Epp Furniture Co., et al.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing, and the entire record in this pro- ceeding, we find that the duties, interests, and supervision of the laboratory assistants are so closely related to the office and clerical employees that their continued inclusion in the over-all unit is war- ranted. Accordingly, we find that the unit proposed by the AFL is inappropriate. We shall therefore grant the Intervenor's motion to dismiss the petition filed in this case. Order IT IS HEREBY ORDERED that the petition filed in Case No. 6-RC-1086 by the American Federation of Labor be, and it hereby is, dismissed. [Text of Direction of Election omitted from publication in this volume.] EPP FURNITURE COMPANY, ET AL.1 and RETAIL CLERKS INTERNATIONAL ASSOCIATION LOCAL 1538, AFL, PETITIONER. Case No. 6-RC-1054. November 06, 1952 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before W. G. Stuart Sher- man, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employers are each engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent certain em- ployees of each of the Employers. 3. A question affecting commerce exists concerning the representa- tion 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 contends that a multiemployer unit consisting of office and clerical employees, charwomen, and elevator operators of all the Employers is appropriate. In the event the Board finds that a multiemployer unit is inappropriate, the Petitioner seeks separate units of these employees for each of the Employers involved herein. I The following Employers are Involved In this proceeding : Epp Furniture Company ; Sol Masiroff, Executor of the Estate of Morris Masiroff, d/ b/a Masiroff Furniture Company ; Outlet Furniture Company, Inc.: Reliable Rome Furnishings Company, Inc.; Stanley Brothers Company, Inc. ; and Jack Joseph, Jr., and Donald Joseph, partners, d/b/a Joseph Bros. Furniture Company. 101 NLRB No. 114. EPP FURNITURE COMPANY 625 The Employers each contend that single-employer units are alone appropriate in view of each Employer's rejection of joint bargaining practices. Operations and Bargaining History of the Employers Each of the Employers is engaged exclusively in the retail sale of home furniture, appliances, and household furnishings. Together they constitute the bulk of the dealers in such goods in Erie, Penn- sylvania, other than department stores. The record shows that since 1940 these Employers2 have recognized and bargained jointly with Federal Labor Union, Local 19609, as the bargaining agent of the employees in their respective shipping, repairing, and service depart- ments. These joint negotiations resulted in the execution of single master contracts, the most recent of which will terminate on June 1, 1953. It appears that in January 1949, the Petitioner's predecessor sought a multiemployer unit of the sales employees of the Employers. On that occasion, the Board characterized the pattern of bargaining be- tween the Employers and the Federal Labor Union as being multi- employer in nature, and concluded that such pattern must control the type of unit appropriate for the salesmen.3 Upon being substituted for its predecessor as the certified bargaining representative of a multiemployer unit of sales employees, the Petitioner engaged in joint negotiations with the Employers which resulted in the execution of single master contracts, the most recent of which terminated on Octo- ber 1, 1952.4 On April 10, 1952, the instant petition was filed.5 Since May 15, 1952, each Employer has taken the position that it would not bargain jointly, either with the Petitioner as to the employees sought herein or, prospectively, with any union as to any of its employees.6 The Employers, however, do not appear to have repudiated either of the ' Although there have been changes in the makeup of the Employer group since 1940, all of the instant Employers have taken part in joint negotiations with both the Petitioner and the Federal Labor Union Epp Furniture Company, et at., 86 NLRB 120 4 This contract contained an automatic renewal clause with a 60-day "Mill B" date. There is no indication as to the character of negotiations, if any , that have transpired since such contract terminated. 5 A prior petition had been filed on March 5, 1952, seeking the office and clerical employees, charwomen, and elevator operators of but one Employer Thereafter, on March 13, the Employers' counsel wrote to the Regional Director and indicated that single- employer units were probably inappropriate . As a result, the prior petition was with- drawn and the instant petition filed. 6 All Employers , except Reliable and outlet , appear to have repudiated their prior common counsel , and were each represented by separate counsel at the hearing. Although only three Employers served letters on the Petitioner and/or the other Employers rejecting joint bargaining as to the employees sought herein and stating their intentions to bargain individually therafter as to all other employees , the remaining Employers , either at the hearing or in their briefs , appear to have adopted this same position. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outstanding contracts. There is no history of collective bargaining with respect to the office and clerical employees, charwomen, and ele- vator operators. No negotiations, joint or individual, have been con- ducted between the Employers and Petitioner as to these employees. Upon the record in this case, a clear pattern of multiemployer bar- gaining exists for both the shipping and the sales employees of these Employers. The sole question presented is whether or not this pattern of bargaining should control the determination of the appropriate unit for the previously unrepresented employees.7 Here, the Board is faced with the imminent disintegration of the established pattern of multiemployer bargaining through the stated intention of the Em- ployers to terminate that pattern at the end of the existing contract term. Moreover, the Employers presently refuse to bargain jointly with the Petitioner as to the employees sought herein. The Em- ployers have thus clearly embraced