John's Bargain Stores Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1966

160 N.L.R.B. 1519 (N.L.R.B. 1966)

.JOHNS BARGAIN STORES CORP. 1519
All circulation department employees of the Sacramento Union
engaged in the delivery and distribution of the newspaper as city,
suburban, and country dealers, street salesmen, and dealers known as
adult carriers, but excluding the circulation director or manager,
assistant circulation directors or managers, office managers, home
delivery and country supervisors and roadmen, carrier boys and
motorized carrier boys, and all other employees in the circulation
department, confidential and professional employees, guards, watch-
men, and supervisors within the meaning of the Act.
[Text of Direction of Election omitted from publication.] 12
"An election eligibility list, containing the names and addresses of all the eligible
voters, must be filed by the Employer with the Regional Director for Region 20 within 7
days after the date of this Decision and Direction of Election. The Regional Director
shall make the list available to all parties to the election No extension of time to file
this list shall be granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed Excelsior Underwear Inc, 150 NLRR 1236
John's Bargain Stores Corp .' and Chicago Truck Drivers , Chauf-
feurs and Helpers Union of Chicago and Vicinity (Inde-
pendent ), Petitioner. Case 13-RC-10'786. September 30, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a hearing was held before Hear-
ing Officer Roderick C. MacLeod. The Hearing Officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Following the hearing and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, by direction of the Acting Regional
Director for Region 13, this case was transferred to the Board for
decision. Briefs have been filed by the Employer, the Petitioner, and
the Intervenor.2
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
'The none of the Employer appeiis as amended at the boarina
'Retail Stoics Employees TJnion Local 300, chartered by Retail Clerks International
Association, AFL-C10, was allowed to intervene on the basis of its then-outient collective-
bargaining iigieement with the Employer, which is not claimed by any of the parties as a
bar to this proceeding
160 NLRB r o. 113.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all truckdrivers, ware-
housemen and helpers at the Employer's warehouse located at 3800
West 45th Street, Chicago, Illinois; excluding all selling employees,
office clerical employees, guards, and supervisors as defined in the
Act, and all other employees. The Employer and Intervenor contend
that, in view of a collective-bargaining history on a broader basis,
the petition should be dismissed.
In 1963, after a certification issued by the Illinois Department of
Labor following a card check, the Employer and Intervenor entered
into a collective-bargaining agreement for a unit covering the 44
employees in the Employer's warehouse and five retail outlets in the
Chicago area. The agreement expired on April 5, 1966. The Employer
now operates 50 stores in the Chicago area, all serviced by the one
warehouse, and approximately 450 stores in various cities throughout
the country.
The warehouse, which is located apart from the retail stores,
receives shipments of goods from other cities and breaks them down
for delivery to the local outlets. The employees at the warehouse are
under the supervision of the warehouse manager who reports directly
to the home office in New York. Employees at the retail outlets are
separately supervised and do not interchange with those at the ware-
house. Four of the seven warehouse employees drive delivery trucks
on a regular basis, and a fifth does so when necessary. The other two
are assigned to the movement of goods within the warehouse. The
drivers are required to have chauffeurs' licenses and must make deliv-
eries across State lines. They must pass certain tests prescribed by the
Interstate Commerce Commission and comply with various Federal
and State regulations in their work. The warehouse employees have
their own seniority roster, separate from that of the retail employees,
and different working hours. They have a wage scale of $2.00 to $2.37
per hour, while employees at the retail stores are paid from $1.15 to
$1.45 per hour. The only contact between the warehouse and sales
employees occurs when deliveries are made to the stores, at which
time the drivers move the goods to the tailgate of the truck, and
store employees remove them from that point.
The Employer and Intervenor contend that the warehouse should
not be severed from the existing unit, in view of the 3-year bargain-
ing history, the Board's unit policy in the retail industry, and our
1960 decision in John's Bargain Stores Corp., Case 2-RC-10874, in
which we denied a petition to sever this Employer's warehouse in
the New York area from an existing overall unit of some 5 years'
duration.
JOHN'S BARGAIN STORES CORP. 1521
The Petitioner alleges that the warehouse employees are entitled to
separate representation in view of the factors demonstrating that
they possess a separate community of interests,,the short .bargaining
history between the Employer and Intervenor, the insubstantial
employee complement at the time of the Employer's recognition of
the Intervenor in. 1963, and the recent change in, Board policy with
respect to bargaining units in the reiail industry.
