Barker Bros. Corp.

In the Matter of BARKER BROS. CORPORATION and VAN, STORAGE, FURNITURE & TRANSFER DRIVERS, PACKERS & HELPERS, LOCAL UNION No. 389, A. F. or L. Case No. R-4952.-Decided March 17,11949 Jurisdiction : department store retailing industry. Investigation and Certification of Representatives : existence of question : union's request for recognition which company referred to its attorney for disposi- tion not acknowledged by the attorney ; election necessary. Unit Appropriate for Collective Bargaining : truck drivers and' drivers' helpers, excluding supervisory employees. Mr. George R. Richter, Jr., of Los Angeles, Calif., for the Company. Mr: A. E. O'Neil, of Los Angeles, Calif., fdr,the Union. Mr. Joseph E. Gubbins, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Van, Storage, Furniture & Transfer Drivers, Packers & Helpers, Local Union No. 389, affiliated with the American Federation of Labor, herein called the Union, alleg- ing that a question affecting commerce had arisen concerning the representation of employees of Barker Bros. Corporation, Los' An- geles, California, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Daniel- J. Harrington, Trial Examiner. Said hearing ' was held at Los Angeles, California, on February 25, 1943. The Company and the Union appeared, participated,, and were afforded full opportunity to be heard,, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made, at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following: 48. N. L. R B., No. 33. 259 521247-43-vol 48-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Barker Bros., Corporation,' a Maryland corporation, has its prin- cipal"office' and place ,of business in Los Angeles,, California, where it"is engaged in the operation of a retail department store and a warehouse. During the year 1942, the Company's' purchases 'for r(F- sale at its department store amounted to approximately $8,600,000, 50 percent of which' was shipped to it from points outside the State of California. During the same period the Company's sales amounted to approximately $14,350,000, 3.98 percent of which was shipped to points outside the State of California. , , The Company contends that it is a purely local retail establish- ment and therefore is not subject to the jurisdiction of the Na- tional Labor Relations Act. On the basis of the facts set forth above, we find, the contentions of the Company to be without merit, and conclude that it is engaged in commerce within the meaning of the Act.' , ' , II. THE ORGANIZATION INVOLVED Van, Storage, Furniture' &-, Transfer Drivers, Packers & Helpers, Local Union No. 389, affiliated with the American Federation of Labor, is a labor organization; admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION , 11 - In April 1942 the Company and a union committee held a series of meetings with respect to bargaining negotiations: ; Shortly' there- after, the Company's attorney notified one of the,members of the committee that the Company would not meet with it again. On January 7; 1943, the Union again requested recognition as 'the bar- gaining representative of the Company's employees, which request the Company referred to-its attorney for disposition. " The attorney has' never contacted the Union. , ' . ' The Statement of a Field Examiner, introduced in evidence at the hearin'g;-indicates that the Union represents a"substantial number of employees in-the unit ` hereinafter found appropriate.2 Y See Matter of J. L. Brandeis & Sons and Local - No. 283 of the Amalgamated Clothing Work ers of. America, affiliated with the Congress of Industrial Organixatxons , ,47 N. L. R. B. 614, and cases therein cited. ' The Field Examiner reported that the Union had submitted 49 card's, ' of which "44 are application-for-membership cards and the remaining 5 are authorization cards ; all the cards bear apparently genuine, original signatures ; 3 of the raids are duplicates . They are dated as follows : 8 in 1941 ( no month given ) ; 4 in March 1942; 2 in April 1942; 7 in July 1942 ; : 'BARKEIV BROS. -CORPORATION ' - - 261 We. find that a question affecting commerce" has arisen concerning the representation of the employees of the Company within the meaning of Section 9: '(c) and Section 2 (6) and (7) "of'the Act. -IV. THEE APPROPRIATE UNIT -' At the hearing the Company' offered no proof as -to the appropriate unit but urged that, since its operations are integrated, a larger unit than the one. requested by the Union would be more appropriate. The Union contends that the appropriate unit should be comprised of truck drivers • and • drivers' helpers, excluding supervisory em- ployees with authority to hire and discharge, and all other -em- ployees. , • . The record shows that all purchases made by the customers, with the possible, exception of some small parcels, are delivered by the truck drivers and helpers from the Company's -warehouse, which is, located in an outlying, district in Los Angeles, California; the retail store is-located in the, downtown district. The truck drivers and helpers are also required to load and unload the delivery' trucks, at the warehouse. The, record 'further shows that the Union organizes truck, drivers - and,;helpers • only and does not, organize the other classes of employees, excluded in its petition. The Union intro- duced evidence at the hearing to'the effect that all truck drivers and helpers in-establishments in Los Angeles engaged in business similar to that of the Company are organized'by the Union.; ' From the foregoing facts, we are of -the opinion that the unit pro- \posed by' the -Union - is - appropriate, for the purposes- of,' collective bargaining." We find, accordingly, that' all truck drivers and drivers' helpers, excluding supervisory employees with authority to hire and discharge, and all other employees, constitute a unit appropriate, for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. 25 in December 1942 ; 2 in November ( no year given) ; 1 undated. The Company failed to furnish a copy of its pay roll, thereby making it impossible to check the names found on the cards. There are approximately 90 employees in the appropriat, unit. See Matter of May Department -Stores, doing business as The May -Company and Retail Store Salesmen Local Union ¢A, A. F. of L., 39 N. L. R. B. 471. 262, DECISIONS OF `NATIONAL 'LABOR RELATIONS BOARD DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9,, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that , as part of the investigation to ascertain, representa- tives for the purposes of collective bargaining, with Barker Bros. Corporation, Los Angeles, California, 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 of the Regional Director for the Twenty-first, Region, acting in this matter as agent for the National Labor Relations Board; and subject to Article III, Section 10, of said Rules and Regulations, 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 tempo- rarily laid off, and including employees in the armed forces of 'the United States who present themselves in person at the polls, but ex- cluding employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Van, Storage, Furniture & Transfer Drivers, Packers & Helpers, Local Union No. 389, affiliated with the American Federation of Labor, for the purposes of collective bargaining. , MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Direction of Election.