Martin-Burns Sportables, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1960

129 N.L.R.B. 364 (N.L.R.B. 1960)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1869 for a separate election among the former employees of Brooklyn
Borough based on their separate bargaining history for, as we have
found, they have lost their identity as a separate established unit and
have become merged with the Employer's other Brooklyn and Queens
employees. Therefore, as no question exists concerning the representa-
tion of former Brooklyn Borough employees, we shall dismiss the
petition filed by Local 1869 herein." However, we shall grant the
Petitioner's motion and amend the description of its certified unit to
specifically include therein all employees of the Employer who were
formerly employed by Brooklyn Borough Gas Company.'"
[The Board dismissed the petition in Case No. 2-RC-10853.]
[The Board amended the certification of representatives in Cases
Nos. 2-RC-9689 and 2-RC-9727 issued on April 24,1959, to Local 101,
Utility Division, Transport Workers Union of America, AFL-CIO,
to include all physical and office clerical employees of the Employer
who were formerly employed by Brooklyn Borough Gas Company and
who work in or are permanently assigned to the Employer's operations
in the boroughs of Brooklyn and Queens, New York.]
'Continental Can Company , Inc., 127 NLRB 286.
10 The alternative request of Local 1869 made at the hearing and in its brief to the
Board, that an election be held among all employees in the certified unit is denied because
there is a contract bar to an election in such a unit, and further because Local 1869 has
not demonstrated a sufficient petitioner 's showing of interest and none of the other parties
has filed a petition for an election in such unit.
Martin-Burns Sportables , Inc. and Local 1010, Retail Employees
Union of South Florida , Retail , Wholesale and Department
Store Union , AFL-CIO , Petitioner. Case No. 12-RC-510. Octo-
ber 11, 1960
DECISION AND ORDER ON MOTION TO AMEND OR
CLARIFY CERTIFICATION
In a Decision and Direction of Election issued on June 16, 1959,
the Board found that "all employees of the Employer at its retail
stores in the Americana Hotel and the Fontainebleu Hotel, Miami
Beach, Florida,' including selling assistant managers, salesmen,
bushelmen, and cashiers, but excluding office employees, guards, pro-
fessional employees, and supervisors as defined in the Act" consti-
tuted an appropriate unit. On October 28, 1959, following an election
and a Supplemental Decision and Direction dated October 12, 1959, in
which the Local 1010, Retail Employees Union of South Florida,
1 The parties agreed to the two-store unit. However , the Employer also operates stores
in Palm Beach , Boca Raton, Fort Lauderdale , and Hollywood , Florida.
129 NLRB No. 39.
MARTIN-BURNS SPORTABLES, INC. 365
Retail, Wholesale and Department Store Union, AFL-CIO, was suc-
cessful, the Board certified the said Union as the bargaining agent
for the above-described bargaining unit.
On May 11, 1960, the aforementioned Union filed a motion in which
it requests the Board to amend or clarify its certification. It alleges
that the Employer closed its retail store in the Fontainebleu Hotel,
Miami Beach, Florida, on October 31, 1959, and opened another retail
store 11/2 miles distant at 829 Lincoln Road, Miami Beach, Florida,
under the same name and with essentially the same employees on
December 18, 1959; that following such action the Employer refused
to bargain with the Union as the legal bargaining representative of
the employees at the Lincoln Road store. The Union therefore re-
quests the Board to amend its certification to show the change of
address of the Employer's store, and to find that the removal of the
store does not materially affect the rights and obligations of the parties
under the original certification. On May 16, 1960, the Employer filed
a motion to "Strike and Dismiss" the motion to amend. The Em-
ployer contends that at all times material to the original proceedings
in this case the Lincoln Road store was not in existence and the in-
clusion of the employees at the Lincoln Road store was not within
the contemplation of the parties. It further urges that the store at
Lincoln Road is no more a part of the existing unit than are other
stores of the Employer located in Hollywood, Fort Lauderdale, Palm
Beach, and Boca Raton, Florida.
On June 2, 1960, the Board issued an order referring the matter to
the Regional Director for the Twelfth Region and directing that a
hearing be held for the purpose of taking testimony with respect to
the issues raised by the motion to amend. Pursuant to said order, a
hearing was held before Herbert N. Watterson, hearing officer, on
June 15, 1960. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
The Board 2 has considered the motion to amend or clarify, the
briefs of the parties, the motion to strike and dismiss, and the entire
record in this case, and hereby makes the following supplemental
findings :
The Employer closed its store in the Fontainebleu Hotel on October
31, 1959. Of the 10 employees in the store, 3 were terminated prior
to its closing. Employees Bookman and Barron were transferred to
the Americana store, as were Eisen and Wilkens who had previously
divided their time between the two shops. According to the Em-
ployer's testimony, employees Greenberg, Epstein, and Barbara were
terminated. However Greenberg testified that he was told he would
be employed at the Employer's Lincoln Road store, that he was not
z Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated
its powers in connection with this case to a three -member panel [ Chairman Leedom and
Members Jenkins and Fanning].
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminated, and that after taking a vacation he awaited the opening
of the new store.
The Lincoln Road store opened on December 18, 1959. Some fix-
tures used in the Fontainebleu shop were installed in the new shop.
Approximately 2 weeks prior to the opening, Bookman and Barron
were transferred from the Americana store to Lincoln Road. Green-
berg and Barbara were hired before the opening date, and Wilkens
and Eisen were assigned to the new store on the same part-time basis
they formerly worked at the Fontainebleu store. At the time of the
hearing, there was only one employee in the Lincoln Road store who
had not formerly worked at the Fontainebleu shop. Further, the new
store is 11/2 miles distant from the Fontainebleu store, carries essen-
tially the same merchandise, and is under the supervision of the same
manager. Employees Greenberg and Wolf work 1 day a week at the
Americana Hotel store, and alteration work has and is being trans-
ferred between the two stores as well as a limited amount of mer-
chandise. It is clear that the factors of common supervision, inter-
change of employees and merchandise, and proximity of the stores
presently exist between the Americana Hotel store and the Lincoln
Road store just as they existed when the Fontainebleu store was in
operation. With the exception of one employee, the new store is
staffed with the same employees as the former store. In these cir-
cumstances, we find that the new shop is properly included within
the purview of the original certification. We shall, accordingly,
amend our certification of representatives by describing the unit as
including the Lincoln Road store and deleting therefrom the Fon-
tainebleu Hotel store.
[The Board amended the certification of representatives issued
herein to Local 1010 , Retail Employees Union of South Florida,
Retail Wholesale and Department store Union , AFL-CIO, specifically
to include in the certified unit the Employer 's retail store at Lincoln
Road, Miami Beach, Florida, and to exclude the Employer 's former
store at the Fontainebleu Hotel , Miami Beach, Florida.] 3
3 This is not to be construed as a new certification.
Geronimo Service Company and Bartenders and Culinary Work-
ers Union , Local 628, Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, Petitioner. Case
No. 33-RC-778. October 12, 1960
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 Byron E. Guse, hearing offi-
129 NLRB No. 43.