individual action as to all present and future bargaining. In view of the present disintegration in the joint bargaining relationship, we believe that it would not effectuate the policies of the Act to hold that the multiemployer pattern of bar- gaining covering both the shipping and sales employees is controlling with respect to the employees involved in this proceeding.,, Accord- ingly, in the absence of circumstances requiring a broader unit, we shall find single-employer units appropriate for purposes of collective bargaining.9 The parties are in dispute as to whether certain employees should be included in or excluded from the several units. Merryal Locker is employed by Masiroff Furniture Company. This Employer seeks her exclusion, the Petitioner her inclusion. She acts as private secretary to the Employer's general manager, in whose private office her desk is located, and to the office manager. She han- dles their general correspondence, figures the selling prices on mer- chandise invoices, prepares social security reports, and types out in- come tax returns. It appears that the general manager determines the labor relations policy for his firm. Inasmuch as Locker acts in a confidential capacity to the general manager who exercises manage- rial functions in the field of labor relations,10 we shall exclude her from the unit of employees of Masiroff Furniture Company. , The question of whether this was an appropriate time for any Employer to seek to withdraw from existing multiemployer units is not before the Board. 8 Cf. Gladding, McBean & Co ., 96 NLRB 823; see Joseph E. Seagram and Sons, Inc., 101 NLRB 101. e The Board has held that single-employer units are presumptively appropriate and will be recognized as such where there is no basis for finding broader units appropriate . Rainbo Bread Company, 92 NLRB 181. w Sargoy & Stein, 92 NLRB 1693 ; Republic Steel Corporation, 94 NLRB 1294; Standard Oil Company, 98 NLRB 282. EPP FURNITURE COMPANY 627 Marie E. Burton and Nellie G. Wright are employed by Reliable Home Furnishings Company, Inc. This Employer seeks their exclu- sion, the $etitioner their inclusion. The record shows that Burton is secretary to the general manager and handles his correspondence, along with the correspondence of other department managers. Al- though final authority rests in the general manager, it appears that she has effectively recommended the hire or discharge of a number of employees and we, therefore, find her to be a supervisor as defined in the Act11 Wright is the bookkeeper and is in charge of the pay- roll.. She is also responsible for preparing reports on social security, income tax, and unemployment compensation. The evidence in the record is insufficient to invest her with supervisory status. More- over, as the confidential information possessed by her relates only to matters of a general business or financial nature, and as she does not act in a confidential capacity to a person exercising managerial func- tions in the field of labor relations, we find that Wright is not a confi- dential employee.32 Accordingly, we shall include Wright and ex- clude Burton from the unit of employees of Reliable Home Furnish- ings Company. 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 office and clerical employees, charwomen, and elevator oper- ators of Epp Furniture Company, excluding all other employees, professional employees, guards, and all supervisors as defined in the Act. (2) All office and clerical employees, charwomen, and elevator operators of Masiroff Furniture Company, excluding the private sec- retary to the general manager,13 all other employees, professional employees, guards, and all supervisors as defined in the Act. (3) All office and clerical employees, charwomen, and elevator oper- ators of Outlet Furniture Company, Inc., excluding the bookkeeper and office manager, the part-time clerk, all other employees, profes- sional employees, guards, and all supervisors as defined in the Act. (4) All office and clerical employees, charwomen, and elevator oper- ators of Reliable Home Furnishings Company, Inc., including the bookkeeper,14 but excluding the secretary to the store manager,15 the part-time direct mail clerk, all other employees, professional employ- ees, guards, and all supervisors as defined in the Act. (5) All office and clerical employees, charwomen, and elevator operators of Stanley Brothers Company, Inc., excluding all other " Elyria Telephone Company, 96 NLRB 162; Milton B. Schweiger, d/b/a Schweiger Construction Company, 97 NLRB 1407. 1 Wilson & Co., Inc., 97 NLRB 1388. u Merryal Locker. u Nellie G. Wright. s Mary E. Burton. 242305-53-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, professional employees, guards , and all supervisors as defined in the Act. (6) All office and clerical employees , charwomen, and elevator oper- ators of Joseph Brothers Furniture Company, excluding the office manager, all other employees,16 professional employees, guards, and all supervisors as defined in the Act. [Text of Direction of Elections omitted from publication in this volume.] 16 It was stipulated by the Petitioner and this Employer that Norma Jean McCurdy was not an employee and, accordingly, should not be included in the unit. LANDIS MACHINE COMPANY and DISTRICT No. 9, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER. Case No. 14-RC- 1883. November 26, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Ralph E. Kennedy, 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 Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to sever from the existing production and maintenance unit, which has been represented by the Intervenor since about 1946, a unit of all toolroom employees at the Employer's St. Louis, Missouri, plant, including two tool grinders working in the milling machine department. In the alternative, the Petitioner is willing to accept any variation of the requested unit which the Board may find appropriate. The Employer and the Intervenor contend that the unit sought by the Petitioner is inappropriate. I United Steelworkers of America , CIO, was permitted to intervene on the basis of its contractual interest 101 NLRB No. 121.