Shopwell Foods, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1112 (N.L.R.B. 1949)

In the Matter of SHOPWELL FOODS; INC., BUYMORE FOODS, INC., TRADE-
WELL FOODS, INC., SHOPWELL RETAIL STORES, INC., AND TRADEWELL
FOODS OF CONN., INC., EMPLOYER and RETAIL FOOD CLERKS UNION,
LOCAL 1500, AFFILIATED WITH RETAIL CLERKS INTERNATIONAL ASSO-
CIATION, A. F. OF L., PETITIONER
Case No. 2-RC-1430.-Decided December 16,1<949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Jack Davis,
hearing officer. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Gray].
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 involved claim to represent certain em-
ployees of the Employer.
3. The question concerning representation :
The Intervenor 1 and the Employer contend that a collective bar-
gaining contract covering the employees involved in the present pro-
ceeding is a bar. The contract, which is dated June 5, 1947, expires by
its terms on June 4, 1949, but is subject to automatic renewal for an
additional 2-year period thereafter in the absence of notice given by
either party to the other, 60 days before the expiration date, that it
does not desire to renew the contract. No such notice was given in
1949, and the contract was therefore automatically renewed. On
April 29, 1949, the Petitioner requested recognition from the Em-
ployer, but it did not file the present petition until July 14, 1949.
Early in May 1949, after the automatic renewal date of the contract,
the Intervenor requested modification of the contract in accordance
I Local 305 , Retail & Wholesale Employees Union, C. I. O.
87 NLRB No. 114.
1112
SHOPWFLL FOODS, INC. 1113
with a provision of the agreement requiring renegotiation of wages
anal hours during the 30-day period preceding each yearly anniversary
date. On July 25, 1949 , the contracting parties signed a "Stipulation
of Agreement" which changed existing wage rates and extended the
coverage of the existing group insurance fund. It went further by
adding an entirely new clause which recognizes the exclusive right of
the Employer to promote employees to managerial positions , and also
provides that if an employee is promoted to a higher position ( whether
or not covered by the contract ) and thereafter is not retained in that
position , he shall be restored to his former position at the wages he
would have received had he not been promoted.
The Board has held that , when the parties during the term of a
contract attempt to change its terms beyond the scope of the modifica-
tion clause in the contract , the contract will be deemed opened, and
a petition for certification otherwise prematurely filed will be consid-
ered timely . 2 The modification clause in the present contract merely
permits renegotiation of wages and hours ; the modifications agreed
upon by the contracting parties include not only wages and hours, but
also give a new job right to promoted employees. The unmodified
contract as automatically renewed did not cover promotions and de-
motions. It is clear that this change in the contract goes beyond the
contemplated negotiations of wages and hours. - We find therefore
that the 1947 contract , as renewed in 1949, is not a bar to this
proceeding.3
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer , within the
meaning of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
4. The appropriate unit :
The Petitioner seeks to represent a unit of clerks , managers," and
other employees in the Employer 's retail stores in New York and Con-
necticut, including warehouse employees , but excluding meat depart-
ment employees , office and clerical employees , and supervisors. The
Employer and the Intervenor are in substantial agreement with the
Petitioner 's proposed unit, but would exclude the managers on the
ground that they are supervisors.
The Employer owns and operates a chain of 13 retail food stores,
12 in New York State and 1 in Connecticut. In each store , there is
a grocery department manager who is in over -all charge of the store,
and a fruit and vegetable department manager in charge of that
department . The record is clear that , although the managers spend
2 Heinsheimer Bros ., Inc., 69 NLRB 253; Cf. Boston Consolidated Gas Company, 79
NLRB 337.
3 In view of our determination of the contract bar issue on the ground discussed, we find
it unnecessary to pass upon the validity of the union -security clause in the contract.
1114 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most of their time on duties similar to those performed by non-super-
visory employees , they also supervise such other employees. They
direct their work , recommend wage increases for them, and effectively
recommend their hiring and discharge . In view of the foregoing
facts, we find that the managers are supervisors within the meaning
of the Act. Accordingly , we shall exclude them from the unit.
We find that all clerks and other employees in all the Employer's
retail stores in New York State and Connecticut , including warehouse
employees, but excluding managers , meat department employees, office
and clerical employees , guards, and supervisors as defined in the Act,
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 the Employer , an election by
secret ballot shall be conducted as early as possible, but not later than
60 days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations , among the employees in the
unit found appropriate in paragraph numbered 4 , above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election , including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, 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, and also excluding employees on strike
who are not entitled to reinstatement , to determine whether they de-
sire to be represented , for purposes of collective bargaining by Retail
Food Clerks Union, Local 1500 , affiliated with Retail Clerks Inter-
national Association , A. F. of L., or by Local 305, Retail & Wholesale
Employees Union, C. 1. 0., or by neither.