Goldeen's Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1961

134 N.L.R.B. 770 (N.L.R.B. 1961)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining purposes. We shall, accordingly, amend our original De-
cision herein.'
IT IS HEREBY ORDERED that the original decision herein be, and it
hereby is, amended to read as follows :
The following employees of the Employer constitutes a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All production and maintenance employees employed by Dun
Rite Polishing, Buffing and Plating Corporation at 5800 Russell
Street plant, Detroit, Michigan, excluding office clerical and plant
clerical employees, guards, professional employees, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and LEEDOM took no part in the consideration of
the above Decision and Direction of Election.
3 See Georgia Creosoting Corporation, 133 NLRB 349 . As appears from the original
decision, the assertion of jurisdiction over Dun Rite is plainly warranted.
Goldeen's, Inc. and Judson W. Whitmore , Petitioner and Retail
Store Employees Union , Local No. 428, Retail Clerks Inter-
national Association , AFL-CIO
Martino's Complete Home Furnishings and Martino 's Budget
Store ' and Wave Helm , Petitioner and Retail Store Employees
Union, Local No . 428, Retail Clerks International Association,
AFL-CIO
L. Lion & Sons Company , Inc., and Lion 's Exchange Store 3 and
Melda Maitoza, Petitioner and Retail Store Employees Union,
Local No. 428, Retail Clerks International Association, AFL-
CIO
Gryder-Kuykendall , Inc. and Loren N. Hyland , Ruby Allen,
Mildred Flood , Virginia Terry and John S. Adams, Petitioners
and Retail Store Employees Union , Local No. 428 , Retail Clerks
International Association , AFL-CIO
Elroy H. Shank , A. L. Abrott, Warren D . Reilly and Charles
Robinson , Co-Partners , d/b/a Robinson & Sons Co. and
Carolyn A. Mikesell , Petitioner and Retail Store Employees
Union , Local No. 428, Retail Clerks International Association,
AFL-CIO
'Petition was amended at the hearing to include both stores.
a Petition was amended at the hearing to include both stores
134 NLRB No. 66.
GOLDEEN'S, INC. 771
Union Furniture Co., Ltd . ( Mountain View, California , Store)
and Arthur Donald Soper, Petitioner and Retail Store Em-
ployees Union , Local No. 428, Retail Clerks International
Association, AFL-CIO
Warren B . Reilly, Elroy H. Shank , Charles Robinson, William
Fenton and Glenn Jones, Co-Partners d/b/a Jones - Fenton
Furniture Co., and The Bargain Spot and Jack Fear, Petitioner
and Retail Store Employees Union , Local No. 428, Retail Clerks
International Association , AFL-CIO
William J., Wilford J., Robert F ., and Irma Scilacci , Edwina
Adoradio and Donna Napala, Co-Partners d/b/a Smilin ' Bill's
Furniture Company and Madeline Atkinson , Petitioner and
Retail Store Employees Union , Local No. 428 , Retail Clerks
International Association , AFL-CIO
San Jose Furniture Retailers Association , California Associa-
tion of Employers, and Goldeen 's Inc., Goldeen 's Economy
Furniture Co., Martino 's Complete Home Furnishings and
Martino's Budget Store, L. Lion & Sons Company, Inc., and
Lion 's Exchange Store, Gryder-Kuykendall , Inc., Elroy H.
Shank, A. L. Abrott, Warren D . Reilly and Charles Robinson
d/b/a Robinson & Sons Co., Union Furniture Co., Ltd. (Moun-
tain View, California , Store ), Warren B . Reilly, Elroy H.
Shank, Charles Robinson , William Fenton and Glenn Jones,
d/b/a Jones-Fenton Furniture Co., and The Bargain Spot,
William J., Wilford J., Robert F ., and Irma Scilacci , Edwina
Adoradio and Donna Napala, d/b/a Smilin ' Bill 's Furniture
Company, Franz J. Niederauer , Inc., d/b/a Western Appliance
Co., Simoni's Home Furnishings , Peter J. Allen Corporation
d/b/a Allen's Furniture , Union Furniture Co., Ltd . ( San Jose,
California , Store ), Great Western Furniture Co., Inc., and
Lachman Bros . and Retail Store Employees Union , Local No.
