Eastern Camera and Photo Corp.

National Labor Relations Board - Board DecisionsJan 9, 1963

140 N.L.R.B. 569 (N.L.R.B. 1963)

EASTERN CAMERA AND PHOTO CORP. 569 All building service employees, including maids, porters, yardmen, window washers, PBX operators, desk clerks, combination desk clerks and PBX operators, and laundry help; excluding all office clerical em- ployees, engineers, professional employees, watchmen, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RODGERS, dissenting : I am not persuaded that the factors relied upon by my colleagues warrant the departure from Board policy. As the Employer's gross revenues do not meet the Board's minimum standard of $500,000 for the hotel industry, I would not assert jurisdiction. I would, however, grant the Intervenor's motion to remand the case for a further hear- ing on the question of jurisdiction. Eastern Camera and Photo Corp . and District 65, Retail , Whole- sale and Department Store Union , AFL-CIO, Petitioner. Case No. 2-RC-12032. January 9, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Julius Altman, a hearing officer of the National Labor Relations Board. 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 [Chairman McCulloch and Members Leedom and Fanning]. 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all office clerical, stock control, production, maintenance, and sales employees at the Em- ployer's main store in Hempstead, New York, and 11 subsidiaries, located in the counties of Queens, Nassau, and Suffolk, excluding the Hempstead store manager and other customary classifications. The Employer would also exclude all the other store managers and assist- ant managers, audiovisual employees, the manager and assistant man- ager of camera repair, the stock control manager, the photofinishing 140 NLRB No 58. 570 DECISION S OF NATIONAL LABOR RELATIONS BOARD manager, and four of the office clerical employees, one of whom it contends is a confidential employee, and three others who work ex- clusively on matters pertaining to the Employer's leased departments.' The Employer is engaged in the retail sale and repair of cameras and other photographic equipment and in the sale and processing of film. Its principal office and place of business is in Hempstead, New York. There, it maintains its largest retail store, and also has its photofinish- ing, camera repair, stock control, audiovisual, and office departments. In addition, the Employer, through wholly owned subsidiaries, op- erates 11 branch stores, 10 of which are each operated almost entirely by a single employee, called a store manager. Only the branch store in Flushing and the main store in Hempstead have permanent assistant store managers. Store Managers: The Employer contends that the store managers should be excluded as either supervisors or managerial employees? In support of this contention, witnesses for the Employer testified at the hearing that store managers have authority in the following areas : They can hire employees whenever they need them and can also dis- charge them at will; they can set the prices on new merchandise being sold in their stores and on trade-ins; they can make refunds to cus- tomers for unobtainable or defective camera equipment and distribute petty cash ; they can order merchandise directly from distributors ; and they maintain all store records, make bank deposits, and keep the stores in proper maintenance. On the other hand, a compilation of the testimony of the witnesses for both sides and of the exhibits elicited the following information : The general policies of the operation of the branch stores are both set and rather closely supervised by the Employer. Store managers do not require other sales employees to assist them except for a short period at Christmas and possibly a short period during the summer. At such times, consistent with policy, they would hire a casual em- ployee with some knowledge of cameras.' The store managers are assisted by the Employer in several ways in setting the prices to be charged for new merchandise. These include fixed percentage dis- counts from so-called list prices for various brands of merchandise, weekly sales bulletins advising them of competitors' current prices, and catalogs showing them the cost price to the Employer of all items being sold. Similarly, on trade-in merchandise, the store managers can ascertain their value through a catalog regularly supplied them 1 During the hearing, the parties stipulated to exclude the Employer 's president, vice president , assistant to the vice president , advertising manager, merchandise manager, and controller. 