Epp Furniture Co., et al.

In the Matter of Epp FURNITURE COMPANY, ET AL.,1 EMPLOYERS aril ERIE CENTRAL LABOR UNION, A. F. L., PETITIONER Case No. 6-RC-R99.-Decided September 07,1949 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, a hearing in this case was held at Erie, Pennsylvania, before Emil E. Narick, hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.Z Upon the entire record in the case, the Board finds: 1. Each of the eight Employers involved in this proceeding 3 is en- gaged exclusively in the retail sale of home furniture,4 appliances, and household furnishings in the city of Erie, Pennsylvania. As more fully discussed in paragraph numbered 4, infra, seven of the Employers, not including Klick Furniture Company, herein called Klick, are engaged in joint bargaining and comprise an appropriate multiple-employer bargaining unit. The purchases of these seven Employers for a recent yearly period totalled approximately $2,380,- 000, of which approximately $2,129,375 represented shipments from points outside the Commonwealth of Pennsylvania. During the same period, the total sales of these Employers amounted to $3,870,000, of which approximately $109,200 represented shipments to points outside the Commonwealth. Similarly, purchases made by Klick for a recent yearly period amounted to approximately $130,000, of which approxi- 1 The title of the Employers appears as amended at the hearing. 2 The hearing officer reserved for the Board the Employers' several motions to dismiss. For the reasons stated herein, these motions are hereby denied. 3 The eight Employers involved herein are as follows : Epp Furniture Company ; Sol Masiroff, Executor of the Estate of Morris Masiroff , d/b/a M. Masiroff Furniture Company ; Outlet Furniture Company, Inc. ; Reliable Home Furnishings Company, Inc. ; John V. Schultz Company ; Stanley Brothers Company, Inc. ; Wayne Furniture Company; and Niick Furniture Company, Inc. Having ceased business operations, Lawrie Brothers Furniture Company was deleted as one of the Employers by agreement of the parties. [By Order dated November 10, 1949, the Board approved a Stipulation providing that the name of "Wayne Furniture Company" he changed to read "Tack Joseph, Jr., Donald Joseph and Robert Joseph, partners, d/b/a Joseph Bros. Furniture Co."] " The sale of home furniture represents , on average, approximately 75 percent of the business of each Employer. 86 N. L. R. B., No. 27. 120 EPP FURNITURE COMPANY, ET AL. 121 mately $117,000 in value were shipped from points outside the Com- monwealth . During the same period, Klick's sales totaled $190,000, of which $1 ,900 in value were shipped to points outside the Commonwealth. We believe that the operations of the seven Employers in the multi- ple-employer unit, considered in the aggregate and, under the cir- cumstances of this case, the operations of Klick as well , have a sub- stantial effect upon interstate commerce. Accordingly, contrary to their contentions, we find that the Employers are engaged in com- merce within the meaning of the National Labor Relations Act.' 2. The Petitioner is a labor organization claiming to represent cer- tain employees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers , within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate units : The Petitioner seeks a multiple-employer unit of the salesmen of all eight Employers involved herein. In the alternative , the Petitioner requests ( 1) a separate unit of Klick's salesmen , and a multiple- employer unit of the salesmen of the remaining seven Employers, and (2) separate units of salesmen for each of the eight Employers. The Employers oppose the establishment of a multiple-employer unit of their salesmen. The record discloses that substantially since 1934, seven of the Em- ployers, not including Klick, have recognized and bargained with Federal Labor Union, Local 19609, A. F. L., herein called the Local, as the bargaining agent of the employees in their respective shipping, repairing, and service departments.° Until 1940, each Employer nego- tiated with the Local on an individual basis and executed individual contracts. From 1940 to 1944, joint negotiations were conducted be- tween these seven Employers and the Local and a single master con- tract was executed . Since 1944, these Employers, as a group, have been represented by Attorney I. J. Silin in their periodic contract negotiations with the Local. These negotiations have taken place in Attorney Silin's office with a committee of the Employers usually present. Neither the committee of Employers nor Attorney Silin was delegated authority to bind the Employers as a group . In each instance, after the contract was finally drafted, it was signed by the Local and those Employers present at Attorney Silin's office. Copies " Cf. Matter of Furniture Firms of Duluth, 81 N. L. R. B. 1318 ; Matter of Air Condition- ing Company of Southern California, et at., 81 N. L. R. B. 946; Matter of American Furni- ture Company, 73 N. L. R. B. 1184. 6 Wayne Furniture Company has been in business only since 1946 and has bargained with the Local since 1947. