John Breuner Co.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act and further find that Respondent discriminatively dis- charged employees Broadhead , Doggett, Goody, and Miller on May 4, 1959, because of their activity and interest in the Union in violation of Section 8(a) (3) and (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. It will be recommended that the Respondent upon request make available to the Board and its agents all payroll and other records pertinent to the analysis of the amounts of backpay due the discriminatively discharged employees , namely, Broad- head, Coody, Miller, and Doggett. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in these proceedings , I make the following conclusions of law: CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2). 2. By discriminatively discharging employees Broadhead , Doggett, Coody, and Miller on May 4, 1959, as found above, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, threatening, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. 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.] John Breuner Co. and Department & Specialty Store Employees Union, Local 1265, RCIA, AFL-CIO, Petitioner. Case No. 20-RC-I92&. October 19, 1960 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 M. C. Dempster, 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 [Members Rodgers, Jenkins, and Fanning]. 129 NLRB No. 49. JOHN BREUNER CO. 395 Upon the entire record in this case, the Board finds : 1 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 employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. The Employer is engaged in retail department store operations at Richmond, Vallejo, San Francisco, Stockton, Sacramento, and Oak- land, California. In addition there is a warehouse or service building located 4 miles from the Oakland store which services all of the John Bruener Company stores. The only store involved in this proceeding is the one at Oakland, which is housed in a building of eight floors and a basement. The Petitioner seeks a unit of sales personnel (including furniture assemblers), stock selectors, markers, packers, cashier-wrappers, will- call employees, hostess-receptionists, telephone mail-order employees, and display employees, but in the alternative and if required by the Board the Petitioner would include all office clerical employees em- ployed on the Oakland store payroll, elevator operators, and janitors (excluding those janitors who are also guards within the meaning of the Act). The Employer contends on the basis of past history of bargaining and multistore joint action only a multistore unit of all members of Retailers Council of Alameda County, herein called Council, is appropriate. The bargaining history shows that from November 12, 1937, to June 1, 1941, a group of retail stores, then known as the Committee of Five, and now as the Retailers Council of Alameda County, which at all times included the Employer, entered into collective-bargaining agreements with Retail Clerks Union No. 47, which was the predeces- sor to the Petitioner, covering substantially the employees in those classifications sought by the Petitioner in its preferred unit here. When Local 47 canceled the last contract in 1941, members of the Council entered into an agreement with each other to maintain a joint policy of wages, hours, and working conditions for all unorganized employees and also agreed to have collective-bargaining agreements 'Warehousemen 's Union, Local 853, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, and Upholsterers' Custom Drapery & Shade Union, Local 3, AFL-CIO, appeared at the hearing and moved to intervene How- ever, both unions withdrew from the hearing after the Petitioner amended its unit to exclude employees represented by these two unions. Sign , Pictorial & Display, Local 878, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, also moved to intervene on the basis of a contract canceled in 1947 and on the basis of its historic jurisdiction. When this union was unable to submit a showing of interest before the close of the hearing, the hearing officer properly denied its motion to intervene. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that were uniform for all organized employees. Since then the Council has continued up to the present to adopt annual wage in- creases and from time to time specific new working conditions. In 1946, Petitioner struck two members of the Council. These members refused to recognized the Petitioner on the ground that only a multi- store unit of all members of the Council was appropriate. The strike continued until May 9, 1947, when the Council and Petitioner entered into an interim strike settlement agreement, which agreement included recognition of the Petitioner for substantially the scope of the unit as preferred herein by the Petitioner in one multistore unit of all members of the Council. The negotiations called for in the interim strike settlement did not produce a new permanent agreement. Sub- sequently, former members of the Council have entered into individual- store agreements with the Petitioner. However, the eight firms re- maining in the Council have had no agreements with the Petitioner for employees in the classifications sought by the Petitioner. The Council urges that only a multistore unit is appropriate be- cause it has multiple employer contracts from 1937 to date with several unions covering a substantial cross section of the employees, multiple employer relationships with the Petitioner's predecessor, multiple employer treatment of selling personnel and supporting selling serv- ices following the collapse of negotiations in 1947, and because there is an absence of any evidence that the Association or Breuners entered into any individual contracts. We find no merit in this contention. It is well settled that a single-employer unit is presumptively appropri- ate, and that to establish a claim for a broader unit a controlling history of collective bargaining on a broader basis by the employers and the union involved must exist.' The fact that other employers have engaged in multiemployer bargaining with the Union or with other unions representing their employees is therefore irrelevant to the issue at hand. Accordingly, we shall deny the Employer's motion to dismiss the petition on the grounds that only a multiemployer unit may be appropriate. There remains for consideration the scope of the unit and the in- clusions and exclusions. Thee Petitioner's preferred unit request in- cludes approximately 72 sales employees and 8 stock selectors in the selling department; 4 hostess-receptionists who receive customers and escort them to sales personnel ; 1 regular employee in the telephone mail-order department; 2 markers and 1 packingroom "supervisor"; 6 cashier-wrappers; and 5 packers and will-call employees. These employees are unrepresented. Also in the Employer's store are the following unrepresented employees : 6 elevator operators, supervised by the stationary engineer; 4 janitors (excluding 5 janitors who also regularly act as guards) ; 34 office clerical employees located in the 2 See Chicago Metropolitan Home Builders Association, 119 NLRB 1184, 1185. JOHN BREUNER CO. 397 main office of the store; 28 office clerical employees in the merchandise control office; 5 P.B.X operators; 15 credit clerks; and 5 office clerical employees in the advertising department. These additional unrepre- sented employees total approximately 95, and appear to be the only other unrepresented employees with the exception of a few plant cleri- cal