Delchamps, Inc.

DELCHAMPS, INC. 179 Delchamps, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America Local 442, AFL-CIO. Case 15-RC-5096 April 23, 1974 DECISION ON REVIEW AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 13, 1973, the Regional Director for Region 15 issued a Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate and directed an election in a unit of all meat department employees, including meat department managers, employed by the Em- ployer at its stores in Mobile and Baldwin Counties, Alabama.' In so finding, he rejected the Employer's contention that the meat department managers were supervisors as defined in the Act.2 Thereafter, in accordance with Section 102.07 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a request for review of the Regional Director's decision on the ground, inter alia, that the Regional Director erred in finding the meat department managers at the involved stores not to be supervisors. The Employer also moved to reopen the record for further evidence as to that issue, and it again moved to dismiss the petition, renewing its allegation that the meat department managers participated in the solicitation of authorization cards for the Petitioner and that the showing was therefore tainted. By telegraphic order dated May 9, 1973, the National Labor Relations Board denied the Employer's request for review. The election was held on May 11, 1973. The tally of ballots therefor showed that, of approximately 85 eligible voters, 51 cast valid ballots for, and 30 against, the Petitioner, and 4 cast challenged ballots. The Employer filed timely objections to the election. After an investigation, the Regional Director, on July 24, issued a Supplemental Decision and Certification of Representative, in which he overruled the Employ- er's objections. Thereafter, the Employer filed a request for review of his Supplemental Decision on the grounds, inter alia, that he erred in overruling its objection to conduct engaged in by meat department managers during the crucial period before the election and in refusing to consider new evidence which it had submitted to show that at the time they I The Petitioner's primary request was for a unit of meat department employees in the Employer 's 14 stores in Mobile County. In the alternative, the Petitioner expressed a willingness to include similar employees at two of the Employer's stores in Baldwin County. 2 The Employer, at the hearing and in its brief to the Regional Director, also moved to dismiss the petition, which was filed on February 20, 1973, on the ground that the Petitioner's showing of interest to support it was tainted engaged in such conduct they were supervisors as defined in the Act. By telegraphic order dated September 10, the Board granted the Employer's request for review; remanded the case to the Regional Director for the purpose of conducting a hearing with respect to (1) the status of the meat department managers at the time of the election and at the time of the alleged objectionable conduct attributable to them, and (2) whether they engaged in objectionable conduct; directed the Hearing Officer designated to conduct the hearing to prepare a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board; and stayed the certification issued by the Regional Director pending decision on review. Pursuant thereto, a hearing was held before Hearing Officer George L. Card, Jr., on October 11 and 12, November 5 through 9, 13, and 14. All parties appeared and participated at the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. On December 20, the Hearing Officer issued his report in which he found that the meat department managers were, at all times critical herein, supervi- sors as defined in the Act and that they engaged in objectionable conduct; and he recommended that the election be set aside and a new one conducted. Thereafter, the Employer and the Petitioner filed timely exceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Hearing Officer's report and the exceptions thereto, and makes the following findings: At the earlier hearing herein, the Employer's vice president and corporate secretary, Joel Swanson, testified that the meat department managers not only schedule, assign, direct, train, and evaluate meat department employees in the performance of their respective tasks, but also possess the authority to grant time off, select individuals for overtime, reprimand, discipline, and recommend pay raises, by supervisory participation When the Hearing Officer sustained objections to the Employers efforts to elicit testimony as to the matter , it made an offer of proof that the testimony sought to be elicited would show that the meat department managers were responsible for 70 percent of the Petitioner's showing of interest . The Regional Director denied the motion to dismiss as the matter was one for administrative determination 210 NLRB No. 40 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transfers, promotions, and/or discharges. None of the meat department managers was called as a witness. The Regional Director, in concluding that the meat department managers were not supervisors as defined in the Act, relied in part on the fact that the record did not reveal to what extent, if any, they had ever exercised the authority attributed to them by Swanson nor the extent to which the direction