Renel's Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 580 (N.L.R.B. 1973)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Renel 's Inc . and Retail Clerks Local 1357
Local 1034, Retail, Wholesale & Department Store
Union, AFL-CIO and Retail Clerks Local 1357.
Cases 4-CA-5946 and 4-CB-1988
March 20, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On December 11, 1972, Administrative Law Judge
John F. Funke issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and the Respon-
dent Employer and Respondent Union filed answer-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the consolidated amended com-
plaint be dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Administrative Law Judge: This
proceeding was brought before the National Labor
Relations Board upon:
1. A charge filed April 12, 1972, by Retail Clerks Union
1357, herein the Retail Clerks, in Case 4-CA-5946, against
Renel's Inc., herein Renel's, alleging Renel's violated
Section 8(a)(1), (2), and (3) of the Act.
2. A charge filed May 8, 1972, by the Retail Clerks in
Case 4-CB-1988 against Local 1034, Retail, Wholesale &
Department Store Union, AFL-CIO, herein RWDSU,
alleging RWDSU violated Section 8(b)(1)(A) and (2) of the
Act.
3. An order consolidating cases and a consolidated
amended complaint issued by the General Counsel on June
8, 1972, alleging Renel's violated Section 8(a)(1), (2), and
1 Unless otherwise noted all dates refer to 1971.
2 These departments were the Shulman Record Company; the Morse
(3) of the Act and RWDSU violated Section 8(b)(1)(A) and
(2) of the Act.
4. Answers received from Renel's and RWDSU deny-
ing the commission of any unfair labor practices.
5. A hearing held by me at Philadelphia, Pennsylvania,
on August 2, 3, and 4 and September 12, 13, and 27, 1972.
6. Briefs received from the General Counsel, Renel's,
and RWDSU on November 8, 1972.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS
1. THE BUSINESS OF RENEL'S
Renel's is a Pennsylvania corporation having an office at
Bala-Cynwyd, Pennsylvania, and operating a retail store at
Philadelphia, Pennsylvania. During a representative year,
Renel 's has a gross volume of business in excess of
$500,000 and purchases goods valued in excess of $50,000
from outside the Commonwealth of Pennsylvania. Renel's
is an employer engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
RWDSU and the Retail Clerks are labor organizations
within the meaning of the Act.
III. THE ISSUE
The complaint alleges that Renel's recognized the
RWDSU as exclusive collective-bargaining representative
of its employees on December 6, 1971,1 and subsequently
executed and signed a collective-bargaining contract
covering its employees, which contract contained union-
security and checkoff provisions at a time when RWDSU
did not represent an uncoerced majority of its employees in
the bargaining unit. This is the sole issue presented.
IV. THE UNFAIR LABOR PRACTICES
A. The Employees in the Unit
Renel's operated three stores in the Philadelphia area,
one of which was the store at Passyunk Avenue, the store
involved herein. Another store at Castor and Luzerne
Avenues was under contract dated November 1, 1971, with
the RWDSU following a Board-ordered election. The third
store was closed. After the execution of the contract
covering the Luzerne Avenue store, the RWDSU com-
menced a campaign to organize the employees at Pas-
syunk. This campaign included the leased departments of
the Passyunk store2 and the appropriate bargaining unit,
not in dispute, was described in the complaint as follows:
All full and regular part-time selling and non-selling
employees, including employees of leasees, but exclud-
ing all office clerical employees, watchmen, guards,
store manager, seasonal employees (those hired to work
between November 1 and December 31 of any year),
Shoe Company; Leon Spector , Incorporated (toys); and ARA Incorporated
(snackbar).
202 NLRB No. 95
RENEL'S INC.
employees covered by other collective bargaining
agreements to which Renel's is a party, department
heads, assistant department heads, and all supervisors
as defined in the Act.
The campaign initiated by RWDSU was followed by an
organizing campaign by the Retail Clerks which appears to
have started shortly before Thanksgiving of 1971. Renel's
store manager , Mimi Bonavitcola , and the assistant store
manager, Robert Gethard, were aware of this campaign by
the Retail Clerks.
On December 2, RWDSU forwarded to Renel's authori-
zation cards secured from employees of Renel's. (G.C.
Exh. 5.)3 After receipt of the additional cards Roskos
received a list of the employees of Renel 's and its leasees
and checked them one by one against the cards received.
