Wallace Shops, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1961

133 N.L.R.B. 36 (N.L.R.B. 1961)

36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a recommended order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT coercively question employees about their union sympathies
and activities , threaten employees with reprisals because of such activities, or in
any like or related manner interfere with , restrain , or coerce our employees in
the exercise of the right of self-organization , to form labor organizations, to
join or assist Retail Automobile Salesmen , Local Union No. 501 , affiliated with
Retail Clerks International Association , AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities.
All our employees are free to become , or remain , or to refrain from becoming or
remaining , members of Retail Automobile Salesmen , Local Union No. 501 , affiliated
with Retail Clerks International Association , AFL-CIO, or any other labor
organization.
JACK ROACH BROADWAY , INC., DOING BUSINESS As
LUKE JOHNSON FORD, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Wallace Shops, Inc: and Retail Clerks International Associa-
tion, AFL-CIO, Local No . 1529, Petitioner. Case No. 26-RC-
1636. September 7, 1961
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 William R. Magruder, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer moved to dismiss the petition on the ground that
its annual gross volume of business does not meet the Board's juris-
dictional standard for retail establishments. The Employer, a Ten-
nessee corporation wholly owned by Darling Shops Corporation, is
engaged in selling at retail ladies' and children's ready-to-wear apparel
and accessories in Memphis, Tennessee, and has been in operation
since February 25, 1961. From then to the date of the hearing, June
1 The name of the Employer appears as corrected at the hearing
133 NLRB No. 16.
WALLACE SHOPS, INC. 37
16919619 it has had a gross sales volume of $175,000, of which less than
1 percent is sold out of State. All of its purchases are received from
points outside the State of Tennessee. As the volume of sales for the
first 4 months of the Employer's operations, projected over a 1-year
period, indicates that the Employer's gross volume of business will
exceed $500,000,2 we find that the Employer is engaged in commerce
and that it will effectuate the policies of the Act to assert jurisdiction.3
The Employer's motion to dismiss on jurisdictional grounds is there-
fore denied.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
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 of all selling and nonselling employees
including stockroom employees at the Employer's Memphis, Tennessee
retail establishment. At the hearing, the Employer requested the
Board to determine the appropriateness of the Unit .4 The requested
unit is a type which the Board customarily finds appropriate in retail
enterprises.5 Accordingly, we find that the following unit is appro-
priate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.'
All selling and nonselling employees at the Employer's Memphis,
Tennessee, retail establishment, including stockroom employees, but
excluding guards, the store manager, and supervisors as defined in the
Act.
5. The Employer urges dismissal of the petition on the following
grounds : The Employer contends that the Board, in delegating its
powers under Section 9 of the National Labor Relations Act, as
amended, to its Regional Directors, effective May 15, 1961, exceeded
the authority vested in the Board by Section 3(b) of the Act. The
Employer further contends that the Board, in amending its Statements
of Procedure and its Rules and Regulations, Series 8, failed to provide
the standards and directions required by the Administrative Pro-
cedure Act, and failed to conform with the 30-day notice requirement
of Section 4(c) of that Act.' We find no merit in these contentions.
2 See Sequim Lumber and Supply Company, 123 NLRB 1097, 1098
8 Carolina Supplies and Cement Co , 122 NLRB 88.
In its brief , the Employer did move, however , to dismiss the petition on the ground
that the Petitioner amended its unit request at the hearing by deleting the statutory
exclusions from the unit description. The record shows, however, that the Petitioner
amended its petition merely for the purpose of deleting from the unit description the
classification "department heads" which the Employer does not employ. The motion is
therefore denied
5 See John Breuner Co., 129 NLRB 394.
9 The parties stipulated, and we find, that the store manager should be excluded as a
supervisor.
7 The first two contentions were made at the hearing only ; the latter contention was
made at the hearing and in the Employer 's brief to the Board.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the authority vested in the Board by Section 3 (b) 8 and
Section 6 ° of the Act, and by the Act as a whole, the Board, on May
4, 1961, published in the Federal Register both its delegation of its
powers under Section 9 to its Regional Directors, effective May 15,.
