Jewel Tea Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1955

111 N.L.R.B. 1368 (N.L.R.B. 1955)

1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Employer contends that in view of the instability in its.
operations the Board should not conduct an election among its em-
ployees. We reject this contention. Though the Employer makes no
effort to rehire employees from season to season, the record shows that
from 20 to 25 percent of its employees employed during a particular
season are employed the following season. In view thereof we find
that it will effectuate the policies of the Act to direct an election
herein.' Because of the greater length of the corn season and the
greater number of employees employed during that season, we shall
direct the holding of the election at or near the peak of the corn sea-
son operations,' on a date to be determined by the Regional Director
among the employees in the appropriate unit who are employed dur-
ing the payroll period immediately preceding the date of the issuance
of the notice of election by the Regional Director.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
6 Oregon Frozen Foods Company and Ore-Ida Potato Products , Inc, supra.
7 Oregon Frozen Foods Company and Ore-Ida Potato Products, Inc., 108 NLRB 1668.
JEWEL FOOD STORES, A DEPARTMENT OF JEWEL TEA CO., INC. and JEWEL
FOOD STORES EMPLOYEES UNION, INDEPENDENT . Cases Nos. 13-RC-
3597 and 13-RC-3598. March 31,1955
Decision Clarifying Certification of Representatives
On February 16, 1954, following a stipulation for certification upon
consent election executed by the parties on January 20, 1954,1 and an
election held on February 6, 1954, the Regional Director for the Thir-
teenth Region certified the Independent as bargaining representative
for all full time clerks employed by Jewel Food Stores at stores lo-
cated "in and around Chicago. . . ." Thereafter, on August 30, 1954,
the Employer filed with the Board its petition for clarification of the
aforesaid certification, claiming that two new stores located at Ham-
mond and Gary, in Lake County, Indiana, and any other stores that
may subsequently be opened within the same geographic area are in-
cluded within the unit for which the certification was issued. On Sep-
1 Prior thereto, on September 25, 1953, Food Handlers of Metropolitan Chicago, Local 55,
AFL, herein called the Butchers , had filed a petition in Case No . 13-RC-3597 . On Septem-
ber 28, 1953 , Retail Clerks International Association , AFL, herein called the Retail Clerks,
had filed its petition in Case No. 13-RC -3598. The Butchers , the Retail Clerks, the Em-
ployer, and Jewel Food Stores Employees Union, Independent , herein called Independent,
which had been certified as bargaining representative for the Employer 's employees in
1946, were parties to the stipulation for certification upon consent election.
111 NLRB No. 207.
JEWEL FOOD STORES 1369
tember 10, 1954, the Board remanded the proceeding to the Regional
Director for the purpose of conducting a hearing on the issues raised
by the Employer's petition for clarification.
Pursuant to notice,2 a hearing was held before George Squillacote,
hearing officer. All parties were represented by counsel, participated
in the hearing, were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to
the issues involved. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the basis of the evidence adduced at the hearing and on the
entire record in this case, the Board makes the following findings:
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations named below claim to represent certain
employees 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.
The Employer is a department of Jewel Tea Co., Inc., a New York
corporation, which is engaged in the processing and distribution of
foods and other products through home service routes and food stores
throughout the United States. This proceeding involves only the Em-
ployer's retail food stores, all of which are located in Chicago and its
vicinity.
At the time of the above-noted certification, the Employer operated
approximately 163 stores, all of which were located in northeastern
Illinois in the Chicago area. In addition, the Employer was in the
process of constructing 13 more, 2 of which were located in Lake
County, Indiana, at Hammond and Gary, respectively. An Independ-
ent contract covering the existing stores had terminated on Novem-
ber 28,1953.
On April 5, 1954, and pursuant to the certification, the Employer
and the Independent negotiated a contract covering the employees in
the certified unit. The contract recognized the Independent as bar-
gaining representative for all the Employer's store employees "located
in Northeastern Illinois and Northwestern Indiana within a 100 mile
radius of Chicago."