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the contract were then dispatched to the stores of the remaining Employers for their separate signatures. Each of the seven Employ- ers has consistently signed the negotiated contract without question or delay. In August 1948, Attorney Silin's law firm executed an Agreement for Consent Election on behalf of "Retail Furniture Dealers' Associa- tion," specifically naming the seven Employers in question. The Board subsequently conducted a union-authorization election in a multiple-employer unit embracing the employees in the shipping, re- pairing, and service departments. Although the Petitioner alleged the formal existence of an associa- tion of these seven Employers, it offered no evidence to establish this fact other than the manner of designating the Employers in the con- sent-election agreement, above noted, and the additional evidence of a paid advertisement by the same seven Employers in the Petitioner's "Official Labor Day Publication." In this advertisement the indi- vidual names of the seven Employers were listed under the caption "Compliments of the following Retail Furniture Dealers of Erie." 7 There is no history of collective bargaining involving any of the employees of Klick and no history involving the salesmen sought in this case. The foregoing clearly demonstrates that for approximately 9 years, seven of the Employers, not including Klick,. have participated in joint bargaining negotiations as to the shipping, repairing, and service department employees, and have uniformly adopted the agreement resulting from such negotiations. Under these circumstances, we hold that the participating Employers have manifested a desire to be bound in collective bargaining by joint rather than by individual action.' It is not controlling that these Employers do not belong to a formal employer association,9 or that they have not designated any representative or central authority with power to bind them 10 Their history of successful collective bargaining on a joint basis is suf .- cient to establish the appropriateness of a multiple-employer unit of their shipping, repairing, and service department employees. Indeed, the seven Employers agreed that such a unit is appropriate when they consented in August 1948 to the holding by the Board of the union- authorization election described above. Thus, an established pattern of multiple-employer bargaining exists which, in accordance with our ' We are unable to find on this record that any formal association of the Employers exists. 8 Matter of Air Conditioning Company of Southern California, et al., 81 N. L. R. B. 946 ; Matter of Associated Shoe Industries of Southeastern Massachusetts , Inc., et al., 81 N. L. R. B. 224; Matter of Baking Industry Council, 80 N. L. R. B. 1590. 0 See, e. g., Matter of Baking Industry Council, ibid. 10 See, e. g., Matter of Air Conditioning Company of Southern California, et al., supra; Matter of The Everett Automotive Jobbers Association, et al., 81 N. L. R. B. 304. EPP FURNITURE COMPANY, ET AL. 123 decision in Matter of Columbia Pictures Corporation,h1 controls the type of unit appropriate for the salesmen of these seven Employers. In the absence of any bargaining history as to Klick, and in view of Klick's apparent desire to pursue an independent course of action 12 we shall find appropriate a separate unit of Klick's salesmen. The Employers contend that the salesmen involved in this case are independent contractors within the meaning of Section 2 (3) of the Act, as amended. In support of their contention, the Employers as- sert, inter alia, that the salesmen act in the nature of brokers in that they cater to their own clientele and are compensated on a commission basis, and that their high income range removes them from the Act's definition of employee. The record shows that the salesmen perform their duties entirely within the retail stores of their respective Employers and wait upon "customers of the store" as well as upon such customers as might favor them personally. They. are hired by the Employers and are paid on a commission or salary plus commission basis. The Employers retain all right of control over the operations of their respective stores, in- cluding fixing the pricing policy and determining methods and tech- niques of selling. In addition, the Employers control the tenure and remuneration of the salesmen, and regularly pay their workmen's compensation, social security, and withholding taxes. We find on these facts, contrary to the Employers' contention, that an employer- employee relationship, rather than one of independent contractor, exists between the Employers and the salesmen in question.13 The parties are in dispute as to whether certain of the salesmen should be included in or excluded from the appropriate unit. Robert J. Applebee is employed by Klick Furniture Company, Inc. The Employers seek his inclusion, the Petitioner his exclusion. This individual spends 55 to 60 percent of his time in. selling. He also assists the general manager of the store in buying and in miscellaneous non-selling functions. However, only 2 percent of his time is devoted to buying activities, as to which he has no authority on his own initia- tive to make purchases. The evidence discloses that, in connection with his non-selling functions, Applebee does not exercise any super- 84 N. L. R. B. 647. 33 Cf. Matter of Amalgamated Meat Cutters and Butchers Workmen of North America (A. F. L.), et al. (The Great Atlantic & Pacific Tea Co.), 81 N. L. R. B. 1052; Matter of Canada Dry Ginger Ale, 73 N. L. R. B. 460, 462 ; Matter of Bercut-Richards Packing Com- pany, et at., 68 N. L. R. B. 605, 607; cf. Matter of Norcal Packing Company, 76 N. L. R. B. 254, 258. 