1961, and amendments to the Board's Statements of Procedure and
Rules and Regulations, Series 8, setting forth the procedure necessary
for the implementation of such delegation.1° Simultaneously, the
Board separately published in the Federal Register its statements of
the general course and methods by which the Board's functions would
be channeled and determined under the delegation.il
That the Board may delegate its power under Section 9 to its Re-
gional Directors is not in issue. The Employer does contend, however,
that the delegation was not properly made. In support of this con-
tention, the Employer avers that the Board exceeded the authority
granted it under Section 3(b), but fails to indicate in what manner
the Board is alleged to have done so. The task of interpreting the
National Labor Relations Act, as amended, is a Board function, vested
in the Board, with power of review in the courts, and the Board is of
the opinion that its delegation did not exceed the authority granted
the Board by Section 3 (b).
Moreover, we find no merit in the Employer's further contention
that the amendments of the Board's Statements of Procedure and
Rules and Regulations, Series 8, failed to provide standards and direc-
tions required by the Administrative Procedure Act. The delegation,
which the amendments were designed to implement, involves the
Board's power over proceedings for the certification of employee rep-
resentatives only. Sections 5, 7, and 8 of the Administrative Pro-
cedure Act are therefore not applicable, as Section 5 of that Act by its
opening terms expressly exempts such proceedings from those pro-
visions.12 Equally without merit is the Employer's contention that
the Board failed to conform with the 30-day notice requirement con-
tained in Section 4(c) of the Administrative Procedure Act in pro-
mulgating the aforesaid amendments. The amendments were
a Section 3 ( b) of the National Labor Relations Act, as amended, provides , in part, as
follows: `.. . The Board is also authorized to delegate to its regional directors its
powers under Section 9 to determine the unit appropriate for the purpose of collective
bargaining , to investigate and provide for hearings , and determine whether a question of
representation exists, and to direct an election or take a secret ballot under subsection
(c) or (e ) of section 9 and certify the results thereof, except that upon the filing of a
request therefor with the Board by any interested person , the Board may review any
action of a regional director delegated to him under this paragraph , but such a review
shall not, unless specifically ordered by the Board , operate as a stay of any action taken
by the Regional Director . . .
9 Section 6 of the National Labor Relations Act provides : "The Board shall have the
authority from time to time to make, amend , and rescind , in the manner pre,.crihed by the
Administrative Procedure Act, such rules and regulations as may be necessary to carry
out the provisions of this Act."
10 26 F.R 3885 et seq.
11 26 F.R. 3911.
12 See Mission Appliance Corporation , 108 NLRB 176. 177.
BARNES METAL PRODUCTS COMPANY 39'
procedural and organizational, and not substantive, in nature.13
Accordingly, as Section 4(c) by its terms applies only to substantive
rules,14 the 30-day notice requirement is not applicable.l5 Moreover,.
in this connection, the Board at the time of publication in the Register
of these amendments added the following statement :
Pursuant to Section 3 (b) the National Labor Relations Board
finds that it is in the public interest and will better effectuate the
purposes of the Act to issue the following rules as soon as possi-
ble, and further finds that compliance with the provisions of
Section 4 of the Administrative Procedure Act (60 Stat. 238,
5 U.S.C. 1003) as to notice of proposed rule making and delayed
effective date is unnecessary in this instance."
In sum, we find no validity to this attack upon the propriety of the
effectuation of the delegation. The Board has acted consistently with
applicable statutory authority as delineated in both the National Labor
Relations Act and the Administrative Procedure Act. Accordingly
the motions to dismiss are denied."
[Text of Direction of Election omitted from publication.]
>s See Attorney General's Manual on the Administrative Procedure Act, p . 30, footnote 3.
14 Ibid., p. 13, footnote 5 ; p. 30.
16 Section 4(c) of the Administrative Procedure Act provides as follows :
Effective dates.-The required publication or service of any substantive rule (other
than one granting or recognizing exemption or relieving restriction or interpretative
rules and statements of policy ) shall be made not less than thirty days prior to the
effective date thereof except as otherwise provided by the agency upon good cause
found and published with the rule.
16 26 F .R. 3885. In any event, the Employer had more than 30 days' notice of the
Board's delegation and procedure , as the hearing was held on June 16, 1961 , more than
80 days after publication thereof in the Federal Register on May 4, 1961.
17 As the Regional Director after the hearing deferred this case directly to the Board
for ruling on the motions to dismiss and for the Board's decision on the merits , we find,
in any event, that the Board 's powers under Section 9 of the National Labor Relations
Act were not exercised by the Regional Director in this case , as provided in the delegation.
Barnes Metal Products Company . and Iwan Kapeczuk. Case
No. 13-CA-3842. September 8, 1961
DECISION AND ORDER
On April 24, 1961, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in a copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in other unfair labor practices
133 NLRB No. 3.