Pep Boys, Manny, Moe & Jack, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1955

114 N.L.R.B. 1195 (N.L.R.B. 1955)

PEP BOYS, MANNY, MOE & JACK, IN C. 1195
Pep Boys, Manny, Moe & Jack, Inc. and Department & Specialty
Store Employees Union , Local 1499 , Retail Clerks International
Association, AFL, Petitioner . Case No. 2-RC-7425. November
23,1955
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Board in the above-entitled proceeding on August 10, 1955,' and an
Order issued on September 7, 1955, an election by secret ballot was
conducted on September 10, 1955, under the supervision of the Regional
Director for the Second Region, among the employees of the Employer
in a unit found appropriate by the Board. At the conclusion of the
election, the parties were furnished with a tally of ballots which showed
that, of approximately 26 eligible voters, 10 ballots were cast for the
Petitioner, 9 were cast against the Petitioner, and 2 were challenged.
No objections to the conduct of the election were filed by either party.
As the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director, pursuant to the Board's
Rules and Regulations, conducted an investigation and, on September
29, 1955, issued and served upon the parties his report on challenged
ballots. In his report, the Regional Director recommended that the
challenges to the ballots of the two employees be overruled, that their
ballots be opened and counted, and that a revised tally of ballots be
issued and served upon the parties. Thereafter, the Petitioner filed
exceptions to the Regional Director's report, in which it requested the
Board to reject the report and order a hearing in this matter.2
The Petitioner challenged the ballots of employees Michael Nardone
and Alfred J. Cohn on the ground that they were supervisors and there-
fore were ineligible to vote. The Regional Director found, however,
that Nardone and Cohn were senior salesmen who were not supervisors.
The record shows that the Employer, in the operation of its 68 stores,
employs the following job classifications : Store manager, assistant store
manager, senior salesman, 2-year salesman, 1-year salesman, new sales-
man, 6-month utilityman, and new utilityman. These classifications
are not always employed in every store, the number of employees in a
particular store being controlled by the size and volume of business.
In each store of the 6-store unit involved in this case, there are salesmen
and a store manager; 1 of the stores also has an assistant manager but
no senior salesmen; while each of the 5 remaining stores has 1 senior
salesman but no assistant manager. Except for the store manager
I Not reported in printed volumes of Board Decisions and Orders
a As our disposition of the challenged ballots does not involve the resolution of substan-
tial and material factual issues , we deny the Petitioner's request for a hearing.
114 NLRB No 179.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the assistant store manager, who are salaried, all other employees,
including the senior salesman, are paid on an hourly basis.'
Nardone is a,senior salesman in the Employer's Hackensack, New
Jersey, store, which also has a store manager, one 1-year salesman,
1 utilityman, and 1 regular part-time salesman. Cohn is a senior
salesman in the Paterson, New Jersey, store, which also employs a store
manager, one- 2-year salesman, and 2 new salesmen. As senior sales-
men, Nardone and Cohn spend the major portion of their time, wait-
ing on customers, working on stock, unloading trucks, making price
tickets, and in other related duties. These are the same functions per=
formed by ordinary salesmen. In addition, like other senior salesmen,
Nardone and Colin have a set of keys to their store which they open
and close in the absence of the manager. Senior salesmen.also' have
the, authority to approve credit purchases by customers who have
credit accounts with the Employer and to -approve cash payments on
certain types of "trade ins" where the merchandise is in saleable condi-
tion. Although senior salesmen also have authority to draw up'the
necessary papers for new credit accounts, only the manager ' can
approve them.
The Hackensack store, where Nardone is employed, is open from
9 a. m. to 6 p. in. 4 days a week and from 9 a. m. to 9 p. m. on Thurs-
days and Fridays. When the manager is out to lunch or supper when
the store is open in the evening, Nardone is in charge 4 A similar
practice obtains at the Paterson store, where Cohn is in charge an
additional 3 hours on Saturday evenings when the store is kept open
after the manager leaves. On infrequent and irregular occasions,
when the manager is. sick,, arrives late, or-leaves' about one-half 'hour
early usually to attend sales meetings which are held twice a year,
Nardone and Cohn may also take charge of the store. However, during
the manager's vacation period the district manager, who supervises the
-operations of the six stores involved herein, replaces the manager.
It is noted that the Petitioner did not challenge the ballots of the
three senior salesmen employed in the other stores within the unit.
The Petitioner contends, however, that Nardone and Cohn should be
considered assistant managers with supervisory authority because
they wore buttons designating them as such before the election for
the purpose of receiving complaints from customers. Whether or not
assistant managers are supervisors,5 we find that whatever supervisory
3 The managers and assistant managers receive additional compensation in the form
of bonuses which are calculated on the same basis. The senior salesmen also receive
'bonuses, but they are calculated in the same manner as the bonuses received by other
salesmen.
4 The manager , as are other employees , is entitled to an hour for lunch and supper
which be usually has at a nearby restaurant or in the rear of the store and therefore is
readily available when needed
5 As indicated above, there is only 1 assistant manager in the 6-store unit which the
Board found appropriate Although it was agreed to permit him to vote subject to
-challenge, he did not appear at the polls to do so.
BETHLEHEM PACIFIC COAST STEEL CORPORATION 1197
authority Nardone and Cohn might exercise with respect to other
store personnel is of a sporadic and irregular nature, insufficient to
constitute them supervisors within the meaning of the Act.6 More-
over, even -assuming that Nardone and Cohn formerly wore assistant
manager -buttons for the purpose of receiving customer complaints,7
we are not persuaded, in the light of the foregoing, that they were
thereby endowed with the supervisory authority contemplated by the
Act. Accordingly, we hereby overrule the challenges to the ballots
of Nardone and Cohn and shall direct that their ballots be opened
and counted.
[The Board directed that the Regional Director for the Second Re-
gion shall, within ten (10) days from the date of this Direction, open
and count the ballots of Nardone and Cohn and serve upon the parties
a revised tally of ballots.]
MEMBER MURDOCK took no part in the consideration of the above
Supplemental Decision and Direction.
Helms Motor Express, Inc., 107 NLRB 132, 135; Silverwood's, 92 NLRB 1114 , 1124-5.
4 The Regional Director found as a result of his investigation that Nardone never wore
such a button . He made no finding with respect to Cohn
Bethlehem Pacific Coast Steel Corporation , Shipbuilding Divi-
sion and International Association of Machinists , Lodge No.
68, AFL, Petitioner. Case No. 20-RC-2804. November 23, 1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Shirley N. Bingham,
hearing officer . The hearing officer's rulings made at the hearing are
free from prejudicial error and 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.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.'
'This matter was consolidated with Cases Nos. 20-RC-2606; 2805; 2826; and 2832,
covering petitions filed by Brotherhood of Teamsters & Auto Truck Drivers , Local No. 85;
United Association of Journeymen and Apprentices of the Plumbing and ripefitting In-
dustry Local Union 38, AFL ; Warehousemen Local Union No. 860, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, AFL ; and,
International Brotherhood of Electrical Workers, AFL, respectively The Regional
Director approved requests for the withdrawal of all of these named petitions prior to
the close of the hearing Accordingly , the Order consolidating these cases is hereby
rescinded and all petitions so consolidated , other than the case considered herein are
hereby closed.
2 The Bay City Metal Trades Council, which was permitted to intervene in the con-
solidated proceeding, and which participated throughout the hearing , by letter dated
114 NLRB No. 180.