Krambo Food Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1958

120 N.L.R.B. 1391 (N.L.R.B. 1958)

KRAMBO FOOD STORES, INC . 1391
Company, 117 NLRB 1732, the General Counsel has failed to establish the minimum
jurisdictional standards sufficient to sustain his case.
Absentee ownership of the capital stock of the New York operating and manage-
ment corporations in itself is not enough to show that the employer , whether con-
sidered as Combined Century or any other of the Respondent Corporations or to
establish that the Respondent Corporations are engaged in activities affecting com-
merce within the meaning of the Act. The Board, in Modern Linen & Laundry
Service, Inc., 110 NLRB 1305, refused under the standards established by it in 1954
to assume jurisdiction of a Vermont laundry and dry cleaning service whose stock-
holders also controlled some other nine New York corporations engaged in the same
or related business operations . The Board said in that case that the Vermont laundry
business was not an integral part of a multistate enterprise . On the question of
multistate operations and ownership of stock, Modern Linen would seem to be
controlling here.
The Board heretofore has held that it would not effectuate the policies of the Act
to assert jurisdicition over instrastate motion picture theaters . Keamco, Inc., 90
NLRB 652; Wilpert Amusement Company, Inc., 90 NLRB 1866; Moving Picture
Projectionists' Local No. 150, etc. ( Southside Theatres, Inc., etc. ), 109 NLRB 259.3
The prior refusals of the Board to assert jurisdiction in this type of case has im-
plicit approval of the Supreme Court of the United States in Guss v. Utah Labor
Relations Board, 39 LRRM 2567, where the Court recognized the right of the Board
in its discretion to choose not to exercise jurisdiction conferred upon it by the Con-
gress within standards laid down by the Board. The Respondents in support of
their motions to dismiss the complaint , call attention (among others ), to cases in
which the Board has declined to accept jurisdiction over hotels, race tracks, and
other enterprises essentially local in character although not unrelated to commerce.4
On the facts disclosed at the hearing herein , it has been shown that the display
or exhibition of films in neighborhood motion picture houses in New York, under
license agreements made between distributors and exhibitors , presents a factual
situation where the Board by precedent and jurisdictional standard can refuse
to assert jurisdiction.
For the reasons stated, the motion to dismiss the complaint upon jurisdictional
grounds is hereby granted.
3 Cf Balaban & Katz, 87 NLRB 1071.
4 See Hotel Employees Local No. 255 etc. v. Boyd Leedom, 147 F. Supp. 306 (D. C.,
D. C.) ; Miami Beach Hotel Association , 36 LRRM 1447 ; N. L. R. B. v. Denver Building
and Construction Trades Councsl, et al, 341 U . S. 675, 684; Los Angeles Turf Club, Inc,
90 NLRB 20; Checker Cab Co., 110 NLRB 683; see also Federal Baseball Club of Balts-
more, Inc. v. National League, 259 U. S. 200 and Martin v. National League Baseball
Club, 174 F 2d 917 (C A. 2).
Krambo Food Stores, Inc. and Krambo Independent Union, Peti-
tioner. Case No. 13-RC-5505. June 12, 1958
SUPPLEMENTAL DECISION AND DIRECTION OF SECOND
ELECTIONS
Pursuant to a Decision and Direction of Elections,' elections by
secret ballot were conducted in the above proceeding on December
5, 1957. The results were as follows : In voting group 2, with approxi-
mately 70 eligible voters and 63 valid votes cast, the tally was 41
votes for Intervenor Retail Clerks, 20 votes for Intervenor Teamsters
Local 158, 2 challenged ballots, and no votes against participating
unions. In accord with the Board's direction that the ballots of this
group were to be pooled with those of voting group 1, unless group
2 voted against representation, the ballots were pooled. Thus the
1 119 NLRB 369.
120 NLRB No. 188.
J392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
;tally for voting group 1, with approximately 557 eligible voters and
-494 valid votes cast became : 7 for Petitioner, 250 for Intervenor
Teamsters Local 158, 227 for Intervenor Retail Clerks, 4 against par-
ticipating unions, and 6 ballots challenged.
