F. W. Woolworth Co.

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kroger Company may use nonunion laborers. The preventive purposes of the Act would be thwarted unless the order in this case is coextensive with the threat which exists that Respondents may in the future engage in similar , unlawful conduct at the "Searstown" or other building projects. In order, therefore, to prevent a re- currence of similar unfair labor practices , and thereby to minimize industrial strife which burdens and obstructs commerce, it will be recommended that the order in this case require the Respondents to cease and desist from the commission of unfair labor practices of the kind found here not only against the contractors who hap- pened to be affected by the December 14 picketing but against all other employer's who might be engaged in work on any common job site where Kroger simultaneously may be using nonunion laborers. Upon the basis of the above findings of fact and upon the entire record in-the case, I make the following: CONCLUSIONS OF LAW 1. By inducing and encouraging employees of Muirhead Construction Company, Dickson & Christofer, Air Conditioning Corporation, Starr Electric Co., Reed- Hayden, Inc., E. L., Thomas, and Adam Construction Company to engage in a strike or a concerted refusal in the course of their employment to perform services with an object of forcing or requiring their respective employers to cease doing business with any other person, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A ) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from'publication.] F. W. Woolworth Company and Bakery and Confectionery Work- ers International Union of America, Local 119, AFL-CIO,. Petitioner F. W. Woolworth Company and Department and Specialty Store Employees Union,' Local 1265, AFL-CIO, Petitioner F. W. Woolworth Company and Local Joint Executive Board of the Hotel and Restaurant Employees and Bartenders' Inter- national Union, AFL-CIO, ,of Alameda County, on-behalf of Culinary Workers Alliance .Local 31, and Cooks, Pastry Cooks and Assistants Local 228, Petitioner. Cases Nos. 20-RC-3310,, 2O-RC-3311, and 20-RC-3343. November 1t, 1957 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a hearing was held before L. D. Mathews, Jr., 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 these cases to a three-member panel [Chairman Leedom and Mem- bers Murdock and Jenkins]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 119 NLRB No. 56. F. W. WOOLWORTH COMPANY 481 2. The labor organizations involved claim 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 in Case No. 20-RC-3310, hereinafter called the Bakery Workers, seeks a unit of bakers and bakers' helpers at the Em- ployer's retail variety store and restaurant at Oakland, California. The Petitioner in Case No. 20-RC-3343, hereinafter called the Local Joint Board, seeks a unit of fountain and restaurant employees, ex- cluding the bakers and their helpers and employees engaged in the sale of baked goods. The Petitioner in Case No. 20-RC-3311, here- inafter called Local 1265, and the Employer contend that only a storewide unit, including both selling and nonselling employees, is ap- propriate. The parties also disagree as to the unit placement of cer- tain categories, which are discussed below. The Employer is engaged in selling general merchandise and in preparing and serving food. This is a typical Woolworth store, con- sisting of a mezzanine or office floor, a main floor, and a basement. The Employer divides its operations into many departments, includ- ing a department 34. This department is subdivided into five sections, as follows : The food or lunch counter, bakery sales, and the hotdog stand, located on the main floor, and the kitchen-bakery and the em- ployees' cafeteria, located in the basement. All employees, approximately 83 in number, work under the over- all supervision of the store manager and his assistant. All depart- ment 34 employees work under the same immediate supervision. All employees attend weekly store meetings. All applicants for employ- ment are interviewed by a single personnel supervisor, who also hires all employees and maintains all personnel records. All regular full- time employees have the same employee benefits. There is no bar- gaining history at the store. The Proposed Unit of Baking Employees (Case No. 20-RC-3310) The approximately four employees sought by the Bakery Workers are classified by the Employer as a bakery cook and bakery cook's helpers. They work in the kitchen-bakery. They wear blue uniforms provided by the Employer. Other employees working in the kitchen- bakery include two employees engaged in general cooking, whose wages are apparently about the same as those of employees holding corresponding classifications in the bakery group, and a handyman who serves both groups. One of the bakery cook's helpers also serves as helper to the Employer's other cooks. The baking employees make cakes, pies, doughnuts, macaroons, cookies, muffins, rolls, biscuits, and 476321-58-vol. 119--32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD similar items. They do not make bread. They use detailed recipes furnished by the Employer, which, show, for example, how many minutes materials should remain on the blending machine. The items made by the baking employees are sold both at the lunch counter and at the bakery sales for off-premises consumption. At times, for ex- ample, on Mother's Day, cakes are sold throughout the store. The bakery cook has been on the job for some 22 years; 1 of her helpers for