Spartan Department Stores

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by the Respondent as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Sixth Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps have been taken to comply herewith.is 19 If this Recommended Order is adopted by the Board, this provision shall be modified to read* "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL OUR OFFICERS AND AGENTS AND TO ALL MEMBERS OF LOCAL 5-198 INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES OF PIONEER LUMBER CORPORATION Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT threaten to inflict, or inflict, bodily harm upon, or threaten with loss of employment, employees at the plant of Pioneer Lumber Corporation at Dailey, West Virginia, in order to prevent them from crossing our picket lines, and we will not bar their ingress to, or egress from, said plant. WE WILL NOT, in any like or related manner, restrain or coerce employees of Pioneer Lumber Corporation in the exercise of the rights guaranteed by Section 7 of the Act, as amended, including the right to refrain from any and all concerted activities. SOUTHERN STATES REGIONAL COUNCIL, REGION V, INTERNATIONAL WOOD- WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 2107 Clark Building, 701-717 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have any question concerning this notice or compliance with its provisions. Spartan Department Stores i and Retail Clerks International Association, AFL-CIO, Local 1680, Petitioner. Case No. 16-RC- 3163. January 14, 1963 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 John F. White, hearing offi- cer. The hearing officer's rulings are free from prejudicial error and are hereby affirmed.2 1 The hearing officer, without objection, granted leave to amend the petition to name all operators of licensed departments as parties to this proceeding. Because these parties received adequate notice and since we find them to be joint employers of the employees in the unit sought by Petitioner, we hereby amend the caption to include the following parties as Employers: Marrud, Inc. ; Miles Shoe Corporation ; Benjamin Kraft & Sons, Inc ; Kay Jewelry Stores, Inc. ; Dine-O-Rama, Inc ; Play-More Sales Company, Inc Top Value Auto Supply ; Babdo Sales, Inc Appliances, Inc. ; and Crank Drug Store i At the hearing, Retail & Department Store Employees, Amalgamated Clothing Work- ers, AFL-CIO, hereinafter referred to as the Intervenor, moved to dismiss the petition on the following grounds: (1) The petition failed to list its name as a labor organization 140 NLRB No. 59. SPARTAN DEPARTSIENT STORES 609 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 Fanning and Brown]. 1. The Employer, Spartan Department Stores, hereinafter referred to as Spartan, owns and manages discount department stores in a number of cities. This proceeding only involves its two stores located in Oklahoma City, Oklahoma. The parties stipulated that Spartan is engaged in commerce and that over the last 12 months the combined operation of the Oklahoma City stores exceeded $500,000 and that it received in excess of $50,000 worth of goods shipped from outside the State of Oklahoma. In view of the foregoing we find that Spartan is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. Spartan's stores consist of various departments which are either wholly owned or are operated by licensees pursuant to formal agree- ments with Spartan. Through these license agreements, which are uniformly applicable to all licensed departments,' Spartan retains control over all advertising, has authority to inspect and audit all records relating to the operation of licensed departments, must con- sent to any "sales" conducted in these departments, must approve in- stallation of furnishings and equipment, and has the exclusive right to adjust customer complaints on behalf of the licensees. The appear- interested in the proceedings, and (2 ) the Petitioner's showing of interest was tainted because it was allegedly obtained with the unlawful assistance of the Employer. The motions were initially reserved for ruling by the Regional Director but were referred to the Board when the entire case was transferred in accordance with the Board ' s Rules and Regulations. We find the Intervenor 's contentions to be without merit As to (1), it is clear that the Intervenor was not prejudiced since it received timely notice of all proceedings , was permitted to intervene prior to the hearing , and actively participated in all phases of the case See Machzinery Movers and Erectors Division, Michigan Cartage- men's Association, 117 NLRB 1778 , footnote 2 As to ( 2), it is settled that a Petitioner's showing of interest is an administrative matter for the Board's determination and is not a litigable issue in representation proceedings . See 0 . D Jennings & Company, 68 NLRB 516, 518; Georgia Kraft Company, 120 NLRB 806, 807 Moreover, we are administra- tively satisfied on the basis of an investigation that the Petitioner 's showing of interest is valid and sufficient. Accoidingly, Intervenor's motion to dismiss is denied. The Intervenor also contends that the hearing officer erred in quashing a subpena served on an agent of the Petitioner for the purpose of eliciting testimony bearing on alleged Employer assistance in securing Petitioner 's showing of interest Since the evi- dence sought through this subpena related to an alleged unfair labor practice and an issue which could not be raised in this proceeding , we find that the hearing officer properly revoked the subpena. The Intervenor further contends that the hearing officer erred in denying its motion to adjourn the hearing pending enforcement of a subpena served upon the Employer's labor relations manager in New York City. We find no merit in the contention that the sub- penned evidence was necessary to determine the appropriate unit, and agree with the hearing officer that the record contains competent and complete evidence on all matters relevant to this determination . Moreover, in view of Intervenor's failure to offer evi- dence or otherwise indicate that the testimony sought would tend to refute that already in the record , it is apparent that the subpena in question was in furtherance of a "fishing expedition" and intended to unduly delay the proceeding. Accordingly , and because en- forcement of the subpena would be inconsistent with the policies of the Act , we affirm the hearing officer's ruling and deny Intervenor's request for enforcement. 