Sears, Roebuck and Co.

In the Matter of SEARS, ROEBUCK AND CO. and INTERNATIONAL BROTHER- HOOD OF 1 EAms,rERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL LOCAL 745 Case No. 16-R-1144.-Decided June 21, 1945 Thompson, Knight, Harris, Wright & Weisberg, by Messrs. William H. Neary and J. Hart Wallis, of Dallas, Tex., for the Company. Padway & Goldberg, by Mr. I. E. Goldberg, of Milwaukee, Wis., and Messrs. Ted Neal, Phil Taylor, and Jim Turner, of Dallas, Tex., for the AFL. lfr Howard Goddard, of Dallas, Tex., for the C. I. 0 Mr _4 Sumner Lawrence, of counsel to the Board DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. AFL, Local 745, herein called the AFL, alleging that a question affecting commerce had arisen concerning the representation of employees of Sears, Roebuck and Co., Dallas, Texas, herein called the Company, the National Labor Rela- tions Board provided for an appropriate hearing upon due notice before Elmer Davis. Trial Examiner. Said hearing was held at Dallas, Texas, on April 25, 1945. The Company, the AFL, and International Longshore- men's & Warehousemen's Union, CIO, herein called the CIO, appeared and participated. All parties were afforded opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to file briefs with the Board. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : 62 N L. R B. No 90 674 SEARS, ROEBUCK ANI) CO FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 675 Sears, Roebuck and Co., a New York corporation, maintains 595 retail stores in 47 States, 10 mail order houses, and 20 factories. The present proceeding involves the mail order house in Dallas, Texas. During' the year 1944, the Company purchased for its Dallas mail order house, ap- proximately $15,000,000 worth of goods, of which approximately 50 per- cent was transported to its Dallas plant from points outside the State of Texas. The Company admits that it is engaged in commerce within the mean- ing of the National Labor Relations Act II. THE ORGANIZATIONS INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 745, affiliated with the American Federation of Labor, is a labor organization, admitting to membership employees of the Company. International Longshoremen's & Warehousemen's Union, affiliated with the Congress of Industrial Organizations, is a labor organization, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On December 6, 1944, the AFL addressed a letter to the Company re- questing recognition as bargaining representative of the Company's em- ployees. The Company made no reply to the AFL's request for recognition. The statement of a Field Examiner for the Board, introduced into evi- dence at the hearing, indicates that the AFL and the CIO each represents a substantial number of employees in the unit hereinafter found appro- priate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The AFL claims a unit of all employees in the Company's mail order house engaged in merchandise handling together with all employees in the transportation department, with the exception of certain supervisory 'The Field Examiner reported that the AFL had submitted 589 authorization cards, of which 219 dated between October 1944 and March 1945, checked with the Company's pay roll of February 26, 1945, containing 532 names within the unit claimed by the AFL The Field Examiner further reported that the CIO had submitted 305 application for member- ship cards , of which 107 dated between August 1944 and March 1945, with 11 undated checked «itb the said pay roll 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. The CIO, opposed by the AFL and the Company, contends that the unit should include, except for watchmen,' employees in the de- partments of maintenance construction, power plant, business machinery repair and porter service. The , Company, in opposition to both unions, would exclude, aside from certain employees claimed to be temporary,' employees who handle merchandise in the purchasing supplies, printing, and box factory departments, and would also exclude employees in certain clerical or semi-clerical classifications who work on the same floor with employees engaged in the handling of merchandise.' In addition thereto, the Company, opposed in one instance by the AFL and in the other by the CIO, would exclude certain employee service departments, the em- ployees store and package room, and would include employees known as work heads upon the ground that they are non-supervisory. The Company has no history of collective bargaining covering the employees herein con- cerned. With respect to the issue regarding the inclusion or exclusion of em- ployees in the departments of maintenance construction, power plant, busi- ness machine repair, together with watchmen and porter service, it appears that the extended unit of operating and maintenance employees as pro- posed by the CIO is