The Robinson-Schwenn Store

In the Matter of DENTON 'S, INC., T/A THE ROBINSON-SCHWENN STORE,1 EMPLOYER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER Case No. 9-RC-376.-Decided April 21,1919 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this case was held in Hamil- ton, Ohio, on February 24, 1949, before Martin Sacks, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. 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 Petitioner is a labor organization claiming to represent em- ployees of the Employer. 3. A question of representation exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4. The appropriate unit : - The Employer owns and operates a retail department -store at Ha- milton, Ohio, known as the Robinson-Schwenn Store. All of the Employer's operations are conducted in a 4-story building in which it employs approximately 115 selling employees and 43 non-selling employees. 1 The name of the Employer has been amended to conform to the proof at the hearing: It appeared that the Robinson-Schwenn Store is an operating department of Denton's, Inc. 2 The Petitioner requested recognition from .the Employer as collective bargaining repre. sentative and, on the same day, January 27, 1949 , filed the petition in this case. On January 28 , 1949, and again at the hearing the Employer refused to recognize the Peti- tioner. The Employer moved to dismiss this proceeding on the ground that the petition did not set forth a refusal by the Employer to recognize the Petitioner . For reasons fully set forth in Matter of Advance Pattern Company , 80 N. L. R. B. 29, the Employer's motion is denied. 83 N. L. R. B., No. 3. 35 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner contends that the unit appropriate for collective bargaining purposes at this store consists of all sales employees, in- cluding regular part-time employees, elevator operators, cashier- wrappers, alteration employees, porters, and display department em- ployees, but excluding leased department employees, office clerical employees, advertising department employees, receiving and marking department employees, the Struck driver, buyers and assistant buyers, watchmen, and supervisors as defined in the Act. The Employer would include all its employees in its store at Hamilton, Ohio, in the appropriate unit, excluding only watchmen and supervisors.3 Leased department employees-The Employer leases its women's and children's shoe departments to the Tash Shoe Company, its mil- linery department to the Fisher Millinery Corporation, and its sewing machine department to the White Sewing Machine Company.4 Each of the leasing arrangements is on substantially the same term, provid- ing for a rental based on net sales. The Employer hires and discharges employees in the leased departments, and the procedures in this regard are the same as for other employees in the store.5 The store manager, in his supervisory capacity, inspects all departments of the store, in- cluding the leased departments, several times daily. All leased de- partment employees work the same hours and punch the same time clock as do other store employees; they also use the same employee facilities, have the saVie vacation and sick leave benefits, have the same rest period and purchase discount privileges, and are subject to the same rules and regulations as are the other store employees. How- ever, the lessees pay the salaries of the leased department employees,6 carry separate workmen's compensation insurance for them, and as- sume liability for their unemployment insurance and social security taxes. The leased department employees in this relatively small department store work in close proximity to the other store employees. Their salaries and working conditions are the same as those of the other sales employees. The Employer exercises a substantial amount of control over the tenure, pay rates, and working conditions of the leased depart- "The Employer' s motion to dismiss the petition on the ground that the unit sought by the Petitioner is inappropriate is denied for reasons hereinafter stated. 4 There are eight employees in the shoe departments , four employees in the millinery department, and two employees in the sewing machine department. None of the lessee corporations are affiliated with the Employer. 5 The Tash Shoe Company has its own supervisor for the shoe departments ; the other two leased departments do not have separate supervision . The Employer selects employees for the shoe departments and refers them to the supervisor for final consideration. The Employer can prevent the hiring of any employee in the shoe departments , and there is no evidence in the record that any person selected by the Employer for employment in these departments has ever been rejected by the supervisor. The Employer actually pays the millinery department employees , and later reimburses itself from funds of the lessee in its possession. DENTON'S, INC. 37 ment employees . We find that the leased department employees are employees of the Employer within the meaning of the Act, and that they have sufficient interests in common with the other employees of the Employer to be joined with them for collective bargaining pur- poses. Accordingly, we shall include the leased department employees in the unit.' Buyers and assistant buyers-The Employer has a chief buyer and eight other employees who have buying functions . Three of these eight are classified as buyers," and they go out of town to purchase mer- chandise. The other five are referred to as assistant buyers; they do their buying inside the store . The buyers and assistant buyers spend on the average about 20 percent of their time on buying duties, and the rest of the time they are sales employees. They receive a 20 percent higher base salary than the ordinary sales personnel. We find that the interests of the buyers and assistant buyers are more closely identified with management than with the other employees in the store, and, in accordance with our policy to exclude department store employees with buying functions from collective bargaining units, we shall exclude all buyers and assistant buyers from the unit here.0 Advertising department employees-There are two employees in this department, and the parties agree that one of them should be excluded as a confidential employee . The only evidence in the record about the