13 See Matter of Del Rio & Winter Garden Telephone Company , 85 N. L. R. B. 199. The Employers' contention that the salemen are managerial or confidential employees , except as otherwise noted herein , is likewise without merit. They do not formulate or effectuate management policies nor do they deal with confidential matters relating to labor relations. Matter of Mineapoli's-Moline Co ., 85 N. L. It. B. 597. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory powers, nor does he formulate or effectuate management poli- cies. We shall therefore include him. Clarence Esser, Fred Taylor, Anthony Lacastro and F. Dow Davis are employed by John V. Schultz Company. The Petitioner seeks their inclusion, the Employers their exclusion. The record shows that Esser is the manager and buyer of the floor covering department and exercises effective supervision over Davis; Taylor is a buyer for the gift department and exercises effective supervision over Lacastro. We shall exclude Esser and Taylor.14 On the other hand, the record shows that Lacastro and- Davis presently exercise no supervisory or managerial functions such as would remove them from the employee definition in the Act.15 Accordingly, we shall include Lacastro and Davis. James Hellman of Outlet Furniture Company, Inc., is sought to be included in the. unit by both the Petitioner and the Employers. In view of the undisputed evidence that this individual regularly spends 20 percent of his time in the capacity of acting manager of the store, during which time he exercises full supervisory powers, we shall ex- clude him. Charles Kaczmarek of Stanley Brothers Company, Inc., is the son of the manager of the company. The Employers seek to include him and the Petitioner to exclude him. This individual spends 66 percent of his time in selling on a regular commission basis, and the remainder of his time in such duties as buying, and assisting in the office and in the credit department. In the manager's absence he is in charge of the store, although it was testified that during such periods he possesses no supervisory authority. On all the circumstances, including his close family relationship to the manager, we shall exclude him. We find that the following units are appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (1) All salesmen of Epp Furniture Company; Sol Masiroff, Execu- tor of the Estate of Morris Masiroff, d/b/a M. Masiroff Furniture Com- pany; Outlet Furniture Company, Inc.; Reliable Home Furnishings Company, Inc. ; John V. Schultz Company; Stanley Brothers Com- pany, Inc.; and Jack Joseph, Jr., Donald Joseph and Robert Joseph, Partners, d/b/a Wayne Furniture Company, all of Erie, Pennsyl- vania, including Lacastro, Davis, and Robert Grad, but excluding 14 See, e. g., Matter of Denver Dry Goods Company, 74 N. L. R. B. 1167, 11.75; Matter of The Electric Controller and Manufacturing Company, 69 N. L. E. B. 1242, 1246, holding that buyers are managerial employees. 1-" We can give no effect to the testimony on behalf of the Employers that Lacastro and Davis form part of the management nucleus of a growing business and that eventually it is expected that they will devote their time exclusively to management functions . For the purposes of this proceeding, we are constrained to view these expansion plans as speculative in character and to consider Lacastro and Davis in the light of their present duties. EPP FURNITURE COMPANY, ET AL. 125 Taylor, Esser, Hellman, Charles Kaczmarek , guards, professional em- ployees, and supervisors. (2) All salesmen of Klick Furniture Company, Inc., Erie, Pennsyl- vania, including Applebee , but excluding guards, professional em- ployees, and supervisors. 5. The determination of representatives; Questions were raised at the hearing respecting the eligibility to vote of the following individuals : Lacastro and Davis, of the John V. Schultz Company, discussed above, at the time of the hearing were employed in the company 's ship- ping department for approximately 75 percent of their time. There is no dispute that their assignment to the shipping department was adopted as a temporary expedient because of a slack in business and that these individuals are reasonably expected to resume full time their regular duties of selling. We find, therefore, that they are eligible to vote. Paul Watson, of Wayne Furniture Company, was laid off shortly before the hearing because of adverse business conditions . It was tes- tified that, upon a resumption of normal business operations , he would be recalled. We find that this individual has a reasonable expectation of reemployment and is therefore eligible to vote. Charles Corbett, of M. Masiroff Furniture Company, Inc., is a regu- lar part-time salesman working 1 or 2 days a week. We find that he has a sufficient interest in the employment conditions of the com- pany to be entitled to vote in the election. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employers, elections by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision 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 units found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Elections , 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 dis- charged for cause and have not been rehired or reinstated prior to the date of the elections and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Erie Cen- tral Labor Union, A. F. L.