See's Candy Shops, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 538 (N.L.R.B. 1973)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See's Candy Shops, Inc. and Retail , Clerks Union,
Locals 770, 324, 905, 1428, 1442, affiliated with
Retail Clerks International Association, AFL-CIO,
Petitioners. Case 31-RC-2175
March 20, 1973
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Jean A.
Savage on September 19, 1972. Following the
hearing, and pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, and by direction of the Regional Director
for Region 31, this case was transferred to the
National Labor Relations Board for decision. There-
after, briefs were filed by the Employer and the
Petitioners which have been duly considered.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board finds: 1
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioners are labor organizations and
seek to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Employer manufactures candy and sells it
at retail in 83 shops in southern California, and in 12
shops located in other States.2 Of the 83 shops (or 91,
as the case may be) 8 are now located in San Diego
County, where in 1969 a countywide unit was found
appropriate.3 In that unit no contract was achieved
in postcertification bargaining. Fifty-five shops are
now located in Los Angeles County. The employees
I In view of our disposition of this case, we deny Petitioners' motion to
reopen, the record
2 Employer's Exh 2 lists 91 shops in southern California The other
States in which the Employer operates are Nevada, Arizona, Utah,
Colorado, and Texas A wholly owned subsidiary corporation operates in
northern California
3 Case 2I-RC-11211 The decision of the Regional Director in that case
of these 55 shops, excluding casual employees,
guards and supervisors, are now sought by the five
locals of Retail Clerks International Association who
are the Petitioners. The Employer views the proposed
unit as an arbitrary, countywide unit and urges
instead a unit of all its shops in southern California
from Bakersfield on the north to San Diego on the
south, where the total employee complement is 520
as compared with 350 in Los Angeles County.
Concededly the individual shops in southern
California are not autonomous units. The parties
have stipulated that shop managers are not supervi-
sors. They play no part in hiring and are limited in
authority to direct other employees. The administra-
tive headquarters of the Employer are located in Los
Angeles, where the candy is manufactured. There are
no geographically defined districts. Instead six "shop
supervisors," each with 16 to 18 shops to oversee,
interview and hire applicants and supervise employ-
ees. These six visit each shop assigned to them at
least once each week, "more often if possible."
Assignment of the stores is determined primarily by
the convenience of the supervisor in handling them;
the Employer witness could think of no other basis.4
Two supervisors cover only shops within Los Angeles
County, but each of the remaining four covers some
Los Angeles County shops along with some in
surrounding counties. These shop supervisors report
to the head supervisor who, as "sales supervisor,"
issues uniform shop letters addressed to "All See's
Salesladies." A shop manual explains store opera-
tions in detail and provides basic training for new
employees. Personnel records are kept in Los
Angeles and payrolls are made up there. Merchan-
dise and pricing are identical at all shops. All shop
employees except seasonals have the same benefits.
All wear the same uniforms. Store opening hours are
also identical unless a shopping center location
requires otherwise. Transfers in and out of Los
Angeles County are infrequent. Employer exhibits
show that interstore transfers to shops within Los
Angeles County numbered only seven during the
period from April 28, 1969, to September 11, 1972,
and that two of those were permanent. Transfers out
of Los Angeles County cover a longer period as
shown on this record-4-plus years, February 6,
1968, to November 9, 1972-and number 21, 17 of
which appear to be permanent. There are no record
figures on within-Los Angeles County transfers. As
the Los Angeles County employee complement is
referred to the San Diego stores-then six in number-as within a closely
knit geographical area, whose employees share a community of interest
sufficient to justify bargaining on less than a chainwide basis The shop
supervisor for San Diego County had 13 other shops to oversee, including I
in Arizona
4 Custodial work for the stores is provided by several janitor services,
with the grouping of shops determined by the bidder
202 NLRB No. 76
SEE'S CANDY SHOPS, INC. 539
approximately 350, the temporary interchange be-
tween Los Angeles County and areas outside it is
negligible.