Under the circumstances of this case, we. find merit -in the posi-
tion advanced by the Petitioner. We note at the outset, that it is
abundantly clear from the record that the warehouse employees doI -1
enjoy a separate community of interests, distinct from the, employ-
ees in the retail outlets.3 Not only do the warehouse employees work
under ,separate supervision and have, no interchange, at all with
sales employees, but they work different, hours, at different wages,
and have their o« n seniority roster. Moreover,- the Board has -long
permitted the establishment of separate warehouse units in the retail
industry,, where the warehouse is!" (1) geographically separated from
its retail store operations;, (2) there, is separate supervision, of the
employees engaged in warehousing ' functions ; and (3) there is' no
substantial integration among the Warehousing employees and those
engaged in other store functions, ." A. Harris c6 Co., 116 NLRB
1628, 1632. This policy has been reaffirmed in a number of recent
cases. Sears, Roebuck and Co., 11 NLRB 1356; Loveman, Joseph
cC Loeb, Division of City Stores Company, Inc., ,152 NLRB 719;
J. W. Robinson Co., 153 NLRB 989. It is clear' that the facts herein
satisfy the three criteria set out in Harris and subsequent cases.
It is true, as contended by the Employer and the Intervenor, that
there was no prior bargaining history in the cases just cited. Without
passing on whether bargaining history alone can ever negate the
otherwise appropriate character of a bargaining unit, we do not
believe in the circumstances of this case that the bargaining history
shown here is sufficient to tip the scales toward a finding that the
unit sought is not appropriate. In the instant case, the recently
expired contract between the Employer and Intervenor' was the first
between the parties. Additionally, their bargaining relationship was
3 we wish to emphasize that it is upon this strong showing of separate' identity and
interests that our decision is grounded. Our dissenting colleague construes our holding
too narrowly when he concludes that we allow the warehouse employees to exercise their
freedom of choice "on the stated grounds that this was the first contract between the
parties and the Employer has opened additional stores whose employees did not partici-
pate in an election to express their desires concerning representation." The grounds we
hold controlling here are the several factors clearly demonstrating the separate interests
of the warehouse employees. The bargaining history between the Employer and Intervenor,
to which the dissent would attach greater weight than we, is merely one of the factors we
have considered. And, in the circumstances of this case and even viewed in its strongest
light, that consideration is not sufficient to outweight all the others which warrant a
separate election for the warehouse employees.
257-551-67-vol. 160-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established at a time when only a small portion of the present com-
plement of employees was then employed, and employees in subse-
quently acquired stores were automatically added to the existing unit
without an opportunity to express their desires with respect to their
representation for collective-bargaining purposes.4 Under all of these
circumstances , including' the substantial increase in the Employer's
operations .and its employee complement since 1963,5 we find that
the bargaining history urged by the Employer and Intervenor is not
sufficient' to overcome the several factors demonstrating the appro-
priateness of a separate warehouse unit.
Nor do we find merit in the remaining contentions of the Employer
and the Intervenor. The 1960 John's Bargain Stores case on which
they rely was grounded in part on evidence of employee interchange
between store and warehouse employees there, a significant factor
distinguishing the instant case. In addition, the previous policy
favoring overall units of selling and nonselling employees in the retail
industry, referred to in that case, has been reexamined and revised
since that time. The new policy, which calls for a careful evaluation
of all relevant factors in each case, permits less than overall or store-
wide units. Stern's, Paramus, 150 NLRB 799; Arnold Constable Cor-
poration, 150 NLRB 788; Lord do Taylor, 150 NLRB 812.6 This is
the approach we have employed here, and it' is through that
approach, weighing the various considerations supporting a finding
of a separate community of interests against the particular circum-
stances of the bargaining history here, that we have concluded that
the warehouse employees constitute a separate, identifiable unit appro-
priate for purposes of collective bargaining.
4 The contract provided that the Employer recognized the Intervenor for a unit of "All
regular ' employees employed by the Employer in the Employer ' s present and future retail
and warehousing establishment situation within the jurisdiction of [a district council and
certain local unions affiliated with ] the Retail Clerks International Association, AFL-
CIO, . .." As noted above , 45 retail stores have been included within the contract's cover-
age pursuant to this clause since the contract was executed , 8 years ago.
6 With respect to the validity of these considerations in determining the degree of con-
clusiveness to be accorded an existing bargaining relationship in a related contest, see
General Extrusion Company, Inc, 121 'NLRB 1165, 1166-67.
Moreover, as found above , the Employer's retail operations expanded from 5 stoles as
of the time of the 1963 State card-certification, to 50 stores at present , thereby indicating
that the employee complement at the time of the contract was less than 30 percent of what
it is today . Conceding that the substantial increase in stores and personnel may not have
been foreseen or planned in 1963, it is nevertheless one of the considerations we have
weighed in determining the effect to be given to the bargaining history between the
Employer and the Intervenor.
6Indeed, the Board in recent years has increasingly relied upon a more flexible, and
less mechanical , approach , examining all relevant factors , with respect to unit determina-
tions in a variety of industries. See, for example , Kalamazoo Paper Box Corporation, 136
NLRB 134 ( truckdrivers ) ; The 'Sheffield Corporation, 134 NLRB 1101 ( technical employ-
ees) ; Sav -On-Drugs, Inc ., 138 NLRB 1032 ( retail stores ) ; 77 Operating Company, 160
NLRB 927 (hotel restaurant employees)
Member Jenkins , in joining this Decision, nonetheless adheres to the position he
expressed in the cases cited in the text.
JOHN'S BARGAIN STORES CORP. 1523
Similarly, we find no merit in the dissent's attempted analogy to
the context of multiemployer bargaining. There, the Board's deter-
minations have traditionally turned upon the intention of the parties
to such bargaining to be bound through group, rather than individ-
ual, action in collective bargaining. The Kroger Co., 148 NLRB 569.
Thus, unlike other forms of bargaining, unit determinations in that
context are founded upon consent and would seem to have little
bearing on the issues presented herein.
For all of the foregoing reasons, we find that the Employer's
warehouse employees are a functionally distinct group,entitled to
separate representation if they so desire. We further find that the
following employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9(c) of the Act:
All warehousemen, truckdrivers, and helpers at the Employer's
warehouse located at 3800 West 45th Street, Chicago, Illinois;
excluding all selling employees, office clerical employees, guards,
and supervisors as defined in the Act, and all other employees.
[Text of Direction of Election omitted from publication.] T
MEMBER BROWN, dissenting :
I cannot agree with my colleagues' decision to direct an election in
a separate unit of employees at the Employer's Chicago warehouse,
thus allowing severance of the warehouse from the established multi-
store unit. While I agree, of course, that warehouse employees do,
under some circumstances, constitute a separate unit, I see no justi-
fication for so holding here. I would find the multistore bargaining
history controlling and dismiss the petition.
The facts are not in dispute. For 3 years preceding the petition
herein, the Employer and the Intervenor had a contract covering a
multistore unit of all the Employer's Chicago area retail stores and
the warehouse sought by the Petitioner: The instant petition was
timely filed with respect to that contract. The majority of the Board
is finding a 3=year bargaining history insufficient and is • allowing
severance on the stated grounds that this was the first contract
between the parties, and that the Employer has opened additional
stores whose employees did not participate in an election to express
'' An election eligibility list, containing the names and addresses of all the eligible
voters , must be filed by the Employer with the Regional Director for Region 13 within 7
days after the date of this Decision and Direction of Election . The Regional Director
shall make the list available to all parties to the election . No extension of time to file
this list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their desires concerning representation. In my judgment, these factors
do not support a finding that the warehouse employees in this case
have separate interest's which override their common interests with
other employees. I -
The opening of the new stores and the inability of employees there
to participate in the election is used to justify severance of employ-
ees who did participate in the 1962 election and did express their
wishes. Concededly, the number of warehouse employees, has increased
since that, time, but not by any great number, and even a sub-
stantial expansion of the employee- complement does not alone impair
the validity of a prior election, or necessarily justify a new one."
Thus, the Board customarily requires that about 30 percent of the
employees in a representatio6 number of categories be, employed in
order to direct an election in an expanding ,-unit,' and such, an' elec-
tion is valid and conclusive. In the, present situation, nearly 50 per-
cent of the employees were working in the warehouse at the time of
the election and no additional categories have been added. To rely
on expansion in other segments of the operations as justification for
an election in a portion which has remained substantially stable is,
in my view, -unwarranted. .
The Board has frequently found that a bargaining history of 3
years is controlling, and its present holding is clearly contrary to
precedent and is not justified by any special circumstances herein.
Thus, it is apparent that the-Board has, in fact, found that much
shorter periods of bargaining are controlling. In Gould-National Bat-
teries,10 the'Board dismissed a decertification petition for, the employ-
ees of one plant as to whom there had been,a separate certification,
followed by a• multiplant bargaining -history of 1 year and 3 months
preceding the filing of the petition. The sole ground -stated was that
the single-plant unit had merged into the multiplant unit., And in
Robert Hall Clothes, Inc.," a multistore bargaining history of 11/x,
years prior to the Board's Decision 12 was held cdntrolling and a peti-
tion seeking a separate unit of two stores in one city was dismissed
with no finding that the unit sought was inappropriate on any other
basis. Of particular significance, I believe, is the decision in Meijer
Supermarkets, Inc.,13 where a certification was orginally issued in a
5-store unit which gradually expanded to 16 stores over a long period.
8 American Bridge Division , United States Steel Corporation , 156 NLRB 1216, and
footnote 4 thereof.
0 Ibid And see e.g., Ryan Aeronautical Co., 120 NLRB 1291, 1292.
10150 NLRB 418.
U 118 NLRB 1096.
12 The date of the petition is not indicated in the Decision and has not been sought from
Board records in view of the obviously short period that elapsed.
33 142 NLRB 513.
