Franklin Simon & Co., Inc.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. All employees in the electrical departments at the Employer's Arthur and Magna mills, transmission linemen, including the trans- mission line lead man, lineman helpers'12 signal maintainers, assistant signal maintainers, and signal maintainer helpers. However, we shall make no final unit determination for the em- ployees at this time, but shall first ascertain the desires of the em- ployees as expressed in the elections hereinafter directed. If a major- ity of the employees in voting group b vote for the Electrical Workers, they will be taken to have indicated their desire to constitute a separate bargaining unit. Although none of the parties to this proceeding raised the issue, it appears possible that employees in the Employer's maintenance-of- way mills ore haulage department are subject to the Railway Labor Act,13 and hence are not employees within the meaning of the National Labor Relations Act. The record in this proceeding does not make it possible to determine such an issue. Accordingly, we shall make no determination with respect to such employees, but shall allow them to vote in the several elections subject to challenge. If any of their votes are challenged and are sufficient in number to affect the elec- tion results, we shall make a final determination with respect to the unit placement of such employees at that time 14 [Text of Direction of Elections omitted from publication in this volume.] >z Included in this category is the truck driver permanently assigned to working with the transmission linemen . The record reveals that he must have a knowledge of the tools, equipment , and materials used by the linemen , and that, when not driving , he regularly assists them as a helper Moreover, he was previously classified as a lineman helper, and was only reclassified as a truck driver to give him the benefit of the higher wage rate paid to truck drivers without any change in his duties 1148 Stat. 1185. 14 Cf Utah Copper Company, 57 NLRB 641. 94 NLRB No. 88. FRANKLIN SIMON & COMPANY, INC. AND KAYS-NEWPORT, INC. and DEPARTMENT STORE EMPLOYEES UNION, LOCAL 21, AFFILIATED WITH RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Case No. 2-RC-.570. May 16, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Jack Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. FRANKLIN SIMON & COMPANY, INC. 577 Upon the entire record in this case, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act.' 2. The labor organization involved claims to represent certain employees of the Employers. 3. A question affecting commerce exists concerning representation of the employees of the Employers 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 the two full-time and one part-time shoe salesmen employed in the shoe department leased to Kays-Newport, at the East Orange, New Jersey, store of Franklin Simon. Kays-Newport asserts initially that Franklin Simon is the sole employer of these employees and, secondly , that if the Board should find Kays-Newport to be the employer , the limited size of the unit renders it inappropriate . Franklin Simon agrees with the Peti- tioner that Kays-Newport is the employer of the shoe department employees, and argues that, if Franklin Simon is found to be the em- ployer, the only appropriate unit is a store -wide unit of all selling employees. The shoe department '- is operated by Kays-Newport pursuant to a lease agreement, called a "license," with Franklin Simon , for the ex- clusive sale of women's shoes in the East Orange, as well as other Franklin Simon , stores.3 Under the terms of the lease, the shoe de- partment is supervised by a manager who is designated as an employee of Kays-Newport and must be satisfactory to Franklin Simon. The lease specifies that other shoe department personnel shall be "selected and engaged" by Franklin Simon through its own personnel office, upon the recommendation and in behalf of Kays-Newport, and that Kays-Newport cannot employ any person to whom Franklin Simon has a reasonable objection . Employees so hired are designated as employees of Kays-Newport. Wages are to be fixed by Kays-New- port, but are paid by Franklin Simon in the same manner as it pays its own employees and Kays -Newport is to reimburse Franklin Simon out of its cash receipts. Kays-Newport assumes responsibility for the social security , unemployment compensation , workmen's compen- ' As more fully discussed in paragraph numbered 4, infra, Kays-Newport , Inc., and Franklin Simon & Company, Inc, individually referred to as Kays-Newport and Franklin Simon, respectively, and collectively as the Employers, are joint employers of the shoe department employees in issue This department forms an integral part of the operations of each of these multistate enterprises Accordingly, we find that jurisdiction should be asserted over the Employers whether considered jointly or severally. Baron's Incor- porated, 91 NLRB No. 190; The Borden Company, Southern Division, 91 NLRB 628. ' The shoe salesmen requested by the Petitioner, and a manager, comprise the total personnel in the department. 3 There are at least two other leased departments in the East Orange store, namely, the millinery department and beauty salon. 953841-52-vol. 94-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sation, employer's liability insurance, and withholding tax returns, and must maintain public liability insurance. The business hours of the shoe department must conform to those of the store and all employees must abide by the store's rules and regulations. The lease further provides that shoe salesmen shall receive the same vacations and holidays, insurance and hospitalization benefits, Christmas bo- nuses, and store discounts, as are given to the other employees. All matters pertaining to the discipline or discharge of the leased de- partment employees must be handled through the personnel office of the Franklin Simon store. Finally, the lease requires that no dis- cussions be entered into by the lessee with the shoe department em- ployees or their representative regarding any labor dispute without first notifying the lessor and giving the latter a chance to be present, and no agreement in settlement of such dispute shall be effected with- out the written consent of Franklin Simon. In actual operation, the shoe department manager, who regards himself as employed by Kays-Newport, receives his order from the Kays-Newport regional manager in New York City and consults with him about merchandise orders, inventory, and additional help. The shoe salesmen receive their instructions from the department manager and recognize him as their supervisor. He is responsible for the conduct of the department operations, decides when overtime work is required, selects employees for overtime work, arranges lunch hours and working hours, can grant time off, and apparently makes teln- porary layoffs without consulting Franklin Simon. He has authority to discipline the shoe salesmen and, if he does so, the action taken is recorded in the personnel office of Franklin Simon. There is no evidence that the department manager's recommendations as to hiring or dismissal of employees have ever been rejected.4 While, as noted above, the lease provides that wages are to be fixed by Kays-Newport, these wages, in practice, are guided by the store wages of Franklin* Sinion. However, the shoe salesmen work a 6-day week, while the rest of the store clerks are on a 5-day week, with the shoe salesmen working 40t/2 hours and the others 371/2 hours, and any increase in wages, within the general limit established by Franking Simon, is made by the department manager with the approval of the Kays-Newport regional manager. The shoe department employees use the same facilities, such as store entrances and wash rooms, as do the other store employees. And, as described in the lease, they receive the same benefits and discount privileges as the other employees and are subject to the same rules and regulations. There is no interchange 4 Although Franklin Simon summarily discharged one shoe department employee for stealing, concerning which the shoe department manager was afterward informed, this inas apparently the only instance of such action FRANKLIN SIMON & COMPANY, INC. 579 of personnel between the shoe department and the other departments and there is a separate sales area for the shoe department operations. There has been no history of collective bargaining with respect to either the shoe salesmen or the other store employees.' The Board has previously indicated that an employer-employee relationship is established where the person for whom services are rendered possesses the right of control over such fundamental matters as the employees' day-to-day operations and their basic working con- ditions.6 Here, it is apparent that a substantial right of control over matters fundamental to the employment relationship is retained and exercised by both Franklin Simon and Kays-Newport. Thus, for example, Franklin Simon actively participates in the hiring and dis- charging processes, the shoe department employees must receive the same' vacations and other benefits as Franklin Simon extends to the other store employees, and, in the event of any labor dispute regarding the shoe department employees, no discussion can be entered into by Rays-Newport without affording Franklin Simon the opportunity to be present and no settlement agreement can be executed without the written consent of Franklin Simon. On the other hand, Kays- Newport determines such matters as wages, the number of employees to be hired, and overtime privileges, and generally directs the day-to- day functioning of the department. Under these circumstances, we are of the opinion and find that Franklin Simon and Kays-Newport constitute joint employers of the shoe department employees.' As previously mentioned, the shoe department employees work dif- ferent hours, under separate supervision, and in a separate area, and there is no interchange with other store employees. In view of the foregoing, and as their basic conditions and terms of employment are subject to determination by both Franklin Simon and Kays-Newport, we are further of the opinion that the shoe department employees constitute a separate appropriate unit." Accordingly, we find that all shoe department employees of the Employers at the East Orange, New Jersey, store of Franklin Simon, excluding the shoe department manager A and all other supervisors 5 Franklin Simon and the Petitioner entered into a consent election agreement prior to the filing of the present petition, in which the stipulated unit excluded the employees of all leased departments (Case No 2-RC-2472) However, the petition upon which the consent election agreement was predicated was subsequently withdrawn. 6The Faller Automobile Company, 88 NLRB 1452 Cf. Maas Brothers, Inc., 88 NLRB 129, Grossman Department Store, Inc, 90 NLRB No. 275 ; Pariseau's, Incorporated, 90 NLRB 1458 ' Cf General Motors Corpoi ation, 60 NLRB 81. `Cf Carter Publications Inc. 92 NLRB 1190; Atlas Imperial Diesel Engine Co. and Hunt Foods Inc, 89 NLRB 372. See also Sterling-Linder-Davis Co , 91 NLRB No 91. The contention of flays-Newport that the limited size of the unit renders it inappro- priate Is clearly without merit . National Licorice Company, 85 NLRB 140. The shoe depai tment manages is clearly a supervisor within the meaning of the Act 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.'° [Text of Direction of Election omitted front publication in this volume.] MEMBERS REYNOLDS and STYLES took no part in the consideration of the above Decision and Direction of Election. IU Kays-Newport contends that the part -time shoe salesman should he excluded from the unit. This employee works each Saturday and occasionally on other days during the week , performing duties similar to those of the other shoe salesmen . We find that he serves as a regular part-time employee , and that he is entitled to participate in the election directed herein . H. B. Butt Grocery Company, 93 NLRB No. 88 ; Harms Hosiery Co., Inc., 91 NLRB 330. THE BIRDSALL-STOCKDALE MOTOR COi iPANY f hd I NTERNATIONAL As- SOCIATION OF MACHINISTS, LODGE No. 750. Cage No. 30-CA-113. May 17,1951 Decision and Order On February 21, 1951, Trial Examiner Irving Rogosin issued his Intermediate Report in the abgvc-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. The Board has considered the stipulation entered into by the parties, the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recomunenda- tions of the Trial Examiner, with the following additions : 1 1. The Trial Examiner found that the Respondent is engaged in commerce within the meaning of the Act.' The Respondent has excepted to this finding and contends that it is not so engaged. The record shows, and the Respondent admits, that it has dealer agreements with General Motors Corporation, Pontiac Motor I We find, contrary to the contention of the Respondent , that the complaint alleged facts which support a finding that the Respondent is engaged in commerce within the meaning of the Act. Accordingly, we hereby affirm the Trial Examiner's dismissal of the Respondent 's motion to dismiss the complaint which was based on this ground. 2 The Trial Examiner, In the Intermediate Report, sets forth In detail the pertinent commerce facts relating to the Respondent's business. 4 NLRB No. 117. 1