The Employer urges the application of Gray Drug
Stores, Inc., 197 NLRB No. 105, where the Board
directed a two-county unit instead of the single Dade
County unit requested, holding that Dade did not
encompass an area sufficiently remote from the
stores in Broward County to reflect a separate
community of interest of Dade employees from those
in Broward, and that the Dade unit would not reflect
the separate community of interest which stems from
common supervision inasmuch as two district man-
agers handled Dade-Broward supervision. Noting
that here the distances between some of the 55 shops
within Los Angeles County are as great as 44 miles
(in an east-west direction) and 31 miles (in a north-
south direction), and that shops straddling the Los
Angeles County line are only 2 miles apart in one
instance, 9 miles apart in another, and 6 miles apart
in another, Employer contends that a unit including
all stores in southern California is alone appropriate.
Employer also urges that this appropriateness is
exemplified by the supervisory coverage of the area,
its six supervisors each having some shops in Los
Angeles County and no supervisory combination of
less than six handling all of Los Angeles County.
This approach, however, ignores the fact that in Gray
the employer was urging a divisionwide unit consist-
ing of all its drugstores in Florida. There were 30,
extending for 300 miles vertically through five
counties. Areawise and supervisionwise that unit
would have been more nearly comparable to the
southern California unit here urged, than is the unit
the Board found appropriate in Gray -a two-county
unit of 21 stores. In Gray the Board specifically did
not agree with the Employer's contention that the
minimum appropriate unit must be statewide in
scope and instead approved the two-county unit as
"a geographic cluster suggesting a community of
5 Here the peripheral stores near the Los Angeles County border may be
compared with the four stores in Palm Beach County, adjoining Broward
County on the north, which did not deter the holding in Gray that a two-
county unit was appropriate, rather than five counties or statewide, for the
employer involved
6 As the Board said in Gray " the Board has traditionally
looked to such factors as the community of interest among the employees
sought to be represented, whether they comprise a homogeneous,
identifiable, and distinct group, whether they are interchanged with other
employees, the extent of common supervision, the previous history of
bargaining, and the geon' iphic proximity of the various parts of the
employer's operation " See The Great Atlantic and Pacific Tea Company,
Inc. 128 NLRB 142, relied on in Gray, where geographic grouping and
supervision were not coextensive in the unit found appropriate See also
Haag Drug Company, Incorporated, 169 NLRB 877, 878 at In 4, where the
Board spoke of two or more retail outlets being appropriate "if there were
sufficient degree of geographic or administrative coherence , and common
interests of employees in the outlets " (Emphasis supplied )
7 In Gray, during a 6-month period, temporary transfers in the Florida
division ranged from a low of 4 or 5 a week to a high of 20 to 25 a week, for
interest distinct from employees at the Employer's
remaining stores." 5 In Gray the Board's two-county
unit added to Dade, with its 1,135,000 population,
the county of Broward with 430,000. Here the Los
Angeles County unit requested covers a population
group of 6,755,000. It is true that a Los Angeles
County unit does not have coextensive common
supervision, but neither did the San Diego County
unit found appropriate for this Employer's stores.
Supervision, however, is merely one of a number of
factors.6 Interchange with employees outside the
proposed unit is also a factor.? As indicated above,
interchange in this case is negligible, tending to
indicate a distinct community of interest for the
employees within Los Angeles County, with only 28
transfers to and from the county over a period of 3 to
4 years and two-thirds of those transfers being
permanent. Transfers, both temporary and perma-
nent, among the clerks at the San Diego stores were
found "frequent." Comparable transfer information
within Los Angeles County has not been supplied.
Geographic proximity of parts sought to be joined is
another factor. Here the Employer urges a unit
including Bakersfield and San Diego shops, which
are more than 250 miles apart, and Santa Barbara
and San Diego shops which are over 200 miles
apart.8 Bargaining history does not exist despite the
San Diego County unit certified in the earlier case.