2 The parties stipulated that the Hempstead store manager is a supervisor and should be excluded from the unit. 3 All of the casual employees named in the record and listed in the Employer 's exhibits who were hired by store managers worked only at Christmas EASTERN CAMERA AND PHOTO CORP. 571 by the Employer. In any event, store managers always check with Vice President and General Manager Kittai before selling either new or used merchandise at a price close to the Employer's cost. Petty cash disbursements are generally made for certain forms of store maintenance in line with company policy and for certain refunds when merchandise either cannot be obtained for the customer or is defective in make or in size. In both instances, a sizable disbursement would first have to be passed upon by Kittai. In the ordering of new mer- chandise, store managers occasionally contact the manufacturer di- rectly, but only if the items are urgently needed and either Kittai or Merchandise Manager Katz has approved the orders. Otherwise, the orders are sent to the purchasing department for ultimate approval before being sent to the manufacturer. We find, therefore, that the discretion exercised by the store managers is limited by the custom and policy of the Employer, is routine, and does not require the exercise of independent judgment. It is well established that the sporadic exercise of supervisory au- thority does not constitute an employee a supervisor within the mean- ing of Section 2(11)) of the Act.4 For this reason, we find that the store managers, who may on one or two occasions a year exercise some supervisory function, are not supervisors. The Board has defined managerial employees as those who formu- late, determine, and effectuate an Employer's policies.' It does not appear from the record that the store managers, apart from their lim- ited role in setting prices, play any part in the formulation or de- termination of the Employer's policies. Moreover, managerial status is not necessarily conferred upon employees because they possess some authority to determine, within established limits, prices and cus- tomer discounts.6 In fact, the determination of an employee's "man- agerial" status depends upon the extent of his discretion,' although even the authority to exercise considerable discretion does not render an employee managerial where his decision must conform to the em- ployer's established policy.' Clearly, the instant case involves the ex- ercise of limited discretion, bordering on routine performance. The store managers neither formulate nor determine any policies for the Employer. Accordingly, we find that the store managers are not man- agerial employees, and as we have found above that they are not super- visors, Ave shall include them in the unit. A6sistant store managers: The Employer contends that the assistant store managers at Hempstead and Flushing are supervisors, and that The Barr Rubber Products Company, 118 NLRB 1428, 1431 5 American Federation of Labor, etc., 120 NLRB 969, 973 e Eljer Co., 108 NLRB 1417, 1420 7 Kitsap County Automobile Dealers Association, 124 NLRB 933. s Albert Lea Cooperative Creamery Association, 119 NLRB 817, 822 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they have the authority to hire and dicharge employees and to take over the store manager's duties when the latter is out. The Hempstead assistant store manager testified that his duties remained the same upon his "promotion" from salesman to assistant manager except for having access to the cash register and being given the keys to the store. He further testified that he does not hire, dis- charge, reprimand, or direct any of the sales employees, and the evi- dence clearly indicates that he did not play any role in the Employer's decision to discharge Don Deane, a Hempstead employee. His duties in the absence of the store manager are only those customarily ex- pected of a more experienced employee in his relationship with less experienced employees. As for the Flushing assistant store manager, the Employer offered no evidence to support its claim that he is a supervisor. It is significant, as we have found above, that the Flush- ing store manager is not a supervisor. Upon the entire record, we find that the assistant store managers at the Employer's Hempstead and Flushing stores are not supervisors, and we shall include them. 4udiovisual employees : The Employer would exclude the manager and assistant manager of the audiovisual department (the only em- ployees in that department) as managerial. These employees sell audio and visual equipment to industries and schools. In their work, they contact outside customers to determine their needs, formulate bids on orders, and submit the bids on behalf of the Employer. In addi- tion, they regularly order equipment directly from the manufacturer, thus committing the credit of the Employer. The Board has consistently found employees with broad authority to pledge their employer's credit to be managerial.' Accordingly, we find that the manager and assistant manager in the audiovisual de- partment are managerial employees. We shall therefore exclude them from the unit. Camera repair department : The Employer seeks to exclude the man- ager and the assistant manager in the camera repair department on the grounds that they are supervisors and/or managerial employees. The Petitioner would include this department, and the photofinishing laboratory discussed below, as production or maintenance operations. The camera repair department consists of the manager, who works exclusively on camera repairs, the assistant manager, who works on audio equipment and projectors, and a repairman who does some work on both. The manager and assistant manager determine what prices are to be charged on the equipment they repair. It was the Employer's policy that all repair equipment, and parts valued at more than a few dollars, must be ordered through the office. Gradually, however, the manager and assistant manager have been able to order parts directly B Copeland Refrigeration Corporation, 118 NLRB 1364; Norman Weaver et al, dlbla Weaver Motors, 123 NLRB 209, 215-216 EASTERN CAMERA AND PHOTO