On June 17 and July 15, 1954, respectively, the Employer opened
in Gary and Hammond, Indiana, the stores which were in the process
of construction on the date of the election and certification. There-
upon, the Employer recognized the Independent as the representative
of the employees in these two stores, the Employer's first in the State
of Indiana.
' Although the Butchers was served with notice of hearing , It did not appear at the
hearing.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about August 26, 1954, the Retail Clerks commenced picket-
ing the two Indiana stores. As a result thereof, the Employer with-
drew its recognition of the Independent as to these two stores, and
filed with the Board the instant petition for clarification of the certifi-
cation. On September 14, 1954, the United States District Court for
the Northern District of Indiana granted the Regional Director's peti-
tion to enjoin the Retail Clerks' picketing of the Employer's Indiana
stores.
The Employer and the Independent contend that they intended the
language of the stipulated unit, "in and around Chicago," to include
Hammond and Gary, Indiana ; that the Hammond and Gary stores
subsequently opened in these cities are but an accretion to the certified
bargaining unit; and that the said stores are therefore covered by the
existing certification. The Retail Clerks, on the other hand, contends
in effect, that the language of the certified unit does not include Ham-
mond and Gary, Indiana; that the Retail Clerks did not intend the
stipulated unit to include Indiana stores, or stores in any area outside
the geographical jurisdiction of the Retail Clerks' locals affiliated with
the Chicago Joint Council.' The Retail Clerks further contends that,
as the Employer operated no stores in Indiana at the time the parties
stipulated to the unit, the Hammond and Gary stores are not included
in the certified unit.
A primary question for determination, therefore, is whether the
parties, in stipulating to the language , "in and around Chicago," in-
tended the unit to cover the area which includes the Hammond and
Gary stores .' Based upon the record in this case, and for reasons too
lengthy to recite here, we find that, although at the time of the stipu-
lation each party may have had the unit intentions herein alleged, the
Retail Clerks on one hand, and the Employer and Independent on the
other, in stipulating to the language "in and around Chicago," never
communicated their presently alleged understanding of the mean-
.ing of such language to each other. Accordingly, as it appears that
the mutual intent of the parties is not a matter that may be ascer-
tained from the record, the Board must of necessity examine the ex-
pressed agreement and effect a reasonable construction thereof to de-
termine whether the two Indiana stores are properly included in the
unit as stipulated.'
3 The Retail Clerks' Chicago Joint Council is comprised of three locals whose juri$dic-
tion, as set up by the parent International , is apparently confined to Chicago and sur-
rounding Illinois area . A nonmember Retail Clerks ' local has jurisdiction over the Indiana
area here involved
4 The parties agree that all of the Illinois stoics , including many that are 40 miles or
more from the center of Chicago , are encompassed by the phrase "in and around Chicago,"
and disagree only on whether the Indiana stores fall within this terminology.
5 For reasons noted in Clarostat Mfg Co , Inc., 105 NLRB 20 at 22-23, we find without
merit the contention of the Retail Clerks, raised throughout the hearing, that the purpose
of said hearing is to determine the intent of the parties in agreeing to the stipulated unit,
and that, if the unit requires clarification , the Board must determine, not what it con-
eludes to be an appropriate unit as a de novo matter , but what the parties in fact estab--
lished as the appropriate unit.
