Rich's, Inc.

National Labor Relations Board - Board Decisions

May 26, 1964

147 N.L.R.B. 163 (N.L.R.B. 1964)

RICH 'S, INC. 163
who said that he didn 't know anything about her situation. Then Torres called
Takeda on the telephone and asked him about it and Takeda said that Gonzalez
"had been dismissed ." When Torres told Gonzalez what Takeda had said Gonzalez
said that it was not fair and she intended to do something about it.
Later Gonzalez filed grievances through the UE and the AIW and later filed -the
instant charge withthe Board:
The Alleged Coercive Statement
Delfina Rodriguez , previously referred to, testified that in the latter part of April,
Beard came to her at her machine and told her that if the UE had won the election
he would have laid off some of the people 2 days a week and others 3 days a
week, and the next week he would have reversed the process, so that none of the
employees could collect unemployment insurance.
In the course of his testimony , James Beard categorically denied that he had
made any such statement to Rodriguez . On this point I credit Beard.
Concluding Findings
In .this case , because of the bitter rivalry - between the competing unions and the
closeness of the election which was decided by one vote , absent the count of chal-
lenged ballots , there is a high element of partisanship and self -interest in the testimony
of the witnesses.
Gonzalez is supported in her contention by her sister-in-law and the UE repre-
sentatives ; while Takeda is supported by the testimony of Beard and the testimony
of Torres , the stewardess of the AIW. Gonzalez testified through an interpreter
and to some extent she seemed to be confused about some of the dates in her ver-
sion of the sequence of events . However, I have made allowance for Gonzalez'
difficulty in testifying through an interpreter.
Upon a review of the evidence as a whole, I am not persuaded that the pre-
ponderance of the evidence favors the General Counsel . Gonzalez did not impress
the Trial Examiner favorably . Although at some points in her testimony she ap-
peared to ' have some difficulty understanding some questions propounded to her,
at other times she seemed to have a very quick perception of the purport of the
questions . She impressed the Trial Examiner as a witness who did not hesitate
to conform her testimony to what she believed to be her own best personal interests.
The witnesses who supported her, the two UE representatives and Rodriguez, the
UE observer , were in my judgment highly partisan.. While it is true that the testimony of Takeda , Beard , and Torres must be examined
for the same elements of partisanship , bias, and self-interest , their testimony struck
the auditor as being far less tainted by those vices. Takeda especially testified in
a calm, exact , and forthright manner . The testimony of Beard and Torres sounded
reasonable and plausible . The resolution of this question of credibility between
the two sets of witnesses must be based largely upon those intangible qualities cov-
ered by the term, "the demeanor and bearing of the witnesses," and the inherent
probabilities of their various testimonies.
Upon a consideration of all the evidence , the Trial Examiner must conclude
that the General Counsel has failed to prove the commission of the alleged unfair
labor practices by the Company by a preponderance of the credible evidence.
Therefore it is recommended that the complaint be dismissed in its entirety.
Rich 's, Inc. and Local 60, American Bakery and . Confectionery
Workers' International Union , AFL-CIO, Petitioner. Case No.
10-RC-5769. May 26, .7964
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 Hearing Officer David M.
Vaughan. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
147 NLRB No. 19.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Fanning and Jenkins].
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.
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. Petitioner seeks to represent the production employees located in
the bakery production area on the sixth floor of the Employer's main
store, excluding all other employees. The Employer contends that
the unit requested by the Petitioner is but a small segment of the
Employer's integrated organization sand that an employerwide unit
consisting of all personnel in the Employer's Lenox, Belvedere, Cobb
County, and main stores is the only appropriate unit.
The.Employer operates retail department stores in Atlanta, Georgia,
and the surrounding area. Each of the stores has'a retail bakery out-
let which is supplied with baked goods from a bakery located on the
sixth floor of the Employer's main store in Atlanta. The bakery makes
bread, cakes, cookies, and related products. It contains the equip-
ment-mixing machines, ovens, proof boxes, and baking pans-found
in most commercial bakeries. Employees in the department are classi-
fied as bakers, decorators, and utility personnel. The duties of bakers
vary from the mixing of ingredients and the portioning of dough to
the tending of ovens and machines. The decorators ice and decorate
cakes and other pastries. At times they also decorate candies from
the candy kitchen. Utility personnel tend ovens, do simple icing, line
cake pans,. cut and pick up cookies, clean utensils, and do general
cleanup work in the department. Employees working as utility per-
sonnel are trained to become bakers and decorators. None of these
employees does sales work. A separate supervisor is in charge of the
.department.
The bakery department is in a separate physical area. Adjacent to
it, but separated by a wall, is the candy kitchen. Although the em-
ployees of the two departments are under separate supervision and do
not interchange, they use certain facilities, such as lockerrooms, rest-
rooms, and lounge, in common. They also use in common a storage or
"batch room," located between the two departments, for weighing,
mixing, and storing materials. However, each department has its own