Thereafter both Petitioner and Intervenor Retail Clerks filed
;timely objections to conduct of the elections. In accordance with the
Rules and Regulations of the Board, the Regional Director conducted
an investigation of the objections, and on January 23, 1958, issued
.and served on the parties his report on objections, in which he found
no merit to the objections and recommended that the Teamsters be
.certified as the bargaining agent of the employees in the unit
„embracing the two voting groups. _
The Retail Clerks filed timely exceptions to the report on objections
.concerning the rulings on certain of its objections.a
One of the exceptions filed herein concerns the bargaining meeting
of November 13 between the Employer and the Teamsters as the in-
-cumbent union. This meeting occurred a week after the Board's
decision, in the crucial preelection period. The Regional Director
found that the Teamsters presented to the Employer a complete set
.of contract proposals, that the negotiation of specific proposals was
postponed by reason of the Direction of Elections, but that the Em-
.ployer did grant the Teamsters' general proposals to make the effec-
tive date of a subsequently agreed-upon wage increase retroactive to
October 19, 1957 (the wage reopening date in the Teamsters' con-
tract) and to continue to permit the processing of grievances and the
functioning of union stewards under the terms of the contract. The
-next day the Teamsters distributed a flier to the employees empha-
sizing that the Employer had negotiated with the Teamsters and that
retroactivity on the wage demands had been secured to October 19.
'The-Regional Director also found that the Retail Clerks later dis-
tributed to the employees a copy of a latter to it dated November 25
from the Employer stating a willingness to negotiate with respect to
wages retroactively no matter which union was chosen in the election.
This, the Regional Director found, neutralized the effect of the
Teamsters' flier. We consider this conclusion unresponsive to the
real issue here, which is not the neutralization of untrue or misleading
.statements, but rather the impact which the negotiating meeting and
its publication to the employees had upon the employees' free choice in
the election. Under the Board's rulings in Electric Auto-Lite 3 and in
a Petitioner has filed a motion to allow its exceptions to stand although untimely. We
.do not pass upon this motion in view of our decision, based on similar exceptions , to over-
rule the Regional Director and set aside the election.
S Electric Auto -Lite Company, 116 NLRB 788, 790-791, where the Board stated : "It is
:the Board 's considered view, based on experience in conducting representation elections,
that promises of benefit to employees and acts according prestige to unions, made after a
.question concerning representation has been found to exist by the Board and prior to the
resolution of this question by an election, tend to interfere with employee freedom of
.choice so zealously guarded by the Board."
KRAMBO FOOD STORES, INC. 1393
Kiekhae f er Corporation,' we find that the recognition and affirmative
concessions accorded the Teamsters by the Employer at the November
13 meeting, and the Teamsters' immediate publication of the same,
accorded to that union an advantage and prestige in the crucial pre-
election period which tended to interfere with employee freedom of
choice in the elections. The foregoing conduct, which we find ob-
jectionable, takes on added significance when viewed against the back-
ground of unusual circumstances surrounding the Teamsters'
acquisition of bargaining status at the Employer's plant, and the
Employer's execution of a contract with Teamsters which the Board, in
these circumstances, found not to constitute a bar to the direction of
the instant elections.5
Our dissenting colleagues would discount the impact on the impend-
ing election of the Employer's consent to the bargaining meeting with
Teamsters, and its affirmative agreement to continue the Teamsters'
steward system and processing of grievances. They assert that the
Employer could not do otherwise in view of the incumbency of the
Teamsters. Also, they would divorce from the Employer's overall
conduct-and neutralize-the agreement at the meeting to make a
wage raise retroactive to the reopening date of Teamsters' contract.
We believe, on the contrary, that it is the totality of the conduct which
must be considered and that such conduct, as we have already said,
assumes its proper perspective and significance when evaluated against
the background circumstances surrounding the Teamsters' acquisition
of bargaining status or "incumbency." 6 Viewed as a. whole it seems
clear that the November 13 meeting, as publicized, was an act accord-
ing substantial prestige to the Teamsters in the eyes of the employees,
after the question concerning representation had been found to exist
by the Board. This the Electric Auto-Lite and Kiekhae f er cases,
supra, ruled objectionable, and both of these cases involved incumbent
unions.' In addition, in the Kiekhae f er case recently issued, the
Board (Member Bean not participating) expressly stated, "We recog-
nize that this ruling is not entirely consistent with the Board's holding
in William D. Gibson Co., 110 NLRB 660. However, we question the
validity of that decision and, therefore, decline to apply the principle
1
' Kiekhaefer Corporation , 120 NLRB 95.
