Standard Furniture Co.

STANDARD FURNITURE COMPANY 35 Standard Furniture Company, Petitioner and Local 1506, Retail Clerks International Association , AFL-CIO. Case No. 2-RM- 835. June 6,195'7 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 Aaron Weissman, 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- member panel [Chairman Leedom and Members Murdock and Rodgers]. Upon the entire record in this case, the Board finds : 1. Standard Furniture Company is the trade name for a chain of five retail stores all located within the State of New York and con- sisting of Fienberg Furniture Company, Inc. (Albany), Florence Furniture Company, Inc. (Troy), Leonard Furniture Company Inc. (Schenectady), Stafco, Inc. (Troy), and Chester Furniture Com- pany, Inc. (Kingston), hereinafter referred to respectively as Fien- berg, Florence, Leonard, Stafco and Chester. All five corporations are family owned and directed. They have the same president and treasurer and are controlled by the same shareholders-a father, his son, and daughter. All have common directors. Stafco purchases, warehouses, insures, and advertises all merchan- dise for the five stores. Except for the retail outlet in Kingston, New York, Stafco delivers merchandise to the customers of all stores and services all installations and complaints. It controls all inventory, allocates all samples for the outlets, and fixes the merchandising policy. All bookkeeping is centralized at Stafco which maintains, bills, and credits all customer accounts. Customers may, and regu- larly do, pay for their purchases at any outlet irrespective of wherc the particular sale was made. Stafco charges the other four corpo- rations a percentage for its service, which percentage includes a profit for Stafco. Stafco supervises all personnel procurement and assign- ment, maintains central personnel records, and determines and ad- ministers a single overall labor policy. Under all the circumstances, we find that Standard Furniture Company constitutes a single em- ployer for jurisdictional purposes.' During the period of March 1, 1956, to February 28, 1957, the total purchases of Standard Furniture Company through Stafco amounted to approximately $1,640,000 of which approximately $1,046,000 repre- 1 See B. G. IVholesale, Incorporated, 114 NLRB 1429, 1430. 118 NLRB No. 2. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented direct shipments from outside the State of New York. The- Union stipulated that the value of shipments of merchandise from points outside the State was not less than $1,000,000. In view of the- foregoing, the Board finds that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies. of the Act to assert jurisdiction.' 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. In March 1952 the Employer and 2 other companies-The- Breslaw Brothers and Union-Fern, Inc.-as members of an associa- tion known as the Tri-City Furniture Group, entered into a contract with the Union covering the Employer's Leonard, Florence, and Fien- berg retail outlets and the 2 furniture stores of the 2 other companies. This contract expired in March 1954. On April 8, 1954, the Union struck for economic benefits at all locations covered by the contract. The Breslaw Brothers in April 1954 and Union-Fern, Inc., in Feb- ruary 1957, each entered into a separate contract with the Union,. thereby settling the strike at its particular place of business. Picketing at the three Standard Furniture Company stores has been continuous since April 1954. Except for a brief interval early in the strike, the Employer's other two retail outlets were not picketed. However, in February 1957 the Union intensified its picketing and extended it to Stafco and Chester. Negotiations to settle the strike occurred in 1954, but without success. Additional negotiations began in the spring of 1956 through an at- torney representing Standard Furniture Company and Union-Fern,. Inc. They culminated in the preparation and presentation by the Employer's attorney of a tentative contract to the Union's attorney on December 5, 1956. This tentative contract which was initialed by the Union's attorney covered the Employer's Stafco retail outlet as well as the Leonard, Florence, and Fienberg stores. However, for reasons not clearly explicated in the record, the contract was never executed. The Union contends, in effect, that no question concerning repre- sentation exists because the demand for recognition which it made upon the Employer was with respect to the 3-store unit of Leonard, Florence, and Fienberg rather than the 4-store unit which the Em- ployer urges is appropriate and which would include Stafco. In other words, the Union's position appears to be that the Employer has not been presented with a claim-in accordance with the provisions of Section 9 (c) (1) (B) of the Act-by a labor organization for recog- nition as the representative of employees in the 4-store unit. We find this contention lacking in merit. For, in light of the fact that as of the date of the petition and hearing herein the Union's picketing in- cluded the Employer's 4 stores and the fact that the Union's attorney 2 Hogue and Knott Supermarkets, 110 NLRB 543, 544. STANDARD FURNITURE COMPANY 37 initiated the tentative contract in 1956 which covered a 4-store unit," we are persuaded that a demand was made upon the Employer for recognition of the Union as the majority representative of the em- ployees in the unit hereinafter found appropriate.' 