Spartan Department Stores

National Labor Relations Board - Board Decisions

Jan 14, 1963

140 N.L.R.B. 608 (N.L.R.B. 1963)

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by the Respondent as indicated, be forthwith returned to the Regional Director
for disposition by him.
(c) Notify the Regional Director for the Sixth Region, in writing, within 20 days
from the date of receipt of this Intermediate Report, what steps have been taken
to comply herewith.is
19 If this Recommended Order is adopted by the Board, this provision shall be modified
to read* "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL OUR OFFICERS AND AGENTS AND TO ALL MEMBERS OF LOCAL 5-198
INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, AND TO ALL EMPLOYEES
OF PIONEER LUMBER CORPORATION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten to inflict, or inflict , bodily harm upon, or threaten with
loss of employment, employees at the plant of Pioneer Lumber Corporation at
Dailey, West Virginia, in order to prevent them from crossing our picket lines,
and we will not bar their ingress to, or egress from , said plant.
WE WILL NOT, in any like or related manner, restrain or coerce employees
of Pioneer Lumber Corporation in the exercise of the rights guaranteed by
Section 7 of the Act, as amended, including the right to refrain from any and
all concerted activities.
SOUTHERN STATES REGIONAL COUNCIL,
REGION V, INTERNATIONAL WOOD-
WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 Regional Office, 2107 Clark
Building, 701-717 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. Grant
1-2977, if they have any question concerning this notice or compliance with its
provisions.
Spartan Department Stores i and Retail Clerks International
Association , AFL-CIO , Local 1680, Petitioner. Case No. 16-RC-
3163. January 14, 1963
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 John F. White, hearing offi-
cer. The hearing officer's rulings are free from prejudicial error and
are hereby affirmed.2
1 The hearing officer, without objection, granted leave to amend the petition to name
all operators of licensed departments as parties to this proceeding . Because these parties
received adequate notice and since we find them to be joint employers of the employees
in the unit sought by Petitioner, we hereby amend the caption to include the following
parties as Employers: Marrud, Inc. ; Miles Shoe Corporation ; Benjamin Kraft & Sons,
Inc ; Kay Jewelry Stores, Inc. ; Dine-O-Rama, Inc ; Play-More Sales Company, Inc
Top Value Auto Supply ; Babdo Sales , Inc Appliances, Inc. ; and Crank Drug Store
i At the hearing, Retail & Department Store Employees, Amalgamated Clothing Work-
ers, AFL-CIO, hereinafter referred to as the Intervenor, moved to dismiss the petition
on the following grounds: (1) The petition failed to list its name as a labor organization
140 NLRB No. 59.
SPARTAN DEPARTSIENT STORES 609
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 Brown].
1. The Employer, Spartan Department Stores, hereinafter referred
to as Spartan, owns and manages discount department stores in a
number of cities. This proceeding only involves its two stores located
in Oklahoma City, Oklahoma. The parties stipulated that Spartan is
engaged in commerce and that over the last 12 months the combined
operation of the Oklahoma City stores exceeded $500,000 and that it
received in excess of $50,000 worth of goods shipped from outside the
State of Oklahoma. In view of the foregoing we find that Spartan is
engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
Spartan's stores consist of various departments which are either
wholly owned or are operated by licensees pursuant to formal agree-
ments with Spartan. Through these license agreements, which are
uniformly applicable to all licensed departments,' Spartan retains
control over all advertising, has authority to inspect and audit all
records relating to the operation of licensed departments, must con-
sent to any "sales" conducted in these departments, must approve in-
stallation of furnishings and equipment, and has the exclusive right to
adjust customer complaints on behalf of the licensees. The appear-
interested in the proceedings , and (2 ) the Petitioner ' s showing of interest was tainted
because it was allegedly obtained with the unlawful assistance of the Employer. The
motions were initially reserved for ruling by the Regional Director but were referred to
the Board when the entire case was transferred in accordance with the Board ' s Rules
and Regulations . We find the Intervenor 's contentions to be without merit As to (1),
it is clear that the Intervenor was not prejudiced since it received timely notice of all
proceedings , was permitted to intervene prior to the hearing , and actively participated
in all phases of the case See Machzinery Movers and Erectors Division , Michigan Cartage-
men's Association , 117 NLRB 1778 , footnote 2 As to ( 2), it is settled that a Petitioner's
showing of interest is an administrative matter for the Board ' s determination and is not
a litigable issue in representation proceedings . See 0 . D Jennings & Company, 68 NLRB
516, 518; Georgia Kraft Company , 120 NLRB 806, 807 Moreover , we are administra-
tively satisfied on the basis of an investigation that the Petitioner ' s showing of interest
is valid and sufficient . Accoidingly , Intervenor 's motion to dismiss is denied.
The Intervenor also contends that the hearing officer erred in quashing a subpena
served on an agent of the Petitioner for the purpose of eliciting testimony bearing on
alleged Employer assistance in securing Petitioner ' s showing of interest Since the evi-
dence sought through this subpena related to an alleged unfair labor practice and an
issue which could not be raised in this proceeding , we find that the hearing officer properly
revoked the subpena.
The Intervenor further contends that the hearing officer erred in denying its motion to
adjourn the hearing pending enforcement of a subpena served upon the Employer ' s labor
relations manager in New York City. We find no merit in the contention that the sub-
penned evidence was necessary to determine the appropriate unit, and agree with the
hearing officer that the record contains competent and complete evidence on all matters
relevant to this determination . Moreover , in view of Intervenor 's failure to offer evi-
dence or otherwise indicate that the testimony sought would tend to refute that already
