Scoa, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1963

140 N.L.R.B. 1379 (N.L.R.B. 1963)

SCOA, INC. 1379
positions , without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered as a result of the discrimina-
tion against them.
WE WILL offer full and immediate reinstatement , in writing, to Gerardo A.
Dobarganes to his former position , if existing , or otherwise to a substantially
equal position , without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay or other compensation suffered as a
result of his unlawful discharge.
All our employees are free to 'become or remain or to refrain from becoming or
remaining members of General Sales Drivers & Allied Employees Union Local 198,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America , or any other labor organization.
MIAMI COCA COLA BOTTLING COMPANY
DOING BUSINESS AS KEY WEST COCA
COLA BOTTLING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(LocA LEE BUCKNER , Pre8bdent)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Twelfth Regional Office,
112 East Cass Street, Tampa 2, Florida, Telephone No. 223 -4623 , if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
Correction of typographical errors in the transcript of testimony
Page 7, lines 15 and 16, "proposition" should read "proceedings"; page 9, line 23,
before "to give", insert "not"; page 10, line 19, "effecting" should read "affecting";
page 15, line 20, "in a prime manner" should read "preliminarily"; line 23, "prime"
should read "preliminary"; page 35, line 25, "Active" should read "Act of ; page
103, line 12, "offered' should read "received"; page 108, line 5, "fee" should read
"few"; page 209, line 20, "November 13" should read "November 29"; page 297,_
line 3, "accumulation" should read "discrimination"; page 300, line 6, "stopped"
should read "estopped"; and page 371, line 23, "Dobarganes" should read "Juanes".
Scoa, Inc. and Retail Clerks Union, Local 1428 , affiliated with
Retail Clerks International Association , AFL-CIO, Petitioner.
Case No. 21-RC-8007. February 21, 1963
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before A. J. Tomigal, hearing of-
ficer. 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 [Members Rodgers, Fanning, and Brown].
Upon the entire record in this case, the Board finds :
140 NLRB No. 141.
681-492-63-vol 140-88
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Sections
9(c) (1) and 2(6) and (7) of the Act.'
4. The Employer and the Petitioner agree as to the appropriateness
of a unit of all employees at the Employer's West Covina, California,
retail department store, excluding optometry department employees
and meat department employees. They further agree as to the estab-
lishment of a self-determination election for the pharmacist in the
pharmacy department as a professional employee. The Petitioner
would exclude department managers and buyers as supervisors, where-
as the Employer, although agreeing to the exclusion of several of
their number as supervisors, takes no position as to the supervisory
status of the remainder. The parties disagree only as to the selection
of an appropriate formula for determining the unit placement of em-
ployees known as floaters.
In accord with the agreement of the parties, we include the ad-
vertising layout man and the executive secretary to the general man-
ager, and exclude the personnel director.
Alleged Supervisors
The parties agree, and we find, that the general manager, the opera-
tions manager, the merchandise division managers, the comptroller,
the assistant comptroller, the advertising director, the credit manager,
the warehouse supervisor, the head checker, the produce buyer, the
grocery buyer, the candy buyer, the snack bar manager, the sundries
buyer, the hardware buyer, the housewares buyer, the toy buyer, the
service station manager, the domestics buyer, the jewelry buyer, the
appliance buyer, the buyer in infants' and girls' wear, the shoe depart-
ment manager, the maintenance supervisor, the men's department
buyer, and the shoe department buyer are properly excluded from the
unit as supervisors. The Employer questions the supervisory status
of the hardware manager, the nursery manager, the sporting goods
manager, the toy manager, the men's department manager, the phar-
macy buyer, and the buyers in ladies' wear. We exclude these indi-
viduals as supervisors, as the record indicates that they, like the other
individuals hereinabove set forth, may effectively recommend the
hire or discharge of employees.
1 We find without merit the Employer 's contention that cards secured while picketing
was in progress cannot be used in determining the Petitioner 's showing of interest, and
we are administratively satisfied that the Petitioner 's showing of interest is adequate.
SCOA, INC.
Floaters
1381
In addition to its regular work force, the Employer maintains a
labor pool of some 146 employees known as floaters, who provide
additional help throughout the store, whenever the need arises. The
Employer classifies approximately 100 of the floaters as "regularly
scheduled" floaters, and the remainder, as "on-call" floaters. The
parties agree that only floaters with substantial employment interests
should be included in the unit. They disagree, however, as to the
formula to be used in determining their unit placement. Thus, the
Petitioner would include in the unit all floaters who have been em-
ployed a minimum of 15 days during the quarter preceding the elec-
tion herein directed and who have appeared on the Employer's pay-
roll for at least 4 weeks. The Employer would include in the unit all
so-called regularly scheduled floaters and all so-called on-call floaters
who have at any time been employed a minimum of 15 days s and
have worked 40 hours in any calendar quarter and 8 hours during the
90 days immediately preceding the issuance of the instant Decision
and Direction of Election.
