Lewis & Coker Super Markets, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1964

145 N.L.R.B. 970 (N.L.R.B. 1964)

-970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis & Coker Super Markets, Inc. and Meat Cutters Local
Union No. 408 , affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO and Retail
Clerks Union No. 455, AFL-CIO , Retail Clerks International
Association , AFL-CIO, Petitioners . Cases Nos. 03-RC-1765
.and 23-RC-1815. January 14, 1964
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Hearing Officer John F.
Burst. 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 these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Jenkins].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim 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.
4. Each Petitioner seeks to represent a unit of all full-time and
regular part-time employees in the Employer's eight retail foodstores
located in Houston, Baytown, and Pasadena, Texas, including produce
department managers and head custodians, but excluding meat depart-
ment employees covered by collective-bargaining agreement, guards,
watchmen, store managers, assistant store managers, and other su-
pervisors. The Employer agrees, except as indicated hereinafter,
that the proposed unit is appropriate. Contrary to the Petitioners,
the Employer would exclude produce managers and head custodians
as supervisors, and also sackers and carryout boys who have been
employed less than 18 weeks during the 52-week period preceding the
date of the Decision and Direction of Election, as nonregular part-
time employees.
Produce managers and head custodians: Each foodstore has several
departments, including grocery, produce, and drug. Each store also
has a courtesy booth and one store has a lunch counter. The parties
agree that there are no separate supervisors in the grocery and drug
145 NLRB No. 102.
LEWIS & COKER SUPER MARKETS, INC. 971
departments. Store managers and assistant store managers direct
the activities of these departments.'
The Employer's secretary-treasurer offered the only evidence as to
,.the duties and responsibilities of produce managers and head cus-
todians. His testimony was both very general and conclusory in na-
-,ture. The record shows that he had no specific knowledge of actual
operations in the produce departments and courtesy booths of the
Weight stores. As a result, important details as to the functioning of
these departments are lacking in the record. Thus, there is no evi-
dence as to the number of produce department employees in six of
the eight stores, although the record does show that in two of the
stores there are two employees in addition to the manager. Head
,custodians, also termed "head cashiers" or "head booth operators,"
work in the store courtesy booth, usually with one or two other
cashiers; one store has a head custodian, but no other cashier. The
secretary-treasurer testified generally that produce managers have
authority to change salaries and to hire and discharge employees and
that head custodians can recommend the transfer or discharge of
-.cashiers or a change in wage classifications. However, he was unable
to state to what extent produce managers and head custodians had
been advised of, or had exercised or had occasion to exercise, such
authority.
The testimony in the record is not sufficient to enable the Board at
'this time to determine whether produce managers and head custodians
.are supervisors. Accordingly, we shall permit them to vote subject to
challenge and to a later determination, if necessary, on a more com-
plete record as to their status.2
Part-time employees: The Employer employs part-time employees
in every department. These include stockers, checkers, porters,
cashiers, a drug clerk, and sackers or carryout boys. The Employer
considers that those part-time employees working between 24 and 38
.hours a week are regular part-time employees who should be included
in the unit. It contends, however, that sackers and carryout boys who
work from 13 to 24 hours a week should be excluded unless they have
worked during at least 18 weeks in the year preceding the date of is-
suance of the Board's Decision and Direction of Election. Petitioners
'would include all employees regardless of the number of weeks they
have worked.
i There is also a meat department in each store . As the parties have agreed to exclude
-employees in that department because they are separately represented , the authority of
the meat department managers is not in issue in this proceeding
2 In a 1958 proceeding the Board found that produce managers and head custodians
were supervisors . Lewis & Coker Super Markets, Inc, Case No 29-R\i-65 (unpublished).
However, a determination in this case must be made on the basis of the present record.
As pointed out above , this is inadequate to permit such determination.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the Employer's approximately 300 employees, 118 are called
sackers or carryout boys. They pack and sack mechandise for the
checkers and carry the merchandise to the customers' automobiles.
Some also do checking and stock work. They are principally high
school students from 16 to 20 years old. Four are college students.
There is no showing as to wage rates, but their hourly rate is the same
as that of the beginner produce cherks. They receive the same benefits
as all other part-time employees.
The Employer's secretary-treasurer testified that payroll figures
compiled under his direction showed that 201 sackers were employed
from May 26, 1961, to May 12, 1962, and that 118 were employed as
of May 1962. The figures showed further that the 118 working in
May 1962, 89 had been with the Employer 18 weeks or longer. The
witness also indicated that the turnover percentage among carryouts
was about the same as that of other part-time employees. He said
that if a carryout boy is a good employee, he will work week in and
week out, and acknowledged that the store manager relies on the
sacker to do so.
In the 1958 representation case the Board found that there was a
high rate of turnover among the sackers and carryout boys and there-
fore included in the unit only those who had worked for the Employer
more than 18 weeks. The testimony in that case was that turnover
among such employees was substantial and more than that of other
part-timers.
No statistical evidence was offered in the current proceeding with
respect to turnover among other part-time employees. The Employer's
witness testified that no study had been made of the turnover in
classifications other than the sackers and carryout boys. We note
that of the presently employed sackers and carryout boys, three-fourths
have worked for at least 18 weeks, which indicates a high degree of
employment stability. On the facts in this record we cannot find that
the turnover among the sackers and carryouts is so much more sub-
stantial than that of other part-time employees as to justify an
exception to the general rule that part-time employees are to be in-
cluded in the unit with other employees performing similar or related
work.' We shall include them.
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All full-time and regular part-time employees employed at the
Employer's retail foodstores in Houston, Baytown, and Pasadena,
Texas, but excluding meat department employees covered by collective-
3Wann-Dixie Stores, Inc, 124 NLRB 908, 912-913.
WAUKESHA LIME AND STONE CO., INCORPORATED 973
bargaining agreement , guards, watchmen , store managers, assistant
store managers , and other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Waukesha Lime and Stone Co., Incorporated and Drivers, Sales-
men, Warehousemen , Milk Processors , Cannery, Dairy Em-
ployees and Helpers Local Union No. 695, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Construction and General Laborers'
Union , Local No . 392, International Hod Carriers , Building
and Common Laborers' Union of America , AFL-CIO. Cases
Nos. 13-CA-5055 and 13-CA-5181. January 15, 196.4
DECISION AND ORDER
On June 25, 1963, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, 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 attached Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint. Thereafter, the Respondent i and the Charging
Party filed exceptions to the Intermediate Report. The General Coun-
sel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner with the modifications noted
hereinafter.2
1 On July 29 , 1963, Respondent filed a statement of position which was accepted by the
Board on August 8, 1963. The Board has given due consideration to such statement of
position in reaching its conclusions herein.
2 The last contract between the Respondent and the Laborers Union expired on March 31,
1962, rather than on February 8, 1962, as the Trial Examiner inadvertently indicates in
the Intermediate Report. The evidence does not show enforcement of the closed -shop pro-
145 NLRB No. 104.