essentially a unit of manual workers of a type which has been recognized as appropriate for mail order house employees.' While we have, in certain instances, excluded maintenance, construction,eand pow- erhouse employees from unity of mail order house employees where such groups were claimed by craft labor organizations, there is nothing to indi- cate that any craft organizations are now seeking to represent employees 2 While the AFL would also exclude watchmen, it contends that if the unit is extended to main- tenance employees, watchmen should he included therein The record discloses that the watchmen in question ate not armed , uniformed , or militarized , that they have no monitorial duties , and that, in addition to protecting property, they peiform the usual duties of employees in this classification Since, as hereinafter set foith , geneial maintenance employees ate included in the unit , we shall also include watchmen theiem 3The employees whom the Company claims to be temporary employees aie ieferied to by, the Company as "extra" employees, and will be considered herein undo the section entitled "Deter- mination of Representatives " 4 Although a controversy exists as to the propriety of including floor cleiicals of the type herein concerned , all parties agreed to the exclusion , among others , of sh ictly clerical employees working in the general offices of the Company ° See Matter of Seats Roebuck and Company, 40 N L R B 90, and Matter of Montgomery Ward & Co, Incorporated, 50 N L R B 163, whey em the Board found appropriate mail order house units of employees engaged principally in manual labor, including employees who handle nmeichan- dise together with certain employees in maintenance and service capacities See also Matter of Alai shall Field & Company, 57 N L R B 1244, where a smm.lai unit of operating and maintenance employees was found appropriate in the related deparhnent stoic field Cf Matter of lllontgomeiy Ward & Co , Incorporated, 56 N L R B 208, where , in view of the fact that maintenance employees were in a separate administrative department , such employees were, together with the employees of several other administrative departments , set aside as a sepaiate appropriate unit " Consti uction employees have been excluded front over-all units when cai r red by the Company on a separate construction pay roll See Matter of Aluminum Company of America, 52 N L R. B 568, Mattes of Kasiei Company, Inc, 53 N L R B 880, Mattei of Kaiser Indushies, 61 N L R B 682 SEARS, ROEBUCK AND CO. 677 among the maintenance and power plant employees herein-concerned. Moreover, although the maintenance employees in question work both at the mail order house and at the nearby retail store of the Company, and on occasion perform the same type of work for other stores of the Company in the area adjacent thereto, all such employees are carried on the mail order house pay roll and are under the supervision of the maintenance superintendent who is assigned to the mail order house. Under the circum- stances, we find that employees in the departments of maintenance con- struction, power plant, and business machinery repair, together with watchmen and porters have substantial interests in common with the mail order house employees. Accordingly, we shall include them within the unit hereinafter found appropriate. So far as the issues between the Company on the one hand and the labor organizations on the other are concerned, the only classifications in dis- pute are, as indicated above, employees who handle merchandise in the purchasing supplies, printing, and box factory departments,' and certain plant clerical employees who work on the same floor with employees en- gaged in the handling of merchandise.' With respect to the employees of the purchasing supplies, printing, and box factory departments, while these departments are overhead departments as distinguished from profit making departments in the Company's operations, we are of the opinion that the manual labor performed by employees in these departments is not distinguishable from that performed by employees working in similar capacities in production departments of the mail order house. Accordingly, we shall include in the mail order house unit those employees who handle merchandise in the purchasing supplies, printing, and box factory depart- ments.' With respect to the group of plant clerical employees, the evidence dis- closes that although these employees perform work which is largely cleri- cal, they are located in the merchandise departments where they are under the supervision of the various department heads. Under the circumstances, we shall, in accordance with our usual custom, include the plant clerical employees in the plant-wide unit hereinafter found appropriate r° There remains for consideration the question of including or excluding certain