bins for storage purposes. Also adjacent to the bakery is the food
storage area where various foodstuffs and supplies are received, stored,
RICH'S,- INC. 165
and distributed to, food areas of all the stores. Although drawing
needed supplies from the food storage area, bakery employees have, no
other contact with the personnel working there.
All Employer's employees, are hired through uniform hiring pro-
cedures; receive t' i€ ai»e fringe benefit's;' holidays, vacation, sick
leave, group life insurance, and major medical insurance; have com-
mon restrooms, lounges, and cafeterias; and may take part in em-
ployee activities such as athletic and recreational programs and social
functions. Most employees work the usual store hours. Bakery pro-
duction employees work 9 :30 p.m. to, 5 a.m., 5 a.m. to 12 noon, 6 a.m.
to 1 p.m., and 6:30 a.m. to 1:30 p.m. Occasionally during peak pe-
riods work is also scheduled for the 1:30 to 9:30 p.m. period.
It appears from the foregoing that the bakery, which is separately
supervised, operates like a wholesale commercial bakery,, supplying
a broad range of baked goods both to restaurants and to retail sales
outlets operated by the Employer. It produces 235 separate items,
including 7 types of bread, and numerous varieties of cookies, cakes,
doughnuts, and pastries. All the employees do bakery work, much
of it handwork. Employees in the bakery are trained to do progres-
sively more responsible baking work. There is little interchange of
employees between the bakery and other store departments.' No
other union represents or seeks to represent any of the other store
employees.
The unit which the Petitioner seeks to represent is a traditional
bargaining unit, except that it is located in a department store. Be-
cause of the nature of the work, the separate area of work, the separate
supervision, and the minimum interchange 'with other employees, we
find that the employees working in the bakery production area con-
stitute a separate unit appropriate for the purposes of collective
bargaining.2
We, find the following employees constitute a unit appropriate for
the purposes of collective bargaining within the, meaning of Section
9(b) of the Act:
i The Employer contends that there is daily interchange between bakery employees and
other employees . However, during the sample months picked by the Employer to sub-
stantiate this claim , only two bakery employees did work outside the bakery , for a total
of 12 hours. One of these employees was transferred to do overtime work because he
wanted to earn extra money. The record is silent as to the reason for the transfer of the
other employee.
2 The Brass Rail, Inc., 110 NLRB 1556 . Cf. F. W. Woolworth Co., 119 NLRB 480,
481-482, where the Board refused to find appropriate a unit of four bakers apart from
other employees in a kitchen -bakery. In that case all employees in the kitchen-bakery
worked together , had comparable skills , assisted one another, and had the same super-
vision. Also the bakers did not make a 'full line of bakery products . Safeway Stores,
Incorporated, 137 NLRB 1741 ( Member Fanning dissenting), where the Board found
inappropriate a unit of bakers who operated exhibition bakeries in retail food stores from
Safeway's commercial bakery in frozen form and merely baked and iced on the premises.
The Board found that the bakers were neither a craft group because of the limited work
performed , nor a departmental group because the petitioning union did not seek to repre-
sent all employees in the bakery department.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All bakery production employees located at the-main store of the
Employer in Atlanta, Georgia, excluding supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
Local 719, International Brotherhood of Electrical Workers,
AFL-CIO and Robert J. Pokigo , d/b/a Amoskeag Construc-
tion Company and Arthur T. Costigan d/b/a Arthur T.
Costigan Electrical Contractor. Case No. AO-71. May 27,1964
ADVISORY OPINION
This is a petition filed on March 27 , 1964, by Local 719 , Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, herein called
the Petitioner , for an Advisory Opinion in conformity with Section
102.98 and 102.99 of the National Labor Relations Board's Rules and
Regulations , Series 8, as amended. An amendment to this petition
was filed subsequently by the Petitioner.
Thereafter , Bernard L. Alpert, Regional Director for the First Re-
gion of the National Labor Relations Board, herein called the Re-
gional Director , filed a motion to intervene , setting forth jurisdictional
facts developed in the course of his investigation of unfair labor prac-
tice charges filed against the Petitioner in Case No. 1-CC-408 by
Arthur T. Costigan d/b/a Arthur T. Costigan Electrical Contrac-
tor herein called Costigan or primary employer . By letters dated
March 30 and 'April 2, 1964, Robert J. Pokigo d/b/a Amoskeag or
secondary employer , filed replies to the petition for Advisory Opinion.
Subsequently , on April 16 , 1964, Amoskeag also submitted an affi-
davit setting forth corrective information . On.April 29, 1964, the
'Regional Director filed an amendment to motion to intervene setting
forth additional jurisdictional facts developed from a further investi-
gation. The motions of the Regional Director to intervene and to
,amend his, intervention are hereby granted...
On May 8; Amoskeag filed.an ` answering affidavit to, the Regional
Director 's amendment to motion to intervene as well as an answering
-letter to the Petitioner 's amendment' to the petition herein.
In pertinent ,part, . the petition , the intervention , and their amend-
ments, the letters, and affidavits , allege as follows:
1. On or about . March 17, 1964, the Petitioner started picketing the
.construction site of Mount St: Marys Seminary High School in
Nashua , New Hampshire, with placards"bearing the legend : " Costi-
gan Electric does not conform to fringe benefits and other conditions
147 ,NLRB No. 26.';,,•, „