Rival Foods, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1946

71 N.L.R.B. 622 (N.L.R.B. 1946)

In the Matter of RIVAL FOODS, INC., EMPLOYER and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL UNION No. 663, AFL, PETITIONER
Case No. 1-R-41176.-Decided November 8, 1946
Mr. Benjamin E. Gordon, of Boston, Mass ., for the Employer.
Mr. Basil D . French, of Manchester , N. H., for the Petitioner.
Mr. Leonard J. Mandl, of counsel to the Board.
DECISION
AND
ORDER.
Upon a petition duly filed, hearing in this case was held at Boston,
Massachusetts, on August 20, 1946, before Julius Kirle, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Rival Foods, Inc., a Massachusetts corporation, is engaged in the
business of buying and selling wholesale groceries. The Employer
operates branches located at Fitchburg and New Bedford, Massachu-
setts, and at Portsmouth, New Hampshire. The instant proceeding
concerns only the Portsmouth, New Hampshire, branch.
The Employer purchases for its Portsmouth branch, products worth
in excess of $50,000 annually, of which approximately, 50 percent repre-
sents shipments from points outside the State of New Hampshire.
Sales at this branch exceed $50,000 annually, of which in excess of 20
percent represents shipments to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
71 N. L. R. B., No. 92.
622
RIVAL FOODS, INC. 623
H. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer , within the meaning
of Section 9 (c) and Section 2 (6) and ( 7) of the Act.'
IV. THE APPROPRIATE UNIT
Petitioner seeks a unit of all drivers, drivers' helpers, warehousemen,
selectors and warehousemen helpers at the Employer's Portsmouth,
New Hampshire, branch, but excluding part-time warehouse laborers,
executives, official and clerical employees, the working foreman,2 and
all other supervisory employees. The sole dispute between the parties
relates to the working foreman whom the Employer would include in
the unit. There is also some question as to the disposition to be made
of two employees classified as floor foremen and assistant shippers,
whom the parties agree to include.
The working foreman. This employee has charge of the shipping
room and first floor of the plant involved, subject to the over-all super-
vision of the plant manager. He assembles and checks loads, spend-
ing approximately 50 percent of his time doing similar manual labor
to that of his subordinates. While he has no authority to hire, fire,
promote, or discipline, he can effectively recommend such action. The
Employer concedes that lie is a supervisory employee, but would in-
elude him on the ground that it is the custom in the industry to in-
chicle this type of foreman in a rank and file unit. In support of its
position it relies on a contract entered into between Petitioner and
1 At the hearing, the Emp1o^ or contended. in effect, that an inconclusive election held in
the alleged appiopiiate unit, on February 26, 1946, less than a year betore the (late of the
hearing, constitutes a bar to this proceeding nowe'er, inasmuch as we are administia-
tively advised that the Petitioner not only represents a substantial number of employees
in the unit hereinaftei found appropiiite, but also has obtained all its designations since
the pnor election. we find no merit in the Emploiers position Matter of General Lima-
tuie and Maiiufacturiiiit Company, 69 N L It B 768, Matter of Americana Tri-State Paper
Board Company, (iii N I. It B 126 11attei of Gasoline Panel Company, 62 N L R B
418, Matte of Columbia Li, craft Co, psiatioa, 60 N. L R. B 257.
Ralph L'latchford
7177.14-47-vol 71---41
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several wholesale grocery concerns including the Employer 3 wherein
working foremen were included in the same unit with rank and file
employees. However, it is clear that this single contract, while per-
tinent on the issue, fails to establish such a custom' Moreover, the
Board has in the past excluded employees with similar functions from
similar units.5 In addition, we note that the consent election agree-
ment preceding the inconclusive election of February 26, 1946, to
which the Employer and-Petitioner were signatories, provided for the
exclusion of supervisory employees, without qualification, from an
almost identical unit with that now requested by the Petitioner.6
Accordingly, for the reasons stated above, and on the basis of the
entire record, we shall exclude the working foreman from the unit as
a supervisory employee.
Floor foremen and assistant shippers. There are two employees in
this classification, i. e., James Gray and Louis Hammond. Gray is
assigned to the basement and Hammond to the first floor, where they
work under the supervision of the working foreman. Like the work-
ing foreman, each one directs the work of his subordinates and can
effectively recommend changes in the employment status of such sub-
ordinates. As noted above, the parties have agreed to include these
employees. However, inasmuch as they are clearly supervisory em-
ployees within our customary definition of that term, we see no reason
for distinguishing between them and the working foreman. Accord-
ingly, we shall exclude tJie floor foremen and assistant shippers from
the unit.
We find, therefore, that all drivers, drivers' helpers, warehousemen,
selectors and warehousemen helpers at the Employer's Portsmouth,
New Hampshire, branch, but excluding part-time warehouse laborers,
executives, office and clerical employees, floor foremen and assistant
shippers, the working foreman, and all or any other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recom-
mend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Rival Foods, Inc., Portsmouth,
3 The Employer was one of the signatories to this contract, but only its Cambridge plant
was covered by the agreement The agreement was executed approximately 5 years ago
and has been renewed annually thereafter, the latest ienewal being in the fall of 1945,
effective as of July 1, 1945
4 Matter of Virgania Electric and Power Compenar, 68 N L R B 504
5 Matter of Griffin-Goodner Grocery Company. 62 N L R B 1140
6 There are minor differences in the unit which are not herein material
RIVAL FOODS, INC. 625
New Hampshire, an election by secret ballot shall be conducted as early
as possible, but not later than thirty (30) days from the date of this
Direction , under the direction and supervision ofthe Regional Direc-
tor for the First Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Sections 203.55 and 203.56, of
National Labor Relations Board Rules and Regulations-Series 4,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether or not-they desire to be represented by
International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Local Union No. 633, AFL, for the purposes.
of collective bargaining.