employee service departments and the determination of the status 7 The merchandise handlers herein concerned consist of employees in the classification of stock. man, inspector, requisition filler, and wood box maker sThe plant clericals hereinabove refetred to, consist of employers in the classifications of letter information clerk, ticket sorter , messenger , omission clerk , file clerk , office it regularity clerk, 114 D selector and letter information clerk, ticket lister and pricers 0 See Matter of Montdomeiy Waid & Co , Ineoipsisled , 50 N L K It 163 at 170, and tltaftc> of J L Brandeis & Sons, 50 N L R B 325 at 334 10 See Matter of Goodman lllanufactutnig Company , 58 N L N li 531, 4(attr, of Douglas Au- maft Company, 60 N L R B 876 See also, Matter of Seals Roebuck and Company, 42 N1. L R B 1037 678 DECISIONS OF 1\AT1ONAL LABOR (RELATION S BOARD of work heads, with respect to whether or not they should be excluded as supervisory employees. In the case of the employee service departments, identified as the pack- age room and the employee.' store, i espectively. the record reveals that the employees in these departments handle merchandise in connection with sales to employees of the Company Although such employees are not en- gaged in strictly mail order house work, they handle merchandise in a man- ner similar to that of the regular mail order house employees. Moreover, the mere fact that they serve other employees rather than outside cus- tomers of the Company, does not, in our opinion, present an adequate basis for excluding such employees from a unit of employees who perform work of a similar character We find that the employees in the package room and the employees' store department have substantial interests in common with the employees in the mail order house group. Accordingly, we shall include them within the unit hereinafter found appropriate. With regard to the classification of work heads whom the CIO, in oppo- sition to the Company and the AFL, would exclude from the unit, the evidence discloses that work heads are hourly paid group leaders who lead employee groups which vary in size according to seasonal activity, but who otherwise perform routine production work. While it appears that work heads, in addition to actually working with their hands,11 instruct new employees, relay orders from division heads, and have, upon request, oc- casionally given opinions regarding the work of employees in their re- spective groups, there is nothing to indicate that effective weight is cus- tomarily given to the opinions of work heads concerning other employees We find that work heads are not supervisory employees within the mean- ing of our usual definition and shall, accordingly, include them within the unit. We find that all employees engaged in merchandise handling or inci- dental clerical work in merchandise departments under the supervision of merchandise department heads, together with such employees in the trans- portation department, the departments of maintenance construction, pow- er plant, business machinery repair, purchasing supplies, printing and box factory, employees' store package room (usher excepted), watchmen and porter service, employed by the Company at its Dallas, Texas, mail order house," excluding secretaries, office clerical employees, and all su- pervisory employees above the classification of work heads, with authority to hire, promote, discharge, discipline, or otherwise effect changes in the u An employee in the classification of work head testified that he spent 98 percent of his time handling merchandise 12 Tncluded in the unit and listed in Appendix A are employees in certain classifications from departments otherwise excluded from the appropriate unit Of these classifications, the parties agreed to the inclusion of employees in the classification of receivers and handlers of freight in Merchandise Returns Depaitment 155 0 S1,ARS, ROEBUCK AND CO 679 status of employees, or effectively recommend such action," constitute a unit appropriate for the purposes of.collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The evidence reveals that the Company designates all new employees or "extra employees" until they have worked 6 periods of 28 days. The Com- pany, in opposition to both unions, contends that such employees should be found ineligible to vote upon the ground that they are temporary em- ployees. Since it appears that these employees are in effect probationary employees with the prospect of becoming regular employees after a short period of time, we find that they have substantial interests in common with the regular employees in the unit involved in the present proceeding. Ac- cordingly, we shall include them among the eligible employees in the unit following our usual practice with respect to employees of this type." We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period