Carson Pirie Scott & Co.

In the Matter of CARSON PIRIE SCOTT & COMPANY and DEPARTMENT STORE EMPLOYEES UNION LOCAL 291 OF THE BUILDING SERVICE EM- PLOYEES' INTERNATIONAL UNION, A. F. OF L. Case No. 13-R-3451.Decided July 25,1946' Mr. Howard P. Robinson, of Chicago , Ill., for the Company. Mr. Daniel D. Carmell, by Messrs . Lester Asher and S. F. Sullivan, of Chicago, Ill., for Local 291, A. F. L. Mr. Francis Heisler, of Chicago, Ill., for Local 291, CIO. Mr. F. G. Dunn, 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, of the Building Service Employees' International Union, A. F. of L., herein called Local 291, A. F. L., alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Carson Pirie Scott & Company, Chicago, Illinois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert Ackerberg, Trial Examiner. The hearing was held at Chicago, Illinois , on May 8, 1946. The Company, the A. F. L., and Department Store Em- ployees Union Local 291 of the United Retail, Wholesale and Depart- ment Store Employees of America, CIO, herein called Local 291, CIO, appeared and participated. All parties were afforded opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Company moved to expunge from the record certain evidence I pertaining to the alleged unfair labor practices of the Company. Ruling on said motion was reserved by the Trial Examiner for the Board. The motion is hereby denied. The A. F. L. moved that a. certain offensive statement by 1 This evidence deals with the reading of correspondence that was carried on between leaders of Local 291 , CIO, and its attorney following the Company 's refusal to bargain. Set out on pages 78, 79, 80, and 81 of the Record. 69 N. L. R. B., No. 112. 935 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel for the CIO with reference to counsel for the A. F. L.2 be expunged from the record. Ruling on said motion was reserved for the Board. The motion is hereby granted. A motion was also made by the CIO that the petition be dismissed. Ruling on said motion was reserved for the Board. For reasons hereinafter stated, the mo- tion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial 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 Carson Pirie Scott & Company, an Illinois corporation, has its principal office and place of business in Chicago, Illinois, where it is engaged in the operation of a retail department store. In conjunc- tion with its retail store, the Company operates a buying office in New York City, and a warehouse located in Chicago. The Company also operates a wholesale floor covering business in Chicago, with branch offices, sales rooms, and warehouses located in Columbus, Cincinnati, and Cleveland, Ohio; Milwaukee, Wisconsin; Indian- apolis, Indiana; and Minneapolis, Minnesota. The Company's retail department store is the only one concerned in this proceeding. Dur- ing the year 1945, the Company purchased merchandise for resale at its retail store valued in excess of $20,000,000, approximately S7 percent of the total value of such merchandise being shipped to its Chicago store from points outside the State of Illinois. During the same period, the Company's gross sales at its retail store exceeded the sum of $25,000,000, approximately 5 percent of the sum repre- senting sales of merchandise transported to customers at points lo- cated outside the State of Illinois. Approximately 3 percent of the Company's advertising of merchandise sold at its retail store is placed with magazines having a national circulation which are published outside the State of Illinois. We find that the Company is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Department Store Employees Union, Local 291 of the Building Service Employees' International Union, is a labor organization, affil- iated with the American Federation of Labor, admitting to member- ship employees of the Company. 2 This statement referred to counsel for the A. F. L.'s previous association with the Board . Set out on page 103 of the Record. CARSON PIRIE SCOTT & COMPANY 937 Department Store Employees Union, Local 291 of the United Re- tail, Wholesale and Department Store Employees of America, is a labor organization, affiliated with the Congress of Industrial Organi- zations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize Local 291, A. F. L., as the bargaining representative of employees in the unit sought herein. On October 23, 1945, Local 291, CIO, was certified by the Board as the bargaining agent for the same unit of employees now sought by Local 291, A. F. L 3 After certification, the Company refused to bar- gain with the CIO on the grounds that the unit found by the Board was inappropriate. As a result, unfair labor practice charges were filed against the Company on December 8, 1945.' On December 27, 1945, the executive board of Local 291, CIO, met and voted to disaffili- ate with the CIO and to affiliate with the A. F. L. This decision was the result of a long standing dispute between leaders of Local 291 and the International of the CIO in regard to the distribution of dues col- lected from the members. Within a 24-hour period, the