According to the best of his recollection, this check was
made on Friday, December 3. On Monday, December 6,
Douglas L. Ash, for Renel's, wrote RWDSU stating that it
would recognize it as the exclusive bargaining agent for the
employees in the unit described above on the basis of the
card check and suggested that terms of the contract which
had been negotiated for the employees be applied to the
employees at Passyunk as of January 3, 1972. (This
contract was received as G. C. Exh. 3.)' On December 15,
Renel 's notified its employees that an agreement had been
reached with RWDSU to apply the terms of the Luzerne
Street store to the Passyunk store. (G.C. Exh. 4.) We now
reach the critical question of the majority status of
RWDSU in the appropriate unit on December 6, the date
recognition was extended. The parties agree that in
addition to the employees of Renel's the employees of the
following leased departments should be included: Shulman
Record Company; Morse Shoe Company; Leon Spector,
Inc. (toys); and ARA Incorporated (the snackbar).
Renel's overall payroll for the week ending December 4
showed 76 employees but contained two duplications
reducing the correct total to 74.4 The parties have agreed
upon certain reductions in this total due to terminations or
exclusions by definition of the unit . Three bookkeepers and
two assistant department managers (DiDonatis, Bradley,
Bankert, Tropiano, and Zambrano) are not within the
unit.5 Four were seasonal (Christmas) employees (Sammar-
tino, Gasso, Verrilli, and Milaro). Eight were terminated
prior to December 3, the date of the card check and two
others on December 4, prior to the date recognition was
granted. As to the eight terminated prior to December 3,
there is no dispute but as to the two employees terminated
on December 4 (Gormley and Owens) there is disagree-
ment. The General Counsel would include them within the
bargaining unit ; the RWDSU and Renel's would exclude
them. Since the test of legality is fixed by the date of
recognition and not by the card check, I would exclude all
10 from the computation .6 I therefore find that 19
employees should be excluded leaving a unit of 55
employees.
3 This letter enclosed additional authorization cards indicating, accord-
ing to Andrew Roskos, vice president for industrial relations for Renel's that
other cards had been previously submitted and had been found insufficient
in number to establish the majority status of RWDSU.
4 The brief of RWDSU computes this figure as 75, which I find to be
inadvertent error.
5 RWDSU brief omits Bradley from this exclusion presumably also
581
It is not disputed that Shulman Record Company had
four employees properly included within the unit, and that
Morse Shoe Company had six employees in the unit. There
is dispute as to the Leon Spector employees since , of the 21
employees, the General Counsel and the RWDSU agree
that there were 14 regular and 7 temporary employees;
Renel's claims there were 15 regular and only 6 temporary
employees. This dispute focuses on Angela Faramelli.
Thomas Walsh, office manager of Spector, first testified
that Faramelli was a casual employee, a conclusion he
reached from the fact she was hired in October (which he
described as right before the Christmas season) and that
she worked only intermittently during 1972. Walsh stated
he did not know her termination date but subsequently
testified that she worked only 3 weeks in 1972, but which 3
weeks he did not know. Introduced into evidence was the
pretrial affidavit of Walsh (G. C. Exh. 74), in which he
stated that Faramelli worked only 3 weeks in 1972 but
which did not specify the dates. On the basis of this meager
and inconclusive evidence, I find that Faramelli was a
seasonal employee who should be excluded from the unit.
The employee complement at ARA (the snackbar)
varied, but, as of December 6, it consisted of 11 waiters
and waitresses, 4 of whom were excluded as seasonal. In
addition there was a manager, Rita Daly, admittedly a
supervisor, and an alleged assistant manager, William
Walsh. The General Counsel contends that Walsh was a
supervisor; the Respondents contend he was an employee.
For reasons which will be set forth later, this case pivots on
the status of Walsh.
Thomas Walsh, 18 years old at the time of the hearing,
testified that he was hired in June and that from September
to December 31 (when ARA terminated its lease) he was
assistant manager. This title and its concomitant authority
were conferred upon him by Jack Trager, district manager
for ARA, at a meeting held at a table in the snackbar in
September. Present were Trager, Daly, and Walsh. The
forthcoming Christmas season and the expected increase in
business were discussed. In this discussion, according to
Walsh, Trager told him he was being made assistant
manager. After this promotion, which did not involve an
increase in pay,7 Walsh recommended the hiring of two
employees, Donald Testa and Gerald Spence, and prepared
the work schedule for other employees when Daly was
either not present or was otherwise engaged. (Daly had 2
days off, Wednesday and Sunday; Walsh worked days
from 12 to 4 p.m. and some nights until 1 I or 12. The bar
was open from 10 a.m. to 10 p.m. on weekdays and 12 to 6
p.m. on Sundays.) As counterman he had waited on
customers and prepared food on the grill, duties which he
continued after his promotion. He did testify, however,
that he did not spend as much time on counterwork
because he made out schedules on Thursday and Friday
and was learning to do payroll work.