of employees was other than routine. There were approximately 85 employees in the unit, including the 18 meat department managers. As a result of the Regional Director's determination and the Board's denial of the Employer's request for review thereof, the meat department managers were included in the unit. The record indicates that 15 of them voted in the election.3 The Employer's Objections II through V alleged that (1) the meat department managers induced and influenced employees under them to support and vote for the Petitioner; (2) the meat department managers told the employees that they would not receive wage increases and would be subject to adverse working conditions or other treatment adverse to them unless they signed cards, supported, and/or voted for the Union in the election; (3) the meat department managers were permitted to vote in the election; and (4) the participation by meat department managers deprived the Employer of its statutory rights to determine and designate who shall constitute its management. Because of his earlier determination that the meat department managers were not supervisors as defined in the Act, the Regional Director refused to consider new evidence submitted by the Employer to show that they were supervisors at the time they engaged in alleged objectionable conduct and he overruled these objec- tions. As indicated, we granted the Employer's request for review and remanded the case for a hearing as to these matters. In his report, the Hearing Officer found, on the basis of all the testimony credited by him, including the testimony of 13 of the 18 meat department managers, that meat department managers at all critical times herein were supervisors as defined in the Act.4 There was substantial evidence that meat department managers in fact exercised the superviso- ry authority attributed to them at the earlier hearing by Swanson. In addition, there was evidence that some of them hired and fired employees. We therefore affirm the Hearing Officer's findings. As to the alleged objectionable conduct, the 3 The Petitioner challenged the ballot cast by one meat department manager The other 14 voted without challenge 4 The Petitioner has excepted to certain credibility findings made by the Hearing Officer relating to this issue It is the Board's established policy not to overrule resolutions with respect to credibility unless a clear preponder- ance of all the relevant evidence convinces us that the resolutions are clearly Hearing Officer found, on the basis of testimony which he credited, that the meat department manag- ers joined and supported the Petitioner from the beginning of its campaign to organize the employees involved and continued their active and open support through the "critical period." 5 Many of them joined the Petitioner and solicited employees under them to join. Four or five of them were on the Petitioner's organizing committee established prior to the filing of the petition. They distributed, solicited signatures to, and collected cards for the Petitioner. They attended and urged employees to attend union meetings. They wore union pins and urged employees to vote for the Petitioner. The Hearing Officer found no credible evidence that meat department managers made threats that em- ployees under them would not receive wage increases and would suffer other adverse treatment unless they supported the Petitioner. However, because the authorities possessed and exercised by the meat department managers are of the type which greatly affect working conditions, he found that the open support of the Petitioner by some of them would tend to restrain employees in their right not to support the Petitioner. The Employer contends, on the basis of these findings of the Hearing Officer, that not only should the election be set aside but the petition should be dismissed. We agree. It is clear that the Regional Director' s earlier determination as to the status of the meat depart- ment managers was based on an inadequate record and was erroneous. As found by the Hearing Officer, meat department managers, each of whom on average supervises about four unit employees, joined the Petitioner, assisted in obtaining the showing of interest to support the instant petition, and continued their open support for the Petitioner throughout the election campaign. Many of them cast unchallenged ballots in the election. We thus cannot escape the conclusion that their inclusion in the unit, by reason of the erroneous finding that they are not supervi- sors, and their activities in support of the Petitioner, had such a pervasive effect upon employee free choice as to require the setting aside of the election. Further, the totality of the circumstances described above leads us to conclude that it will best effectuate the policies of the Act to vacate the election conducted herein and to order the dismissal of the instant petition.6 in error Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 5 He noted, however, that some of the meat department managers did not support the Petitioner, and that one urged employees to vote no.- 6 See Lamar Electric Membership Corporation, 164 NLRB 979. DELCHAMPS, INC. 181 ORDER IT IS FURTHER ORDERED that the instant petition be, It is hereby ordered that the election hereinbefore and it hereby is, dismissed. conducted be, and it hereby is, vacated; and