Marin County Employers Council

In the Matter of MARIN COUNTY EMPLOYERS COUNCIL, AFFILIATED WITH CALIFORNIA ASSOCIATION OF EMPLOYERS , EMPLOYER and PETI- TIONER 1 and RETAIL CLERKS INTERNATIONAL ASSOCIATION THROUGH ITS AGENT, RETAIL CLERKS UNION LOCAL No. 1119, UNION In the Matter of ALBERT'S, INC., AFFILIATED WITH CALIFORNIA ASSO CIATION OF EMPLOYERS , EMPLOYER AND PETITIONER and RETAIL, CLERKS INTERNATIONAL ASSOCIATION THROUGH ITS AGENT, RETAIL CLERKS UNION LOCAL No. 1119, UNION In the Matter Of KARL'S, ET AL ., EMPLOYER and NATALIE J. HOLLY,. PETITIONER and RETAIL CLERKS INTERNATIONAL ASSOCIATION THROUGH ITS AGENT, RETAIL CLERKS UNION LOCAL No. 1119, UNION Case Nos. 20-RM-43, 20-RM-44, and 20-RD-35.-Decided November 30, 1949 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed, a consolidated hearing was held before David Karasick and Benjamin B. Law, hearing officers.- The hearing officers' rulings are free from prejudicial error and are hereby affirmed. The Union's motion to dismiss the petition in Case No. 20-RD-35 on the ground that it fails to conform to the requirements of Section 9^ (c) of the Act and of the Board's Rules and Regulations, is denied, for the reasons given in paragraph 3, below. 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 the case, the Board finds : 1. Albert's, Inc., the Employer, a California corporation, owns and operates four retail department stores in San Rafael, San Anselmo, 1 During the hearing, the parties in Cases Nos. 20-RM-43 and 20-RD-35 signed a Stipu- lation for Certification Upon Consent Election for specified employees of all Employers except Alberts, Inc. After the hearing, the Petitioner in Case No. 20-RM-44 requested permission to withdraw its petition in that case. Permission to withdraw was granted by the Board on November 21, 1949. As a result, there remains for consideration only the petition in Case No. 20-RD-35. 87 NLRB No. 40. 296 MARTIN, COUNTY EMPLOYERS COUNCIL 297 Mill Valley, and Richmond,2 California, respectively. During 1948, the Employer purchased merchandise valued in excess of $1,800,000, of which in excess of 65 percent represented the value of shipments to the stores from points outside the State. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act.' 2. The Petitioners in Case No. 20-RD-35, a group of, employees of Albert's, Inc., assert that the Union is no longer the representative of the Employer's employees, as defined in Section 9 (a) of the amended Act. . On July 1, 1948, the Employer and the Union, which had never been certified as bargaining representative of Albert's employees; executed a contract for 1 year, automatically renewable each year thereafter in the absence of notice to amend given 60 days before the expiration date. On April 28, 1949, the Union notified the Employer of its desire to amend the contract. Negotiations for a new contract were fruitless. On July 1, 1949, the expiration date of the contract, a strike was called. During the strike, the Employer continued to negotiate with the Union. The petition in this case was filed on August 15, 1949. The Union asserts that no question of representation is validly raised by the petition, because the petition states that there is no currently recognized bargaining agent. Although the decertification petition is defective in form, the in- firmity is not jurisdictional.4 The Board will look to the facts rather than to the form to determine if a question of representation exists. It is plain that the Employer currently recognizes the Union as the bargaining representative of its employees. 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 parties agree that the following categories of employees may be included in the same unit : salespersons, stockroom employees, dis- play employees, janitresses, janitors, wrappers, elevator operators, and alteration employees. They also agree upon the exclusion of merchan- dise managers and a confidential secretary. The Employer and the Petitioners would exclude, and the Union would include, the employees discussed below : the office manager, the stockroom manager, 3 store managers, the credit manager, 12 buyers, the manager of the accounts receivable department, the manager of ac- 2 The Richmond store is not involved in this proceeding, as its employees are covered by a separate collective bargaining contract. Leopold Adler Co., 82 NLRB 482 ; Whitney's, 81 NLRB 75. * Advance )attdrn Company ( on reconsideration ), 80 NLRB 29. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counts payable department, the head cashier, the sales personnel man- ager, the advertising, display, and promotion director, the display manager, the floor manager of the second floor, the store superinten- dent, the paymaster, and all office employees of whom there are nor- mally about 30. The record is clear that, except for the paymaster and the office employees, all the listed employees responsibly direct the work of from 2 to 30 employees and each of them has the authority to hire or dis- charge subordinates or effectively to recommend such action. We find therefore that they are supervisors as defined in the Act. We shall accordingly exclude them from the unit. The Employer would exclude the paymaster on the ground that, be- cause she handles all pay-roll records, including those of executive personnel, she is a confidential employee. However, the paymaster does not handle any matters pertaining to labor relations. We find that she is not a confidential employee within the Board's definition and therefore shall include her in the unit.-' The office employees, who perform the customary work of such em- ployees in a department store, were included in the store -wide unit covered by the contract which expired on June 1, 1949. No other union seeks to represent them in a separate unit. In these circumstances, we believe that they may be included in the same unit with other store employees.6 Accordingly, we shall include them. We find that all sales employees, stockroom employees, display em- ployees, janitors, janitresses, wrappers, elevator employees, alteration employees, office employees, and the paymaster, excluding merchan_ dise managers, confidential secretaries, the office manager, the stock- room managers , store managers, the credit manager, buyers, thq manager of the accounts receivable department, the manager of the accounts payable department, the head cashier, the sales personnel manager, the advertising, display, and promotion director, the display manager, the floor manager of the second floor, the store superinten- dent, guards, and all other 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 pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 5 Chicago Railway Equipment Company, 85 NLRB 586; International Salt Company, Inc., 74 NLRB 1253. o J. M. High Company, 78 NLRB 876 ; Phelps Dodge Mercantile Company, 79 NLRB 179. MARIN COUNTY EMPLOYERS COUNCIL 299 days from the date of this Direction, under the direction and supervi- sion 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 or not they desire to be represented, for purposes of collective bargaining, by Retail Clerks International Association, through its agent, Retail Clerks Union Local No. 1119.