have been submitted. We agree with the Regional Director that under the circumstances the November 1, 1958, letter of the Retail Clerks was insufficient to apprise the Regional Director that it had an interest in the employees involved herein. Similarly, we feel that the Regional Director was not arbitrary in refusing to postpone the election to permit the Retail Clerks to participate in the election on the basis of an interest showing of 1 card out of a unit of 70 employees, submitted several hours before the close of business on the day preceding the scheduled election herein. Having found the objections to be without merit, and as the Peti- tioner has received a majority of the valid ballots cast in the election,, we shall certify it as the collective-bargaining representative of the employees in the appropriate unit. [The Board certified United Retail Workers Union (Independent) as the designated collective-bargaining representative of the em- ployees in the unit herein found appropriate.] CHAIRMAN LEEDOM, dissenting : The Board, in overruling the objections to this election, is denying a place on the ballot to a union which was entitled to participate in the election both because it met the Board's requirements therefor and because of the representations of the Regional Director with which it fully complied. In adopting the Regional Director's recommendation that the ob- jections be overruled, my colleagues apparently agree that, under the circumstances, he properly found that the showing of interest of the Retail Clerks International Association, AFL--CIO, was "so late and so insubstantial" that "it should not be permitted to interfere with a scheduled election." The showing of interest was, however, not late. It has customarily been Board practice, in consent-election cases, to place on the ballot the name of any union which presents, as here, in advance of the election 525543-60-vol. 124-22 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date, a showing of interest dated prior to the Regional Director's approval of the consent-election agreement. The instant union was never given notice of this proceeding. It inquired by letter, received by the Chicago Regional Office on April 9, about the pending election, expressing a desire to participate. By telephone call later that day, it explained to the Regional Director that its authorization cards were in Terre Haute, Indiana. The Regional Director thereupon advised the union to have the cards in the Regional Office the next day, April 10. In accordance with these -instructions, the Union presented a card, dated prior to the approval of the consent-election agreement, at 3 p.m. on April 10. Clearly, therefore, the presentation was timely, as customarily required by the Board, and as represented by the Regional Director himself. Nor was the showing of interest insufficient. The Board does not require a "substantial" showing of interest for participation in an election by an intervenor.' Indeed, the Board customarily deems a single authorization card to be sufficient for this purpose. Accordingly, as the union's interest showing was sufficient and timely, its name should have been placed on the ballot. I would there- fore set the election aside and direct a second election with both unions on the ballot. 1 See, e.g., Beneke Corporation, 109 NLRB 1191 ; Hughes Gun Company, 97 NLRB 913; Boeing Airplane Company, 86 NLRB 368. Anchor Aluminum Corp. and Textile Workers Union of America, AFL-CIO, Petitioner. Case No. 9-RC-10046. August 4, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing of- ficer of the National Labor Relations Board. His rulings made at the hearing are free from prejudicial error and are affirmed. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Mem- bers Rodgers, Jenkins, and Fanning]. Upon the entire record, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 1 The Employer and the Intervenor , United Brotherhood of Aluminum & Metal Work- ers of North America, NOITU , assert as a bar to this petition their contract executed 124 NLRB No. 40.