J. C. Penney Co.

In the Matter of J. C. PENNEY COMPANY-STORE #1518, EMPLOYER AND PETITIONER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL #37, A. F. OF L., UNION . Case No. 13-RM-56.Decided October 27, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Morris Slav- ney, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial 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 [Chairman Herzog and Members Houston and Gray]. Upon the entire record in this case,2 the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. The question concerning representation : The Employer has, since 1941, recognized the Union as the collec- tive bargaining representative of certain of its employees. Since that time successive contracts, the most recent of which expired July 21, 1949, have been executed between the Employer and the Union. On August 30, 1948, a consent union-authorization election 8 was held among the employees in the contract unit, in which election a majority of the eligible employees voted against authorizing the Union to negotiate a union-shop agreement. On May 19, 1949, and June 4, 1949, respectively, the Union and the Employer served notices of a ' The Union moved at the hearing to dismiss the petition on the ground that no question concerning representation existed, and that the unit sought by the Employer was inappro- priate. The hearing officer referred this motion to the Board. For the reasons stated hereinafter, this motion is hereby denied. Y The record is hereby corrected pursuant to the motion of the Employer, to which motion the Union. having been served with a copy thereof, did not object. As, in our opinion, the record and briefs adequately present the issues and positions of the parties, the Union's request for oral argument is hereby denied. S Case No. 13-UA-1683. 86 N. L. R. B., No. 109. 920 J. C. PENNEY COMPANY 921 desire to negotiate a new contract. Later, the Employer questioned the Union's majority status, on the basis of the results of the union- authorization election, and inquired whether the Union intended to file a representation petition. Upon receiving a negative reply, the Employer filed the petition herein. The Union asserts that the results of a union-authorization election do not constitute a valid basis for questioning its majority status, and that an employer is not entitled, under the Act, to file a representation petition when, as here, it has previously recognized and entered into contractual relations with the only union seeking to represent its em- ployees. The Board has previously held, however, that the reasonable- ness of the Employer's basis for questioning the Union's majority claim is immaterial,4 and that a request for renewal of a contract constitutes a claim for recognition which entitles the Employer to file a representation petition 5 under the terms of the amended Act. The Union's contention is therefore without merit.' We find, accordingly, that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The most recent contract between the Employer and the Union recognized the Union as the exclusive bargaining representative of all employees at its South Bend, Indiana, store engaged in handling, serv- icing, or selling merchandise,' excluding executives and cashiers. This is substantially the same unit for which the Union has been recognized since 1941.5 On the basis of the bargaining history, the Employer in this proceeding seeks a unit coextensive with the contract unit. The Union would also include in the unit alteration women, janitorial employees, maids, and the elevator operator.° The Union asserts that these employees' duties are related to the duties of the employees whom both parties agree should be included in the unit, that both groups are subject to the same terms and conditions of employment, and that the Matter of Continental Southern Corporation, 83 N. L. R. B. 668. E Matter of Whitney's, 81 N. L. R. B. 75. As the Act permits an employer to file a representation petition when confronted with a claim for recognition from a single labor organization, we find without merit the Union's contention that by directing an election herein the Board would, in effect and contrary to its established practice, be permitting the Employer to file a decertification petition. We also find without merit the Union's contention that the Employer should be required to furnish evidence of representative interest. Matter of Felton Oil Company, 78 N. L. R. B. 1033. 7In practice the parties have considered the unit to include lay-away clerks, sales personnel, stock clerks, markers, and checkers and markers, and to exclude all other employees. This unit was not established as the result of a prior Board determination. The parties agree that the manager, assistant manager, personnel supervisor, stock manager, section managers, cashiers, office employees, display agents, and advertising agent should be excluded from the unit. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees whom the Employer would exclude would otherwise be unrepresented for collective bargaining purposes 10 The alteration women work next to the clothing sales areas and make alterations on clothing sold by the sales personnel. Women's clothing is fitted by the alteration women ; men's clothing is fitted by the sales personnel, who prepare alteration tickets for the use of the alteration women. The alteration women are supervised by the section managers, who likewise supervise the sales personnel. The janitorial employees keep the premises clean, and one of them performs such heavy work as removing trash and boxes, and tending the stoker. They are under the supervision of the stock manager, who likewise supervises the stock clerks, the markers, and the checkers and markers. The maids do general cleaning about the store, press merchandise corning into stock, and furnish relief to the elevator operator. They are under the super- vision of the personnel supervisor. The elevator operator is under the joint supervision of the stock manager and the personnel supervisor. The employees whom the Union would include and the Employer would exclude are subject to the same terms and conditions of employ- ment and receive benefits on the some basis as the employees who have been included in the contract unit. We find in this record no persuasive reason why the alteration women, janitorial employees, maids, and elevator operator should be excluded from the unit" Rather, in view of the similarity of terms and conditions of employment and of benefits, the fact that the altera- tion women, janitorial employees, and the elevator operator are under the same immediate supervision as employees in the contract unit 12 and the Board's practice of including tailoring 13 and custodial em- ployees 14 in units of selling and nonselling employees in retail stores, we find that the alteration women, janitorial employees, maids, and elevator operator have the same community of interest in the collec- tive bargaining process as the employees in the contract unit. Accord- ingly, we shall include these employees in the unit. The Employer would exclude from the unit employees who work 8 hours or less per week. Such employees perform the same duties "The record is silent as to the reason for the prior exclusion of these employees from the contract unit. 11 A history of collective bargaining, not predicated upon a prior Board certification, is not controlling. See Matter of York Motor Express Company, 82 N. L. It. B. 801. 12 See Matter of Georg Jensen, Inc., 77 N. L. It. B. 760, in which the Board found inap- propriate a proposed unit which both included and excluded employees under the same immediate supervision. 00 Matter of Bond Stores, Incorporated, 84 N. L. R. B. 667. 14 Matter of The P. B. Magrane Store, Inc., 84 N. L. R. B. 345 ; Matter of Florsheim Retail Boot Shop, 80 N. L. R. B. 1312. J. C. PENNEY COMPANY 923 as employees who work more than 8 hours per week. As our unit finding is based upon occupational categories,'all employees working at jobs within the unit are necessarily, with respect to such jobs, within the unit, irrespective of the number of hours of employment.15 The separate issue of the voting eligibility of such employees will be dis- cussed hereinafter. On the basis of the foregoing, and on the entire record, we find that all employees at the Employer's Store No. 1518, South Bend, Indiana, engaged in handling, servicing, and selling merchandise, including lay-away clerks, sales personnel, stock clerks, markers, checkers and markers, alteration women, janitorial employees, maids, and the ele- vator operator, but excluding cashiers, office employees, display agents, the advertising agent, the manager, assistant manager, per- sonnel supervisor, stock manager, section managers, and guards, pro- fessional employees 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. 5. The Employer employs both full-time and part-time employees?, Some of the part-time employees are regularly employed from week to week; others are employed only during seasonal peaks and emer- gencies. In accordance with our usual practice, we find that all regular part-time employees are eligible to vote in the election.17 DIRECTION OF ELECTION As part of the' investigation to ascertain representatives for the pur- poses 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, 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 15 Matter of F. W. Woolworth Company, 83 N. L. R. B. 439. Moreover, all employees working at positions within the contract unit were covered by the most recent contract between the Employer and the Union , irrespective of the number of hours of employment, although some variation existed in contract provisions applicable to regular full-time, ,regular part-time, and extra employees. 1e Part-time employees are those employed for less than 40 hours per week. " Matter of F. W. Woolworth Company, supra. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit or been discharged for cause and have not been rehired or rein- .stated 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 bargain- ing, by Retail Clerks International Association, Local 37, A . F. of L.