JEWEL FOOD STORES 1371
As basis for construing the phrase "in and around Chicago" and
thus establishing the scope of the appropriate unit, the Board will
,consider the nature of the Employer's operations. The record in this
case discloses that the Employer's entire chain of approximately 167
retail stores,6 all of which are located within a 60-mile radius of the
center of Chicago, are controlled from the Employer's headquarters
located at 3617 South Ashland Avenue in Chicago under a vice presi-
dent in charge of store operations. It further appears that, under the
vice president, there are three superintendents, each of whom is in
charge of an administrative division, which in turn, is broken down
into districts. Each district is under the supervision of a district gro-
cery manager and a district meat manager.' That the operations of the
Employer are of the type that is continually fluctuating is shown by
the fact that during the period from January 1, 1951, through October
7, 1954, 57 new stores were opened and 45 closed, a process which aver-
ages out to an opening or closing every 2 weeks.' '
The highly centralized character of the Employer's operations is
demonstrated by the fact that common and uniform personnel policies,
operating bulletins and instructions to clerks, uniform wage rates,
and prices for all stores in the Employer's chain are established at,
and originate from, the Employer's Chicago headquarters. All stores
are serviced from the Employer's two Chicago warehouses.' All full-
time employees are hired at the division headquarters where the
prospective employees are interviewed, given physical examinations,
and all permanent records, including social insurance, are kept. Each
store manager reports directly to his district manager, and has no
authority to hire or discharge employees. Transfer of employees from
store to store is not infrequent, and all employees participate in the
Employer's profit sharing, and health and welfare plans.
From the foregoing, it is clear that the Employer's operations are
centralized to an extremely high degree; that these operations cover
,all its stores, including those in Hammond and Gary," within the area,
in and nearby Chicago, a geographical limitation which we regard as
9 This figuie fluctuates from month to month due to the Employer 's practice of opening,
,closing , and relocating stores
7 The north division includes approximately 60 stores in 4 districts and extends some 60
miles from the Chicago headquarters to its most distant store in Crystal Lake, Illinois.
The central division also includes approximately 60 stores in 4 districts and extends west
to Aurora and Geneva , Illinois The south division , of which the 2 Indiana stores are a
part, includes approximately 47 stores in 3 districts , and extends south and east to Park
Forest, Illinois , and Gary, Indiana.
8 Since the January 20, 1954, stipulation , 12 stores , including the 2 Indiana stores, have
opened, and 11 have closed
B A third warehouse is being constructed in Melrose Park , Illinois, a Chicago suburb
10 It is to be observed that geographically , the city of Hammond is contiguous to Chi-
cago ; that Gary is contiguous to Hammond ; and that both are a part of Lake County,
located in northwest Indiana . Furthermore , it is recognized that both stores, located but
a few miles from Chicago , are much closer to the city limits than many of the Illinois
stores which are considered by the parties to be "in and around Chicago."
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent to the metropolitan area.11 The Board has
often indicated that, absent unusual circumstances, the appropriate
collective-bargaining unit in the retail grocery trade should embrace
employees of all stores located within an employer's administrative
division or geographical area.l3 Thus, in proceedings involving retail
chain stores, the Board has frequently found appropriate units con-
forming to a geographical area." As noted by the Board in the Crown
Drug and Busch Kredit decisions, the fact that such an area may cross
State lines and covers cities in more than one State does not alter the
appropriateness of the unit.14 The Board has consistently refused to
accord controlling weight to the fact that the jurisdiction of a local,
as set by its parent International union, is limited and extends only
to certain stores of an employer."
It appears, on the facts recited herein, that a unit excluding the two
Indiana stores finds no support in the nature of the operations of the
Employer or in its-organizational structure.16 The Employer's stores
in the metropolitan Chicago area not only conform to an administra-
tive division, but also comprise the whole chain. Furthermore, since
the certification of the Independent in 1946, a period of 9 years, the
Employer and the Independent have bargained on a companywide
basis, including therein, employees of all the Employer's stores. These
factors, together with the fact that the employees in the Employer's
entire store operations work in a distinct metropolitan geographical
area 17 and share a similarity in community of interests obtaining
from the social and economic integration of such a large metropolitan
area, indicate the appropriateness of a unit comprising all the Em-
ployer's stores in the Chicago metropolitan area.
Under all the circumstances herein noted, and particularly in view
of the fluctuating nature of the Employer's business and the 9-year
history of collective bargaining on an employerwide basis, we find for
the purposes of this proceeding only and without modifying the unit
11 See C. Pappas Company, Inc ., 80 NLRB 1272, wherein the language " in and nearby"
was used interchangeably with the word "metropolitan." See also, Busch Kredit Jewelry
Co, Inc., 97 NLRB 1386 , wherein the Board found appropriate a unit of retail stores in
metropolitan Chicago which included , inter alia, Gary, Indiana.
