Goldblatt Bros., Inc.

GOLDBLATT BROS., INC. 643 Goldblatt Bros., Inc. and Retail Clerks Union Local 1460, Retail Clerks International Union, AFL-CIO, Petitioner. Case No. 13-RC-5286. July 11, 1957 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 Frances P. Dom, 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 National Labor Relations 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,2 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 employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4 (A). The scope of the unit: The Petitioner seeks to represent a unit of selling and nonselling employees at the Employer's Hammond, Indiana, store. The Employer contends that the only appropriate unit is one embracing the employees in its 17 stores in the Chicago :area, in which it would include the stores in Chicago, Joliet, Park Forest, Hillside, and Elmwood Park, Illinois, as well as the store in 1 The hearing officer referred to the Board the Employer's motion to dismiss on the ground that no demand for recognition was made by the Petitioner prior to filing the petition. As the filing itself constitutes a sufficient demand, and as the Employer declined, at the hearing, to recognize the Petitioner, the motion to dismiss is hereby denied. F. C. Russell Company, 116 NLRB 1015. Prior to the hearing, the Employer, on the basis of "confidential information" unsup- ported by any evidence, attacked the genuineness of the Petitioner's interest-showing cards. and urged that the signatures on the cards be checked against signatures submitted by the Employer. The Regional Director investigated and found the Petitioner's showing to be proper and adequate. At the hearing, the Employer made the same contention, and failed to indicate that it had substantiating evidence to present to the Regional Director. The hearing officer properly refused to make the handwriting check urged by the Employer, or to permit the Employer to litigate the matter. It is well settled that showing of interest is a matter for administrative determination, and is not subject to collateral attack by the parties (International General Electric, S. A., Inc., 117 NLRB 1571). The cases on which the Employer relies are distinguishable on the ground that evidence was submitted in each case in support of the allegations that the interest showing was improper (A. Werrnan & Sons, Inc., 114 NLRB 629; Globe Iron Foundry, 112 NLRB 1200). As there is no indi- cation in this case that evidence has been presented to the Regional Director to warrant a reversal of his determination, we are satisfied that the Petitioner has made an adequate and proper showing of interest (Standard Cigar Company, 11.7 NLRB 852). 2 The request of the Employer for oral argument is hereby denied as the record and briefs, in our opinion, adequately set forth the issues and the positions of the parties. 118 NLRB No. 74. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hammond and 1 in Gary, Indiana, but would exclude the stores in Rockford, Illinois, and Racine, Wisconsin.3 The Employer operates a total of 19 stores. Its administrative offices, as well as its largest store, are located at State Street in Chicago.' There is constant communication between the main office and the stores by mail, telephone, and in person. Executives at the main office determine general merchandising and personnel policies, which are applicable at all the stores, although to a lesser extent at the Racine and Rockford stores.' The main office also sets up and con- trols the budgets for the stores, which can incur only petty cash expenditures without prior approval. Manuals are prepared at the main office covering such subjects as operating procedures, personnel training, and housekeeping requirements, which the stores are required to use as guides. Despite this central control of general policies and procedures, how- ever, some of the stores operate with considerable independence and autonomy. Thus, although the central office establishes retail prices,, there are some price variations at the stores due to local conditions- Moreover, a store manager may place items on sale to clear out perish- able goods, odds and ends, or end-of-season merchandise; may reduce prices on items to meet local competition; and may participate in community sales and special events. Also, while the central office controls the methods of marking merchandise, the general layout, fixture placement, and display policies of the stores, and makes and distributes to the stores much of the display material they use, the store management determines some of its own display policies, in- cluding such matters as the number and placement of signs, and makes some of its own signs. The hours of work for the stores are fixed at the main office, but they vary from store to store in accord with com- munity practice; the store management determines the hours to be worked by its employees on the basis of State employment laws and other local factors. The central office budgets and prepares adver- tising material, to which all stores must conform except those in Racine and Rockford; the Hammond store is also sometimes an ex- ception. In addition to the areawide advertising handled at the central office, the stores have their own advertising men, who are paid 3 The Employer maintains that the area it would include in the unit conforms with the definition of the Chicago area by the Federal Reserve System in its retail sales reports, and with decisions of two Federal District Courts in cases involving the Fair Labor Standards Act. While such determinations are given due consideration , they are not binding upon the Board as to an issue over which the Board has exclusive jurisdiction . Cadillac Marine & Boat Company, 115 NLRB 107 ; Seyfert Foods Co., 109 NLRB 800, 810 ; Aerovox Corpora- tion, 104 NLRB 246, 247 , enfd . 