CORP. 573 from the manufacturer except as to orders totaling approximately $100 or more. The Employer testified that the manager is in charge of the department and directs the assistant manager whenever it is necessary. Further, it appears that the manager has effectively recom- mended the hiring of a full-time and a part-time employee. From all the above, we find that the manager of the camera repair department is a supervisor within the meaning of the Act and, accordingly, we shall exclude him from the unit. However, we further find that the assistant manager is neither a supervisor nor a managerial employee. He cannot hire or discharge or make effective recommendations as to the status of an employee, nor does he exercise any of the other indicia of supervisory status. The policies of the department have been formulated by the Employer and are merely effectuated by the employees in the department. In addition, although the assistant manager, like the manager, could pledge the Employer's credit, his authority in this respect is strictly limited and is not regularly exer- cised. In such instances, the Board has not deemed this authority to be indicative of managerial status.10 Accordingly, we shall include the assistant manager of the camera repair department in the unit. Stock control department: The Employer contends that the stock control manager should be excluded from the unit as a supervisor. Stock control employees operate the warehouse, handle and route all incoming shipments of equipment from manufacturers and the branch stores, and shipments going out to the branch stores. The depart- ment usually consists of a manager, assistant manager,tt and two drivers. Occasionally, a stock clerk is also employed. Witnesses for the Employer testified that the manager has authority to hire and discharge employees. The merchandise manager, who was formerly the stock control manager, listed specific hirings and dis- charges effectuated by him in his former capacity and by the present stock control manager. Although it appears that Vice President Kittai may have been consulted on several occasions before any action was taken, it also appears that the stock control manager has the power to effectively recommend changes in personnel status. Ac- cordingly, we find that the stock control manager is a supervisor within the meaning of the Act and we shall exclude him from the unit. Photofinishing manager: The Employer would exclude the manager of the photofinishing laboratory as a supervisor. The photofinishing laboratory develops and prints all film for the Employer's stores, and its normal complement consists of the manager, assistant manager, and two or three other employees. The Employer contends that the manager is in charge of the laboratory's operations, can hire and dis- 10 General Electric Company , Pinellas Peninsula Plant , 127 NLRB 919. 11 The parties stipulated that the assistant manager is not a supervisor 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge employees, and has authority to approve overtime, time off, and sick pay for employees in the laboratory. William Gunn was the photofinishing manager from 1952 to 1957 and from 1960 until March 1962. It was uncontested that during his first term as manager Gunn discharged an employee. Gunn testified that when he resumed his position as manager in 1960, he was given a specific weekly allowance by the Employer for payroll purposes; with this allowance, he could hire as few or as many employees as he want- ed, keeping whatever was left over for himself. Under this plan, he determined at the outset that only one other employee would be necessary, and effectively recommended to the Employer that one of the laboratory personnel (his choice) be retained and the others discharged. The record indicates that on several occasions Gunn did confer with the Employer about new employees, and made effective recommendations as to them. It further appears that Gunn recom- mended salary increases and determined whether employees out sick were to be paid for the time they did not work. In view of all the above, we find that the photofinishing manager is a supervisor and we shall exclude him from the unit. Confidential secretary: The Employer contends that the secretary, who takes dictation from all of the Employer's executives, is a con- fidential employee and should be excluded from the unit. The Em- ployer's president testified that the correspondence handled by this secretary included communications with the shopping services investi- gating the honesty and ability of employees, all correspondence con- cerning the labor policies and programs of the Employer, including correspondence with their labor counsel and with the Board, corre- spondence with attorneys handling stock issues and other corporate matters, and lists of employees containing the job category and salary of each. Helen Christon, employed in this capacity for a few weeks in March 1962, testified that she was hired as an aid to the advertising manager and that she spent one quarter of her time in this work. She stated that she took dictation from the Employer's president only two or three times a week, and denied having taken any correspondence with relation to legal matters, the financial status of the Employer, or the status of any employees. She did not regard herself as the president's secretary but did not know anyone else