National Tea Co.

In the Matter of NATIONAL TEA COMPANY and PROGRESSIVE GROCERY AND WAREHOUSE WORKERS UNION , LooAL No. 1 Case No. R-2839.-Decided September 11, 19./1 Jurisdiction : retail grocery industry. Investigation and Certification of Representatives : existence of question: re- fusal of Company to answer petitioner's request for recognition; closed-shop contract with rival labor organization, no bar to; discharged employees on behalf of whom 8 (3) charges are pending permitted to vote; election necessary., Unit Appropriate for Collective Bargaining : warehouse, manufacturing, trans- portation, and maintenance employees, excluding bakers, machinists, electri- cians, firemen, engineers and oilers, truck drivers and helpers, fish handlers, egg candlers, and supervisory and office employees ; stipulation as to. Mr. L. W. Calkins and Mr. Harold R. Kamp, of Chicago, Ill., for the Company. Mr. Francis Heisler and Mr. Stanley F. Evans, of Chicago, Ill., for the Progressive. Mr. Daniel D. Carmell and Mr. S. G. Lippman, of Chicago, Ill., for the Teamsters. Mr. Frederic B. Parkes, end, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 23, 1941, Progressive Grocery and Warehouse Workers Union, Local No. 1, herein called the Progressive, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of National Tea Company, Chicago, Illinois, 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 14, 1941, 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 35 N. L R B., No 70. 340 NATIONAL TEA, COMPANY 341 investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July 19, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Pro- gressive and upon Grocery and Food.Products Employees Union, Local 738, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers, A. F. of L., herein called the Teamsters, a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to notice, a hearing was held on July 30, 31, August 1, 4, and 5, 1941, at Chicago, Illinois, before Lester Asher, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the Progressive, and the Teamsters were represented by counsel or official representatives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear= ing on the issues was afforded all parties. Duxing the course of the, hearing, the Trial Examiner made various rulings on 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. On August 15 and 18, 1941, respectively, the Teamsters and the Progressive filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY National Tea Company, an Illinois corporation with its principal office at Chicago, Illinois, is engaged in the retail grocery business. It operates a chain of approximately 1053 retail grocery stores, of which approximately 743 are 'in Illinois, 16' in Indiana, 33 in Iowa, 10 in Michigan, 113 in Minnesota, 12 in North Dakota, 8 in South Dakota, and 118 in Wisconsin. The stores in Michigan, Minnesota, and Wisconsin are operated through subsidiary corporations. The Company operates a place of business at Chicago, Illinois, herein called the Chicago plant, with which the present proceedings are concerned, at which it is engaged in the warehousing, storing, packing, repacking, and distributing of foods and grocery products, and in the preparation of many products by baking, preserving, can- ning, bottling, pickling, and other processes. The Chicago plant is the principal point of distribution for other warehouses and retail stores owned and operated by the Company. Approximately 65 per cent of the foodstuffs and grocery products stored, packed, repacked, or processed at the Company's Chicago plant are purchased and shipped to it from points outside the State of Illinois. Approxi-' 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately 10 percent of such foodstuffs and grocery products are sold and shipped from the Chicago plant to warehouses and retail stores of the Company located outside the State of Illinois. The Company's gross sales for the fiscal year ending December 31, 1940, amounted to approximately $61,900,000. II. THE ORGANIZATIONS INVOLVED Progressive Grocery and Warehouse Workers Union, Local No. 1, is an unaffiliated labor organization, admitting employees of the Com- pany to membership. Grocery and Food Products Employees Union, Local 738, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, which in turn is affiliated with the American Federation of Labor, is a labor organization admitting employees of the Company to membership. III. THE QUESTION CONCERNING REPRESENTATION In a letter dated June 17, 1941, the Progressive requested the Company to recognize it as the collective bargaining representative of the warehouse employees at the Company's Chicago plant. The Company failed to answer this letter. On June 23, 1941, the Pro- gressive filed its petition requesting an investigation and certification of representatives. The Teamsters contend, however, that a contract originally nego- tiated between the Company and Wholesale Grocery Supplies Union,, No. 20658, affiliated with the American Federation of Labor, herein called Local No. 20658 1 and subsequently adopted by the Company and the Teamsters, constitutes a bar to this proceeding. That con- tract, granting Local No. 20658 a closed shop, was executed on April 2, 1939, and provides that it shall continue in force until March 31, 1942.2 In the'latter part of 1940, the American Federation of Labor, herein called the A. F. of L., granted to the Teamsters jurisdiction over Local No. 2d658.3 The employees of the Company who were members of Local No. 20658 4 voted on February 1, 1941, by secret ballot on the 'In January 1939, the Regional Director for the Thirteenth Region after a consent election between Local No. 20658 and United Grocery Workers Union, Chicago Local, affiliated with the Congress of Industrial Organizations , certified Local No. 20658 as the statutory representative of the warehouse employees at the Company 's Chicago plant. 2 The Company had previously , on July 29 , 1937, entered into a contract with Local No. 20658 recognizing it as the collective bargaining representative of its members. Upon the expiration of that contract on April 1, 1938 , a similar contract for the term of one year was executed by the Company and Local No. 20658. ° The Teamsters were also given jurisdiction over two other A. F. of L. unions in Chicago representing warehouse employees. 6 Approximately 400 employees of the Company -were members of Local No . 