Royal Tile Co.

National Labor Relations Board - Board Decisions

Oct 16, 1959

124 N.L.R.B. 1233 (N.L.R.B. 1959)

ROYAL TILE COMPANY 1233
unit, subject to further evidence. It should be noted that up to date,
M.A.D. and D.L.N. had the same status: The Board, by pro tanto
superseding its original Decision, made no final determination as to
whether they were in or out. Unlike M.A.D., however, the majority
now has no hesitancy in excluding D.L.N. I think M.A.D. should re-
ceive the same treatment.
In my opinion, the Act means to give employers sole authority to
decide, without let or hindrance by any outside person (including
the Board) who shall represent him in collective bargaining, the con-
trolling requirement being only that he exercise this right with due
regard to his statutory obligation to bargain collectively in good faith.
If at an appropriate time an employer wishes to withdraw from a mul-
tiemployer unit which he had previously designated as his bargaining
representative, no one may prevent him from doing so. The only
qualification on the employer's right is that he may 'not exercise it in
such a way as to frustrate the paramount objective of good-faith col-
lective bargaining, for example by attempting to withdraw from an
existing multiemployer unit unilaterally while negotiations are pend-
ing.19
Accordingly, I would certify the Petitioner only for the employees
of the Employers other than M.A.D. and D.L.N.
19 See Anderson Lithograph Company, Inc ., et at., 1124 NLRB 920.
Royal Tile Company and Retail Clerks International Associa-
tion , AFL-CIO, Petitioner . Case No. 4-RC-3818. October 16,
1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filled under Section 9(c) of the National
Labor Relations Act, a hearing was held before Howard S. Simonoff
and Bernard Samoff, hearing officers. The hearings officers' rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
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 organization involved claims to represent certain em-
ployees of the Employer.
124 NLRB No. 169.
525543-60-vol. 124-79
1234 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 Section
9(c) (1) and Section 2(6) and (7) of the Act.'
. 4. The Petitioner seeks a unit limited to 14 retail stores of the Em-
ployer in the Delaware Valley. The Employer, which operates 35
retail stores in 7 States, contends that such a unit is inappropriate be-
cause it includes 5 separate administrative units of the Employer's
operation. The record shows that the 14 stores in question are op=
erated in the name of 5 corporations, that Jack B. Tizer is the presi-
dent and administrative head of all 5 corporations, and that he deter-
mines all personnel and labor relations policies, including all matters
relating to wages, hours, and working conditions. At a central office,
the records and payrolls are kept, all advertising arranged and mer-
chandise ordered for all five corporations. Immediately under Tizer,
the 14 stores were until May, 1959, supervised by 1 and thereafter by
4 supervising managers. Employees are transferred between the 14
stores while they are in training, or as regular employees, and also to
fill in for vacationing or ill employees. All mangers and salesmen in
the 14-store area regularly attend the same sales meetings. It is clear
that the 14 stores fall within a distinct geographical area. Upon these
facts we conclude that the 5 corporations constitute a single em-
ployer for purposes of appropriate unit,' and further find that a unit
composed of the Employer's 14 stores in the Delaware Valley is
appropriate.'
Store Managers: Each of the Employer's stores has a selling
store manager, who, among other things, orders merchandise from
the main office to replenish stock levels and is responsible for all
moneys in his store. Some stores have an employee classified as a
lugger, who works part time loading and unloading merchandise,
cleaning the store, arranging stock and displays, and waiting on cus-
tomers; and certain stores have in addition a full-time salesman who
performs usual selling duties. In certain stores, only the store man-
ager is employed. In their respective stores, the store managers have
the power to hire and discharge the luggers and have full authority
over the luggers in regard to work assignments and hours of employ-
ment. They can also recommend the hiring and discharge of the
salesmen, are responsible for their training, and direct the salesmen
in the course of their employment. In view of the foregoing, we find
1 The Employer moved to dismiss the petition on the ground that it was filed less than
6 months after Petitioner's Local 415, in connection with a prior proceeding, Case No.
4-RM-306, December 30, 1958, disclaimed interest in the employees sought herein. It
appears that Local 415 filed a disclaimer and the Employer withdrew its petition before
any hearing was held in the earlier case. In accordance with Board policy, as the dis-
claimer and withdrawal took place before the hearing, no prejudicial limitation would
apply to the filing of the instant petition. Accordingly, the motion is denied. Cf. Campos
Dairy Products, Limited, 107 NLRB 715.
2 Frank S. Owens Co., et at ,, 118 NLRB 1619.
3 See Crown Drug Company, 108 NLRB 1126.
MODERN HARD CHROME SERVICE COMPANY 1235
that the store managers in stores which employ luggers and/or sales-
men are supervisors, and shall exclude them from the unit.4 We shall
include the store managers in the stores in which there are no other
employees.
The record indicates that the luggers regularly perform tasks re-
lated to the sale of the Employer's merchandise as well is actual sell-
ing to customers on a part-time basis. We find that they are regular
part-time employees and' include them.'
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within Section 9 (b)
of the Act, including store managers in stores with no other em-
ployees, but excluding all other store managers, office clerical em-
ployees, the supervising managers,6 and all other supervisors as defined
in the Act :
All employees at stores operated by Jack B. Tizer in the Delaware
Valley area under the corporate names of Royal Tile Company of
Central South Philadelphia; Royal Tile Company of North Phila-
delphia; Royal Tile Company of Suburban Philadelphia; Royal Tile.
Company of Southern New Jersey, Royal Tile Company of Central
New Jersey, which includes the following New Jersey stores : Collings-
wood, Atlantic City, Vineland, Brooklawn, Trenton, and Pennsauken;
the following Pennsylvania stores: Willow Grove; Levittown;
Girard Avenue, Philadelphia; Cottman Street, Philadelphia; North
Fifth Street, Philadelphia; 13th Street and Snyder Avenue, Phila-
delphia; Kensington Avenue, Philadelphia; and Germantown Ave-
nue, Philadelphia.
[Text of Direction of Election omitted from publication.]
4 See Fanny Farmer Candy Shops, Inc-, 112 NLRB 299, 301.
5 Dependable Parts, Inc., 112 NLRB 581, 584.
G The parties agree, and we so find, that the four area supervisors, who are also man-
agers of the stores with more than one employee, are properly excluded from the unit.
Modern Hard Chrome Service Company and Louis G. Baresciano,
Petitioner and Metal Polishers Union Local 90, Metal Polishers,
Buffers, Platers & Helpers International Union , AFL-CIO.
Case No. 4-RD-216. October 16, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Joseph A.
Weston, a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
124 NLRB No. 173.