American Stores Co.

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 915 (N.L.R.B. 1953)

AMERICAN STORES COMPANY 915
After careful consideration of all the facts and the arguments
presented here, the Board concludes that its fronting doctrine,
formulated as it was as a policy to discourage circumvention
of the Act's filing requirements , 3 should have no application
to the question of contract bar presented here. In this connec-
tion we emphasize the fact that the International is the sole
union party to the contract urged as a bar, that no question
concerning its exclusive representation of these employees
was raised at the time, and that the subordinate union . entities
alleged to have been "fronted for " later achieved compliance,
before this proceeding was begun. We deem our decision in
Fein's Tin Can Co., Inc. and Atlas Can Corporation, 99 NLRB
158, inapplicable in this situation . Accordingly , we find that
the February 5, 1952, contract is a bar to a present determina-
tion of representatives.
[The Board dismissed the petition.]
Chairman Herzog took no part in the consideration of the
above Decision and Order.
AMERICAN STORES COMPANY and LOCAL 804, UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL, Petitioner. Case
No. 5-RC-1245. June 30, 1953
DECISION AND ORDER
Upon a petition duly filed , a hearing was held before Henry
A. Segal, a hearing officer of the National Labor Relations
Board. The hearing officer ' s rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three - member panel [Members
Houston, Murdock, and Styles].
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 labor organizations named below claim to represent
employees of the Employer.
3. No question of representation exists concerning the
representation 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:
Since 1938 the International Union of Operating Engineers,
AFL, Locals Nos. 272 and 272A, the Intervenor herein, has
bargained for the Employer ' s Zone No . 6 engineers and main-
tenance men in the Baltimore , Maryland , area. Beginning in
1948 the contractual unit has described these employees as
3See Lane Wells Company, 77 NLRB 1051, 79 NLRB 252
105 NLRB No. 133.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refrigeration mechanics, plant mechanics, bakery mechanics,
and firemen. The chief plant engineer is also listed in the
contract unit. The Petitioner now seeks to represent a unit
confined to the 10 refrigeration mechanics, which group
consists of 1 refrigeration shopman, 4 refrigeration roadmen,
1 refrigeration stock-control man, 2 refrigeration mechanics,
and 2 chief refrigeration mechanics whom the parties stipulated
to be working foremen, not supervisory within the meaning of
the Act. These employees with refrigeration classifications
constitute one-half of the contract unit. The other half consists
of the plant group, with a chief plant engineer (stipulated by
the parties as a nonsupervisory working foreman), 4 plant
mechanics, and 2 firemen, and the bakery group, with a chief
bakery mechanic (also stipulated by the parties as a nonsuper-
visory working foreman) and 2 bakery mechanics. The parties
also stipulated, without testimony having been offered, that
the zone engineer constitutes the sole supervisor for all these
classifications.
Although these three groups punch separate time clocks
because of the different points at which they report, they have
the same working conditions and benefits. The plant group
spends 99 percent of its time at its headquarters in the zone
warehouse operating the boiler, the large ammonia-refrigera-
tion system, an air-conditioning system, and various pumps,
conveyors, and packaging machines. At least 4 of these 7 men
are licensed engineers . One of them, who is not licensed,
works only on electric floor trucks and transporting equipment.
The bakery group likewise spends 99 percent of its time
in the bakery portion of the warehouse, maintaining ovens,
mixing machines, slicing and wrapping machines, conveyors,
and cooling and heating equipment relating to these functions.
However, it appears that any refrigeration work that these
3 men do is of a minor character.
The refrigeration group reports at the shop across the
street from the main warehouse and, as a group, spends about
80 percent of its time in work at retail stores of the Employer.
Actually 7 of the 10 men do this outside work, which includes
maintaining the refrigerating and air-conditioning systems,
heating equipment, conveyors, and other electrical equipment
in the individual stores . They also install refrigerating
equipment in these stores and have installed air-conditioning
equipment in some of them. They also help out on maintenance
work of various kinds in the plant or bakery when necessary.
The remaining 3 of these 10 men spend their time in the
shop ''coordinating part of the activity that is performed by
the group." Admittedly a "majority" of their time is spent
in what might be termed strictly refrigeration work. Presum-
ably the remainder is spent in various mechanical repairs.
One of these three is the stock-control man, who also acts as
secretary to the zone engineer , and orders and maintains
stock for refrigeration, plant, and bakery maintenance em-
ployees, as well as for the carpenters. The stockman testified
AMERICAN STORES COMPANY 917
that he had been a refrigeration mechanic apprentice but had
been doing the stockwork since a physical injury handicapped
him.
The Employer testified that its 2-year apprentice system,
which is recognized in the contract and characterized by a
progressive _percentage of the journeyman wage, starting at
60 percent, had in recent years been applied only to the
refrigeration group because the other 2 groups had remained
static . It is clear on the record that men in the refrigeration
group have been employed either as apprentices or as experi-
enced refrigeration men. One man in the plant group was
employed with previous refrigeration experience. He has
requested a transfer to the refrigeration group, which is higher
paid apparently because these men are required to do the
outside work . None of the refrigeration group is a licensed
engineer . Except in an emergency they have nothing to do
with the ammonia-refrigeration system handled by the plant
engineers.
The Employer and the Intervenor urge the appropriateness
of the contract unit, contending that the group requested by
the Petitioner is not a true craft group suitable for severance
from the existing unit. They contend that the refrigeration
employees " interchange " with the plant , and the bakery main-
tenance employees , but the record shows little in this regard
except in connection with emergencies . Witnesses for the
Petitioner admitted that the incidental repair of slicing
machinery , for instance, did not constitute refrigeration work.
The Board has customarily found that refrigeration and air-
conditioning employees do not constitute a skilled craft group
suitable for severance .' Here we note that an apprentice
system does exist for the Employer ' s maintenance employees
in Baltimore and has in recent years been applied only to
those classified as refrigeration mechanics . But apart from
the issue of the craft characteristics of these refrigeration
mechanics , who are either hired as fully experienced re-
frigeration employees or serve an apprenticeship , the Peti-
tioner seeks too restrictive a unit, excluding as it does those
of the plant mechanics who operate the ammonia - refrigeration
system and plant air - conditioning system and necessarily have
similar skills. At the hearing it evinced no interest in any
other unit, on jurisdictional grounds apparently. We shall
therefore grant the Intervenor ' s motion to dismiss the peti-
tion. See International Harvester Company, McCormick Works,
92 NLRB 1504, 1506; Westinghouse Electric Corporation,
101 NLRB 663.
[The Board dismissed the petition.]
'United States Rubber Company, 96 NLRB 564; Ford Motor Company, Aircraft Engine Divi-
sion. 96 NLRB 1076, 1079; Abbotts Dairies, Inc , 97 NLRB 1064, 1068