Lane Bryant, Inc.

In the Matter of LANE BRYANT, INC. and DEPARTMENT STORE EMPLOYEES UNION, LOCAL 291, URWDSEA-CIO Case No. 13-R-3368.-Decided July 19, 1946 Stiefel and Greenberg, by Mr. Charles W. Stiefel, Jr., of Chicago,- Ill., for the Company. Messrs. Francis Heisler and Charles H. Walters, of Chicago, Ill., for the CIO. Daniell D. Carmell, by Mr. Lester Asher, and Messrs. S. F. Sullivan and Walter Deans, of Chicago, Ill., for the Building Service Employees. Messrs. S. G. Lippman and Knud Rasmussen, of Chicago, Ill., for the Retail Clerks. Mr. Robert J. Freehling, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Department Store Employees Union, Local 291, URWDSEA-CIO, herein called the CIO, alleging that a question affecting commerce had arisen concerning the representation of employees of Lane Bryant, Inc., Chicago, Illinois, herein called the Company, the National Labor Relations Board provided for an appro- priate hearing upon due notice before Robert T. Drake, Trial Exam- iner. The hearing was held at Chicago,. Illinois, on May 15, 16, 17, and 20, 1946. The Company, the CIO, Department Store Employees Union, Local 291, Building Service Employees' International Union, A. F. L., herein called the Building Service Employees, and Retail Clerks' International Protective Association, Local 1515, A. F. L., herein called the Retail Clerks, appeared and participated., All par- ' At the hearing, the Retail Clerks objected to the Building Service Employees' motion to intervene, on the ground that the latter, in seeking to represent the employees in issue, Was exceeding its jurisdictional grant from the American Federation of Labor . The CIO also contended that the motion to intervene should be denied in view of the jurisdictional dispute between the Retail Clerks and the Building Service Employees . The Trial Ex- aminer properly overruled both objections and permitted the Building Service Employees to intervene. See Matter of R. G. Le Tourneau, Inc., 67 N. L. R. B. 1166. 69 N. L, R. B., No. 86. 733 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Lane Bryant, Inc., an Illinois corporation, is engaged in the sale of women's, children's, and infants' wearing apparel in its store located at Chicago, Illinois. During the 6-month period ending December 31, 1945, the Company purchased goods for resale valued at more than $100,000, of which approximately 80 percent represented ship- ments from sources outside the State of Illinois. During the same period, the Company sold goods valued at more than $100,000, of which approximately 5 percent represented shipments to customers outside the State. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Department Store Employees Union, Local 291, United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. Department Store Employees Union, Local 291, Building Serv- ice Employees' International Union, and Retail Clerks' International Protective Association, Local 1515, both affiliated with the American Federation of Labor, are labor organizations admitting to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the CIO as the exclusive bargaining representative of any of its employees until the CIO has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concern- ing the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The CIO seeks a unit of all selling and non-selling employees of the Company, excluding employees of leased departments, demon- LANE BRYANT, INC. 735 strators, all employees now under contract with other labor organ- izations, confidential employees, executives, buyers, assistant buyers, managers, assistant managers, department heads, assistant depart- ment heads, fioorrnen, and supervisors.' The Building Service Em- ployees and the Company agree generally with the appropriateness of the unit sought by the CIO, except that the Company would in- clude the head cashier, one manager, and certain assistant managers. The Retail Clerks, however, would limit the appropriate unit to em- ployees engaged in the selling and handling of merchandise, thereby excluding, in addition to the categories listed by the CIO, all office clerical employees, elevator operators, and building maintenance employees. The disputed categories will be discussed hereinafter. Office clerical employees: The Company employs about 275 regular full-time employees and its operations are confined to 1 building in which the basement and first 3 floors are utilized as selling outlets and the fourth floor as fur storage and repair rooms, shipping and receiv- ing rooms, and a main office. Approximately 20 of the Company's em- ployees are engaged in office clerical work and, of these, approximately 0 are employed in the main office and the remainder are assigned to offices of department managers and merchandisers located on the sell- ing floors. All office clerical employees are subject to the supervision of the office manager; however, the selling floor office employees are also supervised by their respective department managers or mer- chandisers. Some main office clerical employees spend a portion of their time on the selling floors, where they work in the same capacity as cashiers who, all parties agree, should be included in the unit. Selling floor office clerical employees also spend considerable time performing duties such as wrapping, marking, taking and filling tele- phone orders, and aiding in the replacing of stock, which are similar to those of employees whose inclusion is not disputed. It is apparent from the foregoing that the interests of the office clerical employees are closely identified with those of the Company's other selling and non-selling employees and we shall, therefore, include the office cleri- cal employees in the unit.