No contract resulted. In the circumstances, including
the nearly 7 million population of Los Angeles
County and the large number of the Employer's
stores within it, as well as the minimal interchange of
employees into and out of these 55 stores as a group,
we conclude that a unit of all stores in Los Angeles
County is a coherent geographic cluster whose
employees have common interests in collective
bargaining .9 We therefore find the unit requested by
the Petitioner to be an appropriate unit.10
"Seasonal" employees. Certain part-time employees
work during the five peak sales periods of the year:
a specific total of 300 for the 6-month period
8 See Big "N," Department Store No 307, Big "N,"a division of Neisner
Bros, Inc, 200 NLRB No 137, where the Board granted a single-store unit,
noting that the seven-store unit urged by employer involved a distance
exceeding 200 miles between some stores
9 By comparison San Diego County has 1,170,000 inhabitants We note
in the 1969 Decision and Direction of Election for that countywide unit that
the stores were described as within a 7 1/2-mile radius of downtown San
Diego with the closest over 60 air miles from any other store of the
Employer As counties already large in population increase, the population
tends to encroach upon less populated adjoining areas , retail chains tend to
supply adjoining areas with shops, and it becomes increasingly difficult to
define appropriate bargaining units for retail chains in terms of their
distance from any other unit in the chain
10 Member Fanning, as indicated by his dissent with Member Jenkins in
Gray, would find the Los Angeles County unit appropriate because it is
defined by the Federal Government as the Los Angeles-Long Beach
Standard Metropolitan Statistical Area, and hence offers an intelligent,
orderly, and geographic approach to federally related problems He notes
that San Diego County also comprises such an area
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thanksgiving, Christmas, Valentine's Day, Easter,
and Mother's Day. Supervisors keep lists of those
who ask for seasonal work. However, Employer's
Exhibits 8, 9, and 10, covering all part-time employ-
ees in the Los Angeles County stores during a sample
year ending July 1, 1972, do not show which are
regular part-time and which are seasonal, and the
sole witness could not identify them. Seasonals also
sometimes work the same hours and have basically
the same duties as regular salesladies. It is possible
for them to become regular employees by expressing
an interest in so doing, but the record does not show
how many have done so, nor does it show whether
they are working for other employers when not
working for this Employer. Petitioners contend that
seasonals are casual employees and should be
excluded from the unit. They were not sought in the
San Diego unit, and were excluded without discus-
sion. In their brief Petitioners urge that employees
"regularly scheduled to work in a majority of months
of the year" be included as regular part-time
employees. Although not clear from the testimony or
from the Employer's brief, it appears that the
Employer may wish all employees to vote in an
election.
Based on Employer's estimate of periods during
which work by seasonals is required-a week to 10
days at Thanksgiving, at Valentine's Day and at
Mother's Day, 1 to 2 weeks at Easter, and 2 to 3
weeks at Christmas-it is apparent that 8 to 10 40-
hour weeks, or 320 to 400 hours, would be the
maximum amount of work available to an individual
seasonal employee during 1 year's peak periods.
There were 171 part-time employees in Los Angeles
County stores from July 1971 through June 1972,
including regular part-time employees. Of these 171,
68 worked less than 400 hours, as follows: 31 worked
between 300 and 400 hours (20 of them 350 hours or
more), 16 worked between 200 and 300, 12 worked
between 100 and 200, and 9 worked less than 100
hours. Of the 68, 21 worked in each of the last 3
months of the sample period; only 4 worked in 7 or
more months, or a majority of the period.
We shall exclude as casuals employees who worked
only at the peaks during their period of employment.
However, those who amassed 350 or more hours in
the year preceding election, and in so doing worked
in more than the peak periods, we find are to be
considered as regular part-time employees with
sufficient community of interest to be included in the
unit.
We find that the following employees of the
Employer constitute an appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All retail selling and nonselling employees,
including regular part-time employees, employed
at the Employer's stores in Los Angeles County,
California, excluding casual employees, guards
and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]