Columbia Music & Electronics, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1972

196 N.L.R.B. 388 (N.L.R.B. 1972)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbia Music & Electronics , Inc. and Department
Store Employees Union , Local 1100, Retail Clerks
International Association, AFL-CIO, Petitioner.
Case 20-RM-1444
April 17, 1972
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS , AND KENNEDY
On December 14, 1971, the Regional Director for
Region 20 issued a Decision and Direction of Election
in the above-entitled proceeding in which he found
appropriate the Petitioner's requested unit of all full-
time and regular part-time selling and nonselling em-
ployees at the Employer's San Francisco, California,
retail store, excluding therefrom six individuals whose
unit placement was in dispute. Thereafter, the Em-
ployer filed a timely request for review of the Region-
al Director's decision on the grounds that in resolving
the unit placement issues he made findings of fact
which are clearly erroneous and departed from estab-
lished policy.
On January 13, 1972, by telegraphic order, the re-
quest for review was granted and the election stayed
pending decision on review. Thereafter, the Petitioner
filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, including
the Employer's contentions in its request for review
and the Petitioner's brief on review, and makes the
following findings:
The Employer is engaged in the retail sale of musi-
cal instruments, sheet music, books, records, prere-
corded tapes, hi-fidelity equipment, and other musical
supplies at its San Francisco store. Edward Regan,
manager of the hi-fidelity department, owns 35 per-
cent of the Employer; Sid Heller, manager of the
musical instruments and books department, owns 30
percent; and Charles Heller, manager of the records
and tapes department, owns 28 percent. Under the
owner-managers, there are 12 employees, including
the 6 whose exclusion from the unit by the Regional
Director is under review.
Dolores Blood under the direction of the three own-
er-managers, performs various secretarial and clerical
functions, such as handling correspondence, accounts
receivable, bank deposits, billings, and payroll. De-
spite the absence of any history of collective bargain-
ing with respect to any employees of the Employer,
the Regional Director concluded that she is a confi-
dential employee, reasoning that because she is one of
the two secretaries who work for all three of the own-
er-managers, her duties would include assisting them
in all of their labor relations responsibilities. The Em-
ployer argues that Blood's role in the event of future
negotiations with the Petitioner is wholly speculative.
We agree. In the circumstances herein, we shall in-
clude her in the unit.
Nell Sperling is a part-time employee working 3
days a week. She is a bookkeeper and performs cer-
tain secretarial and clerical duties for the owner-
managers . She is also a shareholder, owning
approximately 5.5 percent, or 50 shares, of the
Employer's stock, valued at approximately $6,000.
She receives vacations and holidays despite the
Employer's policy of not providing such benefits for
part-time employees. Because she shares secretarial
functions with Dolores Blood, albeit on a part-time
basis, the Regional Director concluded that she, as
well as Blood, is a confidential employee. Although
for the reasons expressed concerning Blood we do not
agree that Sperling is a confidential employee, we
believe, because of her stock interest and the special
treatment accorded her with respect to vacations and
holidays, that her interests are closely allied with man-
agement . We shall therefore exclude her from the
unit.
As to Al Heller, a brother to two of the owner-
managers , and John Regan, brother to the other own-
er-manager , the Regional Director found, inter alia,
that they were employed only sporadically. The Em-
ployer in its request for review asserted that both men
work 1 day a week or more on a part-time basis. The
Petitioner filed no opposition to the request for review
but contends in its brief on review that the record fully
substantiates the Regional Director's findings that
they work only sporadically. Upon our review of the
record, we are satisfied that Al Heller and John Regan
are irregular part-time employees and, for this reason,
we exclude them from the unit.'
Susan Eckberg and Terry Preziosi were hired on
October 15, 1971, to do part-time cashier work. Eck-
berg, who was pregnant when hired, was scheduled to
work 2 days a week. However, at the time of the
hearing, whe was expecting to give birth in about a
month and a half. Preziosi, a high school student, was
scheduled to work on Saturdays, except during her
Christmas vacation when she was to work 3 to 4 days
each week. The Regional Director concluded that in
view of their short employment history, coupled with
the Employer's past practice of hiring full-time em-
ployees, and the present business conditions, they are
1 Al Heller testified that he had worked for the Employer for only 2 days
and 2 hours since January 1971. John Regan is on call and the record
indicates that he has in fact been employed only sporadically.
196 NLRB No. 55
COLUMBIA MUSIC & ELECTRONICS
casual and temporary employees. The Employer dis-
putes these findings. As to Preziosi, contrary to the
Regional Director, we find that she is a regular part-
time cashier hired to work as such for an indefinite
period.' We therefore include her. As to Eckberg, in
view of her pregnancy at the time of hire and her
insubstantial period of employment on a part-time
2 Kachco Corporation d/b/a Hickory Farms of Ohio, 180 NLRB 755.
389
basis, we believe the record is insufficient to enable us
to determine her status at this time. She will therefore
be permitted to cast a challenged ballot in the elec-
tion.
Accordingly, we shall remand the case to the Re-
gional Director in order that he may conduct an elec-
tion pursuant to his Decision and Direction of
Election, as modified herein, except that the eligibility
payroll period therefor shall be that immediately pre-
ceding the date below.