Renel's Inc.

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Renel's Inc. and Retail Clerks Local 1357 Local 1034, Retail, Wholesale & Department Store Union, AFL-CIO and Retail Clerks Local 1357. Cases 4-CA-5946 and 4-CB-1988 March 20, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 11, 1972, Administrative Law Judge John F. Funke issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respon- dent Employer and Respondent Union filed answer- ing briefs. 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 considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the consolidated amended com- plaint be dismissed in its entirety. DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Administrative Law Judge: This proceeding was brought before the National Labor Relations Board upon: 1. A charge filed April 12, 1972, by Retail Clerks Union 1357, herein the Retail Clerks, in Case 4-CA-5946, against Renel's Inc., herein Renel's, alleging Renel's violated Section 8(a)(1), (2), and (3) of the Act. 2. A charge filed May 8, 1972, by the Retail Clerks in Case 4-CB-1988 against Local 1034, Retail, Wholesale & Department Store Union, AFL-CIO, herein RWDSU, alleging RWDSU violated Section 8(b)(1)(A) and (2) of the Act. 3. An order consolidating cases and a consolidated amended complaint issued by the General Counsel on June 8, 1972, alleging Renel's violated Section 8(a)(1), (2), and 1 Unless otherwise noted all dates refer to 1971. 2 These departments were the Shulman Record Company; the Morse (3) of the Act and RWDSU violated Section 8(b)(1)(A) and (2) of the Act. 4. Answers received from Renel's and RWDSU deny- ing the commission of any unfair labor practices. 5. A hearing held by me at Philadelphia, Pennsylvania, on August 2, 3, and 4 and September 12, 13, and 27, 1972. 6. Briefs received from the General Counsel, Renel's, and RWDSU on November 8, 1972. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS 1. THE BUSINESS OF RENEL'S Renel's is a Pennsylvania corporation having an office at Bala-Cynwyd, Pennsylvania, and operating a retail store at Philadelphia, Pennsylvania. During a representative year, Renel's has a gross volume of business in excess of $500,000 and purchases goods valued in excess of $50,000 from outside the Commonwealth of Pennsylvania. Renel's is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED RWDSU and the Retail Clerks are labor organizations within the meaning of the Act. III. THE ISSUE The complaint alleges that Renel's recognized the RWDSU as exclusive collective-bargaining representative of its employees on December 6, 1971,1 and subsequently executed and signed a collective-bargaining contract covering its employees, which contract contained union- security and checkoff provisions at a time when RWDSU did not represent an uncoerced majority of its employees in the bargaining unit. This is the sole issue presented. IV. THE UNFAIR LABOR PRACTICES A. The Employees in the Unit Renel's operated three stores in the Philadelphia area, one of which was the store at Passyunk Avenue, the store involved herein. Another store at Castor and Luzerne Avenues was under contract dated November 1, 1971, with the RWDSU following a Board-ordered election. The third store was closed. After the execution of the contract covering the Luzerne Avenue store, the RWDSU com- menced a campaign to organize the employees at Pas- syunk. This campaign included the leased departments of the Passyunk store2 and the appropriate bargaining unit, not in dispute, was described in the complaint as follows: All full and regular part-time selling and non-selling employees, including employees of leasees, but exclud- ing all office clerical employees, watchmen, guards, store manager, seasonal employees (those hired to work between November 1 and December 31 of any year), Shoe Company; Leon Spector, Incorporated (toys); and ARA Incorporated (snackbar). 202 NLRB No. 95 RENEL'S INC. employees covered by other collective bargaining agreements to which Renel's is a party, department heads, assistant department heads, and all supervisors as defined in the Act. The campaign initiated by RWDSU was followed by an organizing campaign by the Retail Clerks which appears to have started shortly before Thanksgiving of 1971. Renel's store manager, Mimi Bonavitcola, and the assistant store manager, Robert Gethard, were aware of this campaign by the Retail Clerks. On December 2, RWDSU forwarded to Renel's authori- zation cards secured from employees of Renel's. (G.C. Exh. 5.)3 After receipt of the additional cards Roskos received a list of the employees of Renel's and its leasees and checked them one by one against the cards received. According to the best of his recollection, this check was made on Friday, December 3. On Monday, December 6, Douglas L. Ash, for Renel's, wrote RWDSU stating that it would recognize it as the exclusive bargaining agent for the employees in the unit described above on