J. C. Baur Pastry Shop

National Labor Relations Board - Board Decisions

Nov 18, 1959

125 N.L.R.B. 205 (N.L.R.B. 1959)

J. C. BAUR PASTRY SHOP AND J. BAUR, INC. 205
Joseph Baur, d/b/a J. C. Baur Pastry Shop and J . Baur, Inc.'
and Local 3, Bakery & Confectionery Workers International
Union of America , Petitioner. Case No. 2-RC-10030. Novem-
ber 18, 1959
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 George A. Gleason, hearing
officer. 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 Leedom and Members Rodgers and
Fanning].
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of 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 separate units of production and mainte-
nance employees at the Employer 's Jackson Heights, Flushing, and
New York, New York, bakery shops. In the alternative , the Peti-
tioner requests a single overall unit of production and maintenance
employees at the three named shops. The Employer and the Inter-
venor 2 contend that the only appropriate unit would be one of all
the employees of the Employer at its four shops. There is no previous
history of collective bargaining.
Joseph Baur owns and operates J. C. Baur Pastry Shop located in
New York, New York, and is president of J. Baur , Inc., which owns
and operates three bakery shops located in Flushing , Elmhurst, and
Jackson Heights, New York3 The Petitioner would exclude the
Elmhurst shop on the ground that it is mainly a confectionery shop.
The record shows, however , that none of the four shops produces all
the bakery and confectionery products it sells. Each shop, including
Elmhurst, has its own retail outlet, and each merchandises a complete
line of the Employer 's bakery products whether or not produced in
1 The name of the Employer was amended at the hearing. The parties also stipulated
that J. C. Baur Pastry Shop and J . Baur, Inc., are one employer for the purposes of
the Act.
2 Pastry Shop Workers Union intervened on the basis of a showing of interest.
$ Joseph Baur testified that the reason for the two entities was to limit liability on
leases.
125 NLRB No. 28.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that individual shop. All the shops are in the same general geo-
graphical area, with the greatest distance between any two shops not
exceeding 9 miles. The purchasing of materials and the handling of
all clerical work for the four shops are carried on at 1 central location.
All the shops are centrally supervised, are subject to uniform labor
relations policies, have an overall seniority system, generally employ
the same classifications of employees, and offer the same hours, work-
ing conditions, rates of pay, vacations, and insurance plan. There was
also testimony revealing a number of instances of employee inter-
change and transfer among the four stores. Accordingly, on these
facts, we find that only an overall unit of the Employer's four bakery
shops is appropriate.4 As the Petitioner does not have an adequate
showing of interest to support an election in the four-shop unit, and
the Intervenor, which apparently desires an election, does have a suffi-
cient showing for such unit, we shall treat the Intervenor as a cross-
petitioner.5
Salesgirls.-The Intervenor seeks to embrace in the unit the selling
and nonselling employees. The Employer agrees. The Petitioner
contends that the salesgirls should not be included. Each of the four
stores employs salesgirls in the retail sale of the Employer's bakery
products. A total of 29 salesgirls are employed in the four stores.
The sales area in the shops is adjacent to, but physically separated
from the production area, and the salesgirls are separately super-
vised. The production workers do very little selling, but on occa-
sion the salesgirls help out by doing certain unskilled production
work. The Petitioner has not sought to establish its requested unit on
a craft basis, nor is any labor organization seeking to represent the
sales personnel separately. As the Board has long regarded a store-
wide unit of selling and nonselling employees as a basically appro-
priate unit in retail stores, and as the cross-petitioner requests such
a unit, we shall include the salesgirls.s
Truc/cdriver and office clericall : The Employer employs one office
clerical employee and one truckdriver. We shall include the office
clerical as it is Board policy to include office clericals in a retail unit
of selling and nonselling employees.' No reason appears to exclude
the truckdriver, whom the Intervenor and the Employer desire to
include. Accordingly, we include him.
Seasonal employees: The record shows that the Employer hires
approximately 15 additional employees during September and Octo-
ber. These employees generally work until the latter part of Decem-
ber. As there is no evidence to show that these employees achieve any
4 See ACF-Wrigley Stores , Inc., 124 NLRB 200; The Great Atlantic & Pacific Tea
Company, 119 NLRB 003.
See The Borden Company , 120 NLRB 1447, 1449.
See T. P. Taylor & Company, Inc., at at., 118 NLRB 370.
7 Ibid.
MARIE ANTOINETTE HOTEL 207
status other than that of temporary seasonal employees , we shall
exclude them from the unit."
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All employees of the Employer at its Jackson Heights, Flushing,
Elmhurst, and New York, New York, bakery shops, including the
truckdriver, and the office clerical , but excluding the seasonal em
ployees, foremen and foreladies , and all other supervisors as defined
in the Act.'
[Text of Direction of Election omitted from publication.]
8 Great Atlantic and Pacific Tea Company , National Bakery Division, 116 NLRB
1463, 1467.
g The Petitioner has not indicated whether it desires to participate in an election in
the broader unit herein found appropriate . The Petitioner's name has been placed on
the ballot , but if it so desires it may withdraw upon appropriate notification to the
Regional Director.
.Prestige Hotels, Inc., d/b/a Marie Antoinette Hotel and Hotel
and Restaurant Employees and Bartenders Union , Local 339,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO, Petitioner. Case No. 13-RC-649.
November 18, 1959
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election dated August 10,
1959,1 an election by secret ballot was conducted on August 28, 1959,
under the direction and supervision of the Regional Director for the
Twelfth Region, among the employees in the appropriate unit. After
the election, the parties were furnished with a tally of ballots, -which
showed that, of approximately 19 eligible voters, 8 cast valid ballots
for, and 8 against, the Petitioner, and 1 ballot was challenged. The
challenge was thus determinative of the election results. No objections
were filed to the election or to conduct affecting the results.
The Regional Director conducted an investigation and thereafter,
on September 10, 1959, issued his report on challenged ballot, in
which he overruled the challenge and recommended that it be opened
.and counted. The Employer filed timely exceptions to the report.
The Board has considered the Regional Director's report on chal-
lenged ballot, the Employer's exceptions, and upon the entire record
in the case, hereby adopts the Regional Director's findings and recotii-
mendations as to the challenged ballot, for the following reasons :
1 Unpublished.
125 NLRB No. 22.