Barr's Jewelers

r BARR'S JEWELERS 235 especially when the provision is considered in relation to Section 8(b) (4) (ii) of the Act. To be sure, Section 8(b) (4) (i) does not speak in terms of an express distinc- tion between higher and lower echelons of supervisory personnel. But the dis- tinction is, nevertheless, implicit in the provision because it does speak in terms of individuals who in the course of their employment "use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials," or "per- form services." This language seems to suggest that it could be applied appro- priately only to such horny-handed sons of toil as working foremen. The impor- tance which I attach to Section 8(b) (4) (ii) derives from the fact that there would be little, if any, need for this provision, which is aimed at threatening or coercive action against any person, if mere inducement was prohibited in most cases. Upon the basis of my findings of fact, and upon the entire record, I hereby reach the following: CONCLUSIONS OF LAW 1. Local 324, International Union of Operating Engineers, AFL-CIO, is a'labor organization within the meaning of Section 2(5) of the Act. 2. Brewer's City Coal Dock and Wellpoint Dewatering Corporation are persons engaged in commerce or in industries affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. By inducing and encouraging James K. Davidson, a supervisor of Wellpoint Dewatering Corporation, who at the time was in complete charge of operations at a construction site being dewatered by the Wellpoint Dewatering Corporation, not to accept two deliveries of sand made by Brewer's City Coal Dock against which the Respondent was conducting a strike, the Respondent did not engage in any unfair labor practice affecting commerce within the meaning of Section 8(b)(4)(i) or (ii) (B) of the Act. [Recommendations omitted from publication.] Barr's Jewelers' and Retail Clerks Union Local 1390, Retail Clerks International Association, AFL-CIO, Petitioner. Case No. 4-RC-4388. April 24, 1961 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 Katherine W. Neel, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Leedom, and Fanning]. 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 employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the 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 : 1 As noted at the hearing, Employer is composed of the five following separate corpora- tions, all owned and operated by members of the Barr family : Associated Barr Stores, Inc. ; Barr's Jewelers and Silversmiths , Inc. ; Barr's, Inc. ; Barr Brothers of New Jersey ; and Barr Brothers, Inc. 131 NLRB No. 37. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer is engaged in the operation of 11 retail stores for the sale of jewelry, small electrical appliances, and related products. Six of the stores are located in Philadelphia, Pennsylvania. Four are lo- cated in metropolitan Philadelphia, i.e., in Chester and Willow Grove, Pennsylvania, and Camden and Vineland, New Jersey, respectively. The 11th is located in Norfolk, Virginia. There is no collective- bargaining history for its employees. Petitioner seeks a unit composed of all regular full-time and all regular part-time selling and non- selling employees, excluding store managers, guards, and supervisors as defined in the Act, and employees of the Norfolk store. The Em- ployer agrees with the unit described, but would include the employees of the Norfolk store. Specifically, the parties are in disagreement on the following issues : The employees of the Norfolk, Virginia, store: As noted supra, G of the 11 stores are in Philadelphia. The Camden, Willow Grove, and Chester stores are all within approximately 12 miles of Philadelphia. The Vineland store is approximately 35 miles from Philadelphia. The Norfolk store is approximately 240 miles away. All the stores, in- cluding Norfolk, have their own store manager, but are centrally administered by the main store and offices in Philadelphia. The main office directs the overall selling and promotional activities of all the stores and approves or participates in the hiring of employees, who are taken principally from the area in which the particular store is located. There have been some permanent transfers of employees from the Philadelphia stores to the Norfolk store, but these transfers appear to have occurred quite infrequently. No temporary assign- ments of employees from Philadelphia to Norfolk have taken place in the last 3 years. On occasion Norfolk personnel have gone to Philadelphia for sales training. In view of the wide geographical separation of the Norfolk store from the other store, the infrequent interchange of employees, the separate immediate supervision, the absence of any bargaining his- tory, and the fact that no other labor organization seeks a broader unit, we find, notwithstanding some degree of interrelation which exists between all Employer's stores, that a unit confined to the six Philadelphia stores and the four stores in the metropolitan area of Philadelphia is appropriate.2 Part-time employees: There are some 41 employees (over 25 percent of the total work force of all 10 stores and 50 percent of the work force of the 9 stores other than the main store) who work on a part-time basis. They have regularly scheduled hours which may be augmented to meet work demands. No part-time employee has worked less than 93/4 hours a week. During slow periods they are laid off but most of 2 Southeastern Concrete Products Company, at al., 127 NLRB 1024 . See also, The Texas Pipe Line Company, 125 NLRB 837 ; The Great Atlantic & Pacific Tea Company, 121 NLRB 1193, 1194. BARR'S JEWELERS 237 them are recalled as soon as business improves. Only 13 of these 41 employees worked less than 24 weeks in the year preceding the petition, and 28 of them worked over 40 weeks.' Employer would include all these employees in the unit. Petitioner takes the position that those part-time employees who utilize such employment as a "second" job do not have the same interests as the full-time employees and should be excluded or placed in a separate unit. In the alternative, Petitioner would include only those part-time employees who work 15 hours or more a week throughout the whole year: On the entire record, we find that all 41 of these employees are regular part-time employees with sufficient employment interests to be entitled to vote in the election. Accordingly, we shall include them in the unit.4 Credit and collection department: There are 14 employees desig- nated "credit and collection managers" who are located in the second floor office section of the main store. These employees handle the ac- counts receivable of a particular branch store or the main store. They spend 60 to 90 percent of their time "dunning" overdue accounts and the remainder of their time in handling credit request. The record is not clear whether they have