428, Retail Clerks International Association , AFL-CIO, Peti-
tioner. Cases Nos. 20-RD-265, 20-RD-267, 20-RD-268, 20-RD-
1969, 20-RD-2270,20-RD-271,20-RD-272, 20-RD-273, and 2O-RC-
4638. November 27, 1961
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act,' a hearing was held before Robert V. Magor, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
3 By Order of the Regional Director for the Twentieth Region, dated June 7, 1961, the
above-captioned cases were consolidated.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
Upon the entire record in this case, the Board 4 finds :
1. The Employers are engaged in commerce within the meaning
of the Act.5
2. The labor organization involved claims to represent certain em-
ployees of the Employers."
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons :
In February 1957, a number of the Employers involved herein
formed a multiemployer association known as the Retail Furniture
Council of Santa Clara County, hereinafter called Council.' The
members of Council executed written authorizations to one Edward
H. Moore, an attorney, which gave Moore the power to represent the-
members of Council in collective-bargaining negotiations. On
April 1, 1957, Moore, on behalf of Council, entered into a collective-
bargaining agreement with the Retail Store Employees Union, Local
No. 428, Retail Clerks International Association, AFL-CIO, herein-
after called the Union, which was effective to July 1, 1960, and con-
tained an annual reopening provision.
In April 1958, the Union gave notice to Moore and the members of
Council of its desire to amend the contract. On August 6, 1958, while
negotiations were being conducted, Western Appliance Company noti-
fied Council, by letter, that it was withdrawing therefrom. Pursuant
to the negotiations, Moore, on behalf of Council, entered into a new
contract with the Union in January 1959, effective to July 30, 1961 8
This agreement also contained an annual reopening provision.
In August 1959, pursuant to the reopening provisions, the 1958 con-
tract was reopened for negotiations concerning a health and welfare
plan. On November 23,1959, while negotiations were being conducted,,
Goldeen's, Inc., and Goldeen's Economy withdraw from Council, and
revoked, in writing, the authorization previously given to Moore.
4 Member Brown did not participate in the consideration of this matter
5 In view of our Decision herein dismissing all the petitions , we do not pass upon the-
question of whether Gryder -Kuykendall and Jones -Fenton are engaged in commerce within
the meaning of the Act.
8 The Union claims to represent the employees of all the Employers involved herein in
to multiemployer unit The Petitioners in the decertification cases assert that the Union
is no longer the bargaining representative of the employees as defined in Section 9(a) of
the Act, and allege that only single employer units are appropriate
7 The original members of Council with a few exceptions not pertinent to this Decision
were Allen 's, Goldeen ' s, Inc., Goldeen's Economy, Jones -Fenton, L. Lion & Sons , Martino's,
Robinson ' s, Simoni's, Smilin ' Bill's, Union Furniture , Western Appliance , and Lachman
Brothers . Retail Furniture Council of Santa Clara County is sometimes erroneously re-
ferred to as San Jose Furniture Retailers Assoc., and Retail Furniture Council of San Jose..
8 The contract was executed on behalf of those Employers listed in footnote 7 with the
exception of Western Appliance, and with the addition of Gryder-Kuykendall and Great
Western, which had joined Council since the execution of the 1957 contract Smilin'
Bill's is not listed as a party to the new contract but this appears to have been an,
oversight
GOLDEEN'S, INC. 773
Thereafter, Moore notified the Union, by letter, that his authority to
represent these two firms had been terminated. In December 1959,
Great Western Furniture Company telephoned Moore to notify him
that it was canceling his authority to represent them. Although
Moore did not notify the Union of Great Western's withdrawal, Great
Western was not thereafter involved in any of Council's contractual
dealings with the Union.
Sometime in January 1960, the parties concluded an amendment
concerning the health and welfare plan. On March 10, 1960, the Coun-
cil members decided to terminate their relationship with Moore, and,
on that date, they executed written authorizations to, and joined, the
California Association of Employers, a large multiemployer associa-
tion, hereinafter called CAE.'
Goldeen's, Inc., and Goldeen's Economy which had withdrawn from
Council in November 1959, joined CAE on February 24, 1960. At that
time, and again on March 10, 1960, Goldeen's, Inc., and Goldeen's
Economy executed written authorizations giving CAE the power to
represent them in all collective-bargaining matters. Also on March
109 1960, Council accepted the resignation of Lachman Brothers, which
had objected to being represented by CAE. On March 14, 1960, Lach-
man Brothers notified the Union that it was no longer represented by
Council. Lachman never became a member of CAE and all subsequent
dealings were directly between it and the Union. On March 18, 1960,
Moore finally informed the Union that he no longer represented Coun-
cil, and that his authority to act for that organization had been
revoked.