other employee is that she assists the confidential employee and that she spends more than 50 percent of her time on advertising work. There is no evidence that this woman is a confidential or professional employee. Furthermore, the parties have agreed to include in the unit the window trimmer and sign writer in the display department. We shall include the advertising department employee in the unit. Office clerical employees, the trunk driver, and receiving and mark- ing department employees-The office clerical employees ,10 totaling 12 in number, work in the office which occupies a portion of the fourth floor. They are not separately supervised, but work under the direct supervision of the store manager. The latter hires and discharges these clericals, and fixes their salaries. The office clericals have the same hours as the sales employees; they also have comparable salaries, 'Hatter of Taylor'8 Oak Ridge Corporation, 74 N. L R. B. 930 ; Matter of Louie Pizitz Dry Goods Company, 71 N. L. R. B. 579 ; and Matter of Hale Brothers Stores, Inc., 62 N. L. R. B 367. Cf. Matter of J. M High Company, 78 N. L. R. B. 876. B The chief buyer and one of the buyers are also floor managers and admittedly super- visors. There is no dispute as to their exclusion from the unit. 9 Matter of Denver Dry Goods Company, 74 N. L. R. B. 1167 ; Matter of J. L. Brandeis d Sons, 54 N. L. R. B. 880. 1° Included in this group are cashiers , bookkeepers, credit interviewers, clerks, and a stenographer. 844340-50-vol.-83-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD use the same facilities, and they have the same rest period, sick leave, and discount privileges. There is frequent interchange of office and sales personnel. There are 15 employees in the receiving and marking department. Their task is to unload trucks, open packages, and mark the merchan- dise. There is 1 truck driver who makes local deliveries and pick-ups. Like the regular sales employees, these employees are under the super- vision of the store manager and the various floor managers. The re- ceiving and marking department employees have substantially the same pay rates, hours, and working conditions as the sales employees. When necessary, there is some interchange of employees between this department and the selling departments. The Petitioner contends that the office clerical employees, the truck driver, and the receiving and marking department employees fall within the jurisdiction of other AFL unions and are not eligible for membership in the Petitioner, and that, therefore, they should be excluded from the unit. There is no evidence that these other AFL unions represent, or have sought to represent, the employees in question, or that these em- ployees desire to be represented by such unions. Moreover, in ac- cordance with the Petitioner's request in other department store cases, employees such as those sought to be excluded here have been included in the appropriate unit.' A _jurisdictional limitation on member- ship, standing alone, is not a valid reason for excluding employees from a bargaining Unit. 12 We have heretofore pointed out the appropriateness of a unit of selling and non-selling employees in department store cases 13 In the case of office clericals,' especially, we have on numerous occasions emphasized the strong mutual interests which they share with the sales personnel, and have for this reason included them in the over- all store unit14 We see no reason to depart from that principle in this case, and shall, accordingly, include the office, clerical employees in the unit. 11 See, for example, Matter of Denver Dry Goods Company , supra; Matter of Sears, Roe- buck & Co., 66 N. L. R. B. 285. 12 See Matter of American Republics Corporation, 78 N. L R. B. 1025; Matter of Hanna- ford Bros. Co, 78 N. L R. B. 869. Even if it be conceded that the office clerical employees, the truck driver, and the receiving and marking department employees are not eligible for membership in the Peti- tioner, it may still represent them ; in fact, the Petitioner stated at the hearing that it would continue its efforts to be certified despite the finding of a unit broader than it requests. 11 See Matter of J. M. High Company, supra, and cases cited therein. 14 Matter of Louis Pixitz Dry Goods Company, supra; Matter of Montgomery Ward & Co., Incorporated, 70 N. L. R. B. 1302; and Matter of Sears, Roebuck d Co., supra. DENTON'S, INC. 39 As noted • above, the Petitioner would exclude the truck driver and the receiving and marking department employees ; however, no per- suasive reason has been advanced for excluding them. Because their interests in collective bargaining are the same as those of the other employees in the unit, they should not, in our opinion, be deprived of representation because of some alleged jurisdictional limitation on the part of the Petitioner. We shall include these employees in the unit 15 "Department heads"-The Petitioner claims that "department heads" should be excluded from the unit because they are supervisors. The Employer denies that it has any such category of employees, and contends that the only supervisors in the store are the store manager, the personnel manager, the three floor managers, and the manager of the shoe departments. There is evidence in the record that one of the buyers and the assistant buyers are occasionally referred to as "de- partment heads." This is so because of their greater length of service. As we already have excluded the buyers and assistant buyers from the unit, we need not decide the question raised by the Petitioner in this regard. We find that all employees of the Employer at its Hamilton, Ohio, department store, including regular part-time employees, elevator operators, cashier-wrappers, porters, the truck driver, office and cler- ical employees, and employees in the leased, advertising,16 receiving and marking, alteration, and display departments, but excluding buyers and assistant buyers, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did 25 See Matter of Louts Pizitz Dry Goods Company, supra. "The parties agree, and we find, that Dorothy welch, one of the two employees in the advertising department , should be excluded from the unit as a confidential employee. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collec- tive bargaining, by Retail Clerks International Association , AU'L.