E. J. Keefe Co.

National Labor Relations Board - Board Decisions

Jan 23, 1961

129 N.L.R.B. 1415 (N.L.R.B. 1961)

VICTORY GROCERY CO., A DIVISION OF E. J. KEEFE CO. 1415
3. By maintaining and enforcing a collective -bargaining contract containing an
illegal hiring-hall arrangement , the Respondent Associations have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(a)(3) of
the Act.
4. By engaging in the foregoing conduct Respondent Associations have engaged
in and -are engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By maintaining and enforcing a collective -bargaining contract containing an
illegal hiring-hall arrangement , the Respondent Unions have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act.
6. By engaging in the foregoing conduct Respondent Unions have engaged in
and are engaging in unfair labor practices within the meaning of Section 8(b) (1) (A)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) (7) of the Act.
[Recommendations omitted from publication.]
Victory Grocery Company, a Division of E. J. Keefe Company 1
and Citrus, Cannery, Food Processing and Allied Workers,
Drivers, Warehousemen and Helpers , Local Union 444, affili-
ated with the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Petitioner.
Case No. 12-RC-1057. January 93, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Frank James Kruzich,
hearing officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.'
i The name of the Employer appears as amended at the hearing.
2 The Employer moved to dismiss the petition on the grounds that (1) the Regional
Director did not conduct an investigation of the petition prior to the hearing as required
by Section 9(c) (1) of the Act, and (2) there was neither a proper demand for recognition
by the Petitioner , nor a refusal on behalf of the Employer . As to ( 1), it suffices to say
that the adequacy of such an investigation is an administrative matter and not subject
to collateral attack. Moreover , we are administratively satisfied that an adequate investi-
gation in the matter was conducted . As to ( 2), the record shows that the Employer at
the hearing declined to recognize the Petitioner in the unit alleged appropriate. See
Advance Pattern Company, 80 NLRB 29. The Employer also raised certain substantive
questions in its motion which are treated in the body of the Decision . The motion to
dismiss is denied.
129 NLRB No. 174.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Petitioner seeks a unit of warehouse employees, truck-
drivers, and helpers at the Employer's Lakeland, Florida, ware-
house. The Employer contends that, to be appropriate, the unit
should include its Tampa, Florida, warehouse. There is no history
of bargaining at either location. The two warehouses perform virtu-
ally identical operations, i.e., the stocking and selling of groceries
wholesale. They are physically separated by a distance of some 35
-miles. The main office for the two operations is located in Tampa,
although a small office is maintained in Lakeland. The main office
keeps all payroll and accounting records; handles all advertising;
and establishes uniform prices on all merchandise sold at each loca-
tion. All merchandise purchased by the Employer is billed to the
Tampa warehouse. As the need develops, merchandise is transferred
between the warehouses. However, there is no interchange of em-
ployees between the two locations. John F. Keefe, the Employer's
president and principal stockholder, testified that he supervises and
has final authority over the operations of both warehouses, and that
he establishes all labor relations policies, which are uniform at both
locations. Wages, hours, and other conditions of work are uniform
for all employees. The Lakeland warehouse has a separate manager,
assistant manager, and sales staff. The Lakeland manager has limited
authority; all major policy decisions, such as personnel increases and
,equipment purchases, must be approved by the Tampa office. Al-
though President Keefe on occasion has hired and discharged em-
ployees at the Lakeland warehouse, the Lakeland manager may hire
employees without consulting higher authority.
In view of the geographic separation, the separate immediate super-
vision, the lack of interchange of employees, the absence of any
bargaining history, and the fact that no labor organization seeks a
broader unit, we find, notwithstanding some degree of interrelation
between the Employer's two warehouses, that a unit confined to the
employees at the Lakeland warehouse is appropriate.'
There remains for determination the unit placement of the following
individuals :
Leroy Cason and Claude Lynn: The Employer contends that Cason
and Lynn are supervisors and should be excluded from the unit. The
Petitioner would include them. Cason and Lynn have no authority
to hire or discharge employees; nor does it appear that they may effec-
tively recommend such action. However, Lakeland's manager and
assistant manager spend very little time in the warehouse proper, and
Cason and Lynn are responsible for directing the actual operation of
the warehouse. In the course of their duties,' they direct the loading
s Kennecott Copper Corporation, 125 NLRB 107; Drexel Fi rniture Company, 116
NLRB 1434.
MISSION APPLIANCE CORPORATION 1417
and unloading of the Employer's trucks and determine the order and
manner in which the work is to be performed. They have the author-
ity to assign employees to different jobs, grant overtime to employees,
and allow employees time off for any reason they believe to be valid.
They are responsible for the training of new employees, usually re-
quiring a period of a month. On an hourly basis, Cason receives 20
percent and Lynn 10 percent more than the other employees. We find
that Cason and Lynn responsibly direct employees, and therefore are
supervisors within the meaning of the Act 4
Travis Allen: The Petitioner would include Allen as a plant cler-
ical, while the Employer would exclude him as an office clerical. Allen,
who is classified as a billing clerk, works in a separate office in the
warehouse with the manager, assistant manager, and three employees
who the parties agree are office clericals. Allen and the three office
employees perform duties which are very similar in nature, involving
the maintenance of sales and purchases records for the warehouse.
They spend 95 percent of their time in the office, and the remainder on
the warehouse floor checking certain discrepancies with Cason and
Lynn. The record indicates that they have little or no contact with
the warehouse employees. We find employee Allen to be an office
clerical, and we exclude him from the unit .1
We find the following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
All warehousemen, truckdrivers, and helpers at the Employer's
Lakeland, Florida, warehouse, including Dave Castles, and Ted
Dykas,6 but excluding Travis Allen and all office clericals, guards,
Leroy Cason, Claude Lynn, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
4 Fredraekson Motor Express Corporation , 121 NLRB 32, 34.
5 Atonuo Power Equipment Department , 118 NLRB 456, 460.
O The parties agree to include Dykas Castles performs essentially the same work as
Dykas in the cash and carry operation of the warehouse . Both employees are properly
included J Segart & Co , 114 NLRB 1159.
Mission Appliance Corporation and James A. Sweeney, Peti-
tioner and Sheet Metal Workers International Association,
Local Union 170 , AFL-CIO. Case No. 21-RD-501. January 23,,
1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Virginia M. McElroy, hear-
129 NLRB No. 173.