On May 26, 1960, the Union notified CAE of its desire to reopen the
1958 contract. Negotiations followed and on July 28, 1960, CAE and
the Union executed an amendment to the 1958 contract."
On December 15, 1960, a consent UD election was held among the
employees of the Employers listed in footnote 10, as well as Lachman
Brothers and Great Western Furniture Co. The consent-election
agreement was executed by the Union and CAE, on behalf of Council,
which included all of the employers involved herein with the excep-
tion of Lachman and Great Western, who signed individually on their
own behalf. Western Appliance was not involved in the UD proceed-
ing at all. A majority of the employees voted against withdrawal of
the Union's authority to enter into a union-security agreement.
On March 30, 1961, the members of Council voted to dissolve their
organization. These Employers thereafter informed CAE by letters
6 Although the Council members, with the exceptions hereafter noted, joined CAE, it is
clear from the record and actions hereinafter set forth , that Council continued to exist as
a body within CAE, and that CAB was merely substituted for Moore as the bargaining
representative of Council.
10 The agreement was executed by CAE for Allen 's, Goldeen 's, Inc , Goldeen's Economy,
Jones-Fenton , L. Lion , Martino's , Robinson 's, Smilin ' Bill's, SimQui 's. Union Furniture,
and Gryder-Kuykendall.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their action, stating that they had dissolved Council and that they
now wished to be represented by CAE on an "individual store basis."
On April 6, 1961, an amendment to the 1958 contract was executed by
CAE, on behalf of the Employer members, and the Union." On
April 11, 19,61, Lachman Brothers and Great Western Furniture Com-
pany executed separate agreements with the Union amending the 1958
contract to which each had remained a party. On April 21, 1961,
Western Appliance Company joined CAE. Subsequently, a separate
amendment to the 1958 contract was entered into between the Union
and Western Appliance, with CAE presumably acting on behalf of
this Employer.i2
On April 28, 1961, the first decertification petition was filed naming
Goldeen's, Inc., as the Employer. On May 2, 1961, CAE notified the
Union, apparently for the first time, that Council had dissolved and
that the members now wished CAE to represent them individually.
On May 16, 1961, private counsel representing Goldeen's, Inc., and
Goldeen's Economy notified the Union, by letter, of their intention to
terminate the 1958 agreement which was due to expire on July 31, 1961.
On May 24, 1961, Goldeen's, Inc., and Goldeen's Economy, by written
notice, withdrew the authorization previously given to CAE.
On May 25 and 26, 1961, CAE notified the Union, by separate
letters, on behalf of each individual employer, of their desire to termi-
nate the contract at the expiration of the present term. On May 26,
1961, the Union filed its RC petition requesting an election in a
multiemployer unit.
The Union contends that a multiemployer unit is appropriate and
that all the decertification petitions should be dismissed. The Em-
ployers take the position that only the single employer units are
appropriate and that the Union's petition should be dismissed.
As previously noted, Great Western and Lachman Brothers ter-
minated their relationship with Council in December 1959 and March
1960, respectively, and neither Employer has since engaged in any
multiemployer bargaining. Each of them has executed separate,
individual contracts with the Union. In these circumstances, we find
that Great Western and Lachman Brothers effectively withdrew from
the then existing multiemployer association."
31 It appears that the negotiations were concluded March 29, 1961 , the day before Council
voted to dissolve The negotiated amendment was not executed until April 6, 1961, effec-
tive as of April 1, 1961. The amendment signed by CAE listed its employer members by
name and those so named are the same Employers who were members of Council
' Lachman and Great Western were not included.
12On April 21, 1961, the day western Appliance joined CAE, CAE notified the Union
that it would now be representing Western Appliance . The Union inquired whether
Western Appliance would automatically become a party to the recently negotiated agree-
ment. (Presumably the amendment of April 6, 1961.) CAE replied in the negative and
stated that "any negotiations or procedures relative to the firm will be handled on an
individual basis and any decisions entered into by us on their behalf will be confined
solely to the Western Appliance Company."
13Scougal Rubber Mfg. Co, Inc., et al, 126 NLRB 470.
GOLDEEN'S, INC. 775
As to Western Appliance, it appears that it withdrew from Council
in August 1958 and joined CAE in April 1961. Thereafter CAE
bargained for it separately, not as part of the then existing multi-
employer bargaining group. As Western Appliance has shown an
unequivocal intent not to be part of any multiemployer bargaining
unit, we exclude it from the requested multiemployer unit."