20658 at that time. NATIONAL TEA COMPANY 343 question of affiliating with the Teamsters. Two hundred and twenty- three employees voted against and 122 in favor of such affiliation.5 The Teamsters chartered Local 738 in late April 1941.° On May 15, 1941, the Teamsters notified the Company that it had been granted jurisdiction over Local No. 20658, and in a letter dated May 28, 1941, requested that the subsisting contract between the Company and Local No. 20658 be continued in force between the Teamsters and the Com- pany. On June 2, 1941, the Company agreed to this request. In protest against affiliation with the Teamsters, a group of em- ployees of the Company called a meeting on June 16, 1941, which was attended by 100-125 members of Local No. 20658, who by a vote of 81 to 1 voted to disaffiliate from the A. F. of L. and to establish an inde- pendent union, the Progressive. Thereafter, the Progressive held meetings almost every week, elected permanent officers. adopted a constitution, and rented headquarters. In view of all the circumstances, we are of the opinion and find that the contract between the Company and the Teamsters is not a bar to this present proceeding for an investigation and certification of representatives. A report of the Regional Director introduced in evidence at the hearing shows that the Progressive represents a substantial number of the employees in the unit found below to be appropriate.' 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. k The ballot presented the issue of whether or not Local No. 20658 should merge with the other two Chicago A . F. of L. unions, thereby forming one local to be affiliated with the Teamsters On January 25, 1941, the Kroger Grocery and Baking Company branch of Local 20658 at a meeting attended by 110-115 members unanimously approved the affiliation with the Teamsters ° The charter incorporated the membership of Local No . 20658 and the other two Chicago A . F. of L. unions 'The Progressive filed with the Regional Director undated petitions stating, . We, the undersigned , approve and support the temporary officers of the Progressive Grocery and Warehouse Workers Union , Local No. 1, and furthermore authorize the temporary officers of the Progressive . . . to act on our behalf." The Regional Director found that the petitions were signed by 316 apparently genuine signatures , all of which are names appearing on the pay roll of June 30 , 1941 . There are approximately 480 employees in the unit found below to be appropriate. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE, UNIT At the hearing the Company, the Progressive, and the Teamsters stipulated, and we find, that all warehouse, manufacturing, transpor- tation, and maintenance employees of the Company's Chicago plant, excluding bakers, machinists, electricians, firemen, engineers and oilers, truck drivers and helpers, fish handlers, egg candlers, and super- visory and office employees, constitute a unit appropriate for the pur- poses of collective bargaining.8 We further find that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. At the request of the Teamsters, the Company has discharged 11 employees, namely Tinaglia, Larson, Simpson, Ruth, Plath, Aleksy, Rappaport, Hansen, Siko, Schulte, and Kraft, in accordance with the closed-shop provisions of the 1939 contract, which as indicated above, was continued in force between the Company and the Teamsters. The Progressive thereafter filed charges with the Board on behalf of these employees, alleging that they were discharged in violation of Section 8 (1) and (3) of the Act. These charges are pending at the present time. The Progressive asks that these employees be allowed to vote. In view of all the circumstances, we shall allow them to vote in the election but their ballots will be impounded and not tabulated unless the results of the election make it necessary to do so. In the latter event, the question whether such ballots should be counted will await the outcome of the unfair labor practice proceedings. By allowing these discharged employees to vote under the above condition, we are in no way passing upon the merits of the pending charges .9 Accordingly, we shall direct that those persons eligible to vote ilL the election hereinafter directed shall be those in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein and the discharged em- ployees referred to above, subject to such limitations and additions as are set forth in the Direction. Upon the basis of the above findings of fact and upon the 'entire record in the case, the Board makes the following: 8 The stipulated unit is almost identical to the unit set forth in the 1939 contract between the Company and Local No. 20658, except that fish handlers were not specifically excluded from the unit by that contract. e See Matter of Irving Shoo Company and United Shoe Workers of America, Local 48, '26 N. L. B. B. 468. NATIONAL TEL COMPANY CONCLUSIONS OF LAW 345 1. A question affecting commerce has arisen concerning the repre- sentation of employees of National Tea Company, Chicago, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All warehouse, manufacturing, transportation, and maintenance employees of the Company's Chicago plant, excluding bakers, ma- chinists, electricians, firemen, engineers and oilers, truck drivers and helpers, fish handlers, egg candlers, and supervisory and office em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 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 DIIEGTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with National Tea Company, Chicago, Illinois, an election by secret ballot shall be conducted as soon as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth Region, act- ing in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all warehouse, manufacturing, transportation, and maintenance em- ployees of the Company's Chicago plant who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, and also in- cluding Tinaglia, Larson, Simpson, Ruth, Plath, Aleksy, Rappaport, Hansen, Siko, Schulte, and Kraft, but excluding bakers, machinists, electricians, firemen, engineers and oilers, truck drivers and helpers, fish handlers, egg candlers, supervisory and office employees, and em- ployees who have since quit or been discharged for cause, to determine whether they desire to be represented by Progressive Grocery and Warehouse Workers Union, Local No. 1, or by Grocery and Food Products Employees Union, Local 738, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.