Rita Daly testified that she was manager of the snackbar
inadvertently.
6 As to these terminations, the brief of Renel's fixes the total as 11, which
I regard as another inadvertent error.
7 Walsh stated he was promised an increase from his pay of $1.60 an
hour but could not accept it because it would affect the social security
benefits received by his father.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that in September she and Trager discussed the
increase in work which would result from the Christmas
business and that he asked her if she "had anyone in mind
that could relieve some of the pressure during the
Holidays." She recommended Walsh. Trager agreed that
his title should be assistant manager and that whatever
Daly wanted him to do he would do. Under this
delegation, Daly gave Walsh the authority to recommend
hiring and firing, an authority which he exercised .8 Daly
taught him to prepare daily payroll reports and how to
order merchandise for the food concession.
On cross-examination, Daly admitted that Walsh's
records were never changed and that he did not appear on
those records as assistant manager although he occupied
that status "in my eyes." Daly's testimony as to both her
own status with ARA, and that of other assistant managers
and employees is confusing, as she admitted, not because
she was not a forthright witness but because the employ-
ment situation itself was confusing. Thus she testified that
she had broken periods of employment during some of
which she worked as manager and some as assistant
manager. She had had night managers to supervise when
she was not at the store but could not remember them
because they changed with such frequency. This was
likewise true of employees, most of whom were fired for
dishonesty. She hired Testa and Spence on Walsh's
recommendation that they were honest but did not rule out
the possibility that the recommendation of almost any
employee or friend might result in employment. Some
employees were hired through the simple process of putting
a "waitress wanted" sign in the window, so the procedure
could hardly be classified as formal nor did applicants
receive any particular screening.
Jack Trager denied that he had any conversation with
Daly and Walsh in which he designated Walsh as assistant
manager and stated that no payroll change was made for
Walsh in which he was transferred from the employee to
administrative status. All supervisors, according to Trager,
were placed on the administrative payroll which qualified
them for insurance, hospitalization, and other benefits. The
only assistant snackbar manager Trager could recall was
Daly's daughter whose employment record was also
broken, but who did receive administrative benefits while
she was assistant manager. Daly would not have the
authority to make an employee an assistant manager
without Trager's approval, but she could delegate routine
duties, such as the preparation of work schedules, to other
employees whefl she was not present.
I do not find that Walsh possessed supervisor authority
within the meaning of Section 2(11) of the Act for the
following reasons. The operation of a snackbar with a
complement of 13 is not such a complex and complicated
operation as to require extensive or full- time supervision. It
is clear that Daly did not have authority to confer
supervisory status on any employee and it is equally clear
that Walsh was never confirmed as a supervisor by formal
B It was her testimony that Walsh recommended the hiring of Teste and
Spence and that she approved the recommendation.
9 Cooks Markets, Inc., 159 NLRB 1182 , 1190 (assistant store managers);
Hotel Employees Association of San Francisco, 159 NLRB 143 , 152 (senior
room clerks.
10 Trager testified that Daly could appoint any employee to exercise
administrative action. It is true that this is not dispositive
of the issue, but it is corroborative of Trager's testimony
that he neither appointed Walsh a supervisor or gave Daly
the authority to appoint him. Walsh's testimony, corrobo-
rated by Daly, that he effectively recommended the hiring
of two employees must be evaluated in the nature of the
operation. No particular skills were required for employ-
ment and, as Daly testified, employees would be hired on
the recommendation of friends or without any recommen-
dation at all. There is little to indicate that Walsh's
recommendation carried substantially more weight than
that of any responsible and trusted employees. I do not
envisage that it was within the contemplation of the
Congress that such meager authority was sufficient to bar
an employee from a bargaining unit.9
There is also the testimony of both Walsh and Daly that
Walsh prepared the work schedules (the hours to be
worked) of other employees when Daly was otherwise
engaged.10 It is true that this is a factor which has been
given some weight by the Board in resolving supervisory
status, but it is far from controlling and as a factor in this
particular operation almost negligible." Walsh testified
that he has prepared work schedules at another ARA
snackbar where he admittedly did not have supervisory
status. As to payroll work, Walsh reached only the training
stage in this, a type of work which is clerical, not
supervisory.