the basis of the card check and suggested that terms of the contract which had been negotiated for the employees be applied to the employees at Passyunk as of January 3, 1972. (This contract was received as G. C. Exh. 3.)' On December 15, Renel's notified its employees that an agreement had been reached with RWDSU to apply the terms of the Luzerne Street store to the Passyunk store. (G.C. Exh. 4.) We now reach the critical question of the majority status of RWDSU in the appropriate unit on December 6, the date recognition was extended. The parties agree that in addition to the employees of Renel's the employees of the following leased departments should be included: Shulman Record Company; Morse Shoe Company; Leon Spector, Inc. (toys); and ARA Incorporated (the snackbar). Renel's overall payroll for the week ending December 4 showed 76 employees but contained two duplications reducing the correct total to 74.4 The parties have agreed upon certain reductions in this total due to terminations or exclusions by definition of the unit. Three bookkeepers and two assistant department managers (DiDonatis, Bradley, Bankert, Tropiano, and Zambrano) are not within the unit.5 Four were seasonal (Christmas) employees (Sammar- tino, Gasso, Verrilli, and Milaro). Eight were terminated prior to December 3, the date of the card check and two others on December 4, prior to the date recognition was granted. As to the eight terminated prior to December 3, there is no dispute but as to the two employees terminated on December 4 (Gormley and Owens) there is disagree- ment. The General Counsel would include them within the bargaining unit ; the RWDSU and Renel's would exclude them. Since the test of legality is fixed by the date of recognition and not by the card check, I would exclude all 10 from the computation .6 I therefore find that 19 employees should be excluded leaving a unit of 55 employees. 3 This letter enclosed additional authorization cards indicating, accord- ing to Andrew Roskos, vice president for industrial relations for Renel's that other cards had been previously submitted and had been found insufficient in number to establish the majority status of RWDSU. 4 The brief of RWDSU computes this figure as 75, which I find to be inadvertent error. 5 RWDSU brief omits Bradley from this exclusion presumably also 581 It is not disputed that Shulman Record Company had four employees properly included within the unit, and that Morse Shoe Company had six employees in the unit. There is dispute as to the Leon Spector employees since, of the 21 employees, the General Counsel and the RWDSU agree that there were 14 regular and 7 temporary employees; Renel's claims there were 15 regular and only 6 temporary employees. This dispute focuses on Angela Faramelli. Thomas Walsh, office manager of Spector, first testified that Faramelli was a casual employee, a conclusion he reached from the fact she was hired in October (which he described as right before the Christmas season) and that she worked only intermittently during 1972. Walsh stated he did not know her termination date but subsequently testified that she worked only 3 weeks in 1972, but which 3 weeks he did not know. Introduced into evidence was the pretrial affidavit of Walsh (G. C. Exh. 74), in which he stated that Faramelli worked only 3 weeks in 1972 but which did not specify the dates. On the basis of this meager and inconclusive evidence, I find that Faramelli was a seasonal employee who should be excluded from the unit. The employee complement at ARA (the snackbar) varied, but, as of December 6, it consisted of 11 waiters and waitresses, 4 of whom were excluded as seasonal. In addition there was a manager, Rita Daly, admittedly a supervisor, and an alleged assistant manager, William Walsh. The General Counsel contends that Walsh was a supervisor; the Respondents contend he was an employee. For reasons which will be set forth later, this case pivots on the status of Walsh. Thomas Walsh, 18 years old at the time of the hearing, testified that he was hired in June and that from September to December 31 (when ARA terminated its lease) he was assistant manager. This title and its concomitant authority were conferred upon him by Jack Trager, district manager for ARA, at a meeting held at a table in the snackbar in September. Present were Trager, Daly, and Walsh. The forthcoming Christmas season and the expected increase in business were discussed. In this discussion, according to Walsh, Trager told him he was being made assistant manager. After this promotion, which did not involve an increase in pay,7 Walsh recommended the hiring of two employees, Donald Testa and Gerald Spence, and prepared the work schedule for other employees when Daly was either not present or was otherwise engaged. (Daly had 2 days off, Wednesday and Sunday; Walsh worked days from 12 to 4 p.m. and some nights until 1 I or 12. The bar was open from 10 a.m. to 10 p.m. on weekdays and 12 to 6 p.m. on Sundays.) As counterman he had waited on customers and prepared food on the grill, duties which he continued after his promotion. He did testify, however, that he did not spend as much time on counterwork because he made out schedules on Thursday and Friday and was learning to do payroll work. Rita Daly testified that she was manager of the snackbar inadvertently. 