JOHN'S BARGAIN STORES CORP.- 1525
In June 1962 one of these stores was increased greatly in size and
began operating under another name, and a petition was filed at the
beginning of that month for a separate unit of this store. Thereafter,-
two more stores began operating under the' new name, one of which
was newly opened. The Board rejected all unit contentions of the
Petitioner and found that only a companywide unit of all 17 stores
was appropriate, thus including the new one opened after the peti-
tion was filed and as to which there was no bargaining history what-
soever.14 The only case of which I am aware. that holds a 3-year bar-
gaining history in a multiplant unit,not to be controlling was one
where the Board had earlier found the Employer to have rendered
widespread unlawful assistance to the contracting union in violation
of Section 8(a) (2) of the Act.15
.
It is also apparent from the cases referred to, above that the Board
has never before required that it multiplant history to be controlling
must extend beyond the first contract. In each, of the above cases
there had been only one contract covering the plant or, store in dis-
pute,le and in Meijer there was. no history at all covering the new
store opened after the filing of the petition. Indeed, in the analogous
context of multiemployer bargaining,'' an initial contract may, with-
out question, determine the scope of, the unit and the bargaining his-
tory may be shorter or longer than 1 year.18 This approach was
extended to multiplant unit bargaining situations in Continental Can
Company, Inc.,19 where a multiplant history of'13 months was found
not controlling only because the multiplant agreement constituted a
14 To the same general effect are Halguist Lannon Stone Co , 156 NLRB 694, and Key-
stone Coat, Apron & Towel Supply Company, 121 NLRB 880, in which a multiplant
history of less than 1 year preceding the filing of the petition was noted as a factor justi-
fying the multiplant unit found in each case (It may be noted that in Halquist Lannon
the Decision shows bargaining in April 1965 , and the Roard' s records indicate the petition
was filed June 1, 1965 , while in Keystone the Decision reveals that multiplant bargaining
began in June 1955, and Board records indicate that the petition was filed on February 3,
1956 )
1nSea-Land Service, Inc, 137 NLRB 546 (in which I joined in a dissent on other
grounds and found it unnecessary to consider the bargaining history).
16 Gould-National Batteries is the only case" in which it might be said there was more
than one agreement, but in fact the first merely blanketed the newly certified unit into
the existing multiplant unit and several months later an amendment of the existing con-
tract was entered.
17 U.S Pillow Corporation , 137 NLRB 584
Multiplant bargaining is frequently based on agreement of the parties rather than inte-
gration of operations See. e g, The Great Atlantic & Pacific Tea Company, Inc., 153 NLRB
1549. This is the situation in the instant matter, since the bargaining history herein arose
out of a stipulation by the Employer and the Intervenor for a State-conducted check of
authorization cards in the agreed-upon multi -facility unit In this respect, this multiplant
bargaining history is similar to a multiemployer situation and the same rationale is appli-
cable. Nor can. It be said, as my colleagues probably would, that the consent of either
consenting party has been withdrawn so as to justify the discontinuation of that unit.
Cf. The Ebening News Association , 154 NLRB 1494 and 1482 . in which I dissented
16 Supra. 585
19145 NLRB 1427
1526 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
premature extension of the original single-plant contract and hence
did not bar a petition timely filed with respect to the latter
agreement.
In view of the above decisions, I am doubly puzzled by my col-
leagues' reservation on the question of "whether bargaining history
alone can ever negate the appropriate character of a bargaining
unit." Such a bargaining history clearly has this effect in at least
certain circumstances under longstanding Board policy. It is obvious
that in multiemployer units historical bargaining plays a most per-
suasive, if not a controlling, role.20 And in the multiplant situation,
it is well settled that such a history justifies dismissal of a petition for
some other unit even though the Board would not itself establish the
historical multiplant unit were the issue presented for initial deter-
mination.21 It is true that in those cases the historical units were of
long standing. However, the Board has never applied a temporal
limit to its general rule that it will not disturb an established bar-
gaining relationship unless required to do so by the dictates of the
Act or other compelling circumstances .21
Since I cannot accept my colleagues' grounds for ignoring the bar-
gaining history in the instant case, I do not join in their departure
from the Board's practice of denying severance of one plant which
has become merged into a multiplant unit. I would therefore dismiss
the petition in this matter.
n Chicago Metropolitan Home Builders Association, 119 NLRB 1184.
21 The Great Atlantic & Pacific Tea Company, Inc, 153 NLRB 1549, and cases cited
in footnote 8 thereof.
21Ibid.
Bryant Chucking Grinder Company and United Electrical, Radio
and Machine Workers of America ( UE) Local 218. Case 1-CA-
4037. October 4, 1966
DECISION AND ORDER
On June 4, 1965, Trial Examiner Fannie M. Boyls issued her Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondent had not
engaged in certain' other unfair labor practices alleged in the com-
160 NLRB No. 125.