More important is the evidence that Walsh's essential
duties, those of waiting on tables and serving at the grill,
remained unchanged. Under the totality of the circum-
stance, I would find that a holding that Walsh should be
excluded from the bargaining unit would not only be error,
but arbitrary, capricious, and frivolous error.
Finding that Walsh should be included in the bargaining
unit, I reach the following total of eligible employees:
Renel's Inc. 55
Shulman Record Company 4
Morse Shoe Company 6
Leon Spector 14
ARA Incorporated 8
87
B. The Valid Authorization Cards
The General Counsel submitted 25 cards of employees of
Renel 's as to which there is no dispute. Four cards were
submitted by employees who admittedly signed duplicate
cards for each of the unions and there is no dispute that
these cards should be excluded.12 Another card, that of J.
E. Johnson (G. C. Exh. 20) is undated and is not
acceptable for that reason.
Four cards which the General' Counsel found were
solicited by William Walsh 13 and which he would exclude
for that reason I find, in view of my holding that Walsh
some of her duties when she was not present.
11 G. C. Murphy Co., 171 NLRB 370,37 1.
12 These were the cards of R. Dina, L. J. Fitti, G . DeMarco, and F. R.
Lochetto.
13 These were the cards of E. A. Davocato, J. M. Coppolella, H.
Hartmann , and M . A. Mirachi.
RENEL'S INC.
was not a supervisor, should be accepted. The General
Counsel would also exclude the card of J. Simone.
According to her testimony, Simone asked to sign a card
on November 11, but Mullin, the RWDSU organizer, did
not have a blank card on her person at the time. Simone
then signed a blank piece of paper testifying that by so
doing she meant to and was designating the RWDSU as
her bargaining agent. Later she signed a card on January 5,
1972, predated to November 11. In view of her unequivocal
testimony that she designated the RWSDU on November
11, I accept the card.14 Of the 35 cards submitted by the
General Counsel, I find 30 valid as designations of union
representation.
Shulman Records had four employees of whom two
signed cards. The General Counsel would exclude the card
of Elsie Holden (RWDSU Exh. 1) on the ground that no
one testified to her signature nor to the circumstances of
her signing. Since the card was in the possession of the
RWDSU and no evidence that either the signature or the
date was not authentic was offered I think a prima facie
case of validity has been established, and I shall include
her card as evidence of a majority status. The General
Counsel objects to the card of Gary Goodnow (G. C. Exh.
15) solely on the ground that it wag solicited by Walsh. I
find the card valid.
Morse Shoe had six employees employed as stock clerks,
three of whom signed cards which are not contested.
Leon Spector, Inc., had 14 employees, 7 of whom signed
cards. These cards are not disputed.
ARA Incorporated had eight regular employees includ-
ing Walsh. Six of these, including Walsh, signed cards and
the other five cards were solicited by Walsh. In view of my
previous holding, I shall include all cards.
14 Suburban Lumber Co., 3 NLRB 194; Wilmington Transportation Co., 4
NLRB 750.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
583
The following is the computation I find on the basis of
the rulings made by me: '
Employer Employ
Renel's 55
Shulman Record 4
Morse Shoe Company 6
Leon Spector 14
ARA Incorporated 18
87
Valid
Cards
30
2
3
7
6
48
I find that on December 6 RWDSU represented an
uncoerced majority of the employees in the unit found
appropriate herein and was entitled to recognition as
exclusive bargaining agent of such employees.
Upon the foregoing findings, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Renel's Inc ., has not violated Section
8(a)(1), (2), and (3) of the Act.
2. Respondent Local 1034, Retail, Wholesale and
Department Store Union , AFL-CIO, has not violated
Section 8(b)(1)(A) and (2) of the Act.
Upon the entire record in this case , the foregoing
findings and conclusions of law, and pursuant to Section
10(c) of the Act , I recommend issuance of the following: 15
ORDER
It is recommended that the consolidated amended
complaint be dismissed in its entirety.
conclusions, and the Order herein shall, as provided in Sec. 102.48 of the
Rules and Regulations , be adopted by the Board, and all objections thereto
shall be deemed waived for all purposes.