° Elevator operators: In the operation of its two elevators, the Company normally employs two regular elevator operators and, in addition, one relief operator who spends the majority of her time workimmg as a stock girl. The conditions and hours of employment of the elevator operators are, in general, similar to those of the other 2 The unit appears above as amended by the CIO at the hearing. With respect to the unit sought, the record discloses that there has been no prior history of collective bargaining by the Company and, consequently, there are no employees under contract with other labor organizations, Furthermore, the Company does not appear to employ any demonstrators, floormen, or assistant buyers. 3 Matter of Montgomery Ward and Co., Incorporated. 64 N. L. R. B. 674 ; cf. Matter of The May Department Stores Company, 54 N. L. R. B. 230. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store employees. Moreover, due to the frequent absence and turn-over of elevator operators in the past, the Company has often found it necessary to use as operators other store personnel, including markers, porters, receiving and shipping room clerks, and office employees. In view of these facts, it is clear that the interests of the elevator opera- tors lie with those of the other store employees and, accordingly, we shall include the regular elevator operators and the relief operator in the unit' Building maintenance employees: The Company employs as build- ing maintenance employees one matron, two day porters, folxw day cleaning women, one night porter, five night cleaning women, and one night watchman. These employees perform general housekeeping duties and aid in store maintenance. The day porters work under the supervision of the building maintenance manager, the day cleaning women are supervised by both the assistant store superintendent and the department managers, and the night porter and cleaning women receive orders from the night watchman 5 who is in turn responsible to the store manager or assistant store manager. These employees thus have, in some instances, identical supervision with that of the other store employees. With particular reference to the day porters, the record also shows that they spend a substantial portion of their time carrying merchandise between departments, thereby performing work similar to that of the markers and receiving clerks in the unit. In view of the foregoing and on the entire record in the case, we are of the opinion that a community of interest in the conditions of employ- ment exists between the building maintenance employees and the other store employees and, accordingly, we shall include the building maintenance employees in the unit.' Managers, assistant managers, and head cashier: The parties agree that the managers and assistant managers listed in Appendix A are supervisory employees within the Board's customary definition of that term. However, the parties are in dispute concerning the status of the head cashier, infants' wear manager, and the following assistant managers : assistant alteration manager-fitters, selling assistant man- agers, assistant credit manager, assistant display manager, assistant fur storage manager, assistant fur salon manager, assistant basement dress manager (stouts), and assistant basement coat manager (stouts). The Company takes the position that these listed employees are not supervisory employees and should be included in the unit. It appears 4 See Matter of The Richman Brothers Co., 59 N. L. R. B. 339. 5 The night watchman does not appear to have authority to hire, discharge, promote or discipline the night cleaning employees, nor does he have authority effectively to recom- mend such action . He performs janitorial duties in addition to policing the Company's property , and does not appear to be militarized , or deputized , or to exercise any monitorial functions. See Matter of The Rachman Brothers Co., footnote 4, supra. LANE BRYANT, INC. 737 in general that these individuals assign and oversee the work of their subordinates; that they exercise limited disciplinary powers; that the Company considers them as having achieved the first step on their way to executive positions; that their titles are similar to those of employees who are admittedly supervisors; and that they are con- sidered as supervisors by their subordinates and by the other store employees. Under these circumstances and on the basis of the entire record, we find, contrary to the position of the Company, that the head cashier, infants' wear manager, assistant alteration manager- fitters, selling assistant managers, assistant credit manager, assistant display manager, assistant fur storage manager, assistant fur salon manager, assistant basement dress manager (stouts), and assistant basement coat manager (stouts) are supervisory employees within the Board's customary definition, and we shall, therefore, exclude them from the unit. We find that all selling and non-selling employees of the Company in its Chicago, Illinois, store, including office clerical employees, build- ing maintenance employees, and elevator operators, but excluding em- ployees of leased departments, confidential employees,' executives, head cashier, infants' wear manager, assistant alteration manager- fitters, selling assistant managers, assistant credit manager, assistant display manager, assistant fur storage manager, assistant fur salon manager, assistant basement dress manager (stouts), assistant base- ment coat manager (stouts), employees listed in