6 Krambo Food Stores, Inc , 119 NLRB 369.
6In so doing our colleagues contend that we violate the rule in F. W. Woolworth Com-
pany, 109 NLRB 1446, where the Board said that it would consider on the merits election
objections based upon interference only when such interference had occurred after the
decision and direction of election , or the execution of a consent agreement, as the case
might be. Obviously this rule has nothing to do with the interpretation of post direction
of election interference in the light of background evidence . The Board has long used
background evidence to evaluate subsequent conduct. See N L. R. B. v. Reed i Prince
Manufacturing Company, 205 F. 2d 131, 139-140 (C. A. 1) ; News Printing Co., Inc.,
116 NLRB 210, 212.
71n Electric Auto -Lite an oral agreement as to a contract was actually reached in the
preelection period, but in ,Kiekhaefer the employer and the incumbent simply continued to
negotiate for a contract and to process grievances much as in the instant case.
4 83142-59-vol. 120-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopted therein in this case." 8 The doctrine of the Gibson case per-
mitted an employer to deal with and accord support to an incumbent
union as an exception to the Midwest Piping rule,' which prohibits
an employer from recognizing or supporting one of competing unions
during the existence of a question concerning representation.
Accordingly, we overrule the Regional Director's conclusion as to
this objection, and shall set aside the elections and order that new
ones be held. In view of our determination to set aside the elections,
it is unnecessary to consider the remaining objections.
[The Board set aside the elections held on December 5, 1957.]
[Text of Direction of Second Elections omitted from publication.]
CHAIRMAN LEEDOM and MEMBER BEAN, dissenting :
We are unable to agree with our colleagues that this election should
be set aside. We subscribe, as do they, to the principle of the Electric
Auto-Lite and Kiekhae f er cases that promises of benefits and other
actions by an employer according prestige to unions, including the
granting of concessions to incumbent unions, made during the period
between the Board's direction of election and the holding of the elec-
tion, tend to interfere with the employees' freedom of choice. How-
ever, we do not agree that there is warrant for application of the
principle here.
The majority finds that the Employer interfered with the election
in three respects, i. e., by holding a meeting with Teamsters during
this period; by agreeing to permit its stewards to continue to process
grievances and otherwise function as stewards under the contract;
and by agreeing that any subsequently negotiated wage increase would
be effected retroactively.
Teamsters had been the recognized bargaining representative of
these employees for several months at the time the Board directed
this election and was, as the Board's decision stated, "holding meet-
ings and processing grievances, and in general acting as bargaining
representative pursuant to [its] contract." As the incumbent union,
Teamsters had the right to administer its contract during the pre-
election period, and the Employer could not infringe upon that right.
And any disparity of treatment between Teamsters and the Petitioner
involved no wrongdoing by the Employer but rather derived from
Teamsters' incumbent status.1° Therefore, the Employer by meeting
with Teamsters and by permitting its stewards to continue to process
O Koekhaefer Corporation , 120 NLRB 95 , footnote 1.
9 Midwest Piping & Supply Co , Inc, 63 NLRB 1060 . For the Board ' s recent reaffirma-
tion of the Midwest Piping rule , see Novak Logging Company , 119 NLRB 1573 , and The
Wheland Company, 120 NLRB 814
10 Seaboard Terminal and Refrigeration Company, 114 NLRB 754 , 755. See also Superior
6'leeprite Corporation, 117 NLRB 430, 432.
GENERAL MARINE CORPORATION 1395
grievances, was not granting concessions lending additional prestige
to the Union, but was merely permitting the incumbent union to
continue to administer its contract, as it was required to do. While
the Employer's agreement to make any subsequently granted wage
increase retroactive might, standing by itself, be vulnerable, its effect
was totally dissipated and effectively neutralized by its letter to the
opposing union, thereafter fully publicized, explaining that the Em-
ployer would negotiate on an identical retroactive basis with which-
ever union won the election.
Nor can we agree that the circumstances surrounding Teamsters'
acquisition of bargaining status or the execution of its contract may
be considered to add "significance" to the Employer's conduct. As
those circumstances occurred before the Board's Decision and Direc-
tion of Election, consideration of their significance in connection with
objections to the election is contrary to the rule adopted in F. W.
Woolworth Company." The Board there held that, in the interest
of insuring equitable and orderly administration of the Act, election
objections based upon interference which occurs prior to the issuance
of the decision and direction of election will not be considered by the
Board.
Accordingly, as the Employer's conduct did not, in our opinion,
interfere with the employees' free choice in the election, we would
adopt the Regional Director's recommendations, overrule the objec-
tions, and certify Teamsters as the bargaining representative of these
employees.
11109 NLRB 1446. See also National Furniture Company, Inc., 119 NLRB 1.
General Marine Corporation and Seafarers International Union
of North America, Atlantic & Gulf District , AFL-CIO. Case
No. 15-CA-946. June 13, 1958
DECISION AND ORDER
On September 30, 1957, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and the Respondent filed a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
120 NLRB No. 185.