First National Stores, Inc.

t In the Matter of FIRST NATIONAL STORES, INC., PROVIDENCE DI- VISION and INDUSTRIAL UNION AND MERCANTILE BENEFICIAL ASSOCIATION OF PROVIDENCE, RHODE ISLAND Case No. R-1957.-Decided August 24, 1940 Jurisdiction : retail grocery industry. Investigation and Certification of Representatives : existence of question; refusal to accord recognition to union; conflicting claims of rival representatives; closed-shop contract renewed with full notice of representation and unit claims of rival union, no bar to; union which has organized no employees in one of the elections directed, excluded from ballot; elections necessary. Unit Appropriate for Collective Bargaining Where factors are such that of a division of a Company operating grocery stores in three States, the employees in two of the States might constitute one appropriate unit and those in the remaining State might properly consti- tute another unit or the three State areas as a division might constitute a .single unit, held desires of the employees to be determinative. Practice and Procedure Petition of labor organization asserting appropriateness of a unit composed of two groups of employees among whom the Board ordered separate elections, to be dismissed, provided such organization wins election in but one of the two groups and notifies the Board within 10 days from date of Decision and Direction that it does not desire certification as the representaive of a unit smaller than that which it claimed to be appropriate. Mr. Edmund J. Blake, of Boston, Mass., for the Company. Hogan ct Hogan, by Mr. Edward T. Hogan, of Providence, R. I., for the Association. Roewer & Reel, by Mr. A. Frank Reel, of Boston, Mass., for the Amalgamated. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On June 20, 1940, Industrial Union and Mercantile Beneficial Asso- ciation of Providence, Rhode Island, herein called the Association, filed with the Regional Director for the First Region (Boston, Massa- 26 N. L. R. B., No. 117. 1275 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chusetts) a petition alleging that a question affecting commerce had .arisen concerning the representation of employees of First National Stores, Inc., Providence Division, Somerville, Massachusetts, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 6, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On July 11, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Association, and upon Amalgamated Meat Cutters and Butcher Workmen of North America, Local 328, herein called the Amalgam- ated, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice and notice of postponement, a hearing was held on July 22, 23, and 24, 1940, at Providence, Rhode Island, before Albert J. Hoban, the Trial Examiner duly designated by the Board. The Company, the Association, and the Amalgamated were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. At the commencement and at the conclusion of the hearing, the Amalgam- ated moved to dismiss the complaint for want of jurisdiction. The Trial Examiner reserved rulings thereon for the Board. These mo- tions are hereby denied. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Association and the Amalgam- ated filed briefs which have been considered by the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY First National Stores, Inc., a Massachusetts corporation, operates 2135 retail grocery and meat stores throughout the States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, and New York. Its principal office is located at Somerville, Massachusetts. The operations of the Company are divided into three divisions, Hartford, Somerville, and Providence, in each of which it maintains warehouses and bakeries that supply the retail stores FIRST NATIONAL STORES, INC. 1277 located within the divisional area. At Somerville, the Company operates a meat-processing plant, a bottling plant, and a plant for the manufacture of various food products, such as jams, jellies, gelatin, and coffee, from which it supplies all of its retail stores throughout the three divisions. It also owns a controlling interest in four other companies whose products are sold in the retail stores of the Company. The Providence Division, the only one with which this proceeding is concerned, has jurisdiction over all operations of the Company in the State of Rhode Island and small adjoining areas in eastern Connecti- cut and southeastern Massachusetts. There are 265 retail stores in the Providence Division, consisting of 192 in Rhode Island, 63 in Massachusetts, and 10 in Connecticut, all located in a closely knit industrial area within a 52-mile radius of Providence, the divisional headquarters . During the period from July 1 , 1939 , to June 30, 1940, products and goods valued at more than $7,100,000 were purchased by the Company for allocation to stores in the Providence Division. During the same period, the price of the products sold by the stores in this division exceeded $9,000,000. Approximately 60 per cent of the goods and products sold in the Massachusetts stores, and approxi- mately 90 per cent of those sold in the Rhode Island and Connecticut stores were shipped to said stores from other States. On June 22, 1940, the Company employed 1.219 persons in its Providence Division. II. THE ORGANIZATIONS INVOLVED Industrial Union and Mercantile Beneficial Association of Provi- dence, Rhode Island, is aft unaffiliated labor organization, admitting to its membership all retail store employees of the Company employed in the Providence Division, excluding supervisors, superintendents, executives, office employees, and order boys. Amalgamated Meat Cutters and Butcher Workmen of North America, Local 328, is a labor organization affiliated with the American Federation of Labor. It admits to membership retail store employees of the Company, excluding supervisors, superintendents, executives, office employees, and order boys. The jurisdiction of Local 328 is limited to employees within the State of Rhode Island. III. THE QUESTION CONCERNING REPRESENTATION The Amalgamated obtained its charter in November 1938, and during the ensuing 6 months held several conferences with the Com- pany relative to individual employee grievances. On May 19, 1939, the Company entered into a preferential-shop contract with the Amalgamated, recognizing it as the