American Stores Co.

National Labor Relations Board - Board Decisions

Jan 21, 1944

54 N.L.R.B. 756 (N.L.R.B. 1944)

In the Matter of AMERICAN STORES Co21IPANY and JERSEY
WAREHOUSEMEN AND HAULERS UNION
Case No. 2-fl-41161.-Decided January 21, 1944
Mr. Cyril W. O'Gorman, for the Board.
Mr. Fred W. Johnson , of Philadelphia , Pa., and Mr . Paul J. Cupp,
of South Orange, N. J., for the Company.
Mr. William E. Kennedy , of Orange , N. J., for the Independent.
Messrs. Harold Krieger and Walter J. Gibney, of Jersey City, N. J.,
for the A. F. of L.
Miss Melvern R. Krelow , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Jersey Warehousemen and Haulers
Union, herein called the Independent, alleging that a question affect-
ing commerce had arisen concerning the representation of employees1
of American Stores Company, Kearny, New Jersey, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Samuel H. Jaffee, Trial Exam-
iner. Said hearing was held at Newark, New Jersey, on November
22, 1943. The Company, the Independent, and Merchandise Drivers
Union, Local 641, International Brotherhood of Teamsters, Chauffeurs,
Stablemen and Helpers of America, A. F. of L., herein called the
A. F. of L., appeared, participated, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the hearing, the A. F. of L. moved
to dismiss the petition. The Trial Examiner reserved ruling to the
Board. The motion is hereby denied. The Trial Examiner's rulings
made at the hearing are free from prejudicial 'error and are hereby
affirmed. All parties were afforded opportunity to file briefs with
the Board.
Subsequent to the hearing, the A. F. of L. filed a motion to reopen
the record for the purpose of taking testimony to show that none of
54 N. L. R. B., No: 114.
756
AMERICAN STORES COMPANY 757
the employees involved herein are members of the Independent, and
that no such organization as the Independent is now in existence.
For reasons hereinafter set forth, the motion is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
American Stores Company, a Delaware corporation, operates over
2,000 retail stores, and 9 warehouses in the States of Pennsylvania,
New York, New Jersey, Delaware, Maryland, Virginia, West Virginia,
and the District of Columbia. This proceeding involves only the
Kearny, New Jersey, warehouse. During the year immediately prior
to November 1, 1943, the Company received for distribution to its
retail stores located in the northern part of the State of New Jersey,
staple and perishable food products, valued in excess of $100,000, of
which 50 percent was received at the Kearny warehouse from points
outside the State of New Jersey. The Company sold these food
products to the retail stores owned and operated by it in the northern
part of the State of New Jersey. The Company admits that it is
engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
Jersey Warehousemen and Haulers Union is an unaffiliated labor
organization, admitting to membership employees of the Company.
Merchandise Drivers Union, Local 641, International Brotherhood
of Teamsters, Chauffeurs, Stablemen and Helpers of America, is a
labor organization affiliated-with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 15, 1941, the A. F. of L. and the Company entered
into a collective bargaining contract, covering all warehouse em-
ployees except supervisory and office employees, and providing by its
terms that it was to remain in full force and effect until March 14,
1943, and thereafter from year to year unless either party gave notice
by February 14 of any year of a desire for change or termination,
and that pending negotiations "neither party shall change the condi-
tions existing under this contract." Notice having been given by the
A. F. o] L. to the Company, on February 2, 1943, a supplementary
agreement was executed on March 24,1943. This agreement provided
for an increase in wages of 5 cents an hour, subject to the appro 7al of
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the War Labor Board,' but in all other respects "renewed in its en-
tirety" the contract which expired March 14, 1943. The supplemen-
tary agreement, effective March 15, 1943, was to remain in full force
and effect until March 18, 1944.
On July 21, 1943, the Independent notified the Company that it
represented a majority of the Company's employees, and requested
recognition, which the Company refused, on the ground that it was
under contract with the A. F. of L.
Since the current contract may be' terminated upon appropriate
notice in less than 1 month from now, we find that the contract is not
a bar to a, present determination of representatives. However, any
certification of representatives which we may issue as a result of the
election herein provided for shall be for the purpose of designating
a representative to negotiate a new contract to succeed the contract