'The record shows some variation in the provisions concerning the financial relation- ship between Spartan and the licensed departments , but these departures from the standard agreements are not relevant here 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ante of a single department store is preserved by a prohibition on the display of the trade names of the individual licensees and is assured by Spartan's responsibility for overall operations. Moreover, and in furtherance of Spartan's intention of creating the appearance of a single, integrated department store, provisions of the license agree- ments pertaining to labor relations subject employees to all regulations set by Spartan; provide Spartan with a peremptory right of dis- charge; authorize Spartan to adjust any labor dispute involving a licensed department; and require licensees to comply with terms and conditions of employment, hours, vacation policy, collective bargain- ing, and union affiliation as established by Spartan. In view of the contractual relationship between Spartan and the licensed depart- inents and on the basis of the entire record, it is clear that Spartan is in a position to influence the labor policies of all licensees. In view of the foregoing, we find that each of the licensees and Spartan are the joint employers of the employees in each of their respective de- partments." We find further that all of the joint employers are en- gaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. Questions affecting commerce exist concerning the representation of employees Within the meaning of Section 9(c) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of all regular employees of the Spar- tan Department Stores located in the metropolitan area of Oklahoma City. While the Intervenor has not taken a position as to what unit would be appropriate, it apparently contests the propriety of a two- store, citywide unit and also opposes the inclusion of employees of licensed departments in the overall unit. The Oklahoma City stores are subject to common supervision and control, their employees are governed by uniform labor policies, and the stores are located only 14 miles apart. Employees are interchanged between the Oklahoma City stores to serve unanticipated needs of either. The record indicates that Spartan bargains through citywide units in Dallas and San Antonio, the only other cities in the area in which multiple outlets are maintained. There is no contention that the broader unit will impair the organizational interests of the employees concerned, and no union is here seeking a more limited unit. In view of the foregoing, we find the unit embracing employees at both Okla- homa City stores to be appropriate herein.s As heretofore found, Spartan and each of the licensees constitute joint employers of each of their respective departments. And as de- 6 See Frostco Super Save Stores, Inc , 138 NLRB 125 ; United Stores of America, 138 NLRB 383, Gaylord Discount Stores of Delaware, Inc, et at., 137 NLRB 557. 5 The Retail & Department Store Employees , Amalgamated Clothing Workers, AFL-CIO, was permitted to intervene upon a showing of interest 6 Cf Sav-On Drugs, Inc., 138 NLRB 1032 SEVEN-UP BOTTLING COMPANY, INC. 611 scribed above, the Spartan stores resemble in their physical aspects a single retail department store. The Board's long-established policy in cases involving retail department stores is to find all inclusive units appropriate.' Many of the factors on which this policy was based are present herein, including the exercise by all the employees of the same general skills, the use of common facilities, and the similarity of their working conditions. In view of all of the indicia of their mutuality of employment interests, and the fact of the joint employer relation- ship, we find a unit including employees of Spartan's wholly owned departments and those of licensed departments to be appropriate s We find that the following employees of the employer constitute a unit appropriate for collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All regular full-time and regular part-time employees employed at Spartan's retail department stores located in the metropolitan area of Oklahoma City, Oklahoma, including employees of Spartan's wholly owned and licensed departments, but excluding professional em- ployees, guards, watchmen, confidential employees, management trainees, store managers, assistant store managers, department man- agers,' head office cashiers, and all other supervisors as defined in the Act.10 [Text of Direction of Election omitted from publication.] ' Polk Brothers, Inc., 128 NLRB 330, 331. sin Frostco Super Save Stores, Inc., supra, footnote 4, the Board did differentiate as to a single licensed department and allowed a self-determination election by its employees on the separate unit question . However, although the witnesses here were fully compe- tent to testify on, and were examined as to the factors supporting the separate election in Frostco, the record here does not suggest that like considerations obtain in the case of any of Spartan 's licensed departments . See also United Stores of America, supra, footnote 4. 6 The Petitioner contends that department managers are not supervisors and should be included in the unit , while the Employer takes the contrary position . The record estab- lishes that the department managers direct the work in their respective departments and have authority effectively to recommend the discharge or discipline of employees under their direction . We find that they are supervisors and should be excluded from the appropriate unit. 10 The parties stipulated to exclude the store managers , assistant. store managers, head cashiers , and a management trainee. Seven-Up Bottling Company, Inc. and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America , and its Local Union No. 150, AFL-CIO, Petitioner. Case No. 25-RC-.2170. January 14, 1963 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted by the Acting Regional Di- 140 NLRB No. 57. 681-492-63-vol. 140-40