211 F. 2d 640 (C. A., D. C.). 4 The Hammond store is the second largest in the chain , and the first out-of-town store established by the Employer. 5 The Employer permits a greater degree of independence in the operation of the Racine and Rockford stores than in any of the other stores. This is due to several factors, but primarily to their geographical distances from the central office-about 65 and 90 miles, respectively . The Hammond store is about 22 miles from the main office. GOLDBLATT BROS., INC. 645 by the stores and are responsible to the store managers. The Ham- mond store advertises frequently in a Hammond newspaper and occasionally on the Hammond radio station. Such advertising some- times covers sales being held at the Hammond store only. Merchandise is purchased by central office personnel, but consid- erable weight is given to recommendations by store managers regard- ing items to be bought and stocked. Most merchandise is shipped to the principal warehouse in Chicago or to other company warehouses for distribution to the stores, but a great deal of merchandise is shipped directly to the stores. Company delivery trucks are based at a garage at the principal warehouse. Various service departments are also located at the principal warehouse, and do some work for all the stores except those at Racine and Rockford. The Employer also maintains some warehouses in conjunction with particular stores. There is such an operation at Hammond which makes deliveries and performs services for both the Hammond and Gary stores. Heavy merchandise is stored in Chicago, but other types are sent to the Hammond delivery depot. Some service departments are located at the Hammond base, and several company trucks are based and serviced there, althought major repairs are made in Chicago. The trucks stationed at Hammond carry Indiana registration tags, and the drivers have Indiana licenses. Although the main office interviews and hires some store personnel, the stores interview and hire most of their own employees. The store manager, operating superintendent,' and personnel supervisor have authority to hire, transfer, and discharge' personnel. In addition, each store is responsible for determining, within its budget, how large a regular employee complement it will maintain, and how many additional employees it will need for sales or special events. The store management must obtain approval for any hiring outside the wage scales established by the central office, but exercises its own discretion as to an employee's wage rate within the established scale. It must give employees certain automatic increases or explain to the central office the failure to do so, but each store has considerable discretion with regard to granting merit increases. The Employer attempts to equalize earnings at the various stores, but some variations exist due to local conditions. Rates of sales commissions and other forms of payment are prescribed by the central office, but the store management determines the method of payment and the employees to whom it should be applied. B The store manager is in overall charge of a store, and has an operating superintendent and a merchandise superintendent working under him. 7 The chief security officer at the central office sends shoppers to the stores to check on employee honesty, among other things . If an employee is found to be dishonest, the dis- charge is made by the store manager . The only limitation on the store management's authority to discharge is that central office clearance must be obtained before an employee with 5 years or more of service is discharged. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such personnel matters as vacation schedules and leaves of absence are handled by the store's personnel supervisor. Each store maintains its own personnel records, and has its own credit and lay-away depart- ments, but must clear with the central office an application for credit of over $200. Each store attempts to collect its delinquent accounts; the central office takes charge if the store is unsuccessful. The depart- ment managers at the stores are authorized to make various kinds of adjustments for customers. Each store has its own watchmen and janitors, including a supervisory head janitor, and some have their own maintenance and repair groups. Hammond also has its own window trimming crew and supervisor. Although the Hammond store manager lives in Chicago, most of the Hammond store em- ployees, as well as most of its customers, live in the vicinity of Hammond. There is no history of collective bargaining covering the employees sought herein by the Petitioner. The collective-bargaining history in evidence as to other employees of the Employer, as well as other employers in the Hammond area, is too diverse to establish any pattern." The evidence regarding personnel transfers between stores is equally inconclusive. The Employer's