Food Haven Inc.

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CoNcLusIoNu of LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Hod Carriers and Laborers Local Union 116, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act 3. By maintaining an exclusive hiring-hall arrangement with Local Union 116 and the attendant failure to advise employees or prospective employees of all the terms of such arrangement by an adequate posting of the terms of such arrangement, the Respondent has violated Section 8(a) (1) and (3) of the Act 4 By maintaining an illegal exclusive hiring-hall arrangement the Respondent has acted discriminatively toward Jesse Jamerson in violation of Section 8(a)(1) and (3) of the Act 5 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 I Food Haven, Inc.' and Food Store Employees Union Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case No 9--&C-3733 February 16, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(e) of the National Labor Relations Act, a hearing was held before Theodore K. High, hearing officer The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 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 Beata and Fanning] 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 organizations I involved claim to represent certain em- ployees of the Employer 4 3 A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act The name of the Employer appears as amended at the hearing At the hearing, the Employer moved to strike certain. "voluntary" statements made by a witness for the Petitioner The hearing officer referred this motion to the Board We shall deny this motion since we find that, even if the statements were improper the Employer was not prejudiced thereby 3 United Construction Workers, Division of District 50, United Mine Workers, herein referred to as Intervenor, was properly permitted to intervene at the hearing on the basis of an existing contractual interest 4 The Employer refused to stipulate that Petitioner is a labor organization As Peti- tioner exists for the purpose of representing employees in dealing with employers regard- ing wages, hours, and conditions of employment, we find that it is a labor organization within the meaning of the Act 126 NLRB No 82 FOOD HAVEN, INC. 667 Petitioner seeks a unit composed, with the usual exceptions, of the employees of the Employer at its Charleston, Cross Lanes, Whites- ville, and Eskdale, West Virginia, stores. The Intervenor moved to dismiss the petition on the ground that it was filed within the "insu- lated period" of the contracts entered into between the Employer and Intervenor covering the employees sought in the petition. The peti- tion was filed on July 6, 1959. The Employer and Intervenor entered into an agreement on August 1, 1957, effective until August 1, 1959, covering the employees at the Eskdale and Whitesville stores.' On August 22, 1957, the Intervenor and Employer entered into an agree- ment, to terminate on August 22, 1959, covering the employees at the Charleston store. In December 1958 Intervenor and the Employer executed amendments to the contracts, deleting article III quoted be- low, from both contracts. Petitioner contends that the contracts are not a bar, inter alia, because they are illegal on their face. The Em- ployer takes no position. Article III of these agreements provides as follows : Section 1. The United Construction Workers, Division of Dis- trict 50, United Mine Workers of America, being the lawful bar- gaining agent for the employees covered by this Agreement, request that new employees shall be asked by a Union Representa- tive to sign a Union Card within fifteen (15) days of their employment. Section 20. It shall not be considered a violation of this Agree- ment where members of this Organization refuse to work among non-union employees employed by the party of the first part, directly or indirectly, when such parties refuse to make applica- tion for membership if so requested by some authorized Union Official, within the time provided in Section 1. Union will not accept them until fifteen (15) days elapses. In effect, this article says that a new employee will be asked to join the Intervenor within a stated period and if he refuses to join, other employees who are members of the Intervenor may engage in a strike. While this article is not couched in the usual language of a union- security clause, it is clear, and we find, that it is in fact a union- security clause in view of the pressure exerted by virtue of this article on the Employer to discharge employees who refuse to join the Inter- venor within the specified period and on new employees to join Intervenor to forestall such discharge.' Since the Intervenor was B This agreement was extended to cover the employees at the Employer 's Cross Lanes store by It supplementary agreement , dated January 6. 19:59 6 Bricklayers, Masons and Plasterers International Union of America. AFL-CIO, et al. (Selby-Battersby & Company), 125 NLRB 1179. See, also, Local Union No . 55, et al. (Professional and Business Men's Life Insurance Co.), 108 NLRB 363, enfd. 218 F 2d 226 (C A. 10) ; Local 269, United Brotherhood of Carpenters, etc, AFL-CIO, (The Marley Company ), 117 NLRB 107 ; Merritt-Chapman & Scott Corporation, 118 NLRB 380. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not in compliance when these contracts were executed, nor at any time thereafter, the union-security article is illegal.' Although the Em- ployer and Intervenor attempted to delete article III in December 1958, and the amendments provided that it was the intention of the parties that their agreements should comply with the Board's Key- stone decision,' in the Keystone decision itself the Board held that it will not recognize the effectiveness of agreements purporting to be rescissions or amendments of illegal union-security clauses.' Accord- ingly, we find that the contracts are not a bar to the petition herein.lo 4. The appropriate unit: The Employer owns and operates a chain of four self-service super- markets located in West Virginia. The four stores are administered from a central office located above the Charleston store and are directed by a general manager, sales manager, operational manager, and grocery and meat supervisors, responsible to the owners of the chain. The parties agree that a single unit, composed of the employees in the four stores, would be appropriate. In view of this agreement, and as an employerwide unit is presumptively appropriate, we find a unit composed of the employees of the four stores to be appropriate. The parties stipulated that regular part-time employees, defined as those who work less than 42 hours but more than 21 hours a week and who have served a 30-day probationary period, should be included in the unit and that on-call employees, defined as those who work