See's Candy Shops, Inc.

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD See's Candy Shops, Inc. and Retail , Clerks Union, Locals 770, 324, 905, 1428, 1442, affiliated with Retail Clerks International Association, AFL-CIO, Petitioners. Case 31-RC-2175 March 20, 1973 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Jean A. Savage on September 19, 1972. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 31, this case was transferred to the National Labor Relations Board for decision. There- after, briefs were filed by the Employer and the Petitioners which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board finds: 1 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioners are labor organizations and seek to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Employer manufactures candy and sells it at retail in 83 shops in southern California, and in 12 shops located in other States.2 Of the 83 shops (or 91, as the case may be) 8 are now located in San Diego County, where in 1969 a countywide unit was found appropriate.3 In that unit no contract was achieved in postcertification bargaining. Fifty-five shops are now located in Los Angeles County. The employees I In view of our disposition of this case, we deny Petitioners' motion to reopen, the record 2 Employer's Exh 2 lists 91 shops in southern California The other States in which the Employer operates are Nevada, Arizona, Utah, Colorado, and Texas A wholly owned subsidiary corporation operates in northern California 3 Case 2I-RC-11211 The decision of the Regional Director in that case of these 55 shops, excluding casual employees, guards and supervisors, are now sought by the five locals of Retail Clerks International Association who are the Petitioners. The Employer views the proposed unit as an arbitrary, countywide unit and urges instead a unit of all its shops in southern California from Bakersfield on the north to San Diego on the south, where the total employee complement is 520 as compared with 350 in Los Angeles County. Concededly the individual shops in southern California are not autonomous units. The parties have stipulated that shop managers are not supervi- sors. They play no part in hiring and are limited in authority to direct other employees. The administra- tive headquarters of the Employer are located in Los Angeles, where the candy is manufactured. There are no geographically defined districts. Instead six "shop supervisors," each with 16 to 18 shops to oversee, interview and hire applicants and supervise employ- ees. These six visit each shop assigned to them at least once each week, "more often if possible." Assignment of the stores is determined primarily by the convenience of the supervisor in handling them; the Employer witness could think of no other basis.4 Two supervisors cover only shops within Los Angeles County, but each of the remaining four covers some Los Angeles County shops along with some in surrounding counties. These shop supervisors report to the head supervisor who, as "sales supervisor," issues uniform shop letters addressed to "All See's Salesladies." A shop manual explains store opera- tions in detail and provides basic training for new employees. Personnel records are kept in Los Angeles and payrolls are made up there. Merchan- dise and pricing are identical at all shops. All shop employees except seasonals have the same benefits. All wear the same uniforms. Store opening hours are also identical unless a shopping center location requires otherwise. Transfers in and out of Los Angeles County are infrequent. Employer exhibits show that interstore transfers to shops within Los Angeles County numbered only seven during the period from April 28, 1969, to September 11, 1972, and that two of those were permanent. Transfers out of Los Angeles County cover a longer period as shown on this record-4-plus years, February 6, 1968, to November 9, 1972-and number 21, 17 of which appear to be permanent. There are no record figures on within-Los Angeles County transfers. As the Los Angeles County employee complement is referred to the San Diego stores-then six in number-as within a closely knit geographical area, whose employees share a community of interest sufficient to justify bargaining on less than a chainwide basis The shop supervisor for San Diego County had 13 other shops to oversee, including I in Arizona 4 Custodial work for the stores is provided by several janitor services, with the grouping of shops determined by the bidder 202 NLRB No. 76 SEE'S CANDY SHOPS, INC. 539 approximately 350, the temporary interchange be- tween Los Angeles County and areas outside it is negligible. The Employer urges the application of Gray Drug Stores, Inc., 197 NLRB No. 105, where the Board directed a two-county unit instead of the single Dade County unit requested, holding that Dade did not encompass an area sufficiently remote from the stores in Broward County to reflect a separate community of interest of Dade employees from those in Broward, and that the Dade unit would not reflect the separate community of interest which stems from common supervision inasmuch as two district man- agers handled Dade-Broward supervision. Noting that here the distances between some of the 55 shops within Los Angeles County are as great as 44 miles (in an east-west direction) and 31 miles (in a north- south direction), and that shops straddling the Los Angeles County line are only 2 miles apart in one instance, 9 miles apart in another, and 6 miles apart in another, Employer contends that a unit including all stores in southern California is alone appropriate. Employer also urges that this appropriateness is exemplified by the supervisory coverage of the area, its six supervisors each having some shops in Los Angeles County and no supervisory combination of less than six handling all of Los Angeles County. This approach, however, ignores the fact that in Gray the employer was urging a divisionwide unit consist- ing of all its drugstores in Florida. There were 30, extending for 300 miles vertically through five counties. Areawise and supervisionwise that unit would have been more nearly comparable to the southern California unit here urged, than is the unit the Board found appropriate in Gray -a two-county unit of 21 stores. In Gray the Board specifically did not agree with the Employer's contention that the minimum appropriate unit must be statewide in scope and instead approved the two-county unit as "a geographic cluster suggesting a community of 5 Here the peripheral stores near the Los Angeles County border may be compared with the four stores in Palm Beach County, adjoining Broward County on the north, which did not deter the holding in Gray that a two- county unit was appropriate, rather than five counties or statewide, for the employer involved 6 As the Board said in Gray " the Board has traditionally looked to such factors as the community of interest among the employees sought to be represented, whether they comprise a homogeneous, identifiable, and distinct group, whether they are interchanged with other employees, the extent of common supervision, the previous history of bargaining, and the geon' iphic proximity of the various parts of the employer's operation " See The Great Atlantic and Pacific Tea Company, Inc. 128 NLRB 142, relied on in Gray, where geographic grouping and supervision were not coextensive in the unit found appropriate See also Haag Drug Company, Incorporated, 169 NLRB 877, 878 at In 4, where the Board spoke of two or more retail outlets being appropriate "if there were sufficient degree of geographic or administrative coherence , and common interests of employees in the outlets " (Emphasis supplied ) 7 In Gray, during a 6-month period, temporary transfers in the Florida division ranged from a low of 4 or 5 a week to a high of 20 to 25 a week, for interest distinct from employees at the Employer's remaining stores." 