Krambo Food Stores, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1957

119 N.L.R.B. 369 (N.L.R.B. 1957)

KRAMBO' FOOD STORES, INC. 369
decided to wait until ; after January to start new construction . , In the , meantime
Albrecht sought employment from Sisk, another contractor . In quitting Select
Foods and immediately going to work for DeLeon it cannot be seriously argued
that he thereby intended to remove himself from the labor market . Moreover,
his job with DeLeon was a higher -paying job and it - is reasonable to assume he
expected to continue in this line of work. However , Albrecht was precluded
from doing so by reason of DeLeon 's decision not to commence new building at
that time . Under the circumstances it cannot be said that Albrecht incurred willful
losses (Harvest Queen Mill & Elevator Company, supra , p. 327; East Texas Steel
Castings Company, Inc., 116 -NLRB 1336, 1347, 1367 ). Accordingly, the Respond-
ent's contention in this respect is rejected.
The Trial Examiner therefore concludes and finds that Albrecht is entitled to
back pay, less net interim earnings , for the period April 1, 1955, to January 3, -1956.
The Trial Examiner adopts the undisputed figures appearing in the General Counsel's
amended back-pay specification and "Corrected Earnings " memorandum and com-
putes Albrecht's back pay as follows:
2d quarter 1955:
Gross back pay------------------------------------------------------- $899 44
Interim earnings------------------------------------------------------
Net back pay-------------------------------------------------------
None
$899.44
3d quarter 1955:
Gross back pay ------------------------------------------------------- 913 28
Interim earnings------------------------------------------------------ $292.96
Expenses -------------------------------------------------------------
Net back pay---------------------------------------------------------
None
620.32
4th quarter 1955.
Gross back pay------------------------------------------------------- 976 27
Interim earnings ---------------------------------------------- -------- $575.43
Expenses------------------------------------------------------------
Net back pay----------------- -- -----------------
None
400 84
1st quarter 1956:
Gross back pay-------------------------------------------------- 14 64
Interim earnings--------- ---------------------------------------------
Net back pay----------------------------------
None
14 64
Total amount net back pay----------------------------------------- 1.935.24
[Recommendations omitted from publication.]
,Krambo Food Stores , Inc. and Krambo Independent Union, Pe-
titioner. Case No. _13-RC-550-5. November 7, 1957.
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Allen P. Haas, hear-
ing officer.- The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 here involved claim to represent certain
employees of the Employer.
3. The unit sought by the Petitioner' includes all employees in the
grocery and produce departments in the Milwaukee County, Wiscon-
119 NLRB No. 54.
476321-58-vol. 119-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'sin, stores. The contract, for this unit and all future stores in the
county, was made effective by the Teamsters and the Employer as of
March 17, 1957. The Employer takes no position on contract bar;
Retail Clerks and the Petitioner contend that it is no bar.
Teamsters Local 158 was chartered in December 1956. The "Allied
Independent Union Division" was incorporated in Local 158 in
'January 1957 in circumstances described below. Allied Independent
Unions, as such, have existed for approximately 10 years. Krambo
-Food Store employees comprise 1 group or member unit of Allied-
.apparently by far the largest, with approximately 400 members.
Pursuant to a Board-ordered election in 1954, Allied was certified to
represent the Krambo employees in the Milwaukee County stores.,
The 1955 contract between Allied and the Employer was duly opened
for negotiation before its January 1957 expiration. Sorenson,
Allied's president, testified concerning the ensuing contract negotia-
tions which were conducted on December 4, 1956, and on January 17
and March 14, 1957. At the January 17 meeting Sorenson advised
the Employer that affiliation of Allied Independent Unions with the
Teamsters had occurred on January 12, as a result of action of the
Allied executive board, of which he was chairman. _On March 12 the
Employer received a claim for recognition by the Petitioner, a union
formed as the result of dissatisfaction by Krambo employees with
the action taken by Allied to affiliate with Teamsters. The Employer
admits that it nevertheless continued with the contract negotiations
and executed the new contract naming the Teamsters as the contracting
union without making any effort to ascertain whether the affiliation
of Allied with the Teamsters had been approved or ratified by the
Krambo employees. Employee dissatisfaction with the affiliation was
further brought to the Employer's attention in April, when Teamsters
Local 158 requested the discharge of 21 employees at 1 of the Krambo
stores, comprising most of the full-time employees at that store, for
failure to pay dues as required by the union-shop provision in the
contract. The Employer's investigation at that time apparently
showed that there were many additional employees refusing to pay
dues to the Teamsters. Picketing by the Teamsters followed but was
terminated after 3 days. The Employer has not honored the Team-
sters' discharge request.