6 As to these terminations, the brief of Renel's fixes the total as 11, which I regard as another inadvertent error. 7 Walsh stated he was promised an increase from his pay of $1.60 an hour but could not accept it because it would affect the social security benefits received by his father. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that in September she and Trager discussed the increase in work which would result from the Christmas business and that he asked her if she "had anyone in mind that could relieve some of the pressure during the Holidays." She recommended Walsh. Trager agreed that his title should be assistant manager and that whatever Daly wanted him to do he would do. Under this delegation, Daly gave Walsh the authority to recommend hiring and firing, an authority which he exercised .8 Daly taught him to prepare daily payroll reports and how to order merchandise for the food concession. On cross-examination, Daly admitted that Walsh's records were never changed and that he did not appear on those records as assistant manager although he occupied that status "in my eyes." Daly's testimony as to both her own status with ARA, and that of other assistant managers and employees is confusing, as she admitted, not because she was not a forthright witness but because the employ- ment situation itself was confusing. Thus she testified that she had broken periods of employment during some of which she worked as manager and some as assistant manager. She had had night managers to supervise when she was not at the store but could not remember them because they changed with such frequency. This was likewise true of employees, most of whom were fired for dishonesty. She hired Testa and Spence on Walsh's recommendation that they were honest but did not rule out the possibility that the recommendation of almost any employee or friend might result in employment. Some employees were hired through the simple process of putting a "waitress wanted" sign in the window, so the procedure could hardly be classified as formal nor did applicants receive any particular screening. Jack Trager denied that he had any conversation with Daly and Walsh in which he designated Walsh as assistant manager and stated that no payroll change was made for Walsh in which he was transferred from the employee to administrative status. All supervisors, according to Trager, were placed on the administrative payroll which qualified them for insurance, hospitalization, and other benefits. The only assistant snackbar manager Trager could recall was Daly's daughter whose employment record was also broken, but who did receive administrative benefits while she was assistant manager. Daly would not have the authority to make an employee an assistant manager without Trager's approval, but she could delegate routine duties, such as the preparation of work schedules, to other employees whefl she was not present. I do not find that Walsh possessed supervisor authority within the meaning of Section 2(11) of the Act for the following reasons. The operation of a snackbar with a complement of 13 is not such a complex and complicated operation as to require extensive or full-time supervision. It is clear that Daly did not have authority to confer supervisory status on any employee and it is equally clear that Walsh was never confirmed as a supervisor by formal B It was her testimony that Walsh recommended the hiring of Teste and Spence and that she approved the recommendation. 9 Cooks Markets, Inc., 159 NLRB 1182, 1190 (assistant store managers); Hotel Employees Association of San Francisco, 159 NLRB 143 , 152 (senior room clerks. 10 Trager testified that Daly could appoint any employee to exercise administrative action. It is true that this is not dispositive of the issue, but it is corroborative of Trager's testimony that he neither appointed Walsh a supervisor or gave Daly the authority to appoint him. Walsh's testimony, corrobo- rated by Daly, that he effectively recommended the hiring of two employees must be evaluated in the nature of the operation. No particular skills were required for employ- ment and, as Daly testified, employees would be hired on the recommendation of friends or without any recommen- dation at all. There is little to indicate that Walsh's recommendation carried substantially more weight than that of any responsible and trusted employees. I do not envisage that it was within the contemplation of the Congress that such meager authority was sufficient to bar an employee from a bargaining unit.9 There is also the