The P. B. Magrane Store, Inc.

In the Matter of THE P. B. MAGRANE STORE, INC.' EMPLOYER and LOCAL 1435, RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. L., PETITIONER Case No.1-RC-997.Decided June 17, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this case was held before Leo J. Halloran, hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free, from preju- dicial error and are hereby affirmed. At the hearing, the Employer moved to dismiss the petition on the ground that it did not specifically seek to include leased department employees in the requested bargain- ing unit. As the hearing officer granted the Employer's motion for adjournment to enable it to produce further evidence regarding its leased departments, it was not prejudiced by the failure of the Peti- tioner to set forth in its petition that it was seeking to represent em- ployees in these departments. Accordingly, we ' hereby deny the Employer's motion to dismiss. 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 [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The P. B. Magrane Store, Inc., is a Massachusetts corporation with its only place of business in Lynn, Massachusetts, where it operates a retail department store. During the calendar year 1948, the Em- ployer purchased merchandise valued at approximately $524,000, over 50 percent of which was obtained outside the Commonwealth of Mas- sachusetts. In addition, some of the merchandise which it purchased from jobbers and distributors in Massachusetts, such as radios, shoes, and cosmetics, was manufactured outside the Commonwealth. During the same year, the Employer's sales were valued at approximately ' The name of the Employer appears as amended at the hearing. S4 N L. R. B., No. 43. 345 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $770,000, all of which were made to persons residing within the Commonwealth. We find, contrary to the contention of the Employer, that it is engaged in commerce within the meaning of the Act.2 Consistent with Board practice with respect to department stores, we also believe that jurisdiction should be exercised in this case. 2. The Petitioner is a labor organization which claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain 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 Petitioner seeks a unit composed of all employees at the Em- ployer's department store in Lynn, Massachusetts, including sales employees, office and clerical employees, service and maintenance em- ployees, all regular part-time employees, and employees in certain leased departments,3 but excluding guards, professional employees, and supervisors. The Employer agrees that the unit should include both sales and clerical employees, but contends that service and maintenance employees, part-time employees working less than 20 hours per week, and all employees in its leased departments should h- excluded. Service and Maintenance Employees There are 15 employees whom the Employer refers to as "service and maintenance employees" : • a matron; a fireman, who tends the boiler; a maintenance employee, who_does odd jobs around the store; an elevator operator; a window dresser; a bundle inspector, who examines purchases made by employees before they are taken from the bundle room; 'a carpenter; a linoleum layer and salesman; two appliance servicemen; and two stockmen, two truckmen, and a mark- ing girl, all of whom work in the shipping department. We do not agree with the Employer's contention that the duties and interests of these employees differ considerably from those of the other em- ployees. In view of the community of interest between selling and nonselling employees, and the fact that no other labor organization Matter of Parks-Belk Company of Elikabethton , 77 N. L. R. B.,429. The Petitioner seeks to represent employees in the beauty shop, the millinery shop, and the ready-to-wear and sportswear departments The Employer also leases the paint and hardware department and the sewing machine department . There are no employees in the • paint and hardware department, as the lessees themselves are the only persons working there. For some unexplained reason, however , the Petitioner is not seeking to represent - employees in the sewing machine department. THE P. B. MAGRANE STORE, INC. 347 is seeking to represent the "service and maintenance employees," we shall include them in the unit' Part-time Employees There are approximately 17 regular part-time employees. The Em- ployer objects to the inclusion in the unit of those who work less than 20 hours per week. Of the 17 part-time employees, there are 8 who regularly work between 4 and 16 hours per week. The Employer con- tends that these employees are mainly inexperienced high school stu- dents, whereas those working 20 hours or more each week are more mature, experienced persons. As it appears that all regular part-time employees, regardles of the number of hours they work each week, do the same type of work as full-time employees, are on the regular pay roll of the Employer, and work at regularly assigned hours each week, we shall include all of them in the unit.5 Employees of Leased Departments The Employer leases to concessionaires the beauty shop, the milli- nery shop, the ready-to-wear and sportswear departments, the paint and hardware department, and the sewing machine department. The Employer contends that employees in the leased departments are em- ployees of the lessees and should therefore be excluded from the unit. Employees in each of the leased departments are hired by the lessee and are subject to the supervision of its manager. Their wages, hours, and working conditions are set by the lessee rather than by the Em- ployer. Although they are paid by the Employer, subject to reim- bursement by the lessee, the latter lists them on its own pay roll, main- tains a separate workmen's compensation policy for them, and reports their earnings for social security and withholding tax purposes. On the other hand, the Employer exercises some general control and super- vision over employees in its leased departments to see that they con- form to general store policies and regulations. The Employer has the right to request the discharge of any employee whom it finds objection- able,,but this has rarely, if ever, been done. Employees of leased departments are subject to the same rules and regulations as are other 4 Matter of Denton's, Inc., TIA The Robinson-Schwenn Store, 83 N. L. R. B 35, Mat- ter of Florsheim Retail Boot Shop, et at, 80 N L R B 1312 ; Matter of Louis Pizitz Dry Goods Company, 71 N L . R. B. 579; Matter of Phelps Dodge Mercantile Company, 78 N L R B. 179 "Matter of Burrows & Sanborn, Inc, 81 N. L. R. B 1308, Matter of Florsheim Retail Boot Shop, et at, supra. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the store, are entitled to the same discount privileges, punch the same time clocks, and use the same employee facilities: On the basis of all the facts, however, we believe that these employees do not possess sufficient interests in common with employees in other departments of this particular store to be joined with the latter for collective bargaining purposes. We shall therefore exclude employees of leased departments for the unit.6 We find that all employees of the Employer at its Lynn, Massa- chusetts, department store, including sales employees, office and cleri- cal employees, service and maintenance employees, and all regular part- time employees, but excluding employees of leased departments, pro- fessional employees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining 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 supervision of the Regional Director for the First Region, 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 re- instated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bar- gaining, by Local 1435, Retail Clerks International Association, A. F. L. Matter of Block and Kuhl Department Store, 83 N. L R. B. 418; Matter of J. M., High Company, 78 N. L R B 876, and cases cited therein But of Matter of Denton's, Inc., T/A The Robinson-Schwenn Store, supra, where the Board included leased department employees in a unit of department store employees In that case, however, the Employer actually hired and discharged employees in the leased departments.