in the record , it is apparent that the subpena in question was in furtherance of a "fishing
expedition" and intended to unduly delay the proceeding. Accordingly , and because en-
forcement of the subpena would be inconsistent with the policies of the Act , we affirm
the hearing officer 's ruling and deny Intervenor's request for enforcement.
'The record shows some variation in the provisions concerning the financial relation-
ship between Spartan and the licensed departments , but these departures from the standard
agreements are not relevant here
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ante of a single department store is preserved by a prohibition on the
display of the trade names of the individual licensees and is assured by
Spartan's responsibility for overall operations. Moreover, and in
furtherance of Spartan's intention of creating the appearance of a
single, integrated department store, provisions of the license agree-
ments pertaining to labor relations subject employees to all regulations
set by Spartan; provide Spartan with a peremptory right of dis-
charge; authorize Spartan to adjust any labor dispute involving a
licensed department; and require licensees to comply with terms and
conditions of employment, hours, vacation policy, collective bargain-
ing, and union affiliation as established by Spartan. In view of the
contractual relationship between Spartan and the licensed depart-
inents and on the basis of the entire record, it is clear that Spartan is
in a position to influence the labor policies of all licensees. In view
of the foregoing, we find that each of the licensees and Spartan are
the joint employers of the employees in each of their respective de-
partments." We find further that all of the joint employers are en-
gaged in commerce within the meaning of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. Questions affecting commerce exist concerning the representation
of employees Within the meaning of Section 9(c) and Section 2(6)
and (7) of the Act.
4. The Petitioner seeks a unit of all regular employees of the Spar-
tan Department Stores located in the metropolitan area of Oklahoma
City. While the Intervenor has not taken a position as to what unit
would be appropriate, it apparently contests the propriety of a two-
store, citywide unit and also opposes the inclusion of employees of
licensed departments in the overall unit.
The Oklahoma City stores are subject to common supervision and
control, their employees are governed by uniform labor policies, and
the stores are located only 14 miles apart. Employees are interchanged
between the Oklahoma City stores to serve unanticipated needs of
either. The record indicates that Spartan bargains through citywide
units in Dallas and San Antonio, the only other cities in the area in
which multiple outlets are maintained. There is no contention that the
broader unit will impair the organizational interests of the employees
concerned, and no union is here seeking a more limited unit. In view
of the foregoing, we find the unit embracing employees at both Okla-
homa City stores to be appropriate herein.s
As heretofore found, Spartan and each of the licensees constitute
joint employers of each of their respective departments. And as de-
6 See Frostco Super Save Stores, Inc , 138 NLRB 125 ; United Stores of America, 138
NLRB 383, Gaylord Discount Stores of Delaware , Inc, et at., 137 NLRB 557.
5 The Retail & Department Store Employees , Amalgamated Clothing Workers, AFL-CIO,
was permitted to intervene upon a showing of interest
6 Cf Sav-On Drugs, Inc., 138 NLRB 1032
SEVEN-UP BOTTLING COMPANY, INC. 611
scribed above, the Spartan stores resemble in their physical aspects a
single retail department store. The Board's long-established policy
in cases involving retail department stores is to find all inclusive units
appropriate.' Many of the factors on which this policy was based are
present herein, including the exercise by all the employees of the same
general skills, the use of common facilities, and the similarity of their
working conditions. In view of all of the indicia of their mutuality
of employment interests, and the fact of the joint employer relation-
ship, we find a unit including employees of Spartan's wholly owned
departments and those of licensed departments to be appropriate s
We find that the following employees of the employer constitute a
unit appropriate for collective bargaining within the meaning of Sec-
tion 9 (b) of the Act :
All regular full-time and regular part-time employees employed at
Spartan's retail department stores located in the metropolitan area of
Oklahoma City, Oklahoma, including employees of Spartan's wholly
owned and licensed departments, but excluding professional em-
ployees, guards, watchmen, confidential employees, management
trainees, store managers, assistant store managers, department man-
agers,' head office cashiers, and all other supervisors as defined in the
Act.10
[Text of Direction of Election omitted from publication.]
' Polk Brothers , Inc., 128 NLRB 330, 331.
sin Frostco Super Save Stores , Inc., supra , footnote 4, the Board did differentiate as
to a single licensed department and allowed a self -determination election by its employees
on the separate unit question . However, although the witnesses here were fully compe-
tent to testify on, and were examined as to the factors supporting the separate election
in Frostco , the record here does not suggest that like considerations obtain in the case
of any of Spartan 's licensed departments . See also United Stores of America, supra,
footnote 4.
6 The Petitioner contends that department managers are not supervisors and should be
included in the unit , while the Employer takes the contrary position . The record estab-
lishes that the department managers direct the work in their respective departments and
have authority effectively to recommend the discharge or discipline of employees under
their direction . We find that they are supervisors and should be excluded from the
appropriate unit.
10 The parties stipulated to exclude the store managers , assistant . store managers, head
cashiers , and a management trainee.
Seven -Up Bottling Company, Inc. and International Union of
United Brewery, Flour , Cereal , Soft Drink and Distillery
Workers of America , and its Local Union No. 150 , AFL-CIO,
Petitioner. Case No. 25-RC-.2170. January 14, 1963
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted by the Acting Regional Di-
140 NLRB No. 57.
681-492-63-vol. 140-40