who took dictation from him. She stated that she took dictation from several of the managers and sales personnel also. Christon did not have access to payroll books and neither opened the president's incoming mail nor answered his phone calls. A confidential employee is one who assists and acts in a confidential capacity to persons who formulate, determine, and effectuate manage- EASTERN CAMERA AND PHOTO CORP. 575 went policies in the field of labor relations.12 From the conflicting testimony in the record before us, we are unable to determine whether the secretary is a confidential employee. Accordingly, we shall permit her to vote subject to challenge. Lease department employees: The Employer seeks to exclude from the unit three employees who work at the principal office in Hemp- stead, on the ground that their work is concerned solely with book- keeping for the Employer's lease departments. The lease departments are operated by the Employer in addition to its own stores, as des- ignated in the petition, and are located outside the State of New York. The bookkeepers appear to work in the same office area with the other clericals, and are under the same supervision as those clericals. The Employer testified that the nonsupervisory personnel in its out-of-State lease departments are usually represented as part of a storewide unit by whatever union represents the department store in which the lease department is located. It is thus very unlikely that the Hempstead lease department clericals will ever be represented in a unit with the out-of-State lease department employees. For this reason, and because the lease department bookkeepers perform essentially the same duties, and are under the same supervision as the other Hemp- stead office clerical employees, we shall include them in the unit. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act : All office clerical, sales , stock control, camera repair , and photo- finishing employees at the Employer 's main store in Hempstead, New York, and its subsidiaries 19 in Lynbrook, Long Beach, Garden City, Freeport, Hicksville (2), Babylon, Port Washington, Bay Shore, Flushing, and Hempstead, New York, including office employees working on lease department business , store managers other than at Hempstead, assistant store managers , and the camera repair assistant manager, but excluding the controller, merchandise manager , manager of the Hempstead store, advertising manager, assistant to the vice president and general manager, audiovisual employees , camera repair manager, stock control manager , photofinishing manager, supervisors of lease departments, confidential employees, professional employees, guards, and supervisors as defined in the Act. 5. The Employer stated at the hearing that it was not waiving its rights to challenge voters at the time of the election because of their alleged loss of employee status through replacement in the course of the strike. The strike, which commenced on approximately March 27, a Lord Baltimore Press , Incorporated , 128 NLRB 334. is The parties stipulated to the exclusion of the Huntington store which has been closed down. In addition, the Employer testified that the Lucan Camera Corporation was a lease department in the Lewis and Conger store in Manhasset . The Employer discontinued that lease department in April 1962 , and has no intention of reopening it Accordingly, we do not include the above stores in the unit. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1962, was still in progress at the time of the hearing. The Petitioner contended that the Employer would lose its rights to such challenges if it did not litigate the questions of employee status at the hearing. We reject this contention. Under the doctrine in the Pipe Machinery case,14 the Board considers eligibility issues in cases of this type by way of challenges. [Text of Direction of Election omitted from publication.] 14 The Pipe Machinery Company, 76 NLRB 247. See also The Hortner Electric Company, 115 NLRB 820 ; Bright Foods, Inc., 126 NLRB 553. Cabinet Manufacturing Corporation and Chauffeurs , Teamsters and Helpers Local Union 215, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 05-CA-1515. January 10, 1963 DECISION AND ORDER On September 17, 1962, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. 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, Fanning, and Brown]. The Board has reviewed the rulings 1 made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : We agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) and (1) of the Act 2 In so doing, we rely only on the 1 In finding that the Respondent has violated the Act as set forth below, we do not find it necessary to consider or in any way to rely upon the Board ' s decision in Borden Cabinet Corporation, 131 NLRB 890. 2 The Trial Examiner concluded that "since July 24, 1961 ," which was the date of the Union's certification , the Respondent violated the Act by refusing to bargain with the employees ' designated bargaining representative . As the Respondent engaged in a course of conduct , the totality of which failed to comply with the statutory requirement of good- faith bargaining , we find that the violation of Section 8(a) (5) and ( 1) commenced on September 1, 1961 , the date on which the Respondent met for the first bargaining session. See California Girl, Inc., 129 NLRB 209. 140 NLRB No. 51.