Hickory Farms of Ohio

National Labor Relations Board - Board Decisions

Jan 15, 1970

180 N.L.R.B. 755 (N.L.R.B. 1970)

KACHCO CORP. D/B/A HICKORY FARMS OF OHIO 755
Kachco Corporation d/b/a Hickory Farms of Ohio,
Employer-Petitioner and Retail Clerks Union,
Local 648, RCIA, AFL-CIO. Case 20-RM-1208
January 15, 1970
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Morton H. Orenstein,
Hearing Officer. Following the hearing and pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 20, this case was
transferred to the National Labor Relations Board
for decision. Briefs were filed by the Employer and
the Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case, the Board
finds:
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 for
the following reasons.
The Employer is a California corporation engaged
in the retail sale of specialty foods at stores in Daly
City and in San Francisco, California. During the
past year, it purchased supplies from outside the
State of California in excess of $50,000. The San
Francisco store opened in November 1966, and the
Daly City store opened in September 1968. The
Union began picketing both stores on December 10,
1968, which picketing continues to date.
The Union urges that the Employer's petition be
dismissed , because the Employer did not have
annual gross revenues of $500,000, the minimum
figure used by the Board in asserting jurisdiction
over retail enterprises . The Employer advances
several theories involving the projection of sales at
the Daly City store combined with the receipts from
the San Francisco store 1 year prior to the
picketing , that would result in its attaining the
$500,000 figure. The Union argues that no
reasonable method of projection would allow the
Employer to reach the Board ' s jurisdictional
standard.
Admittedly the problem here is that the Employer
has suffered a loss of business due to picketing, and
the total gross income from the two stores for the
past year does not meet the Board's $500,000 retail
standard. As stated in past decisions, however, a
drop in volume of business, as a result of picketing,
cannot be taken into consideration as a factor in
defeasance of the Board's jurisdiction.'
The question to be determined is how much
annual income would the Employer have derived
from his operations but for the picketing? To
ascertain this figure, we shall use the revenues
received by the Employer during the 12-month
period preceding the picketing - December 1967
through November 1968.2
The revenues of the San Francisco store during
this period were $204,000. Revenues of the Daly
City store were $66,000 from its opening on
September 12, 1968, through November 1968 - a
period of 79 days. By using a factor of 4.63 (365
divided by 79 equals 4.63) we find that the
Employer could reasonably expect annual revenues
of approximately $304,000 from its Daly City store.
As this amount together with the revenues from the
San Francisco store exceeds the $500,000 required
under the retail jurisdiction standard, we shall assert
jurisdiction.
2. The labor organization involved claims to
represent the employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act, for the following
reasons:
A demand for recognition was made by the Union
on October 29, 1968. Subsequently the Union
engaged in recognitional picketing of both stores of
the Employer on December 10, 1968, which
picketing is continuing to date. Under these
circumstances we find, contrary to the Union's
contention, that the demand for recognition is
current.
4. The following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed at the Employer's San
Francisco and Daly City stores excluding guards
and supervisors as defined in the Act.
The parties disagreed as to the status of the
following four employees, all of whom would be
included by the Employer but excluded by the
Union:
Janell Janssen is a high school student who
regularly works I or 2 days a week at the Daly City
store making cheese balls for both stores. She does
no selling and does not wear a uniform as other
'Cox's Food Center, 164 NLRB 95 See also Hygienic Sanitation
Company, 118 NLRB 1030; Fairmont Construction Company, 95 NLRB
969
'Cf District 76, Retail, Wholesale and Department Store Union,
AFL-CIO (Irvin Morgan t/a Morgan Shoe Company), 129 NLRB 1339
180 NLRB No. 120
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerks do, but she works under the same supervisor.
We find that she should be included in the unit as a
regular part-time employee.
Alton Tom has worked for the Employer for 2
years. He did not work for 2 months beginning in
September 1969, because he wanted to prepare
himself for returning to college. The last 3 days of
October he worked 4 hours a day, and averaged 30
hours per week during the summer of 1969. We find
that he should be included in the unit as a regular
part-time employee.
Patricia Granucci is the wife of Oliver Granucci,
General Manager of the Employer. She has no
authority to hire, fire, suspend, discipline , or assign
work. Neither she nor her husband has an
ownership interest in the corporation. Her husband
is salaried, but she is hourly paid. Mr. Granucci is
supervisor of the San Francisco store, and of Mrs.
Brandt, the supervisor of the Daly City store. When
Mrs. Brandt is not working, Mr. Granucci will
arrange the schedule so that either he or his wife
will be at the Daly City store. With one exception,
Mrs. Granucci is the only nonsupervisory employee
who works in both stores. In these circumstances we
find that Mrs. Granucci possesses a special status
closely related to management and should be
excluded from the unit.
June Rouse is a clerk at the San Francisco store.
She has no authority to hire, fire, layoff, promote,
discipline , or recommend wage increases and is not
a supervisor within the meaning of the Act. She
should be included in the unit as a regular employee.
[Direction of Election' omitted from publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc. 156 NLRB 1236; N.L.R.B. v, Wyman-Gordon Company,
394 U S 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters , must be
filed by the Employer with the Regional Director for Region 20 within 7
days of the date of this Decision and Direction of Election. The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances . Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed.