J. J. Newberry Co.

National Labor Relations Board - Board Decisions

May 9, 1972

196 N.L.R.B. 995 (N.L.R.B. 1972)

J. J. NEWBERRY COMPANY 995
J. J. Newberry Company and Retail Store Employees
Union, Local 322, AFL-CIO. Case 17-CA-4525
May 9, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
practice proceeding. I have also considered the briefs filed
by General Counsel and the Union in the latter proceeding.
The Company elected not to file a further brief in this
proceeding, but to rely on briefs and statements it had filed
at earlier stages in both proceedings. I have therefore con-
sidered these previously filed documents in the same man-
ner in which I have, considered the briefs directed to me.
Upon the entire record and the various briefs and other
statements of position referred to above, I make the follow-
ing:
On December 15, 1971, Trial Examiner Frederick
U. Reel issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the Charging Party filed cross-
exceptions and a brief.
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 record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings,' and conclusions
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, J. J. Newberry Company, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order.
1 The Board adopts the Trial Examiner's finding that the "area managers"
are not supervisors and, therefore, contrary to the Respondent's Objection
2 in the representation proceeding, the Union had not used a supervisor as
an observer at the election. We, thus, deem it unnecessary to pass upon the
Trial Examiner's assumption as to what conclusion the Board would have
reached on Objection 2 had the observer been found to have had supervisory
status.
TRIAL EXAMINER'S DECISION'
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: The unfair labor
practice aspect of this proceeding came on for hearing at
Springfield, Missouri, on September 18, 1971, pursuant to
a charge filed December 23, 1970, and a complaint issued
February 8, 1971. The gravamen of the complaint is the
refusal of the Respondent, herein sometimes called the
Company, to bargain with the Charging Party, herein called
the Union. The basic issues, however, go to the validity of
the election which resulted in the certification of the Union,
the status of certain "area managers" (whether or not they
are supervisors), and the propriety of the Board's proce-
dures in this matter. Consequently in considering this mat-
ter I have considered the formal papers filed, and the
testimony taken, in the underlying representation case
(Case 17-RC-6351) as well as those in the unfair labor
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND
THE LABOR ORGANIZATION INVOLVED
The Company, a Delaware corporation , operates a retail
variety and department store in Springfield , Missouri,
where it is admittedly enga ed in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a
labor organization within the meaning of Section 2 (5) of the
Act.
II. THE UNFAIR LABOR PRACTICE
A. The Procedural Steps
1. The representation case
The Union filed a petition for certification on March 24,
1970,' pursuant to which a hearing was held on April 21 at
which various issues were explored concerning the unit
placement of a number of employees . Among these issues
was whether certain employees known as area managers
were supervisors within the meanin g of the Act . On May 21
the Acting Regional Director issued a Decision and Direc-
tion of Election in which he held that the "area managers"
were supervisors within the meaning of the Act and should
be excluded from the bargaining unit. The Union on June
1 filed with the Regional Director a "Motion to Reopen
Hearing and to Take Additional Evidence " with respect to
the status of the area managers . Also on June 1 thel.Jnion
filed a request for review with the Board , urging the Board
to reverse the Regional Director on the status of the area
managers or, alternatively, to order the Regional Director
to take additional evidence . The request for review incorpo-
rated the motion filed with the Regional Director . On June
9 the Acting Regional Director, treating the request for
review as a motion for reconsideration, amended the Deci-
sion and Direction of Election by deleting the finding that
area managers are supervisors and by providing that they
may vote subject to challenge . The Company on June 19
filed with the Board a request for review of the ruling of
June 9. On June 24 the Board by telegraphic order denied
the Company's request for review . The election was held on
the afternoon of June 24 with the Union winning by a vote
of 19 to 4. The five challenged ballots were not determina-
tive and were not opened.
The Company promptly filed objections to the election,
one of which (Objection 2) being that the Union "used as
its observer at the election one of the Employer's supervi-
sors within the meaning of Section 2 ( 11) of the Act." On
September 10 the Regional Director overruled the objec-
tions and certified the Union. He stated with respect to
Objection 2 that it was unnecessary to decide whether the
area manager was a supervisor , because, although "the
Board has discouraged the designation of supervisory em-
All dates with respect to the representation case refer to the year 1970.
196 NLRB No. 153
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees as election observers, it does not appear to be a
forbidden practice per se." The Company filed a request for
review with the Board, pressing, inter alia, its Objection 2
and urging "that a hearing be held to `once and for all'
determine whether or not the area managers are supervisors
" The Board denied the request for review on October
30, stating that "it raises no substantial issues warranting
review."
2. The unfair labor practice case
On November 9 and 30, and December 3, 1970, the Un-
ion requested the Company to recognize and bargain with
it as the certified representative of the employees in the unit
found appropriate in the representation case, and to furnish
certain data relevant to the bargaining? The Company re-
fused to bargain and ignored the request for data. On De-
cember 23, 1970, the Union filed a charge initiating the
instant proceeding, and the complaint followed on Feb-
ruary 8, 1971? The Company filed its answer on February
11, admitting the refusal to bargain but contending that it
was under no duty to bargain because of the alleged invalid-
ity of the election. Included in these allegations of invalidity
were the matters previously raised in Objection 2.
On March 19, General Counsel filed with the Board a
motion for summary judgment, reciting that all matters
raised by the Company's answer were disposed of adversely
to the Company in the representation proceeding. In oppo-
sition to that motion, the Company reiterated the positions
it had taken throughout with respect to the invalidity of the
election, including, inter alia, the grounds stated in its Ob-
jection 2. The Company concluded its opposition by sub-
mitting "that the complaint should be dismissed or that, in
the alternative, this cause should be set down for hearing."
Thereafter (the Board having issued an order to show cause
why the motion for summary judgment should not be grant-
ed), the Company moved "that the complaint be dismissed
in its entirety or that, in the alternative, a hearing be held
on'the objections and amended objections to the election
previously filed by the Respondent in Case No. 17-RC-
6351."
On July 2, 1971, the Board entered an order in the unfair
labor practice proceeding, which after reciting the nature of
Respondent's opposition to the motion for summary judg-
ment continues:
The Board having duly considered the matter and
being of the view that Objection 2, relating to the
Union's use of an area manager , an alleged supervisor,
as an election observer raises substantial and material
issues warranting a hearing,
IT IS HEREBY ORDERED that the General Counsel's Mo-
tion for Summary Judgment be, and it hereby is, de-
nied.
IT IS FURTHER ORDERED that the Respondent be permit-
ted to litigate the circumstances which serve as the
basis for Objection 2, including the supervisory status
of the area managers.
IT IS FURTHER ORDERED that the above-captioned pro-
ceeding be, and it hereby is, remanded to the Regional
Director for Region 17 for further hearing as directed
herein.
2 That unit consists of "All selling and nonselling employees employed at
the Springfield, Missouri, store of J. J. Newberry Company, including the
cash register operator, janitor, stock man and window trimmer, but excluding
fountain employees, office clerical employees, guards, and supervisors as
defined in the Act."
3 All subsequent dates herein refer to the year 1971.
The Company on July 7 then filed with the Board a
motion for clarification of order, dismissal of complaint and
request that certification be vacated. In this document the
Company urged that the hearing directed by the Board in
its order of July 2 should be held as part of the representa-
tion proceeding, not as part of the unfair labor practice case.
The Board on July 13 denied the motion. The Regional
Director duly noted the case for hearing and, after a post-
ponement to accommodate Respondent s counsel, the hear-
ing convened on September 28.
B. The Events at the Hearing
At the outset of the hearing General Counsel announced
that he rested on the certification and that it was up to the
Company to introduce such evidence as it saw fit. The Com-
pany then stated that it wanted to be sure that the transcript
of testimony in the representation proceeding was in evi-
dence before the Trial Examiner in the unfair labor practice
case , and it introduced a copy of that transcript as a compa-
ny exhibit. Having done that, the Company then, reiterating
its position that the Board should have directed a reopening
of the representation case rather than a hearing in the com-
plaint case, announced that it would not introduce any
evidence at the hearing. A lengthy colloquy then ensued
between Respondent's counsel and the Trial Examiner, in
which the latter pointed out that the Company could intro-
duce any evidence it desired at that time with respect to the
area managers without prejudicing its contention that the
entire proceeding was improper. The Company adhered to
its refusal tout on any testimony. At this point, counsel for
the Union offered to put on evidence as to the status of the
area managers. Counsel for the Company strenuously ob-
jected, arguing that the case had been remanded to permit
the Company to litigate the issues and that, if it declined to
do so, no other party was free to introduce evidence. The
Trial Examiner then took, over objection, the evidence prof-
fered by the Union. The Company took no part in the
hearing after making its position clear on the record.
C. The Issues to be Decided
Respondent in its answer to the complaint and in its
opposition to the motion for summary judgment has pre-
served in addition to Objection 2 several other objections
which it raised during the representation case going to the
validity of the certification. Respondent is therefore entitled
to raise those issues during subsequent steps in the unfair
labor practice proceeding. That is to say, Respondent may
ask the Board to reverse its earlier rulings, and it may ask
a reviewing court to reverse them. So far as this stage of the
proceeding is concerned, however, a Trial Examiner is not
tree except in extraordinary circumstances to reverse deter-
minations already made at earlier stages by the Board. In
the instant case the Board, after considering the motion for
summary judgment and the opposition thereto, remanded
for hearing the issues raised by Respondent's Objection 2.
I understand this to mean that other issues raised by Re-
spondent are not before me for ruling and that I am to
accept previous rulings in this case as definitely rejecting (so
far as I am concerned) the contentions raised with respect
to them.
Thus, for example, Respondent has contended that the
election was invalid because at the time it was held the
Union's request for review of the original ruling of the Re-
gional Director with respect to the status of area managers
was still pending before the Board. Passing over the consid-
eration that this fact, if it were true, would seem to be
J. J. NEWBERRY COMPANY 997
grounds for the Union to object, not the Conpany, I am
bound by the Board's ruling (announced after the election)
that the Union's request for review had necessarily become
moot before the election when the Regional Director mod-
ified the decision as to which it had sought review. Similarly,
insofar as the Company still contends that the Regional
Director acted improperly in modifying his initial decision
that the area managers were supervisors, and in holding that
that question could be resolved at a later time by permitting
them to cast challenged ballots,' I am bound by the action
of the Board in declining to review the action of the Region-
al Director, and it is not necessary for me to consider wheth-
er the Regional Director possesses an inherent right to
reconsider his own decisions. See, e .g., Swift Service Stores,
Inc. aka Swift Cleaning & Laundry Company, 169 NLRB
359, 361, citing Albertson v. F.C.C., 182 F.2d 397, 399 (C.A.
D.C., 1950); 2 Davis, Administrative Law Treatise, Sec.
18.09. Even with respect to the argument so strenuously
advanced before me that the evidence as to supervisory
status should be taken in the representation case, not in the
unfair labor practice case, the Board has definitely ruled
that the present proceeding is appropriate, and that ruling
is binding upon me. Consequently there is no need for me
to discuss the numerous court decisions which establish that
the Board may, and in some cases must, use the unfair labor
practice hearing to expand upon and supply deficiencies in
the representation case.' See e. gg , Bayliss Trucking Corp.,
177 NLRB No. 89, enfd. 432
t,
1025 (C.A. 2, 1970);
C.
cturing Co., Inc., 158 NLRB 1260,Russell-Newman Manufa
n ion1261, enfd. without opiA.D.C. Nos. 20,217, 20,415
(1967); N.L.R.B. v. Poinsett Lumber and Manufacturing
Company, 221 F.2d 121, 123 (C.A. 4, 1955); N. L.R.B. v.
Capital Bakers, Inc., 351 F.2d 45, 51 (C.A. 3, 1965); N.L.R.
B. v. Ideal Laundry and Dry Cleaning Company, 330 F.2d
712, 716 (C.A. 10, 1964); N.L.R.B. v. The Lord Baltimore
Press, Inc., 300 F.2d 671, 673 (C.A. 4, 1962, per Bryan, J.);
N.L.R.B. v. Southern Airways Company, 290 F.2d 519, 522
(C.A. 5, 1961).6
On the matters discussed above the Board appears to
have decided adversely to the Company's position. On one
issue , however, I view the Board's order denying the motion
for summary judgment as sustaining a company contention.
As noted above, the Board directed that a hearing be held
with respect to Objection 2. As to this the Board said that
the objection "relating to the Union' s use of an area managg-
er, an alleged supervisor, as an election observor raises sub-
stantial and material issues warranting a hearing," and the
Board directed that Respondent "be permitted to litigate
the circumstances which serve as the basis for Objection No.
2, including the supervisory status of the area managers."
As there has never been any doubt but that an area manager
did serve as a union observer, I construe the denial of the
motion for summary judgment to reflect the Board's view
° It is not clear that Respondent still maintains that position. In later
pleadings it had asked that a hearing be held on the issue of the supervisory
status of area managers , thereby apparently conceding that the issue is prop-
erly still open.
5 Since this decision was drafted , my attention has been directed to
N.L.R.B. v. Addison Shoe Corp., 450 F.2d 115 (C.A. 8), which squarely ap-
proves, and indeed insists upon, the Board's taking in the unfair labor prac-
tice case evidence pertinent to the issues in the underlying representation
case.
6 The contrary position urged by Judge Bryan in N.L.R.B. v. Bata Shoe
Company, Inc., 377 F.2d 821 (C.A. 4, 1967), relied on by Respondent before
me, was expressly rejected by Judge Craven in setting aside the Board's Order
in that case, as well as by Judge Bell, who would have enforced the Order.
Also, as Judge Bryan noted in Bata, the Board there had not expressly
that if the area manager was a supervisor there was merit
in the objection. If (as the Regional Director held) the su-
pervisory status were immaterial, the Board presumably
would have granted the motion for summary udgment. To
be sure, at one time the Board denied review of the Regional
Director's determination in this respect, but apparently the
Board's view changed, either because it reconsidered the
matter (see the Swift and Albertson cases cited supra) or
because different Board members reviewed the matter at
different times. In any event, as matters now stand, I must
assume that the question of supervisory status is significant.
If I am wrong as to this, and the Board desires to adhere to
the position that the election was valid whether or not the
Union's observer was a supervisor, it may so rule in due
course, and the absence of a ruling from this Trial Examiner
will not be material as the issue is purely one of law.
In short, the sole question which is left for me to decide
is whether the area managers are supervisors. If they are, the
Board's denial of the motion for summary judgment seems
to me to require a finding that the election was invalid. If
they are not, then-so far as the questions before me are
concerned-the election and certification were valid.
In considering whether the area managers are supervisors
I must consider the evidence adduced in the representation
case. I believe I should also consider the testimony adduced
before me in the unfair labor practice case. Respondent
objected to the introduction of that evidence on the ground
that the hearing was held to permit it, and it alone, to litigate
the supervisory status of the area managers. I think the
objection is not well taken for several reasons. If the Com-
pany had introduced evidence before me, there can be no
doubt that the other parties to the proceeding could have
introduced additional evidence at that time. Technically
speaking the Company did introduce evidence, its Exhibit
1 consisting of the hearing in the representation case. Only
when satisfied that this evidence would be before me did the
Company state that it would introduce nothing further. As
I view the matter, at that time the other parties had the right,
under the terms of the Board's order directing a hearing, to
produce further evidence on the issue before me. Moreover,
even if Respondent had introduced nothing at all, the other
parties to the proceeding, on notice that an issue was to be
litigated, had the right to present evidence on that issue. The
Board's order was phrased in terms of permitting Respon-
dent to litigate because it was Respondent which had urged,
as one alternative, that the case be sent to hearing, but the
Board could not have contemplated that any party was to
be precluded from presenting evidence merely because the
Respondent chose not to. Finally, the Board manifested a
desire to have the question of supervisory status explored.
In so doing, the Board, although acting in response to a
suggestion of Respondent, was acting in the public interest
in discharge of the Board's duty to decide cases under the
Act. The Board's concern with the development of a proper
record cannot be frustrated by the determination of one
party to rest on a previous record. As the court cases already
cited establish, the Board has the right, and may on occa-
sion have the duty, to take evidence in the complaint case
bearing on issues already litigated in the representation
case, and the right to present such evidence is that of any
party, including the charging party, and not merely that of
the respondent. The recent Eighth Circuit decision in Addi-
son confirms these views.
directed the Trial Examiner to hear the employer's objections. In the instant
case such a specific directive was given.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Status of the Area Managers absent. Kleeman testified that as area manager she had
authority to approve refunds for customers . She further
testified that she had nothing to do with time schedules, but
that a department head who wanted to take a break would
normally ask Kleeman before doing so. However , a depart-
ment head who was absent would usually call the office,"
and Kleeman might not even be informed of the absence.
Kleeman testified that management never asked her for,
and she never made , any recommendations as to firing, but
that on one or two occasions the store manager asked if she
knew someone who might like a job . She further testified
that at the time of her testimony she was no longer an "area
manager" but a mere "department head ," and then, asked
who was now her "immediate supervisor ," she replied,
"Jane Smith," the area manager.
Toward the conclusion of Kleeman 's testimony , the Trial
Examiner attempted to elicit further details from her, and
the following examination ensued:
TRIAL EXAMINER : Just a couple questions , please, ma'-
am: You said sometimes girls working for you would
ask you for time for their breaks. When would they and
when wouldn 't they?
THE WITNESS : Well, if I was available, I may be in the
stock room, I may be over at the warehouse or some-
thing-
TRIAL EXAMINER (interrupting): Most of the time, did
they ask you?
THE WITNESS : Most of the time I would say they did.
TRIAL EXAMINER : Did you have the authority to say
they could go or couldn't go?
THE WITNESS: Yes, I had the authority to tell them
they could do that.
1 RIAL EXAMINER: Now, right at the start, and I think,
perhaps several times since , you referred to these girls
as working for you or under you. In what sense do you
mean, did they work for you or under you?
THE WITNESS : Well, really, area manager-I don't
know how to answer this. I was made to believe that I
was area manager , but I wasn 't really being used as
one, or-
TRIAL EXAMINER (interrupting): Well, you said they
worked for you or under you. Do you mean by that,
that you gave them directions , what to do?
THE WITNESS : No, I didn't.
TRIAL EXAMINER : Did they come to you for direc-
tions?
THE WITNESS: No.
TRIAL EXAMINER : Did you have anything to do with
what they did, where they worked?
THE emWITNESS: No.
TRIAL EXAMINER: We know that you told them when
they could take their breaks, you have told us that.
How about their lunch periods?
THE WITNESS : No, I didn 't schedule that.
TRIAL EXAMINER : If they had any complaints or gripes
about their working conditions, could you do anything
about it?
THE WITNESS: No.
TRIAL EXAMINER : Did you have anything to do with
what th'e{y were {paid?
THE WITNESS: NO.
TRIAL EXAMINER : If one of them wanted a raise,
would they come to you to see if they could get it?
THE WITNESS: No.
TRIAL EXAMINER : I am a little puzzled as to your
expression "work for or work under ." They were paid
less than you, I take it.
THE WITNESS: Yes.
1. The evidence
At the hearing in the representation case, the store man-
ager, Robert Hummel, was the sole witness. He testified that
he had three assistant managers and that under them in the
store hierarchy came the `area managers" and then the
"department heads." Each "area manager" had several de-
partments, each with its own "department head." After
Hummel named an "area manager' and the "department
head," company counsel asked him: "Now, when you say
she is over them as an area manager, what does she do?", to
which Hummel answered: "She schedules break times." e
later added that the area manager also helped the depart-
ment heads in determining the quantity of merchandise to
be ordered. According to Hummel, employees who expect-
ed to be absent would "most likely call up' the area manag-
er rather than the store manager or an assistant store
manager, so that the area manager would "adjust the peo-
ple." Hummel further testified that he would seek and rely
on the opinion of the area manager in appraising the work
of a department head, and that the area managers were paid
higher wages than department heads because of the differ-
ence in their duties.
On cross-examination the first question asked Hummel
was to explain the duties of an area manager. He replied:
Well, I thought I did, but basically to supervise the
girls under her as far as I said break time, to help them
as far as guidance in ordering, filling-adjusting if
somebody is not there so we have floor coverage.
Later, on redirect examination by company counsel the
following exchange took place:
Q. Let's get one thing real clear here. It is nothing
unusual about a manager recommending to somebody
else and getting conversation before he is arbitrarily
fired, is there? In other words, the people, you do listen
to these area managers when they have recommenda-
tions about terminating people, don't you?
A. That is correct.
Q. It is not just merely a listening, you do pay atten-
tion to this recommendation, you have acted on their
recommendations?
A. I have.?
Later examination by the Hearing Officer elicited the infor-
mation that Hummel on infrequent occasions held meetings
with the area managers, which, however, were not attended
by other personnel such as their admitted superiors, the
assistant store managers. Pressed for a figure, Hummel esti-
mated that perhaps half of an area manager's time was spent
in routine selling, but freely admitted that this was a rough
guess on his part. Asked as to whom employees would bring
complaints about merchandise displays, Hummel replied
that "it could be" to the area manager, but normally would
be to him.
At the unfair labor practice hearing, the Union elicited
testimony from three area managers. Two of them had been
employed by the Company for 20 years, and the third for
12 years. Sylvene Kleeman testified that she was in sole
charge of six departments, and in addition had three "girls
working for me,' each of whom had her own department.
.With respect to the first six departments Kleeman served
like any other "department head," in other words as a rank-
and-file employee. As to the other three departments, she
helped the girls order and filled in for them if they were
7 No objection was made to these questions as improper leading in a
crucial area. The Union was not represented by counsel at the hearing.
J. J. NEWBERRY COMPANY 999
TRIAL EXAMINER: They were more recent hires? They
were newer in the store than you?
THE WITNESS: Yes.
TRIAL EXAMINER: Mr. Boyer brought out that you had
something to do with their accepting returns of mer-
chandise or giving refunds to customers, or rather, you
did that wok.
THE WITNESS: Yes.
TRIAL EXAMINER: But, I am not quite clear yet as to
how they worked for you or were under you, except in
this matter of the 10-minute break. Was there anything
else in which they looked to you for direction?
THE WITNESS: No, I was just a department head. Mr.
Miller didn't let us girls have any authority at all.
TRIAL EXAMINER: Well, I hate to come back to it, but
it is your own words that I am trying to give content
to. You said they worked for you, they worked under
you, but as far as I can see, the only thing concretely
that you have told us is, is with respect to your authori-
ty over them in the scheduling of breaks. Was there
an thing else at all?
HE WITNESS: I was assigned to this area.
TRIAL ExAMINER: Did you have anything to do with
their being assigned to the area?
THE WITNESS: No.
TRIAL EXAMINER: All right. You were assigned to the
area, they were assigned to the area.
THE WITNESS: That's rit.
TRIAL EXAMINER: And if one of them wanted to take
a break, she'd come to ask you?
THE WITNESS: Sometimes.
TRIAL ExAMINER: Frequently, I take it.
THE WITNESS: Yes.
TRIAL ExAMINER: Was there anything else that they
would ask you for? Approving stuff for a customer, yes,
but I mean anything in their working conditions, in
their work that they would ask you for?
THE WITNESS: They would ask Mr. Miller.
TRIAL EXAMINER: SO, they worked for you or they
were under you, only in the sense that you told them
when they could take their 10-minute break?
THE WITNESS: That's all the authority I had.
Area Manager Jane Smith testified as follows:
Q. Directing your attention to your responsibilities as area
manager, in the summer and spring of 1970, did you make
out time schedules for your employees?
A. No.
Q. Did you schedule their break time?
A. Well, when they were starting on a break, they would
come and tell me they were going, and if someone else was
going, I would ask them to wait until they got back and that
would be it.
Q. Did you take a break, also?
A. Yes, sir.
Q. Did you tell anyone that you were going to take a break?
A. Yes.
Q. In reference to these other employees in your area, did
you have any authority to hire them or fire them?
A. No, sir, I didn't.
Q. Could you transfer them from one department to
another permanently?
A. No, I couldn't.
TRIAL EXAMINER: What authority, if any, did you
have, over these other girls within your area?
THE WITNESS: Well, really, not any, only just helping
them out, do sales work and like U.
TRIAL EXAMINER: Would they help you out if you
were busy?
THE WITNESS: Yes, I think they would have.
TRIAL EXAMINER: So, you didn't have any authority to
tell them when to go or what to do, is that right?
THE WITNESS: That's right.
TRIAL EXAMINER: In any respect?
THE WITNESS: That's right.
Mary Eaton, the third area manager to testify, was,
like Kleeman, a mere "department head" when she
testified, but she had been an area manager. Like the
others, she testified that when Hummel became store
manager in March 1969 he changed their titles from
floorlady to area manager, but reduced their authority
as they had formerly made out schedules, granted per-
mission to take a day off, and changed prices on mer-
chandise. Eaton, unlike the other two witnesses, had
not had a particular department assigned to her alone.
She testified that she spent 90 percent of her time work-
ing on the floor, servicing customers, and caring for the
display counters and that the balance of the time would
be spent checking the order books of the other employ-
ees and helping them if she found they made mistakes
in the procedures.
Other pertinent parts of Eaton's testimony are as follows:
Q. In connection with your work in this area, what
were your responsibilities, as far as these various de-
partments were concerned?
A. Well, on the girl's day off, I covered, took care of
her department. When she was on vacation, I took care
of her department, or if they were ill, I had one girl that
was ill quite a lot and I almost had to take care of her
department for her.
Q. When you say, "taking care of the department,"
what did you do when you took care of a department?
A. Well, first, I suppose would be, you would have
to order merchandise that was needed to fill the count-
er, when it came in, you checked it in, marked it, filled
it in and waited on customers.
Q. Now, when no one was absent and all of the girls
were there, what did you do?
A. I helped whichever one of the girls that needed
help the most. Most of them had more than they could
do in putting up seasonal merchandise and I helped
them.
Q. When you say "helped them," let's be specific.
What were those things that you did?
A. I would help them lay counters, mostly.
Q. How about waiting on customers?
A. Oh, you always wait on customers. Everything
you do, you are always waiting on customers.
Q. Did you ever give recommendations to any of the
managers or assistant managers, concerning hiring or
firing anyone or promoting anyone?
A. On hiring one, yes.
Q. What was the nature of that?
A. Well, we had a girl that had been there, Letha
Norris had worked at the store and she left, and she
wanted to come back and we had an opening in the
shoe department and I suggested and they did hire her
back.
Q. You suggested that she was looking for a job?
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes.
Q. And they hired her?
A. Yes.
Q. Were there any other occasions when you, in any
way, participated in hiring, firing, ptomoting or demot-
ing anyone?.
A. No.
Finally, all three witnesses testified that, when their title was
"floor lady" and their powers and duties were greater than
when they were "area managers," they voted, without chal-
lenge, in an election conducted by the Board.
. CONCLUSIONS OF LAW
1. The "area managers" are not supervisors within the
meaning of Section 2(11) of the Act.
2. The certification of the Union as bargaining represent-
ative of the Springfield store employees was valid.
3. The Company by refusing to recognize and bargain
with the Union and by refusing to furnish data relevant to
bargaining has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
THE REMEDY
2. Concluding findings
On consideration of all the testimony, I am led to the
conclusion that the "area managers" are not "supervisors"
within the meaning of the Act. We are dealing here, essen-
tially, with salesladies in a variety or "5 and 10 cent" store,
with two selling floors (main floor and basement) staffed by
a store manager and three assistant managers and by sales
personnel. Clearly, the "area managers" have some status
superior to that of "department heads," the latter being the
lowest echelon. It is perhaps significant that on two occa-
sions Hummel, when asked to describe what an area manag-
er did, answered "She schedules break times" and "super-
vise[s] the girls under her as far as I said break time ...."
When all the testimony is analyzed, this one authority is all
that emerges-the authority to tell a salesgirl not to take a
"break" at a particular time because some other salesgirl is
already on a "break." As to all day absences the practice
appears to have been to notify the store office if it was open,
although the employee might call her area manager before
the opening hour. The pay differential amounted at most to
10 cents an hour; Eaton's pay was not cut when she reverted
to "department head." The testimony of Hummel as to
reliance on the area managers in appraising the work of the
department heads was vague and general, and there would
seem to be little scope for such appraisal in a store of this
nature with a manager and three assistants already on hand.
The careful testimony of the "area managers" as to the
particular occasions when they recommended hiring is
plainly worthy of credence and falls far short of establishing
supervisory status. See Northern Virginia Steel Corp. v.
N.L.R.B., 300 F.2d 168, 171, 172 (C.A. 4, 1962), and other
cases cited in DeKalb Telephone Cooperative, 156 NLRB
1381, 1384. To be sure, Kleeman referred to an area manag-
er as her "Supervisor," but this carries no more weight than
the action of the company in not challenging her nonsuper-
visory status at an earlier election. The determination must
be made on their actual powers and duties, and not on
terminology.
As I view the matter, we have here experienced, indeed
elderly, employees of long service in the store. Their judg-
ment is trusted in customer relations (e.., approvinre-
I shall issue the conventional order for the violations here
involved. The Union urges more drastic relief, pointing to
other violations of the Company and alleged " stalling in
this case. While the delays have been regrettable, the con-
tentions of the Company cannot be characterized as friv-
olous. In the current state of the law, neither Board nor
court precedent warrants my recommending broader relief.
Accordingly, upon the foregoing findings of fact and con-
clusions of law, and upon the entire record, I recommend,
pursuant to Section 10(c) of the Act, issuance of the follow-
ing:
ORDERS
Respondent, J. J. Newberry Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Store Em-
ployees Union, Local 322, AFL-CIO, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate bargaining unit:
All selling and nonselling employees employed. at
Respondent's Springfield, Missouri, store, inclding the
cash register operator, janitor, stockman, window trimmer;
but excluding fountain employees, office clerical employ-
ees, guards, and supervisors as defined in the Act.
(b) Refusing to furnish relevant data requested by said
Union for the purpose of collective bargaining.
2. Take the following affirmative action which is neces-
sar to effectuate the policies of the Act:
(a) Upon request bargain collectively with Retail Store
Employees Union, Local 322, AFL-CIO, as the exclusive
representative of all employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and embody in
a signed agreement any understanding reached.
(b) Furnish that Union upon its request with data rele-
vant for purposes of collective bargaining.
(c) Post at its place of business in Springfield, Missouri,
copies of the attached notice marked 'Appendix."' Copies
of said notice, on forms provided by the Regional Director
for Region 17, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
funds); they are helpful to the other employees; and-they 8 In the event no exceptions are filed as provided by Section 102.46 of the
have a title and a few duties which give them slightly more Rules and Regulations of the National Labor Relations Board, the findings,
responsibility than a sales clerk for the operation of the conclusions, and recommended Order herein shall, as provided in Section
store, and slightly higher pay. But in the real world of labor 102.48 of the Rules and Regulations, be adopted by the Board and become
relations, they are far more closely aligned with sales per- its findings, conclusions, and order, and all objections thereto shall be
sonnel than with mana ement, and their primary "supervi- deemed waived for all purposes.
In the event that the Board's Order is enforced by a Judgment of a Unitedsory" task-to limit t 9e number of employees taking a
t"break" at any one time-is simply not enough to warrant
States Court of Appeals, the words the no tice ng "Postedr a by oser
y of the National Labor r Relations Board" shalll be
read ing
t read "Posted
a finding that they are part of management or that they have Pursuant to a Judgment of the United States Court of Appeals Enforcing an
power `responsibly to direct" other employees. Order of the National Labor Relations Board."
J. J. NEWBERRY COMPANY 1001
dent immediately upon receipt thereof, and be maintained
by the Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.10
10 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 17, in writing , within 20 days from the date
of this Order , what steps the Respondent has taken to comply herewith."
All selling and nonselling employees employed in
our Springfield , Missouri, store , including the cash
register operator , janitor , stock man , and window
trimmer, but excluding all fountain employees, of-
fice clerical employees , guards, and supervisors as
defined in the Act.
WE WILL furnish the Union relevant data it requests
for purposes of collective bargaining.
E WILL bargain collectively with the Union as the
exclusive collective-bargaining representative of the
employees in the appropriate unit and, if an under-
standing is reached , we will sign a contract with the
Union.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with Retail
Store Employees Union, Local 322, AFL-CIO, as the
exclusive collective -bargaining representative of all our
following employees:
Dated By
J. J. NEWBERRY COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City, Mis-
souri 64106, Telephone 816-374-5181.