general personnel manager testified that there are frequent transfers of employees from one store to an- other, but that no records of such transfers are kept. He estimated that, during 1956, a total of about 400 employees were transferred, and that 10 of these were transfers between the Hammond store and stores in Chicago. While the record establishes, as the Employer contends, that its operations are largely centralized and integrated, it also establishes that the management of the Hammond store exercises considerable discretion, independence, and autonomy. Under all the circumstances of this case, and particularly the autonomy in the management of the Hammond store, the extent of the direct supervision of employees and of the power to hire and discharge exercised by the Hammond management, the geographical distance between Hammond and the Employer's central office, the fact that no union is here seeking repre- 8 The Employer, which has entered into collective -bargaining agreements with various unions on the basis of units covering a State , city , county, or other geographical area. as well as a particular store or combination of stores , states in its brief that the "bargaining history is heterogeneous, sporadic and illogical insofar as the present case is concerned and has no proper bearing upon the question of the appropriate unit at this time." Units of employees of the Employer which have been found appropriate by the Board have also varied in scope on the basis of the evidence in the particular case . For example, in Goldblatt Brothers, Inc., 67 NLRB 674, and 71 NLRB, 279, the parties were in substan- tial agreement, and the Board found, that single-store units were appropriate , whereas in 86 NLRB 914 , where a union was seeking a unit of display personnel in the Chicago area, the Board , in accord with the Employer 's contention, included employees at the Gary, Hammond , South Bend, and Joliet stores . In 1946, the Board certified the Petitioner for a unit of selling and nonselling employees in the Gary store . Another election was held in this unit in 1948 , which the Petitioner lost. GOLDBLATT BROS., INC. 647 sentation of a more extensive unit, and the lack of any prevailing pattern of bargaining on an areawide basis, we find appropriate a separate storewide unit of employees at the Hammond store.' (B). The composition of the unit: The parties reached substantial agreement as to the composition of a unit of selling and nonselling employees at the Hammond store in the event the Board found such a single-store unit appropriate."' They stipulated to the exclusion of the 50 department managers, the personnel supervisor, the pay- master, the secretary to the store manager, guards and house detectives, seasonal or casual employees, and employees of leased departments. They were in disagreement, however, with regard to the trait placement of the assistant to the personnel supervisor and two assistants to the paymaster, whom the Petitioner would include but the Employer would exclude.ll The assistant to the personnel supervisor, also referred to by the Employer as the assistant personnel clerk, has been employed about 3 years, and has performed the same duties since she was employed. She does typing, filing, and other clerical work. She also handles pay- roll changes resulting from automatic increases at prescribed inter- vals. At the end of a new employee's probationary period, she ex- amines the employee's production card to see if established sales requirements have been met. If so, the employee receives an auto- matic increase. If not, the assistant makes out a particular form,. which is referred to the employee's department manager. The man- ager indicates on this form whether, in his opinion, the employee should receive the automatic increase, be given further training, or be discharged. The form then goes, in turn, to the personnel super- visor and to the store manager, who makes the final determination, primarily on the basis of the department manager's recommendation. The assistant also does some interviewing of applicants, but there is no indication that she has authority to hire or participate in decisions to hire. The manager of the Hammond store testified, as to this as- 9 Walgreen Company, 114 NLRB 1168 ; Sitverwood's, 92 NLRB 1114; see also Kearfott Company, Inc., 112 NLRB 979. The Employer, in its brief, relies on The Grand Union Company, 81 NLRB 1016, in, which the Board found that 1 of a chain of 130 retail grocery stores did not constitute an appropriate unit. The cases are distinguishable , however , in that much of the administrative authority which we have found herein to be vested in the manager of the Hammond store was, in Grand Union, divided between a division manager and a district sales manager. io The petition describes the proposed unit as all regular and regular part-time selling and nonselling employees in the Employer 's Hammond, Indiana, store , excluding employees represented by AFL-CIO unions , department managers , buyers, guards , supervisors, and' professional employees as defined in the Act , and seasonal and temporary employees. "At the hearing , the Employer raised a question as to inclusion of the window trimmers on the ground that they are "close to a professional classification ." The parties took no positions as to this category, however, leaving it for Board