With respect to the remaining Employers, all of whom were mem-
bers of Council and CAE, we find that by their act of disbanding
Council on March 30, 1961, their subsequent letters to CAE indicating
that they now wished to be represented individually rather than as a
group, and CAE's notice to the Union of the above action, an un-
equivocal intent to abandon multiemployer bargaining, was clearly
established and communicated to the Union. As such action was
timely taken, we find that there is no longer in existence the multi-
employer unit sought by the Union in its petition in Case No.
20-RC-4638, and we shall, accordingly, dismiss the petition therein.
Each of the several decertification petitions filed herein seeks an
election in a single-employer unit consisting of the employees of
each Employer which previously belonged to the multiemployer unit.
In view of the foregoing finding as to the timely withdrawal from,
and abandonment of, the multiemployer unit, we further find that
each of the Employers, individually constitutes a unit appropriate
for bargaining. However, it is well-established Board policy that a
decertification election will be directed only in the certified or cur-
rently recognized bargaining unit.15 As the Union is not certified
and, as will appear hereafter, we find that the single-employer units
as alleged in the decertification petitions are not the currently recog-
nized units, consistent with settled policy we shall dismiss the remain-
ing petitions.
It is axiomatic that the concept of a currently recognized unit
is based upon the existence of a collective-bargaining relationship,
and requires agreement between the parties, either express or implied,
as to the unit of employees affected by that relationship. Where, as
in the instant matter, there is no outstanding Board certification upon
which the Board can rely in determining the scope of the unit, the
Board will look to evidence of the parties' bargaining history to
determine which unit the parties have, in fact, recognized."
In the instant case, it is clear that until the dissolution of Council
and the Union's receipt of notice thereof, the recognized bargaining
unit was the multiemployer unit. Thereafter, based upon the Em-
ployers' newly executed authorizations to CAE, all further negotia-
14 Earl Gordon d/b/a Gordon Electric Company, 123 NLRB 862.
15 Calorator Manufacturing Corp , 129 NLRB 704, footnote 3 , The Root Dry Goods Co,
Inc, 126 NLRB 953, 954 at footnote 6, Harry F Shuey and Marion M. Shucy, d/b/a
Oakwood Tool and Engineering Company, 122 NLRB 812, 814.
18 Calorator Manufacturing Corp., 129 NLRB 704, footnote 3.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions between the Union and the Employers were to be through the
latter's agent , CAE-but on an individual rather than a group basis.
The record herein is completely devoid of any evidence of dealings
between the parties since the dissolution of the multiemployer unit,
and there is no basis for assuming that the Union is willing to accept
current recognition in the several single employer units. Indeed, the
latter assumption is belied by the Union's petition in Case No.
20-RC-4638, and its position in the instant decertification proceedings,
namely, that any but the multiemployer unit is inappropriate. In
these circumstances, where the record discloses that since the dissolu-
tion of the previous multiemployer unit the parties have disagreed
as to the unit to be recognized, we are unable to say that the single
employer units alleged in the decertification petitions are the currently
recognized units.
Accordingly, as there is no longer an existing bargaining unit in
which the Union is currently recognized, we shall dismiss all of the
decertification petitions filed herein.
[The Board dismissed the petitions filed in Cases Nos. 20-RD-265,
20-RD-267, 20-RD-268, 20-RD-269, 20-RD-270, 2.0-RD-271,
20-RD-272, 20-RD-273, and 20-RC-4638.]
Local 347, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [D. L. Harrison Com-
pany] and Eugene Warner, Kenneth Burgess, Charles Hickey,
Albert C. Kramer, Raymond W. Craft, Buford C. Kinder,
Dwight Taylor, James C. Turner, Hobart Holloway, Alfred
Leroy Walker, Theodore Watson , John Petty, and Robert
Scheper. Cases Nos. 14-CB-883-1 through 14-CB-883-13. No-
vember 28, 1961
DECISION AND ORDER
On July 3, 1961, Trial Examiner John H. Eadie issued his Inter-
mediate Report herein, finding that the Respondent had engaged in
unfair labor practices in violation of Section 8(b) (1) (A) and (2)
of the Act and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
The Board 1 has reviewed the Trial Examiner's rulings and finds
no prejudicial error. The rulings are hereby affirmed. The Board
1 Pursuant to Section 3(b) of the Act , the Board has delegated its powers in connection
with this case to a three -member panel [ Members Rodgers , Leedom, and Brown].
134 NLRB No. 75.