about 91/2 years. The latter testified that it took her and another helper about 2 years before they could perform all their duties. A representative of the Bakery Workers testified that a 3-year appren- ticeship is generally a prerequisite to becoming a "good" baker, but that, by passing an examination, one might acquire a card from the Bakery Workers signifying that its holder was a journeyman baker in a shorter period of time.' However, it does not appear that the Employer has an apprenticeship program for its baking employees, or that they ever served any apprenticeship, or passed the examina- tion noted above. In F. W. Woolworth Company, Case No. 8-RC-1915,2 the Board considered a request for a separate unit of bakers and their helpers employed at the Employer's Youngstown, Ohio, general store. The employees requested in that case, as here, worked in a kitchen with other employees, some of whom were engaged in general cooking, had similar skills and comparable work experience, apparently shared supervision with the other kitchen employees, restaurant employees, and food-selling employees, and there was a similar lack of an ap- prenticeship training program. The Board found that the bakers did not possess or exercise such a high degree of skill as to be con- sidered craftsmen, and that their common day-to-day supervision with the kitchen employees, and the close interests they therefore had with other employees whose work was closely integrated with theirs, belied the existence of any other distinctive denominator sufficient to set the bakers apart from other employees. The Board therefore, found that the proposed unit was inappropriate. In these circumstances, we see no reason to reach a different conclusion in this proceeding. We there- fore find inappropriate the unit requested herein and dismiss the petition. The Proposed Unit of Fountain and Restaurant Employees (Case No. 20-RC-3343) The approximately 22 employees sought by the Local Joint Board include workers in various classifications, such as fountain saleslady, 1 The Union representative also stated that these employees were already doing a "pro- ficient" job and therefore would mot be; required to take the examination. 2 Not reported in printed volumes of Board Decisions and Orders. F. W. WOOLWORTH COMPANY 483 service girl, and kitchen helper.' They do not include the approxi- mately four baking employees sought by the Bakery Workers or em- ployees engaged in the sale of baked goods. All the foregoing em- ployees, ae noted above, work in department 34. All the employees requested by the Local Joint Board are engaged primarily in pre- paring and serving food and in related restaurant duties. They work both at the food counter and the hotdog stand on the first floor and in the kitchen-bakery in the basement. There is some variation be- tween their working hours and those of the salesgirls. Both the waitresses and the girls engaged in selling baked goods wear white uniforms furnished by the Employer. Two of the salesgirls engaged elsewhere in the sale of candies and cookies also wear white uniforms. All department 34 female employees use the same dressing room. They may also use the facilities of the employees' lounge, although as a matter of practice they do not do so. All department 34 employees, unlike other employees, receive free meals from the Employer. There has been some interchange between the employees sought by the Local Joint Board and other employees. Thus, a salesgirl has served as a fountain saleslady or waitress many times; another salesgirl "helps out" in bakery sales and in the hotdog stand; a girl in the bakery sales also works at the hotdog stand and at the fountain or hunch counter; another girl works as a saleslady both in bakery sales and at the lunch counter; and another works at the.hotdog stand and in bakery sales and also does clerical work for the department. The various categories sought by the Local Joint Board do not con- stitute a craft group. They do not, apart from other department 34 employees, constitute a separate department of the Employer's opera- tions. We perceive no justification for establishing them as a separate appropriate unit.' We therefore find that the requested unit of fountain and restaurant employees is inappropriate on a craft, de- partmental, or any other basis.5 Accordingly, we shall dismiss the petition in Case No. 20-RC-3343. 3 to its brief , the Local Joint Board asserts that its proposed unit includes cooks and their helpers , fountain salesladies or waitresses , fountain girls, other fountain employees, sandwich makers , salad or pantry girls , steam table girls, bus help, dishwashers or service girls, kitchen help, the hotdog girl , and the assistant fountain operator. * John W. Thomas & Co ., 104 NLRB 868 , and Allied Stores of Ohio, 90 NLRB 1868, cited by the Local Joint Board in its brief , are clearly distinguishable from the instant case. In those cases, the Board found appropriate , in the absence of a bargaining history on a broader basis , a unit- of coffee shop employees and a unit of restaurant employees. How- ever, in those cases there was no union , as there is here, which sought to represent all employees , including restaurant employees , on a storewide basis. T. P. Taylor & Company, 118 NLRB 376, also cited by the Local Joint Board, in which the Board in effect stated that a unit composed of less than all selling and nonselling em- ployees in the retail industry might be found appropriate under certain circumstances, is inapplicable here, where, for reasons indicated , the requested unit is in and of itself in- appropriate. 