expiring March 18, 1944, now in effect.2
A statement of the Regional Director introduced into evidence at
the hearing indicates that the Independent represents a substantial
number of employees in the unit hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Independent and the A. F. of L. are in general agreement that
all employees of the Company in the )Kearny warehouse, including
watchmen, engineers, and working foremen, but excluding supervisory
and clerical employees constitute an appropriate unit. The Company
1 No approval or disapproval at the date of the bearing had been received from the War
I abor Board
'See Matter of Chrysler Motors Parts Coi poration, 38 N. L. R. B. 1379; Matter of
Houde Engineering Corporation, 36 N L R B 587
8 The Regional Director reported that the Independent presented 97 authorization cards,
of which 68, 52 dated between June and October 1943, 16 undated, pear apparently genuine
signatures of persons whose names appear on the Company's pay roll dated July 31, 1943.-
Said pay roll contains the names of 137 employees in the unit.
The Regional Director further reported that the A. F. of L. submitted 196 application
cards, of which 27 bear the names of persons whose names appear on the Company's pay
roll. Of the 27 application cards, 2 dated in September and 1 in October 1941, 24 undated,
26 bear apparently genuine signatures and 1 is printed The Secretary-Treasurer of the
A. F of L stated that the undated application cards were secured in 1941 and 1942. The
A. F. of. L. also furnished a list of 32 members making dues payments in May 1943. Of
the 32, 18 appear on the Company's pay roll.
As heretofore stated, the A. F. of L. filed a motion to reopen the record, which motion
was accompanied by an affidavit and a document entitled "withdrawal of Petition for
Election" allegedly signed by a majority of the employees involved herein The A. F. of L.
contends, in view of this signed document, that the Independent no longer represents any
employees, is no longer in existence, and that, therefore, no question concerning representa-
tion exists. Since the Independent controverts the contentions of the A. F. of L, and
since no formal request for withdrawal of the petition has been filed by the Independent,
the petitioner, we believe that the determination of the representation issue thus raised
can best be resolved by the election which we shall hereinafter direct.
AMERICAN STORES COMPANY 759
took no position with respect to the unit. The only dispute which has
arisen concerns truck drivers, whom the Independent desires ex-
cluded from the unit, and the A. F. of L. desires included.
The Company employs approximately four drivers who operate
Company-owned trucks, are on the Company's pay roll, and are paid
by the week 4 The Company is also under contract with certain
individuals who own trucks and either drive themselves, or supply
drivers, herein called contract drivers, to pick up and deliver mer-
chandise for the Company. These drivers are not on the Company's
pay roll, but are paid pursuant to the contract between the Company
and the "contract carrier" in accordance with the "tariff" provided
therein. In view of the foregoing, we are of the opinion that the
contract drivers should be excluded from the unit. We shall, there-
fore, exclude them from the unit. We shall, however, include the
drivers, listed on the pay roll of the Company.
We find that all employees of the Company in the Kearny, New
Jersey, warehouse, including truck drivers on the pay roll of the Coln-
pany, watchmen, engineers, and working foremen ,5 but excluding con-
tract drivers, clerical employees, and all supervisory employees with
the authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with American Stores
Company, Kearny, New Jersey, an election by secret ballot shall be
4 These drivers were employed by the Company about 4 to 6 weeks prior to the hearing
in order to supplement a shortage of contract drivers.
6 The record discloses that these employees , of whom there are four, do not have the
authority to hire, discharge , or to recommend such action , nor do they have the authority
to otherwise effect changes in the status of employees with whom they work.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted as early 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 Second Region , acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11 , of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction , including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election , to determine whether they desire to be represented by
Jersey Warehousemen and Haulers Union, or by Merchandise Drivers
Union, Local 641, International Brotherhood of Teamsters , Chauffeurs,
Stablemen and He of America , for the purposes of collective
bargaining , or by neither.