testimony of both Walsh and Daly that Walsh prepared the work schedules (the hours to be worked) of other employees when Daly was otherwise engaged.10 It is true that this is a factor which has been given some weight by the Board in resolving supervisory status, but it is far from controlling and as a factor in this particular operation almost negligible." Walsh testified that he has prepared work schedules at another ARA snackbar where he admittedly did not have supervisory status. As to payroll work, Walsh reached only the training stage in this, a type of work which is clerical, not supervisory. More important is the evidence that Walsh's essential duties, those of waiting on tables and serving at the grill, remained unchanged. Under the totality of the circum- stance, I would find that a holding that Walsh should be excluded from the bargaining unit would not only be error, but arbitrary, capricious, and frivolous error. Finding that Walsh should be included in the bargaining unit, I reach the following total of eligible employees: Renel's Inc. 55 Shulman Record Company 4 Morse Shoe Company 6 Leon Spector 14 ARA Incorporated 8 87 B. The Valid Authorization Cards The General Counsel submitted 25 cards of employees of Renel's as to which there is no dispute. Four cards were submitted by employees who admittedly signed duplicate cards for each of the unions and there is no dispute that these cards should be excluded.12 Another card, that of J. E. Johnson (G. C. Exh. 20) is undated and is not acceptable for that reason. Four cards which the General' Counsel found were solicited by William Walsh 13 and which he would exclude for that reason I find, in view of my holding that Walsh some of her duties when she was not present. 11 G. C. Murphy Co., 171 NLRB 370,37 1. 12 These were the cards of R. Dina, L. J. Fitti, G . DeMarco, and F. R. Lochetto. 13 These were the cards of E. A. Davocato, J. M. Coppolella, H. Hartmann, and M . A. Mirachi. RENEL'S INC. was not a supervisor, should be accepted. The General Counsel would also exclude the card of J. Simone. According to her testimony, Simone asked to sign a card on November 11, but Mullin, the RWDSU organizer, did not have a blank card on her person at the time. Simone then signed a blank piece of paper testifying that by so doing she meant to and was designating the RWDSU as her bargaining agent. Later she signed a card on January 5, 1972, predated to November 11. In view of her unequivocal testimony that she designated the RWSDU on November 11, I accept the card.14 Of the 35 cards submitted by the General Counsel, I find 30 valid as designations of union representation. Shulman Records had four employees of whom two signed cards. The General Counsel would exclude the card of Elsie Holden (RWDSU Exh. 1) on the ground that no one testified to her signature nor to the circumstances of her signing. Since the card was in the possession of the RWDSU and no evidence that either the signature or the date was not authentic was offered I think a prima facie case of validity has been established, and I shall include her card as evidence of a majority status. The General Counsel objects to the card of Gary Goodnow (G. C. Exh. 15) solely on the ground that it wag solicited by Walsh. I find the card valid. Morse Shoe had six employees employed as stock clerks, three of whom signed cards which are not contested. Leon Spector, Inc., had 14 employees, 7 of whom signed cards. These cards are not disputed. ARA Incorporated had eight regular employees includ- ing Walsh. Six of these, including Walsh, signed cards and the other five cards were solicited by Walsh. In view of my previous holding, I shall include all cards. 14 Suburban Lumber Co., 3 NLRB 194; Wilmington Transportation Co., 4 NLRB 750. 15 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, 583 The following is the computation I find on the basis of the rulings made by me: ' Employer Employ Renel's 55 Shulman Record 4 Morse Shoe Company 6 Leon Spector 14 ARA Incorporated 18 87 Valid Cards 30 2 3 76 48 I find that on December 6 RWDSU represented an uncoerced majority of the employees in the unit found appropriate herein and was entitled to recognition as exclusive bargaining agent of such employees. Upon the foregoing findings, I make the following: CONCLUSIONS OF LAW 1. Respondent, Renel's Inc., has not violated Section 8(a)(1), (2), and (3) of the Act. 2. Respondent Local 1034, Retail, Wholesale and Department Store Union, AFL-CIO, has not violated Section 8(b)(1)(A) and (2) of the Act. Upon the entire record in this case, the foregoing findings and conclusions of law, and pursuant to Section 10(c) of the Act, I recommend issuance of the following: 15 ORDER It is recommended that the consolidated amended complaint be dismissed in its entirety. conclusions, and the Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board, and all objections thereto shall be deemed waived for all purposes.