5 The Local Joint Board relies in support of its unit claim on an alleged recognition of employees in its proposed unit. It asserts that in 1953 , the Employer's Oakland store was a member of an association of employers and that a firm of attorneys representing the 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Proposed Storewide Unit (Case No. 20-RC-3311) The storewide unit proposed by Local. 1265 and the Employer would include both selling and nonselling employees. In the past, the Board has recognized that a functional integration and mutuality of interests exist between selling and nonselling employees in retail establishments,6 and has frequently found appropriate a unit em- bracing both categories in a department store such as that involved herein.' We therefore find appropriate in the instant proceeding It storewide unit including both selling and nonselling employees. There remains for consideration the unit placement of the disputed categories.' Seasonal and Intermittent or On-Call Employees Local 1265 would include and the Employer would exclude these categories. Seasonal employees are those who are called in by the Employer to take care of increased business during the Christmas and Easter seasons and other similar periods, and during special sales or "downtown events" occurring at any time in the year. Although it is the Employer's policy to ask former seasonal employees to return, there is no evidence as to how often specific seasonal employees have been called back to work. Furthermore, seasonal employees may refuse offers of employment without prejudicing their future oppor- tunities with the Employer. Intermittent or on-call employees are those who have indicated an availability for employment at any time. All these employees do work similar to that done by regular employees. They do not, however, have the same benefits as regular employees. There appear to be no essential differences between so-called seasonal employees and the intermittent or on-call employees. They all appear to be casual employees. We do not believe that they have sufficient community of interest with the other employees to warrant their in- clusion in the unit. Accordingly, we shall exclude the seasonal and the intermittent or on-call employees from the unit.9 Upon the entire record in these cases, we find that the following employees of the Employer at its retail variety store and restaurant at Oakland, California, constitute a unit appropriate for the purposes association recognized the Local Joint Board as the collective-bargaining representative of employees in the unit now requested by it. In any event, as there has been no bargain- ing for the employees in the unit sought by the Local Joint Board , we reject this contention. 6 Fanny Farmer Candy Shops, Inc., 112 NLRB 299. 7 See, e. g., S. H . Kress & Co., 92 NLRB 15. 8 As the Bakery workers and the Local Joint Board have indicated their desire not to participate in the election if the Board should find appropriate only a storewide unit. and as we have so found , we shall not consider their contentions with respect to unit placement. ° Cf. Great Atlantic and Pacific Tea Company , National Bakery Division, 116 NLRB 1463, 1467; Montgomery Ward & Co., 110 NLRB 256, 258. LAGUNA SPORTSWEAR COMPANY, INC. 485 of collective bargaining within the meaning of Section 9 (b) of the Act : All regular full-time and part-time selling and nonselling em- ployees, excluding seasonal and intermittent or on-call employees, pro- fessional employees, guards, the confidential office employee,10 the man- ager, the assistant manager, the designated learner, the personnel .supervisor, the office supervisor, the fountain operator, the assistant fountain operator, the fountain trainee, the stockroom supervisor, sales floor supervisors, and all other supervisors as defined in the Act. [The Board dismissed the petitions filed herein in 'Cases Nos. 20-RC-3310 and 20-RC-3343.] [Text of Direction of Election omitted from publication.] 10 Local 1265 and the Employer agree, and we find, that the confidential office employee .and the remaining categories should be excluded from the unit. .Laguna Sportswear Company, Inc. and Local 639, Amalgamated Clothing Workers of America, Petitioner. Case No. 21-RC- 4791. November 13,1957 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election dated June 21, 1957,1 an election by secret ballot was conducted on July 17, 1957, by the Regional Director for the Twenty-first Region among the em- ployees in the unit found appropriate by the Board. Following the election, a tally of ballots was furnished the parties which shows that of 3 ballots cast, 1 was against the Petitioner and 2 were challenged. As the challenged ballots were sufficient in number to affect the re- sults of the election, the Regional Director, pursuant to Section 102.61 of the Board's Rules and Regulations, conducted an investigation of the challenges and on September 5,1957, issued his report on challenged ballots in which he recommended that the challenge to one ballot (Childers) be sustained and the challenge to the other (Montellano) be overruled. The Petitioner thereafter filed timely exceptions to the Regional Director's report, and the Employer filed a response to the Petitioner's exceptions. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its power in connection with this case to a three-member panel [Members Rodgers, Bean, and Jenkins]. I Not reported in printed volumes of Board Decisions and Orders. 119 NLRB No. 60.