exclusive bargaining representative 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all the Company's retail store employees in the State of Rhode Island. On May 9, 1940, the Association was organized, and on May 15, 1940, it petitioned the Company for recognition as the exclusive bargaining agent of all retail store employees in the Providence Division. The company replied in a letter dated May 21, 1940, stating that it had entered into a contract with the Amalgamated covering employees within the State of Rhode Island, and that it was unable to recognize any further requests for representation in that area until such time as another organization was certified by some governmental authority - as the designated representative of the employees therein. On June 12, 1940, the Association wrote a letter to the Company protesting that the Company's 1939 contract with the Amalgamated, which had expired on May 22, 1940, furnished no sound reason why such contract should be continued or renewed, that it was the duty of the Company to refrain from entering into contractual relations with any group until the status of that group had been satisfactorily determined, and that the Association was prepared to submit convincing proof of its membership claims. On June 19, 1940, before replying to the foregoing letter from the Associa- tion and without determining the representation status of the Amal- gamated, the Company entered into a new closed-shop contract with the Amalgamated.' The following day, the Association filed its petition with the Board. There was introduced in evidence a report of the Regional Director showing that both the Amalgamated and the Association represent a substantial number of employees in the Rhode Island stores of the Company, and that, in, addition, the Association represents a substantial number of the employees in the Massachusetts and Connecticut stores. The Amalgamated contends that the contract entered into with the Company on June 19, 1940, precludes a finding that a question con- cerning representation has arisen, and that the Board should dismiss the petition filed by the Association. We find no merit in this con- tention. The Company signed the contract with full notice of the representation and unit claims of the Association and without determining the representation status of the Amalgamated. We have I In explanation of the Company's failure to secure proof of the representation claims of the Amalgamated prior to entering into the new contract , Byron M . Fleming, manager of the Providence Division , testified at the hearing that he had relied upon the Claims of the Amalgamated , upon reports of supervisors as to the number of Amalgamated buttons being worn by employees, and upon his own "feelings " that the Amalgam- ated represented a majority of the Rhode Island employees. FIRST NATIONAL STORES, INC. 1279 repeatedly held that a contract entered into under such circumstances is no bar to a representation proceeding before the Board.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Association contends that all retail store employees in the Providence Division, including store managers and part-time clerks, and excluding superintendents, executives, office employees, and order boys, constitute a unit appropriate for the purposes of collective bargaining. The Amalgamated is in agreement with the Association as to the inclusion and exclusion of the enumerated classifications of employees, but contends that the employees in the Rhode Island stores of the Providence Division constitute a separate unit appropri- ate for the purposes of collective bargaining. The Company indicated that it was in agreement with this contention. The management of the Providence Division is comprised of a division manager, a district manager, 3 supervisors, and 18 superin- tendents, who to a large extent determine and administer the operating policies of the Company. The divisional management maintains its own purchasing department, fixes prices throughout the division, controls its own inventory, establishes credit and banks funds in the name of the division, and employs and sets the wages and hours of work of all divisional employees. Wage scales, hours of work, working conditions, and employee qualifications are substantially the same throughout the Providence Division. There is, however, no collective bargaining history between the Company and any labor organization on.a division-wide basis, and the -Amalgamated's contract with the Company covering all the retail store employees in the State of Rhode Island is indicative of the appropriateness of a State-wide unit. Prior 2 Matter of Colonie Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 21514, A . F. of L., 9 N. L. R . B. 558; Matter of Precision Castings Company, Inc. and National Association of Die Casting Workers, Local #4, C. I. 0., 24 N. L. R. B. 1045; Matter of J. Edwards & Co. and United Shoe Workers of America, Local 127, C. I. 0., 20 N . L. R. B. 244; Matter of Malone Bronze Powder Works, Inc . and Malone Aluminum Corporation and Aluminum and Bronze Powder Workers Union No. 21211 , affiliated with the A . F. of L., 19 N. L . R. B. 449 ; Matter of Stokely Brothers & Company , Inc. and Van Camp's, Inc. and Federal Labor Union No. 21752, affiliated with A. F. of L., 15 N. L. R. B. 872. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining practices among the Company's employees also show that various less than State-wide units have been established throughout the three divisions of the Company.' Under these circum- stances, we find that the employees of the Providence Division in the States of Massachusetts and Connecticut, and those employed in the State of Rhode Island, might properly constitute separate bargaining units, or they might function as part of a single unit coextensive with the division. In accordance with our usual practice in similar situa- tions, we conclude that the desires of the employees themselves should be determinative.' As stated in Section VI, infra, the determination of their desires can best be made in elections which we shall direct. Upon the outcome of the elections will depend our determination of the appropriate unit or units herein. Since the record shows that the Amalgamated has.not organized any employees in the Massachusetts and Connecticut areas of the Providence