All floaters perform the same type of work as the regular employees
and are paid at the same wage rates; they do not, however, receive the
same vacation and holiday benefits, nor do they participate in the
Employer's health and welfare program. They include a number of
students, several of whom work only during the summer, and the
rest of whom work with varying degrees of regularity during the rest
of the year.' The so-called regularly scheduled floaters perform work
pursuant to some sort of prearranged schedule and in general work
more frequently and regularly than the so-called on-call floaters, who
are called to work only as the need arises. However, individual
regularly scheduled floaters may not work for extended periods of time,
or as often as some on-call floaters, if they are unable to work, or
unavailable, or not as well qualified as other regularly scheduled or on-
call floaters. From May 1, 1962, when the Employer commenced hiring
floaters, to October 28, 1962, the working hours of floaters have ranged
from 8 to 430 hours, out of a total work period of a little more than
1,000 hours. The majority of floaters appear to have worked an average
of 5 to 8 hours a day during this period.
The selection of an equitable formula for determining the unit
placement of the floaters here in issue depends on a careful balancing
of the factors of length, regularity, and currency of their employment.
2 More specifically , the Employer would include on -call floaters who are employed for
two payroll periods. The Employer states that this minimum term would amount to at
least 15 days , in view of the fact that the Employer uses biweekly payroll periods.
8 The Employer states that its proposed requirement of 8 hours of employment in the
90-day period preceding the issuance of the instant Decision is for the purpose of screening
out students and other types of floaters who work only during the summer.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In weighing the formulas proposed by the parties herein in the light
of these factors, we note the substantial accord of the parties in re-
questing a minimum attendance of 8 to 15 days in the 90-day period
preceding the eligibility or election date as a condition of inclusion
in the instant unit. A similar requirement was established in Motor
Transport Labor Relations, Inc., 139 NLRB 70, where the Board held
that employees who have worked a minimum of 15 days, or one-fourth
of the 65 working days in the quarter-year period immediately preced-
ing the elegibility date in that case, could be reasonably assumed to
have substantial and continuing interests in their employment condi-
tions sufficient to warrant their inclusion in the unit therein found
appropriate. Disregarding the establishment of the unusually ad-
vanced eligibility date in Motor Transport, due to special factors not
pertinent to this case, it is our opinion that the formula established
in that case in other respects substantially satisfies the objectives sought
by the parties herein by providing an equitable and easily applicable
method for determining the unit placement of the Employer's floaters.
Accordingly, we find that all regularly scheduled or on-call floaters
who have worked a minimum of 15 days in the calendar quarter
preceding the eligibility date, as determined in the customary manner,
are regular part-time employees, and we shall therefore include them
in the unit.
We shall direct separate elections in the following voting groups :
(a) All retail store employees at the Employer's retail department
store at West Covina, California, excluding optometry department
employees, meat department employees, the pharmacist, and super-
visors as defined in the Act.
(b) The pharmacist in the pharmacy department, excluding all other
employees and supervisors as defined in the Act.
The employees in the nonprofessional voting group (a) will be
polled as to whether or not they wish the Petitioner to represent them.
The employee in the professional voting group (b) will be asked two
questions on his ballot; (1) Do you desire to be included in a unit com-
posed of the retail store employees at the Employer's West Covina,
California, retail department store, for purposes of collective bar-
gaining? (2) Do you desire to be represented for the purposes of
collective bargaining by Retail Clerks Union, Local 1428, affiliated
with Retail Clerks International Association, AFL-CIO? If the
professional employee in voting group (b) votes "yes" to the first
question, indicating his wish to be included in a unit with the non-
professional employees, he will be so included. His vote on the second
question will then be counted together with the votes of the non-
professional voting group (a) to decide the representative for the
retail store employees unit. If, on the other hand, the professional
DECORATED PRODUCTS, INC. 1383
employee votes against inclusion, he will not be included with the
nonprofessional employees, and his vote on the second question will
not be counted.
Our unit determination is based, in part, then, upon the ballot of
the professional employee. However, we now make the following
findings in regard to the appropriate unit.
1. If the professional employee votes for inclusion in the unit with
the nonprofessional employees, we find that the following employees
will constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act :
All retail store employees including regular part-time employees
.as found above, and the professional employee employed at the Em-
ployer's retail store located at West Covina, California, excluding
-meat department employees, optometry department employees, and
supervisors as defined in the Act.
2. If the professional employee does not vote for inclusion in the
unit with the nonprofessional employees, we find the unit set forth
:above to be appropriate, with the exclusion, however, of the profes-
s sional employee.
[Text of Direction of Elections omitted from publication.]
-Decorated Products, Inc. and International Chemical Workers
Union, AFL-CIO. Case No. 9-RC-5056. February 21, 1963
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by the
Regional Director for the Ninth Region, an election was held on Sep-
tember 13 and 14, 1962, under the direction and the supervision of the
Regional Director. Upon the conclusion of the election, the parties
were furnished a tally of ballots which showed that of approximately
59 eligible voters, 56 votes were cast, of which 26 were for, and, 30 were
against, the Petitioner. The Petitioner filed timely objections to con-
,duct affecting the results of the election. The Regional Director in-
vestigated the objections and thereafter, on October 22, 1962, issued
:and served upon the parties his Supplemental Decision, Order, and
Direction of Second Election in which he found merit in the Peti-
tioner's objections. The Employer thereafter, in accordance with the
Board's Rules and Regulations, filed a timely request for review.
On November 14, 1962, by telegraphic order, the Board, granted
the Employer's request, and subsequently a brief in support of such
140 NLRB No. 134.