Worth Food Markets

National Labor Relations Board - Board Decisions

Mar 3, 1953

103 N.L.R.B. 259 (N.L.R.B. 1953)

WORTH FOOD MARKET STORES, INC. 259
WORTH FOOD MARKET STORES, INC. D/B/A WORTH FOOD MARKETS and
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, LOCAL No. 570 A. F. L., PETITIONER. Case No. 16-RC-
1142. March 3, 1953
Supplemental Decision and Order
Pursuant to a Decision and Direction of Election issued by the Na-
tional Labor Relations Board on October 9, 1952,1 an election by secret
ballot was conducted on October 30, 1952, under the direction and
supervision of the Regional Director for the Sixteenth Region, among
the employees of the Employer in the unit found appropriate by the
Board. Following the election, the parties were furnished with a
tally of ballots. The tally shows there were approximately 100 eligi-
ble voters and that 97 valid ballots were cast, of which 47 were for the
Petitioner, 50 against the Petitioner, and 4 were challenged. On
November 5, 1951, the Petitioner filed objections to the conduct of the
election.
As the challenged ballots were sufficient in number to affect the re-
sults of the election, the Regional Director investigated the challenges,
as well as the Petitioner's objections, and on December 29, 1952, issued
and duly served on the parties his report on objections and the chal-
lenged ballots. The Employer has excepted to the Regional Direc-
tor's report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Houston, Murdock, and Styles].
On November 14, 1952, the Petitioner moved to reopen the record
in this case alleging that the meat market managers, included in the
appropriate unit on the basis of the stipulation of the parties, were in
fact supervisors within the meaning of the Act. In support of its
motion the Petitioner offers newly discovered evidence not available at
the time of the hearing. The Employer filed a reply to the Petitioner's
motion.
In his report on objections the Regional Director found that the
objections raised substantial and material issues with regard to the
conduct of the election and recommended that the election be set aside.
While finding no merit in other objections of the Petitioner, he found
that the Employer had designated Clyde L. Stricklin, its advertising
manager, closely allied to management and Victor Raif, head book-
keeper, a supervisor, as observers for the Employer at the election.
The Employer has not excepted to the Regional Director's factual find-
ings that Raif details work to 17 accounting department employees and
'Not reported in printed volumes of Board Decisions.
103 NLRB No. 21.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shares with the personnel manager the duty of recommending the
employment and discharge of these employees. We therefore find, in
agreement with the Regional Director, that Raif is a supervisor within
the meaning of the Act. It is well-established Board policy that super-
visors may not act as observers for an employer.2
We find no merit in the Employer's contention that the Petitioner
waived the designation of Stricklin and Raif as observers for the
Employer.3 As set forth in the report, the Petitioner objected at the
preelection conference to the use of Stricklin as an observer. The
Employer's representative stated that he knew the requirement for an
observer and would not submit anyone who did not meet these re-
quirements. The Board agent in charge of the election specifically
informed the Employer that the use of supervisors as observers for
the Employer could result in objections to the conduct of the election.
Accordingly, without regard to other considerations, we shall order
that the election be set aside.
In its reply to the Petitioner's motion to reopen the record the
Employer argues that the motion should be denied. The Board
customarily adopts the stipulation of the parties with regard to a
clearly appropriate unit. The meat market managers in this case
were included in the unit in accordance with that policy. If, how-
ever, as the Petitioner alleges on the basis of newly discovered evi-
dence, the meat market managers are supervisors within the meaning
of the Act, the Board is precluded under the Act from finding that
these individuals are employees for the purposes of collective bargain-
ing. Accordingly, as the Board deems it necessary to receive further
evidence in this case, the Petitioner's motion is hereby granted and we
shall order that the record in this case be reopened.
Order
IT IS HEREBY ORDERED that the election of October 30, 1952, conducted
among the meat market employees of Worth Food Markets, be, and it
hereby is, set aside.
IT IS FURTHER ORDERED that the above-entitled matter be, and it
hereby is, remanded to the Regional Director for the Sixteenth Region
for the purpose of reopening the record in the above-entitled proceed-
ing, and that a further hearing be held for the sole purpose of receiving
evidence concerning the supervisory status of the meat managers, and
that the aforesaid Regional Director be, and hereby is, authorized to
issue early notice thereof.
2 Hoague-Sprague Corp., 80 NLRB 1699 ; Burrows t6 Sanborn, Inc., 84 NLRB 304; Ann
Arbor Press, 88 NLRB 39.
8 Herbert Men's Shop Corporation, 100 NLRB 670 ; Peabody Engineering Compaety, 95
NLRB 952.