Associated Grocers, Inc.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations, to join or assist International Union , Allied Industrial Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment , as authorized in Section 8 (a) (3) of the Act. REALIST, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate with the Board's Regional Office , 316 Federal Build- ing, 110 South Fourth Street , Minneapolis , Minnesota, 55401 , Telephone No. 339- 0112, Extension 2601 , if they have any question concerning this notice or compliance with its provisions. Associated Grocers, Incorporated and Paul D. Jackson. Case No. 19-RC-3177. May 13, 1963 DECISION AND ORDER Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearings 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 Petitioner claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the' Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7), of the Act, for the following reasons: The Petitioner seeks to represent seven bakery truckdrivers of the Employer who are not presently being represented by the Intervenor.' The Employer contends that these employees are, or should be, mem- bers of the Intervenor and are already covered under an existing collective-bargaining agreement. The Employer is a cooperative engaged in the distribution of food products to its members, who are independent supermarket operators. It has a warehouse in Seattle from which most of the products it supplies to its members are distributed, by approximately 120 drivers in 35-foot tractor-trailers. All of Associated's tractor-trailers are of an identical type except that the trailers used to haul baked goods have heating units to keep the baked goods fresh. The duties of all 3 General Teamsters Local Union No. 174 , affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, intervened on the basis of its contract with a multiemployer association of which the Employer is a member. 142 NLRB No. 64. ASSOCIATED GROCERS, INCORPORATED 577 of the drivers are the same, the bakery drivers hauling bakery goods and drug products (which make up between 10 and 40 percent of their loads), whereas the other drivers carry general loads. All drivers have the same supervision and working conditions. Relief bakery drivers are drawn from Associated's other drivers and inter- change occurs, although not on a regular basis. Associated's drivers are represented by the Intervenor under a collective-bargaining agreement with Food Industry, Inc., a multi- employer association which represents eight grocery distributors, including Associated. This collective-bargaining agreement, which is effective from April 1, 1962, until April 1, 1965, provides in sec- tion I, 1, that Intervenor is "the sole and exclusive bargaining agency for all employees of the Employer whose job classification is set forth in this Agreement." Section VIII, 1, lists as one of the job classifications "Six Wheelers (Double Axle), Semi-Trucks and Trucks and Trailers." The seven bakery truck drivers whom Petitioner seeks to represent are apparently covered by the terms of Intervenor's collective- bargaining agreement; however, they do not receive the rate listed for their job classification. Instead, they receive a slightly higher rate which is the same as that received by bakery drivers represented by a bakery drivers local of the Teamsters (Local 227). The bakery drivers involved in this proceeding were originally members of Intervenor. Subsequently, Intervenor gave them transfer cards directing them to transfer their membership to Local 227 of the Teamsters, the bakery drivers local, because the Teamsters Joint Council had so directed Intervenor. The seven bakery drivers have refused to shift their membership to Local 227 and have been unrepresented since the be- ginning of 1961, except in regard to their interest in health and wel- fare pension funds. Intervenor is permitted by its International to represent bakery drivers if they carry "mixed loads." Pursuant to this interpretation, Intervenor represents the bakery drivers of Safe- way Stores, Inc., under the multiemployer bargaining agreement; however, the secretary-treasurer of Intervenor testified that he did not consider the carrying of 10 to 40 percent nonbakery products on 90 percent of the runs to be "mixed loads." As set forth above, the evidence presented at the hearing in this matter indicates that the Intervenor had formerly represented the seven drivers, and it represents drivers of another company, which is also a member of the multiemployer bargaining unit, who perform the same type of work as these seven drivers. Apparently the only reason for its present failure to represent these seven employees of the Employer is the directive of the Joint Council of the International that Intervenor should accede to the desire of its sister local which wishes to represent the seven drivers. The Board has held that a 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union's jurisdictional limitations in no way restrict the Board in determining the appropriateness of a proposed bargaining unit 2 As all the Employer's drivers operate the same type of tractor-trailers, have essentially the same duties and skills, are under the same super- vision, and may interchange, we find that a unit which would include only a portion of these drivers is not appropriate. We further find that the drivers in dispute are part of the unit for which the Inter- venor is bargaining representative. We therefore shall dismiss the petition. The record indicates that all the facts submitted to the Board in this proceeding were not presented to the Joint Council before it directed the transfer of the membership of the seven bakery truck drivers. We do not know whether if it had been aware of these facts, it would have made the determination it did. In any event, we find that as the seven drivers in dispute are part of the bargaining unit of truckdrivers for which the Intervenor is statutory representative, the Intervenor is under a duty fairly to represent them. The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 255; Peerless Tool and Engi- neering Co., 111 NLRB 853, 857-858, enfd. sub nom. N.L.R.B. v. Die and Tool Makers Lodge No. 113, International Association of Ma- chinists, AFL, et al., 231 F. 2d 298, 302 (C.A. 7), cert. denied 352 U.S. 833. [The Board dismissed the petition.] 2 Maybee Stone Company, 129 NLRB 487. Progressive Supermarkets, Inc. and Retail Clerks International Association, Local 1573, AFL-CIO, Petitioner. Case No. 19-RC- 3179. May 13, 1963 DECISION AND CLARIFICATION OF UNIT On January 11, 1963, following an election pursuant to stipulation for certification upon consent election in the unit agreed to by the parties, the Regional Director certified the Petitioner as the collective- bargaining representative of Employer's retail store employees, with certain exclusions.) The Employer's four assistant managers cast chal- lenged ballots in the election held on January 3, 1963, but their em- ployment status was not investigated at that time since the challenged ballots were not sufficient in number to affect the results of the election. 1 The stipulation describes the unit as all retail store employees , box boys, stockroom and produce employees, checkers, and delicatessen and regular part-time employees at Employer' s retail stores located in Billings , Montana, excluding meat department em- ployees, supervisors, and guards as defined in the Act. 142 NLRB No. 65.