im- mediately preceding the date of our Direction of Election herein, subject to the limitations and additions set forth in said Direction's DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Sears Roebuck and Co., Dallas, Texas, an election by secret ballot shall be conducted as early as possible. but not later than thirty (30)-days from the date of this Direction, under the direction and supervision of the Regional Director for the Six- teenth Region, acting in this matter as agent for the National Labor Re- lations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV. above, who were employed during the pay-roll period im- is Excluded from the unit , in accordance with a stipulation of the parties , are the departments listed in Appendix B, together with certain categories listed in Appendix C from departments otherwise included within the unit. 14 See Matter of Douglas Aircraft Company, Inc, 60 N L R B 876, and cases cited therein See also Matter of Sears Roebuck and Company, 44 N L R B 507 16 With regard to their appearance on the ballot, the AFL and CIO requested a variance from the designations set forth above . Such requests are more appropriately directed to the Regional Director to whom the discretionary authority has been delegated in such matters relating to the conduct of the ballot 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediately preceding the date of this Direction, including extra employees and those employees who (lid not work during the said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, 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, to determine whether they desire to be repre- sented by International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Local 745, affiliated with the American Feder- ation of Labor, or by International Longshoremen's & Warehousemen's Union, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election. APPENDIX A Departments excluded, but specifically named categories of employees included : 1. Merchandise Returns Department 155 Receivers and handlers of freight 2. Department of purchasing supplies, printing and box factory Stockmen Inspector Requisition filler Wood box maker APPENDIX B. Departments wholly excluded except when otherwise indicated: 1. Office of General Manager, Department 101 2. Office of Operating Superintendent, Department 131 3. Office of Merchandise Superintendent, Department 133 4. Office of Personnel Manager, Department 107 5. Office of Regional Auditor, Department 168 6. Office of Sales.Promotion Manager, Department 140 7. Orders, clerical, Departments 134, 146, 147, 148, 162, and 171 8. Regional Traffic, Department 154 9. Advertising, Addressing, and Catalog Mailing, Departments 139, 141, and 142 10. Correspondence and Merchandise returns, Department 157 and De- partment 155 (purely clerical only) 11. Central Record Office, Department 150 SEARS, ROEBUCK AND CO. 681 12. Regional Credit and Collection, Departments 153 and 160 13. Retail Accounting and Auditing, Departments 168-B and 168-C 14. Mail Drder Auditing, Timekeeping and Tabulating, Departments 168, 164, and 205 15. Accounts Payable, Department 167 16. Method and Time-study, Wages, Selling, and Job Training, Depart- ments 13, and 131-B 17. Service Department, Department 180 18. Retail Service of Supply, Department 180-S 19. Cashier and Banking, Department 169 20. Public Relations, Department 703-PR 21. Hospital, Department 204 22. Credit Union, Department 104 23. Cafeteria, Department 201 24. Special Service, Department 211 25. Orders Offices, Mail Orders, Telephone Units and Communications, Departments 382, 383, and 203 26. Departments of purchasing supply, printing, and box factory (purely clerical only) APPENDIX C Departments included but specifically named categories of employees excluded : Packing, billing, shipping and tube service, Departments 187, 170 and 215. Typist Time Payment Biller Coupon book and add-on Statement Typist Listing Machine Operator Timekeeper Statistician Timekeeper Irregularity Biller (not handling packages) Line Haul Operators, Receiving Retail Store Shipping, Outbound Freight, City Shipping and Elevators, Departments 176, 191, 154-X, 188, 301, 194, and 216. Record clerks Senior comptometer operators Junior comptometer operators Typists General typists Merchandise Repair, Department 256, and Merchandise Departments designated as follows : Group 6, Departments 3, 4, 6, 8, 28, 49, 79, 0 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 85 ; Group 15, Departments 15, 29, 38, 54, 67, and 76; Group 27, Departments 1, 9, 11 , 20, 22, 26, 30, 32, 35, 37, 42, 46, 53, 63, 57, 64, and 71; Group 38, Departments 24, 38, and 96; Group 86, Depart- ments 25, 40, 41, 45, 50, 51, and 86. Junior comptometer operators and classifier (fourth floor office) Package Room, Department 192, usher