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 2 ( 6) and (7) of the Act. 4. The Employer contends that the appropriate unit should consist .of all sales employees at its Fienberg , Florence, Leonard, and Stafco outlets. The Union argues that based upon the bargaining history of a three-store unit the employees at Stafco should be excluded 5 As indicated above, the 1952 contract which expired in 1954 covered only the Employer's Fienberg, Florence, and Leonard employees. However, prior to the 1952 contract, the various component retail outlets had been organized on an individual basis. The Union was certified by the State Labor Relations Board as bargaining represen- tative of the Fienberg sales employees in 1949; later , in 1951 the Leonard and Florence sales employees were covered in a separate State Board certification . Furthermore, the multiemployer unit es- tablished by the 2-year 1952 contract no longer exists and, indeed, there have been no contractual relations for at least 3 years . In view of the character and brevity of the bargaining up to 1954 and the ab- sence of any bargaining history since 1954 , we conclude that the bar- gaining history prior to 1954 does not preclude a finding that a unit of the sales employees in the Employer's 4 stores may be appropriate.' The four stores are located in the so-called tri-city area . The fifth- Chester-is 60 miles away from the others . Chester, because of its distance from the other stores, picks up its own merchandise from Stafco's warehouse , makes its own deliveries to its own customers, and services their complaints . Sales personnel of the four stores regularly -interchange between outlets several times weekly to cover night open- ings and sales promotions. With the exception of the Chester em- ployees, they have the same wage and commission rates and enjoy the same working conditions . In view of the geographical proximity of ' The E'mployer 's attorney testified that the Union's attorney was aware before initial- ing the contract that it included the four retail outlets and that such coverage had been agreed to previously . The Union's attorney denied that there were any prior discus- sions to include the fourth retail outlet and stated that lie initialed the contract without being aware of its inclusion . However he admitted that he read the first paragraph of the contract which specifically referred to Stafco, that lie was familiar with all its terms, and that lie indicated on its face at least one suggested change. In these circumstances we are inclined to give controlling weight to the proposed contractual agreement with respect to the scope of the unit. ' See Silvers Sportswear, 108 NLRB 588. a Both parties would exclude the employees of the Chester outlet from the unit and, in view of the geographical separation of this outlet from the others and the lack of community of interest between the Chester employees and those at Fienberg , Florence, and Leonard , we agree. 0 See National Carbon Company, 107 NLRB 1486, 1400. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 4 stores, the integration of the Employer's operations at those outlets, the regular interchange of employees of the 4 stores, and the uniformity of wages, working conditions and interests of the em- ployees at those outlets, we believe that the unit urged by the Employer is appropriate. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All sales employees at the Em- ployer's retail outlets at 112 South Pearl Street, Albany, New York; 121 Broadway, Schenectady, New York; 231 River Street, Troy, New York; and 547 River Street, Troy, New York, excluding all ware- house, delivery, service, clerical, advertising, and administrative per- sonnel, guards, and supervisors as defined in the Act? [Text of Direction of Election omitted from publication.] 7 Stafco employs an outlet manager named Herman Mike who is authorized to see to it that the two salesmen at the store do their work properly and who can assign salesmen to assist customers . At times he can rearrange furniture without prior instructions and can suggest to the Employer's president better ways of doing so. His recommendations as to discharge would be given considerable weight. Ile receives an additional $25 weekly for his special duties. When the president is away from the store, which occurs about 10 percent of the time, Mike is in complete charge of the store . This is also true during vacation periods . In these circumstances , we find that Mike is a supervisor and shall exclude him from the unit. Broderick Wood Products Company and Casey Simpson, Elmer Bickford, Mike Trujillo, Arsenio Lucero, Max Trujillo, Jose A. Sanchez, Maurilio Padilla, Frank M. Lewis, Leopoldo L. Lopez, Leroy D. Gross International Brotherhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America, Local No. 13, AFL-CIO and Casey Simpson, Elmer Bickford, Mike Trujillo, Arsenio Lucero, Max Trujillo, Jose A. Sanchez, Maurilio Padilla, Frank M. Lewis, Le- roy D. Gross. Cases Nos. 30-Cif-4444, 30-CA-445, 30-CA-446, 30-CA-446-1, 30-CA-446-2, 30-CA-446-3, 30-CA-446-4, 30-CA- 452, 30-CA-457, 30-CA-464, 30-CB-59; 30-CB-60, 30-CB-61, 30- CB-61-1, 30-CB-614, 30-CB-61-3, 30-CB-61-4, 30-CB-61-5, and 30-CB-64. June 6, 1957 DECISION AND ORDER On September 24, 1956, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the 118 NLRB No. 8.