Division, and since its jurisdiction is limited to the State of Rhode Island, we will not provide for the participation of the Amalgamated in the election to be held among the employees in the Massachusetts and Connecticut stores. We will therefore order one election among all retail store employees of the Company in the Massachusetts and Connecticut areas of the Providence Division, including store managers and part-time clerks, and excluding supervisors, superintendents, executives, office em- ployees and order boys, to determine whether or not they desire to be represented by the Association, and another election among all retail store employees of the Company within the foregoing classifications who are employed in the Rhode Island area of the Providence Division to determine whether they desire to be represented by the Association, or by the Amalgamated, or by neither. We shall certify the union, if any, designated by a majority of the employees within each election unit as the exclusive representative thereof. If the Association should win both elections, we shall certify it as the exclusive representative of the divisional unit. If the Association receives a majority vote in one, but not in both, of the two groups, then the group so voting for the Association shall constitute a separate appropriate unit and we shall certify the Association as the exclusive bargaining representative thereof unless within ten (10) days from. the date of this Decision and Direction of Elections the Association shall have notified us in writing that it does not desire to he certified as the representative of such unit, in which case we shall dismiss the petition. 3 At the time of the hearing, the Company had entered into 11 collective bargaining contracts with various unions, including the Amalgamated, covering employees in units less than division or State-wide. 4 Matter of Globe Machine and Stamping Co. and Metal Polishers Union Local No. 8, International Associa- lion of Machinists, District No. 54, Federal Labor Union 18788, and United Automobile Workers of America, 3 N. L. It. B. 294, and subsequent cases. FIRST NATIONAL STORES, INC. VI. THE DETERMINATION OF REPRESENTATIVES 1281 As noted above, the Association and the Amalgamated submitted to the Regional Director evidence of recent designation as representa- tives for the purposes of collective bargaining by a substantial number of employees of the Company within the respective units each claims to be appropriate. We find that elections by secret ballot can best resolve the question concerning representation. We shall, in accordance with our usual practice, direct that all employees within the alleged appropriate units who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to participate in the elections. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees of First National Stores, Inc., in its Providence Division, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for collective bargaining With First National Stores, Inc., in its Providence Division, elections by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and super- vision of the Regional Director for the First Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations; among (1) all retail store employees in the Massachusetts and Connecticut areas of the Providence Division of the Company, who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Elections, including store managers and part- time clerks, employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have since been temporarily laid off, and excluding supervisors, super- intendents, executives, office employees, order boys, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented for the purposes of collective bargaining by Industrial Union and Mercantile Beneficial Association of Providence, Rhode Island; and (2) all retail store employees in the Rhode Island area of the Providence Division of the Company, who were employed by the Company during the pay-roll period immedi- ately preceding the date of this Direction of Elections, including store managers and part-time clerks, employees who did not work during such pay-roll period because they were ill or on vacation, and em- ployees who were then or have since been temporarily laid off, and excluding supervisors, superintendents, executives, office employees, order boys, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented for the purposes of collective bargaining by Industrial Union and Mercantile Beneficial Association of Providence, Rhode Island, or by Amal- gamated Meat Cutters and Butcher Workmen of North America, Local 328, or by neither. MR. EDWIN S. SMITH, dissenting: The centralized management and the highly integrated character of the Company's operations in the Providence Division, the similarity in wages, hours, working conditions, and required skill of employees throughout the division, and the fact that conditions in the Massa- chusetts and Connecticut areas will almost inevitably be determined by conditions fixed for the Rhode Island area, all indicate the propriety of the division-wide unit as claimed by the Association. Although the existence of a previous contract should be an important factor in guiding the Board's decisions as to the appropriate unit, it is not neces- sarily conclusive.,' No basis exists for disrupting the unity of interest that exists among all employees within the Providence Division simply because a previous contract with the Amalgamated, which admittedly is no bar to an investigation and certification of repre- sentatives, embodies a different bargaining unit. I believe that a division-wide unit, which the Board found under similar circumstances in Matter of Gulf Oil Corporation and Gulf Employees Association of New England, and Oil Workers International Union, Local 881, affiliated with the Congress of Industrial' Organizations,6 would best insure to the employees of the Compaay the full benefit of their right under the Act to self-organization and collective bargaining and I would find accordingly. ' See my concurring opinions in Matter of American Can Co. and Engineers Local No . 30 Firemen & Oilers Local No. 56,13 N . L. R. B. 1252 , and Matter of Milton Bradley Company and International Printing Pressmen and Assistants Union of North America (A. F. L.), 15 N. L. R. B. 938. 5 19 N . L. R. B. 334.