Henry C. Lytton & Co.

In the Matter of HENRY C. LYTTON &, COMPANY, EMPLOYER and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL 1460, AFL, PETITIONER Case No. 13-RC-833.-Decided January 23,1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before William J. Scott, 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 Murdock]. Upon the entire record in this case, 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 employees 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 appropriate unit : The Petitioner seeks a unit of all employees at the Employer's store at Gary, Indiana, including office employees, but excluding employees in the men's alteration department, professional employees, guards, and supervisors as defined in the Act. The Employer agrees generally with the appropriateness of a store-wide unit, but would also exclude so-called "guards," ladies' alteration department employees, and leased department employees, all of whom the Petitioner would include. "Guards": There are three employees classified as "guards," each of whom is employed on a separate 8-hour shift. The record dis- closes that they perform both usual janitorial and guard functions. However, there is no evidence as to the percentage of their work- 88 NLRB No. 45. 268 HENRY C. LYTTON & COMPANY 269 ing time spent in the different capacities. In these circumstances, we are unable to determine whether these employees are properly includible in the requested unit. If they spend more than 50 percent of their working time in the performance of guard duties, we shall exclude them from the unit; otherwise we shall include them.' Ladies' alteration department employees: There are 8 employees in the ladies' alteration department who make the necessary altera- tions on ladies' garments sold in the store. The Employer contends that these employees should have the right to determine by separate election whether or not to be included in a store-wide unit or in a separate unit. Alternatively, the Employer urges their exclusion from the store-wide unit because of their asserted craft characteristics. No labor organization, however, is seeking to represent the employees in question in a separate tinit.2 'In these circumstances, and in view of the fact that the ladies' alteration department employees have sub- stantially the same interests and working conditions as the other store employees, we shall, in accordance with our customary practice, include them in the unit.3 Leased department employees: There are five employees who work in the millinery and men's shoe departments which are operated by lessees pursuant to the terms of their respective agreements with the Employer. These employees are under the direct supervision of their department managers who is employed by the lessee of that depart- ment. Although the Employer pays these employees their salaries, the lessees reimburse the Employer. The lessees are obligated by the lease agreements to carry workmen's compensation for the protection of the Employer. The agreements further provide that the em- ployees in these departments must conform with the Employer's rules and regulations and are subject to dismissal if they are "objectionable" to the Employer. Applicants for employment in these departments are required to fill out the Employer's standard application form and, after being initially interviewed by the Employer's store manager, are referred to the leased department managers who determine whether or not to hire them. Shelburne Shirt Co., Inc., 86 NLRB 1308. 2 Amalgamated Clothing Workers of America, CIO, was permitted to intervene at the hearing. However, it withdrew before the close of the hearing when the Petitioner amended its petition to exclude the men's alteration department employees , who are cur- rently covered by a multistore contract between the Employer and the Intervenor. As the Employer and the Intervenor agree that this contract does not apply to the ladies' alteration department employees in the Employer 's store involved in this proceeding, we find no merit in the Employer's contention that this contract bars the inclusion of ladies' alteration department employees in the proposed unit. 2J. C. Penney Company-Store #1518, 86 NLRB 920. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It also appears that the leased department employees have sub- stantially the same hours of employment, general working conditions, and insurance, sick leave, and discount benefits, as the Employer's, employees. The record, however, does not disclose whether the Em- ployer of the lessee controls and fixes the basic terms and conditions of employment of the leased department employees, such as salaries, bonuses, commissions, hours of employment, vacations, and the vari- ous benefits enjoyed by them.4 For this reason, we are unable to determine whether to include these employees in the unit.. However, we shall permit them to vote subject to challenge. We find that all employees at the Employer's Gary, Indiana, store,. including office employees, ladies' alteration department employees, and the head cashier ,5 but excluding men's alteration department em- ployees, professional employees, guards as defined in the Act, depart- ment heads, the credit manager, and all other 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. There are 11 persons 6 who are classified as extra nonselling em- ployees. They work between 8 and 48 hours a week, particularly in the evenings when the store is open, on Saturdays, and during rush seasons. Although they do not participate in certain benefits enjoyed by full-time employees, they occupy jobs which are included in the appropriate unit and worked a substantial amount of time during the past year. As they are part-time employees who work a substantial amount of time, we find, contrary to the Employer's contention, that they are eligible to vote in the election.? 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, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including employees who did not work 4 Cf. Maas Brothers, Inc., 88 NLRB 129. 5 The parties stipulated at the hearing that the head cashier was a nonsupervisory employee who should be included in the unit. "Two of these employees work in the leased departments . Like the full-time employees in these departments , they may vote subject to challenge. 7 J. C. Penney Company, supra. HENRY C. LYTTON & COMPANY 271 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 bargain- ing, by Retail Clerks International Association, Local 1460, AFL.