less than 21 hours a week, should be excluded. The Board has given effect to such stipulations in the past,ii and we shall do so here. We shall, therefore, include the regular part-time employees and exclude the on-call employees. We shall also, in accord with the stipulation of the parties, exclude the office clerical employees.'2 The record contains evidence as to the duties of the grocery super- visor, meat supervisor, store managers, meat managers, stock mana- ger, produce manager, and the guard. The parties take no position as to the inclusion or exclusion of these employees. Each of the four stores has a store manager who is responsible for the "operational profit and loss" of the stores. All the employees in each store are subject to the ultimate direction of the store manager and he has the authority to hire. We find that the store managers are supervisors and exclude them. The store managers are responsible to a chainwide Du-TVel Decorative Company, at al., 125 NLRB 31. Keystone Coat, Apron & Towel Supply Company, et al. 121 NLRB 880 e At p 884. 10 Keystone Coat, Apron & Towel Supply Company, et al, 121 NLRB 880, 883 . In view of our determination herein, we need not consider Petitioner's other objections to the contract. 11 Bachmann Uxbridge Worsted Corporation, 109 NLRB 868 , footnote 9 ; The Great Atlantic & Pacific Tea Company, 118 NLRB 1276. 12 See The Mengel Company, 103 NLRB 748. FOOD HAVEN, INC. 669 meat supervisor and a grocery supervisor. We shall exclude the meat supervisor and the grocery supervisor as managerial employees.13 The meat department in each of the stores is directed by a meat manager. There are eight full-time employees responsible to the meat manager in the Charleston store and, in the other three stores, there is one full-time employee in the meat department under the meat manager. The record discloses that the meat managers "sometimes" hire employees, that they have disciplined employees and, while they have never discharged an employee, they have been told that they have authority to do so. We find that the meat managers are super- visors within the meaning of the Act, and we shall exclude them from the unit. The Charleston store also has a produce manager and a stock manager. While there is, at present, no permanent produce manager, one Booth had been acting produce manager for 3 months at the time of the hearing and he exercises all the authority of the produce manager. Booth is paid 'substantially more than most other employ- ees, is paid on a salary rather than on an hourly basis and, unlike other employees, he has no set working hours. Booth is responsible for the ordering of merchandise for the produce department and he directs the employees in the department while working side by side with them. The record, however, is not entirely clear as to his au- thority to hire, discharge, or discipline employees, and while he is authorized to recommend the granting of time off, it is not clear whether such recommendations are effective. As the record is un- clear as to the supervisory authority of the produce manager, we shall allow him to vote subject to challenge. The stock manager directs 12 employees in the stock department of the Charleston store. The responsibilities of the stock manager are, in general, similar to those of the produce manager, except that, in the absence of the store mana- ger, he is authorized to grant time off. The record is unclear, how- ever, as to his authority to hire, discharge, or discipline employees. We shall allow him to vote subject to challenge. The Employer employs a Charleston city policeman 3 to 4 days a week. The policeman wears his uniform and is armed while working and his primary duty is to direct traffic in the parking lot of the Charleston store. In addition, he assists the store manager in taking deposits to the bank and he patrols the store to prevent thefts. Since this employee spends a portion of his time performing guard duties, he is a "guard" within the meaning of the Act," and we shall exclude him from the unit. 11 The grocery supervisor is also excluded as a supervisor since he acts as one of the store managers. as Walterboro Manufacturing Corporation, 106 NLRB 1353, 1384 W. W. Wallwork Fargo, Inc., 123 NLRB 91. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. We find that the following employees constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees in the Employer's Charleston, Cross Lanes, Whitesville, and Eskdale, West Virginia, stores, includ- ing regular part-time employees, but excluding on-call employees, guards, office clerical employees, the grocery supervisor, the meat supervisor, store managers, meat managers, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER FANNING, Concurring : Though I agree with my colleagues' conclusion that the execution of article III renders the contract between the Employer and the Inter- venor no bar, I do not agree with the reasons they cite in support of such a finding. Though that article on its face does not make union membership a condition of employment, my colleagues view it as having that effect. Thus they find that it exerts pressure upon the Employer to discharge nonunion employees, whose refusal to join the union has occasioned a refusal to work on the part of union mem- bers, or member, and exerts pressure on nonunion employees to join the union to forestall such discharge. This finding rests on the assump- tion that the Employer will meet the problems created by such re- fusals to work by discharging nonunion employees in order to get the union members back to work. I do not think it is proper to assume that the Employer will thus act unlawfully when confronted with the exercise of a right it has conferred upon union employees. Such assumption reads into the contract the very requirement which the majority then relies on for the finding of illegality. I do not believe it necessary to base a finding of unlawfulness upon speculations as the action the Employer will take when confronted with the exercise of the right it has granted. I think it is sufficient that article III conditions the exercise of the right to refuse to work, without being deemed to be in violation of the contract, upon union membership. Article III is notice to nonunion employees that the Employer agrees with the Union as to the desirability of union mem- bership, even to the extent of apparent willingness to suffer the consequences of work stoppages directed at forcing nonunion em- ployees into membership. Its mere existence clearly acts to restrain those employees who desire to exercise the right afforded them by Section 7 not to join the Union. In view of these circumstances, I find that the clause removes the contract as a bar, in accordance with the Keystone decision. I join my colleagues in all other findings and conclusions.