Appendix A, and all other supervisory employees with authority to hire,, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES In addition to its regular full -time employees, the Company employs seasonal, extra, and regular extra employees . The seasonal employees are engaged in the telephone solicitation of fur storage and repair work from April 15 to June 15 and few of these persons are employed by the Company for more than one season. The extra employees are individuals who the Company considers may be available for call during rush periods. The regular extra employees , however, work 8 to 29 hours each week without being called, receiving wages com- parable to those of the regular full -time employees and performing similar duties. The CIO, the Building Service Employees, and the The parties agree, and we find, that the following individuals should be excluded as confidential employees : the confidential secretary to the personnel director, secretary to the store manager, and commission and pay -roll clerk. 701592-47-vol. 69-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks agree that seasonal and extra employees should not be eligible to vote. With respect to the regular extra employees, the CIO and the Building Service Employees contend that only those employees who worked in at least 5 of the 6 preceding months and for a sufficient number of days during the 6 months to represent an average of 10 days' employment per month, or who worked 29 or more hours in each week during the preceding 4 months, should be allowed to vote; whereas the Retail Clerks argues that all regular extra employees who work more than 8 hours each week should be eligible. The Company takes no position on these issues. We are of the opinion that all regular extra employees have a substantial interest in the conditions of employment and that their work, unlike that of the seasonal and extra employees, constitutes regular part- time employment." Accordingly, we shall allow all regular extra employees to participate in the election and hold all seasonal and extra employees ineligible to vote. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction.9 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 Re- lations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Lane Bryant, Inc., Chicago, Illinois, 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 Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- 8 Matter of The Bailey Company, 66 N. I . R. B. 899. ° The contention by the Retail Clerks that the Building Service Employees should not be accorded a place on the ballot because the latter is exceeding its jurisdictional grant is clearly without merit. See Matter of Pass and Seymour Inc., 51 N. L. R. B. 1135. At the hearing the parties expressed concern over the right of employees on vacation to cast ballots. In accord with our usual practice, we shall permit only those employees on vacation who present themselves in person at the polls to vote. The requests of the CIO, the Retail Clerks, and the Building Service Employees to be designated on the ballot as "C. I. 0., Department Store Employees Union Local 291," "Department Store Retail Clerks Local 1515, A. F. of L," and "A. F. of L., Local 291, Department Store Employees Union, BSEIU," respectively, are hereby referred to the Regional Director. LANE BRYANT, INC. 739 tions 10 and 11, of said Rules and Regulations, and to our determina- tion in Section V, above, among employees in the unit found appro- priate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees in the armed forces of the United States who present them- selves 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 represented by Department Store Employees Union, Local 291, URWDSEA-CIO, or by Department Store Employees Union, Local 291, Building Service Employees' International Union, A. F. L.,_ or by Retail Clerks' International Protective Association, Local 1515, A. F. L., for the purposes of collective bargaining, or by none of these ,organizations. CHAIRMAN HERZOG took no part 'in the consideration of the above Decision and Direction of Election. APPENDIX A Store Manager Manager Credit Dept; A/C Receivable Bookkeeping and Manager Basement and Third Floor Will Call & Return Departments Assistant Store Manager and Store Superintendent Display Manager and Assistant Store Superintendent Merchandiser Second Floor Coats, Suits, Dresses , Sportswear , Milli- nery Manager Third Floor Maternity Apparel , Infants' Wear, and Chil- dren's Apparel Basement Manager Buyer Underwear, Housedresses , Hosiery, Lin- gerie, Sportswear, Millinery Manager Basement Corsets Merchandiser Basement Coats, Suits , Dresses, Furs Manager Basement Shoes Manager Main Floor Shoes Manager Second Floor Corsets Manager-Buyer Main Floor Underwear, Lingerie , Blouses , Sports- wear, Bathing Apparel Merchandiser, Main Floor Underwear, Lingerie , Blouses, Sportswear, Bathing Apparel, Shoes, Hosiery, Jewelry, Gloves, Purses , Corsets Second Floor Fur Buyer -Manager Manager Basement and Third Floor Alteration Rooms Manager Fourth Floor Storage Vault and Fur Repairs 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Superintendent Fourth Floor Shipping & Receiving Room Building Maintenance Manager Manager Marking & Receiving Rooms Fourth Floor Advertising Manager Office Manager Second Floor Dress Selling Manager Second Floor Coat-Suit Selling Manager Second Floor Sportswear Selling Manager Assistant Maternity Department Manager Manager Regular Size Dress-Suits-Coats Hosiery, Bags, Gloves, Manager Basement Coat & Suit Selling Manager Basement Dress Selling Manager Basement Fur Selling Manager