the authority to approve any credit trans- action with a new customer without the approval of the credit super- visor, but it appears that the most that they could approve on their own is a $50 transaction and that the average dollar credit sale is between $50 and $150. Apparently, to a greater extent, they may approve credit transactions with customers who have previously established credit with the Employer. They receive fringe benefits similar to the other employees and also punch the time clock. They have no supervisory authority over any of the employees, but when the credit supervisor is at supper or on vacation, any one of the credit and collection men may be designated to substitute for him. The Employer would exclude them because of alleged managerial responsibilities; Petitioner would include them. In the particular circumstances of this case, including their limited discretion to extend credit, and the fact that a major por- tion of their time is spent in other work, we find that the credit and collection men are not managerial employees, and shall therefore in- clude them in the unit.' Diane Monales, Gilbert August, and Thomas Fingerott (sometimes called Lane) are credit and collection department "managers" special- izing in certain types of accounts. Hugh Fearon is a regular credit and collection "manager." Jerry Seidler is a credit and collection 3 This one employee worked only 0 weeks However , there is no indication that he is other than a regular part-time employee, presumably hired more recently than the other regular part-time employees Accordingly, he is treated similarly to the others and in- cluded in the unit 4 See Brown Cigar Company, 124 NLRB 1435; Krambo Food Stores, Inc, 119 NLRB 309, 373-374 e Socony-Vacuum Oil Company, Incorporated , 100 NLRB 90 , 91; see also Franklin's .Store Corporation of Daly City, 117 NLRB 793, 795 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "manager" asigned to the selling floor at the main store. All perform work similar to the other credit and collection "managers," and there is no indication that their discretion to approve credit transactions is any greater than that of the other "managers." There is no evidence that they have supervisory authority over other employees. On these facts we find that they are not supervisors or managerial employees and, ac- cordingly, shall include them in the unit. Jerry Kesack is one of several clerks involved in auditing payments of accounts receivable under the supervision of the credit supervisor. She may also distribute work to the file clerks in a manner similar to other audit clerks in her position. We find that the directional author- ity of this employee is essentially routine and requires no independent judgment. We therefore find she is not a supervisor within the mean- ing of the Act.' Elizabeth Long is a stock clerk working under Jewelry Buyer Green- haugh. She does not use her own discretion but orders diamonds at set prices pursuant to the specific instructions of Greenhaugh or Joe Barr. Milton Gardner is a stock clerk in the hard goods department. He acts as assistant to Meyer Barr, and as such is responsible for the segrega- tion and storage of hard goods. However, it appears that he does not use his own discretion in maintaining inventory and making purchases but acts pursuant to the detailed orders of Meyer Barr and the requisi- tion requests of the branch store managers. We find that Long and Gardner lack any discretionary powers as would classify them as man- ageriaal employees, and shall accordingly include them in the unit.' Sam Shore, the assistant store manager of the main store, spends the major portion of his time as a salesclerk. He substitutes for the store manager 1 day a week and when the store manager is ill or on vacation. As the record does not indicate the scope of Shore's supervisory powers, if any, during the times when he substitutes for the store manager, we will permit him to vote subject to challenge.' Accordingly, we find that the following employees at the Employer's stores located in Philadelphia, Chester, and Willow Grove, Pennsyl- vania, and Camden and Vineland, New Jersey, constitute an appropri- ate unit for the purposes of collective bargaining within Section 9 (c) of the Act : All regular full-time and all regular part-time selling and nonselling employees, including the credit and collection department employees, 9 Cf. The Santa Fe Trail Transportation Co , 119 NLRB 1302, 1305, footnote 7. 7 See St. Cloud Rendering Co , 116 NLRB 1069, 1071-1072; also see Federal Telephone and Radio Company, a Division of International Telephone and Telegraph Corporation, 120 NLRB 1652, 1653-1654 8 See Seattle Automobile Dealers Association , 122 NLRB 1616 , 1617-1618; Interstate Co., Glass House Restaurants, Indiana Toll Road, 125 NLRB 101, 105. YELLOW CAB, INC. 239 but excluding guards, professional employees, and supervisors as de- fined in the Act.9 [Text of Direction of Election omitted from publication.] 6 As the unit found appropriate is broader than that requested by Petitioner, and Petitioner's showing of interest is inadequate with respect to such appropriate unit, the Regional Director is instructed to conduct the election herein only in the event Petitioner establishes a proper showing of interest. Yellow Cab, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 775, Petitioner. Case No. 27-KC-1948. April 24, 1961 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 F. T. Frisbey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudi- cial 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 McCulloch and Members Leedom and Fanning]. 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. The Petitioner seeks a unit of dispatchers and relief dispatchers at the Employer's Denver, Colorado, taxicab operation, or, alterna- tively, would add these employees to the unit of drivers it currently represents. The Employer moved to dismiss on the ground that the petition is barred by its contract with the Petitioner. This motion is denied for the reasons set forth below. The Employer had a contract with the Petitioner covering the drivers,' which expired by its terms on July 1, 1960. An addendum extending the date of this contract was set forth in a letter from the Employer to the Petitioner, but this addendum was never signed by the Petitioner. Moreover, the contract was concerned with the rela- tionship between the Employer and its drivers; there was some refer- ence in the contract to "extra dispatchers," but it appears that there are only two individuals in this category and they fill in only occa- sionally for an absent dispatcher. Therefore, as the contract raised as i In addition to the 500 regular and 225 extra drivers whom the Petitioner represents. it represents a unit of 30 garage employees jointly with the International Association of Machinists, AFL-CIO. 131 NLRB No. 41.