Block and Kuhl Department Store

In the Matter of BLOCK AND KUHL' DEPARTMENT STORE and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNION #536 Cabe No.13-RC=444.=Deeided May 6,1949 DECISION AND 'DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before •Philip Licari, 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. " Pursuant to 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, theBoard finds : 1. The Employer is an Illinois corporation , maintaining its office and principal place of business in Peoria , Illinois. It is engaged in the operation of a number of retail department stores in the States of -Illinois and Iowa.' It operates 'a central purchasing department and warehbuse in Peoria. Its store at Galesburg, Illinois, is the only one involved in this proceeding.' During the year 1948 the Employer -purchased merchandise in excess of $5,000 ,000 in value, of which 'amount more than $3 ,500,000 in value was shipped to the Employer's general warehouse in Peoria, Illinois, from points outside the State of,Illinois. All goods received at its Peoria warehouse are removed from . their original packages; invoiced, priced, and reshipped to its retail stores. No retail store has any direct dealing with sources of goods located outside the State of Illinois. Of the total goods pur- chased 31/2 percent was shipped to the Employer 's stores in Iowa. Dur- ing the same period gross sales in all stores were in excess of $5,000,000, all of which were made to local customers within the respective States. Retail sales at the Galesburg, Illinois, store were in excess of $200,000. The Employer contends that the Galesburg store, as all its stores, is operated as an independent unit ; that there is no direct flow of merchandise to this store from points outside the State of Illinois; that the retail sales at the Galesburg store are intrastate in character, 1 There are 14 stores in the State of Illinois , including the store in Galesburg, Illinois, and 2 stores in the State of Iowa. .83 N. L. R. B., No. 63. 418 0?--C'l %ZYNCEiBUE^G' FOUND RY COMPANY 419 and that because 'of these facts the Employer's Galesburg store is ,not engaged-in commerce within the meaning of the Act. We have, how- ever, heretofore, held that, in deciding whether or not jurisdiction of the Board attaches in any given case, the totality of the Employer's operations and its effect on commerce may properly be considered.2 Under the circumstances and upon the basis of the record in this case, we find, contrary to the contentions of the Employer, that insofar as the Galesburg store is concerned the activities of the . Employer affect commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction here. 2. The labor organization involved claims to represent the em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The Petitioner and the Employer agree that all employees in its Galesburg, Illinois, store, including janitors, elevator operators, office employees, and window trimmers, but excluding employees who work less than 18 hours a week, seasonal employees, tailors, legitimate buyers, watchmen, delivery boys, managers, office managers, assistant managers, and all other supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining. However, the Petitioner would exclude, and the Employer would include, employees in certain leased departments together with em- ployees, Hugg, Ramsey, Johnson, and Cypher, who are classified as department heads. The Employer has entered into lease arrangements with different companies for the operation of four departments in its Galesburg store .3 In consideration of the furnishing of space and certain facili- ties, the Employer receives a stipulated percentage of the sales income from the leased departments. The lessees of these departments estab- lish their own merchandising policies and operate their departments free'from any direct control by the Employer.4 Each leased depart- ment is operated by a department manager and-an occasional part- time employee. Although the Employer may aid initially by sug- gesting some suitable person for the job of department manager, the hiring of a department manager is entirely within the control of the lessee of the department concerned. Moreover, the terms and condi- tions of employment, and the compensation of the employees in the leased departments, although in conformity with the store's general policy, are fixed by the lessees. Under the circumstances, we believe 2 Matter of Tanner-Brice Company, 82 N. L. R. B. 477. These departments are the shoe, men's clothing , stationery and books , and millinery. 4 The merchandise for these departments Is'stocked by the lessees of the respective leased departments. 420 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD that the employees in the leased departments do not possess suffi- cient interests in common with the employees in the regular depart- ment of the Employer to be joined together with the latter employees for collective bargaining purposes. We shall, therefore, exclude from the unit all employees in the leased departments. The Petitioner would exclude the department heads previously named upon the ground that they are supervisors within the meaning of the Act. The Employer, on the other hand, opposes the exclusion of such department heads and contends that the functions and duties of these department heads are substantially similar to those of other department heads, whom the parties have agreed to include in the unit. The Employer's Galesburg store has approximately 22 regular departments. Most departments employ only a single employee clas- sified as a department head. The prescribed duties of a department head are to sell merchandise, make up displays of merchandise, and to tend to the general housekeeping in his department. If not waiting on customers in his own department, or otherwise occupied, a depart- ment head is required, if necessary, to wait on customers in other de- partments. The Petitioner contends, however, that in addition to these prescribed duties, department heads Hugg, Ramsey, Johnson, and Cypher supervise the activities of personnel in other departments in the absence of the floor manager. Thus, the Petitioner alleges, the 4' named department heads have authority to assign personnel to serve in other departments as needed; to maintain discipline on their floors; to authorize employees to leave their departments for brief rest periods; and on occasion to interview prospective new employees. The evidence, however, does not support the contentions of the Peti- tioner. The Direction by the named department heads of the activi-, ties of other employees is, if anything, of a routine character. What the record clearly demonstrates is that employees Hugg, Ramsey, John- son, and Cypher do not have authority to hire or discharge other employees or effectively to recommend such action; nor do they have effective authority to discipline other employees or responsibly to direct their activities. We believe that employees Hugg, Ramsey, Johnson, and Cypher are not supervisors within the meaning of the Act,; and, accordingly, we shall include them in the unit. We find that all employees s at the Employer's Galesburg, Illinois, store including janitors, elevator operators, office employees, and win- dow trimmers, but excluding employees who work less than 18 hours a week, seasonal employees, tailors, legitimate buyers, watchmen, de- livery boys, managers, office managers, assistant managers, and all other supervisors as defined in the Act constitute an appropriate unit Included are employees Hugg, Ramsey, Johnpon, and Cypher. f) LYNCHBURG FOUNDRY COMPANY 421 for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. 5. The Petitioner further requests that in any unit found appro- priate employees without 60 days of consecutive employment prior to the date of the direction of election should be held ineligible to vote. The Petitioner maintains that only permanent employees have sufficient interest in the terms and conditions of employment to be entitled to vote; and that in the retail department store field no em- ployee can reasonably be considered as permanent who has not been employed for a period of at least 60 consecutive days. The Employer, opposing the contention of the Petitioner, argues that, except for seasonal employees who are excluded from the unit by the agreement of the parties, all employees, whether working a full or part-time schedule, are considered to be regular and permanent employees. However, the Employer is willing to concede that any person who has not been employed as a regular part-time or full-time employee at -least 30 days prior to the date of the election should be ineligible to vote. In the absence of any evidence in the record to show that new employees are treated as temporary employees and without substantial interests in the terms and conditions of employment, we shall, subject to the limitations set forth in the Direction of Election, permit all regular employees who have been on the Employer's pay roll for a .period of at least 30 days prior to the date of the election, to vote in the election e 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- visiori 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 in the unit found appropriate 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 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 the purposes of collec- tive bargaining, by Retail Clerks International Association, Local 'Union No. 536. 0 Cf. Matter of Electric Hou8e1roid Utilitica Corporation, 73 N. L. R., B. 500. 844340-50-vol. 83-28