employees whom the parties stipulated to exclude from the unit. The Board has long regarded a storewide unit of all selling and nonselling employees as a basically appropriate unit in the retail in- dustry.' As appears from the above facts the employees included in the Petitioner's alternate unit request are all of the unrepresented employees in the store. As there is no controlling history of collec- tive bargaining for any of these employees, and no labor organi- zation is seeking separately to represent the office clerical employees, we find that the appropriate unit should include all of the unrepre- sented selling and nonselling employees of the Employer.' In overall charge of the Oakland store and warehouse is a store manager. Directly under him is a sales manager, merchandise man- ager, promotion manager, general superintendent, credit manager, personnel manager, and controller. Jointly under the sales manager and the merchandise manager are 14 selling department managers, 9 assistant selling department managers, sales manager's secretary, and 1 telephone mail-order supervisor. The parties disagree as to the unit placement of the nine assistant managers, the supervisor of the telephone mail-order department, and the markingroom supervisor. The Petitioner would include the above individuals and the Employer would exclude them as supervisors. The nine assistant managers of selling departments, whose status is in dispute, all regularly sell merchandise as part of their regular duties. In addition, they make up the schedule for employees who work under them, although the sales manager assists in scheduling the 18 furniture salesmen. The assistant managers are responsible for the actions of employees under them when their manager is gone, which occurs on the average about half the time. The assistant manager of the appliance department directs the activities of five regular employees, the assistant manager of radio and TV depart- ments directs the activities of three regular employees, and the assist- ant manager of the record department directs the activity of one regular employee. These three assistant managers report to the man- ager of the radio, TV, and appliance departments. The assistant manager of housewares directs the activities of six regular employees, 3 See The Root Dry Goods Co , Inc, 126 NLRB 953; Bullock's Incorporated, d/b/a 1. Magma & Company, 119 NLRB 642, 643, and cases cited therein. 4 The unions which represent other employees of the Employer are * Finishers, Local 134, IBEW, Local 202; Teamsters Local 70, Millmen's Local 550, International Union of Operating Engineers, Stationary Engineers Local 39; District Council of Painters; District Council of Carpenters, Plumbers and Gas Fitters, Local 444. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the assistant manager of china, glass, and silver directs the ac- tivity of eight regular employees. These two assistant managers report to the manager of housewares, china, glass, and silver depart- ments. The assistant manager of floor coverings directs the activities of eight regular employees and reports to the manager of this de- partment. The assistant manager of the drapery department directs the activities of 11 regular employees, and the assistant manager of bedding and linens directs the activity of 5 regular employees. These two assistant managers report to the manager of the drapery, bedding, and linen departments. The assistant manager of basement new fur- niture normally directs two employees, as does the assistant manager of the used furniture department. However, from time to time more furniture salesmen move in and out of these departments, and all 18 furniture salesmen rotate between their regular and other depart- ments. The assistant managers have been authorized to make effec- tive recommendations regarding hiring and firing and transferring of any individual in their division. The assistant managers are in training to become managers of departments of this store or of Em- ployer's other stores. We find on the basis of the above undisputed facts that the assistant managers are supervisors within the meaning of the Act and we shall therefore exclude them from the unit.5 The supervisor of the telephone mail-order department is a working supervisor and directs the activities of one to four employees. She is directly supervised by the sales manager. She and the employees under her work in a separate room, and handle orders over the phone or by mail for merchandise which has been advertised as purchase- able in this fashion. The number on her staff varies according to the volume of such merchandise advertised. She has the authority to hire or fire any one in her division and has in fact made recommen- dations regarding the hire of employees. Based on the foregoing facts we find that the supervisor of the telephone mail-order department is a supervisor within the meaning of the Act and we shall exclude her from the unit. The markingroom supervisor at present works with two regular employees but during the main peak season may have as many as six employees who mark prices on small wares. This supervisor sets the hours and works of the employees working with him and has effec- tively recommended the termination of an employee. We find that the markingroom supervisor is a supervisor within the meaning of the Act and we shall therefore exclude him from the unit. On the basis of the foregoing, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 5 MacIntyre Motor Company, 119 NLRB 54, 56. Diana Shop of Spokane, Ino., et at., 118 NLRB 743, 745. LOCAL 49, A/W INT'L UNION OF OPERATING ENGINEERS 399 All sales persons ( including furniture assemblers), stock selectors,' markers, packers, cashier-wrappers, will-call employees, hostess- receptionists, telephone mail-order employees, office clerical em- ployees,' P .B.X operators, elevator operators, and janitors,' employed by the Employer at its Oakland, California , retail furniture store, excluding upholstery and seamstresses foremen and forewomen, up- holstery, drapery, and window shade cutters and estimators , custom upholsterers, drapery, window shade, and Venetian blind installers, lambrequin makers, both male and female , slipcover cutter-fitter and seamstresses combination , female, upholstery drapers and window shade seamstresses , furniture handlers, shipping and receiving clerks and working foremen, shipping and receiving clerks and working foremen in furniture warehouses ; employees of cabinet shop, finish shop, and appliance shop , delivery and dispatch employees platform men and plant clericals who work in the warehouse -service buildings, interior decorators,' stationary engineer and maintenance employees, attendants and/or watchmen -guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 6 The parties stipulated to the exclusion of one selector because he is not an employee of the Employer This selector works in the carpet shop, which the Employer has leased out, in the warehouse-service building. We shall exclude this selector 7 Only those office clericals that are on the Oakland store payroll are included. 8 We shall exclude those janitors who are also guards within the meaning of the Act. O The parties agreed to exclude interior decorators as technical employees. Local Union No. 49, affiliated with International Union of Oper- ating Engineers, AFL-CIO and Associated General Con- tractors of Minnesota, Inc. Case No. 18-CB-134. October 21, 1960 DECISION AND ORDER On May 31, 1960, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 129 NLRB No. 48.