5 In Gray the Board's two-county unit added to Dade, with its 1,135,000 population, the county of Broward with 430,000. Here the Los Angeles County unit requested covers a population group of 6,755,000. It is true that a Los Angeles County unit does not have coextensive common supervision, but neither did the San Diego County unit found appropriate for this Employer's stores. Supervision, however, is merely one of a number of factors.6 Interchange with employees outside the proposed unit is also a factor.? As indicated above, interchange in this case is negligible, tending to indicate a distinct community of interest for the employees within Los Angeles County, with only 28 transfers to and from the county over a period of 3 to 4 years and two-thirds of those transfers being permanent. Transfers, both temporary and perma- nent, among the clerks at the San Diego stores were found "frequent." Comparable transfer information within Los Angeles County has not been supplied. Geographic proximity of parts sought to be joined is another factor. Here the Employer urges a unit including Bakersfield and San Diego shops, which are more than 250 miles apart, and Santa Barbara and San Diego shops which are over 200 miles apart.8 Bargaining history does not exist despite the San Diego County unit certified in the earlier case. No contract resulted. In the circumstances, including the nearly 7 million population of Los Angeles County and the large number of the Employer's stores within it, as well as the minimal interchange of employees into and out of these 55 stores as a group, we conclude that a unit of all stores in Los Angeles County is a coherent geographic cluster whose employees have common interests in collective bargaining .9 We therefore find the unit requested by the Petitioner to be an appropriate unit.10 "Seasonal" employees. Certain part-time employees work during the five peak sales periods of the year: a specific total of 300 for the 6-month period 8 See Big "N," Department Store No 307, Big "N,"a division of Neisner Bros, Inc, 200 NLRB No 137, where the Board granted a single-store unit, noting that the seven-store unit urged by employer involved a distance exceeding 200 miles between some stores 9 By comparison San Diego County has 1,170,000 inhabitants We note in the 1969 Decision and Direction of Election for that countywide unit that the stores were described as within a 7 1/2-mile radius of downtown San Diego with the closest over 60 air miles from any other store of the Employer As counties already large in population increase, the population tends to encroach upon less populated adjoining areas, retail chains tend to supply adjoining areas with shops, and it becomes increasingly difficult to define appropriate bargaining units for retail chains in terms of their distance from any other unit in the chain 10 Member Fanning, as indicated by his dissent with Member Jenkins in Gray, would find the Los Angeles County unit appropriate because it is defined by the Federal Government as the Los Angeles-Long Beach Standard Metropolitan Statistical Area, and hence offers an intelligent, orderly, and geographic approach to federally related problems He notes that San Diego County also comprises such an area 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thanksgiving, Christmas, Valentine's Day, Easter, and Mother's Day. Supervisors keep lists of those who ask for seasonal work. However, Employer's Exhibits 8, 9, and 10, covering all part-time employ- ees in the Los Angeles County stores during a sample year ending July 1, 1972, do not show which are regular part-time and which are seasonal, and the sole witness could not identify them. Seasonals also sometimes work the same hours and have basically the same duties as regular salesladies. It is possible for them to become regular employees by expressing an interest in so doing, but the record does not show how many have done so, nor does it show whether they are working for other employers when not working for this Employer. Petitioners contend that seasonals are casual employees and should be excluded from the unit. They were not sought in the San Diego unit, and were excluded without discus- sion. In their brief Petitioners urge that employees "regularly scheduled to work in a majority of months of the year" be included as regular part-time employees. Although not clear from the testimony or from the Employer's brief, it appears that the Employer may wish all employees to vote in an election. Based on Employer's estimate of periods during which work by seasonals is required-a week to 10 days at Thanksgiving, at Valentine's Day and at Mother's Day, 1 to 2 weeks at Easter, and 2 to 3 weeks at Christmas-it is apparent that 8 to 10 40- hour weeks, or 320 to 400 hours, would be the maximum amount of work available to an individual seasonal employee during 1 year's peak periods. There were 171 part-time employees in Los Angeles County stores from July 1971 through June 1972, including regular part-time employees. Of these 171, 68 worked less than 400 hours, as follows: 31 worked between 300 and 400 hours (20 of them 350 hours or more), 16 worked between 200 and 300, 12 worked between 100 and 200, and 9 worked less than 100 hours. Of the 68, 21 worked in each of the last 3 months of the sample period; only 4 worked in 7 or more months, or a majority of the period. We shall exclude as casuals employees who worked only at the peaks during their period of employment. However, those who amassed 350 or more hours in the year preceding election, and in so doing worked in more than the peak periods, we find are to be considered as regular part-time employees with sufficient community of interest to be included in the unit. We find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All retail selling and nonselling employees, including regular part-time employees, employed at the Employer's stores in Los Angeles County, California, excluding casual employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.]