12 See Safeway Stores, Incorporated , 96 NLRB 998 at 1000; The Great Atlantic & Pa-
cific Tea Company, 99 NLRB 1500
i9 See Crown Drug Company, 108 NLRB 1126 ( Greater Kansas City Metropolitan area) ;
The Great Atlantic & Pacific Tea Company, supra ( Birmingham , Alabama, metropolitan
area ) ; Worth Food Market Stores, Inc., 105 NLRB 682 (Greater Fort Worth , Texas, stores) ;
Food Fair Stores, Inc., 83 NLRB 852 (Greater Miami, Florida , area ) ; Giant Markets, Inc.,
107 NLRB 10 (Scranton , Pennsylvania , area ) ; and Colonial Stores, Incorporated, 84
NLRB 558 ( Greater Atlanta area).
14 See Goldblatt Brothers, Inc, 86 NLRB 914, where the Board found appropriate a
unit of retail stores comprised of 11 Chicago stores, and single stores in Gary, Hammond,
South Bend , Indiana, and Joliet , Illinois. These stores, as in the instant case, embraced all
stores in the Employer 's chain.
'S Schaf er Stores Co., 22 NLRB 1446.
16 Both Indiana stores constitute a part of a district in the Employer's south division.
17 See Buatoni Foods Corp ., 111 NLRB 644 , citing, inter alia, Crown Drug Company,
supra.
SPARTAN AIRCRAFT COMPANY 1373,
description 18 as defined by the parties and certified by the Board,,
that the Hammond and Gary, Indiana, stores are included in the ap-
propriate unit for which the Independent has been certified as exclu--
sive bargaining representative.is
38 The unit referred to in the Board 's certification is hereby found appropriate for pur-
poses of collective bargaining within the meaning of Section 9 ( b) of the Act.
19 We deem it unnecessary at this time to determine the extent or exact boundaries of-
the metropolitan area described as "in and around Chicago," or whether the "100-mile"
contract provision adopted by the Employer and Independent falls within the scope of this
language. The question as to whether the unit includes any future stores which might
be opened outside the existing territorial unit area must be determined when and if it
arises upon a representation petition.
SPARTAN AIRCRAFT COMPANY and LOCAL 790, INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, AFL, PETITIONER. Case No. 16-RC-15219.
March 31, 1955
Supplemental Decision, Order, and Second Direction of Election
Pursuant to a Decision and Direction of Election issued herein on-
December 3, 1954,1 and election by secret ballot was conducted on-
December 28, 1954, under the direction and supervision of the Re-
gional Director for the Sixteenth Region, among employees in the unit
found appropriate by the Board. Following the election, a tally of'
ballots was furnished the parties. The tally shows that of 358 votes
cast in the election, 149 were for the Petitioner, 173 against Petitioner,
1 was void, and 35 challenged. The challenged ballots were sufficient
in number to affect the results of the election. The Regional Director
conducted an investigation of the challenged ballots and in his report
thereon recommended that 11 of the 35 challenges be sustained on the-
grounds that 10 of these ballots were cast by ineligible employees and
that 1 of them was cast by an employee who did not appear at the polls
until after the agreed closing time. He found it unnecessary to resolve-
the issues as to the 24 remaining challenges as they are not determi-
native of the election. No exceptions have been filed to the Regional
Director's recommendations as to challenged ballots, and in the ab-
sence of such exceptions we hereby adopt his recommendations.
On December 31, 1954, and January 4, 1955, the Petitioner filed'
timely objections and amendments thereof to conduct affecting the re-
sults of the election. The Regional Director investigated the objec--
tions and, on February 2, 1955, duly served upon the parties his report
on objections, in which he recommended that the Petitioner's objec-
tions concerning the Employer's conduct in sending known supervisors
to the polls and a leadman's action in engaging in electioneering at the
1 Not reported in the printed volumes of Board Decisions and Orders.
111 NLRB No. 210.