The petition herein was filed on April 23. The contract is dated
March 17, 1957, but, as the record shows, was not actually executed
and returned to the Employer by the Union until April 6. The Peti-
tioner's attempts to file earlier petitions, on March 27 and April 4,
were unsuccessful because, inter alia, it had not initiated compliance.
In support of its position that the contract is a bar, Teamsters con-
tends that the Allied affiliation was in accord with the constitution
1 See Krambo Food Stores, Inc., 107 NLRB 1544.
KRAMBO FOOD STORES, INC. 371
and bylaws of the Allied Independent Unions, and in addition, that
the employees had some notice of the possibility of affiliation at a,
membership meeting on January 8, and that Krambo employees ac-
tually ratified the affiliation action at a membership meeting on
March 17.
Article XIII of Allied Independent Unions' constitution provides
that a majority vote of the executive board is sufficient for affiliation-
affiliation being limited by that article, however, to organizations with
compatible aims and conditioned upon the continuance of local au-
tonomy for Allied 2 Allied's bylaws provide, in article VII, that each
member group shall "delegate" the person to represent it on the Allied
executive •board .3 The Krambo representative on the board was pres-
ent at the meeting on January 12 when the executive board took its
affiliation vote. However, it appears that the said Krambo representa-
tive, who had been acting in that capacity for about 4 years, was
never delegated or elected by the Krambo employees, but had either
been appointed by Sorenson, or elected by other board members. It
also appears that the Krambo representative received notice of the
January 12 board meeting several days before the meeting, and had
at least surmised its purpose, but that he made no effort before attend-
ing the meeting to ascertain employee reaction to affiliation with the
Teamsters.
Sorenson had been president and Treichler secretary-treasurer of
Allied for some years without the formality of election .4 Neither of
a Constitution of Allied Independent Unions :
Article XIII. Affiliation
SECTION 1-The Union may cooperate or affiliate only with organizations whose aims
and principles are compatible , providing such affiliations and/or cooperation does not
endanger the independent status of the Union or deprive the Union of any of its
local autonomy . A majority vote of those present at an Executive Board meeting
shall be necessary for affiliation or disaffiliation . [ Emphasis supplied.]
3 Bylaws of Allied Independent Unions :
Article VII. Membership on the Executive Board
SECTION 1 . Each Unit of Membership or Local shall be entitled to be represented by
one member on the Executive Board and shall be entitled to two ( 2) votes for the
first one -hundred - ( 100) members he represents or any portion thereof, and an addi-
tional two ( 2) votes for each hundred members beyond the first one hundred (100).
SECTION 2. Each Local or Membership Unit may select at its option one or more rep-
resentatives to conduct the affairs of its unit or local. Each Local or Membership unit
shall, however , delegate one member to serve on the Executive Board.
Concerning elections and nominations , the constitution , in article VII, provides that elec-
tions to membership on the executive board shall be by secret ballot ( section 1 ( a)), that
local or unit representatives delegated to serve as members of the executive board shall be
chosen by their respective membership at meetings called for that purpose ( section 1 (c) ),
and that acceptance of such unit or local representatives shall be subject to approval by
the officers of the Union (section 1 (d) ).
4 See Krambo Food,Stores, Incorporated, 106 NLRB 870, 872, where Sorenson is referred
to as being president in 1950.
Concerning officers , the Allied constitution provides for a 2-year term of office ( article.
IV, section 3), that each officer shall hold office until his successor shall have been duly
elected and qualified ( article IV, section 4), and that election of officers shall be held at
the biannual executive board meeting during the month of August in each even year ( article
VII, section 1 (b) ).
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these in is or has been an employee in any member unit. Both
received employment contracts with Teamsters Local 158 about the
time the affiliation action occurred. Sorenson's contract, in evidence,
is dated January 17, 1957, and provides for services as a special con-
sultant at an annual salary of $7,500 for a 5-year period, with $2,500
annual car expense. Treichler was not present at the hearing and the
details of his contract are not established.