determination. There is no evidence to establish that this group meets Board standards for professional employees. Although the Board , in 1949 , included the Hammond display personnel in an areawide unit of such employees ( see footnote 8, above ), there is no contract covering such unit. Under all the circumstances, we shall include the Hammond window trimmers in the present unit. ,648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistant, that, "I do not know whether you can call her a supervisory employee. I think in connection with her work, she does supervisory work." We find, however, on the basis of the entire record, that this assistant's work is largely clerical; that her responsibility, in connection with payroll changes, involves checking statistical records, and not the exercise of independent judgment; and that she is not a supervisor within the meaning of the Act. The Employer also contended that the assistant to the personnel supervisor, as well as the 2 assistants to the paymaster, should be excluded on the ground that all 3 have access to the Employer's con- fidential personnel and payroll records. We do not, however, exclude employees merely because, as here, they have access to confidential company records. The Board definition of confidential employees is limited to those who assist, or act in a confidential capacity to, persons who formulate, determine, and effectuate management policies in the field of labor relations.12 We find that these employees are not confidential employees as the Board defines the term, and we shall therefore include them. At the time of the hearing, the Hammond store employed 259 regular full-time employees in categories included in the proposed unit; 20 regular part-time employees, who work throughout the year more than 26 but fewer than 40 hours a week, and whom the parties .agreed to include ; about 30-40 regular extra employees, who work regularly fewer than 26 hours a week most of the year, and whose unit placement is in issue; and about 100 extra employees, who are on call to work only a few weeks at a time during certain seasons, and whom the parties agreed to exclude as seasonal and casual em- ployees. The Employer would also exclude the regular extra em- ployees who work fewer than 26 hours a week. The Petitioner main- tained that all regular part-time employees should be included, but took no position with regard to the 26-hour standard, leaving that for Board determination. The regular extra employees do essentially the same kind of work as the full-time and regular part-time em- ployees. In accord, therefore, with our usual practice, we shall in- elude all regular extra as well as the regular part-time employees in the unit.13 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 selling and nonselling employees at the Employer's Hammond, Indiana, store, including all regular part-time and regular extra employees, window trimmers, and the assistants to the personnel supervisor and to the paymaster, but excluding all seasonal and casual employees, employees of leased 12 The B. F. Goodrich Company, 115 NLRB 722. 13 Sears Roebuck & Company, 112 NLRB 559, 568. PUCCINELLI PACKING COMPANY 649 departments, employees covered by other union agreements,Y4 pro- fessional employees, guards and house detectives, the secretary to the store manager, the paymaster, department managers, the personnel supervisor, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 14 The Employer has current collective -bargaining agreements covering the following units, among others : Meatcutters , apprentices , journeymen , meat wrappers , and butcher work- men at the Hammond and Gary stores ; operating engineers at the Hammond and Gary stores ; electrical workers at all stores employing such employees except the Rockford store ; and shipping and receiving clerks, warehousemen , truck-drivers , and truck helpers at the Hammond base. Puccinelli Packing Company and Cannery Warehousemen, Food Processors, Drivers, Helpers, Local No. 748, AFL-CIO. Case No. 20-CA-1162. July 10, 1957 DECISION AND ORDER On September 21, 1956, Trial Examiner James R. Hemingway, is- sued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain un- fair labor practices in violation of Section 8 (a) (1) and 8 (a) (5) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings of the Trial Examiner are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and support- ing brief, and the entire record in this case and adopts the findings of the Trial Examiner only to the extent that they are consistent with the findings herein made. The Trial Examiner found that on August 25 and 30, 1955, and thereafter, the Respondent refused within the meaning of Section 8 (a) (5) of the Act to bargain with the Cannery Warehousemen, Food Processors, Drivers, Helpers, Local No. 748, AFL-CIO, herein called the Union. For the reasons set forth below we do not agree. Briefly stated the facts are as follows : On September 11, 1951, the Union was certified as the bargaining representative of the Respond- ent's employees, and at all times since has been the exclusive bargain- ing representative of these employees. Thereafter the Respondent and the Union engaged in collective bargaining, but as of July 1954, had not agreed on contract terms. In July 1954, King, the union president, delivered a proposed contract to Feehan, the Respondent's 118 NLRB No. 73.