On March 17 a membership meeting of Krambo employees was held.
Sorenson called the meeting to order and presided during part of it.
John Nichols, a Teamster representative, also presided. Witnesses
estimate the attendance at anywhere from 40 to 100, which was above
the usual attendance at such meetings. (As indicated above, the
Krambo unit consists of approximately 400.) Approval of the 1957
contract with the Employer was voted, without change from the
provisions of the 1955 contract except as to termination. Before this
vote on the contract, a report was made by Sorenson on the action
taken by the executive board on January 12 to affiliate with the
Teamsters. The official minutes of the meeting, taken by Treichler
as secretary, show no vote to ratify the Teamster affiliation. There
is testimony that these minutes were read and approved at the next
meeting on March 26, although the minutes of the latter meeting do
not show this. Another set of minutes of the March 17 meeting was
.introduced by the Teamsters which state that there was a motion
to "reaffirm our faith in the Allied Independent Units' affiliation
with Local 158 of the Teamsters" on which there was an "affirmative"
vote. These minutes were introduced in evidence as having been
taken by one Shirley Flagg for her personal use, but on cross-
examination Flagg admitted that Nichols, the Teamsters representa-
tive, had requested, before the March 17 meeting, that she take them
as "acting secretary." At the March 26 meeting Flagg was elected
recording secretary of the new Teamsters local. However, Treichler
took the minutes of that meeting, this time signing them on behalf
of Teamsters Local 158. Flagg could not recall whether the official
minutes of the March 17 meeting were read and approved at the
March 26 meeting but stated that that was customary. She admitted
that she had never urged that the official minutes of the March 17
meeting be corrected.
Testimony by individual members who attended the March 17
meeting is in conflict, both concerning notice of its purpose and
opportunity to vote upon affiliation. The consensus as to notice was
that those who attended were already aware when they arrived that
.affiliation had occurred. No written notice of the meeting was offered
in. evidence. As to, ratification of affiliation with Teamsters Local 158,
some witnesses recalled a vote being taken, and some testified that
none was taken.
KRAMBO FOOD STORES, INC. 373-
Teamsters Local 158 is holding meetings and processing grievances,
and , in general acting as bargaining representative pursuant to the
contract. The Petitioner has elected officers and also holds meetings.
Apparently Allied Independent Unions, as such, is no longer active.
The record. shows that one of its former units, made up of employees
of Wolf's Cleaners, is now represented by its own independent union
which was certified pursuant to an election, in which the Teamsters
participated, conducted by the Wisconsin State Board.
In the light of all the facts set forth above, particularly those with
reference to the purported merger or affiliation of the certified Allied
Independent Unions with Teamsters Local 158, we find that this
contract should not bar an election to decide which of the unions is
the: representative of the employees.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer,
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7)
of the Act.
4. The contract unit presently covers 10 stores in Milwaukee
County. An 11th Milwaukee County store, formerly a Kroger store,
and a store in neighboring Waukesha County, about 10 miles from
Milwaukee, are apparently covered under a single contract with the
Retail Clerks. The Retail Clerks would add these 2 stores to the
existing 10-store unit and waive their existing contract as a bar.. if
the Board should find such unit appropriate. The Petitioner and
the Employer do not oppose the proposed enlargement of the unit.
The Teamsters contends that only the existing unit is the appropriate
one.
It appears that the overall Milwaukee operation of the Employer
properly encompasses the two additional stores. Thus, all of the 12
stores obtain their stock from the same warehouse and all have the
same supervision. There is some interchange of employees among
stores, although each store does its own hiring. On the present record
we find that the 12-store unit may be appropriate. However, in view
of the bargaining history of the original 10-store unit, the employees
in the 2 additional stores are entitled to a self-determination elec-
tion as to whether they desire to be included within a 12-store unit.'
Part-time employees working 15 or more hours a week have in the
past been included in the unit. The contract specifically exempts
from union-shop coverage those employees who work less than 15
hours. The Retail Clerks would include all part-time employees; the
Teamsters has no objection. Apparently the Petitioner and the
Employer also have no objection. The record indicates that regular
part-time employees seldom work less than 1 day per week, that many
who are students work additional hours or full time in the summer,
5 See Illinois Cities Water Company, 87 NLRB 109.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they have the same supervision, and that their duties are similar
to those of other employees in the unit. Accordingly, we shall include