executive board, the local officers, and approximately 95 percent of the employees represented by Local 291, CIO, voted to transfer their affiliation from the CIO to.the A. F. L.5 A charter was obtained from Building Serv- ice Employees' International Union, the new local retaining its former name and local number. Local 291, A. F. L., filed its petition herein on January 25, 1946. The CIO contends that its certification on October 23, 1945, should be binding for a period of 1 year and, further, that the Board should not proceed to a determination of representatives while unfair labor practice charges are pending against the Company. The A. F. L., on the other hand, contends that the unfair labor practices of the Com- pany were not in any way responsible for the transfer of affiliation from the CIO to the A. F. L., and that under the existing circumstances, Local 291, CIO, has ceased to be the bargaining representative of the employees in the unit sought herein. The Board has held its certification of a bargaining representative must be effective for a reasonable length of time, which, absent unusual 3 Matter of Carson Pine Scott & Company, 63 N. L . R. B. 1096. Local 291, CIO, is a community local which has also represented units in The Fair, Marshall Field & Company, The Boston, and South Center Department Store. ° Case No. 13-C-2727. The action of the employees in changing their affiliation involved all of the units of employees represented by Local 291 , CIO. However, the employees of South Center Department Store later reaffirmed their allegiance to Local 291 , CIO, what remains of the membership of Local 291 , CIO, is presently being represented by two administrators appointed by the International of the CIO to act in lieu of the officers that had transferred their affiliation to Local 291 , A. F. L. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, is customarily deemed to be 1 year.e This rule usually has been applied in cases where an apparent majority of the employees individually had joined another labor organization before the certifi- cation year had expired; thus, unlike the present case, the change in affiliation was not the result of any collective, formalized effort on the part of the employees. Here, the effect of the employees' action in voting to disaffiliate with Local 291, CIO, and form Local 291, A. F. L., was to change the very character of their bargaining representative and to raise a doubt as to the actual identity of the union certified by the Board on October 23, 1945. In an analogous situation, the Board has held that a contract is not a bar where, as here, a substantial number of the members in the contracting union have voted to affiliate with another labor organiza- tion and there is thus an unresolved doubt as to the identity of the labor organization which the employees desire to represent them.7 We see no valid reason for giving more weight to a certification than to a contract under such circumstances. The certification of a col- lective bargaining representative by the Board is but the prelude to the making of an exclusive bargaining contract, the ultimate goal in the stabilization of labor relations. Obviously, therefore, the reasons for refusing to allow a contract to bar resolution of a dispute which has arisen under circumstances such as are present here, are equally cogent when applied to a certification ; in both instances, the un- resolved doubt as to the identity of the bargaining representative serves to retard the stability in labor relations which it is the primary policy of the Act to promote. Accordingly, we find that the Board's Certification of October 23, 1945, cannot operate to bar a present determination of representatives." In regard to the CIO's further contention, it is true that the Board under normal circumstances will not proceed with a determination of representatives while charges of unfair labor practices are pending against the Company which have not been waived by the charging union for the purposes of the representation proceeding. The reason for the adoption of such a procedure is apparent,. The Board and the courts have consistently held that it is a reasonable and almost inescapable inference that any decline in union membership subse- quent to the commission of unfair labor practices by an employee has been due, in whole or in part, to such unfair labor practices.9 It is 9 Matter of Bohn Aluminum & Brass Corporation, 57 N. L. R. B. 1684, and cases cited therein. 7 Matter of Brenizer Trucking Company, 44 N. L. R . B. 810 ; Matter of Sealed Power Corporation, 41 N. L. it. B. 1225; Matter of National Lead Company, 45 N. L. it. B. 193; Matter of Olive & Myers Manufacturing Company, 59 N. L. it. B. 650. Matter of Brightwater Paper Company , 54 N. L. it. B. 1102. 8 N. L. R . B. v. Highland Park Mfg. Co., 110 F. (2d) 632 ( C. C. A. 4) ; Great Southern Trucking Company v. N. L. R . B., 139 F. ( 2d) 984 ( C. C. A. 4 ). Also, where unfair labor practice charges were filed subsequent to an election , but it is shown that the unfair labor CARSON PIRIE SCOTT & COMPANY 939 only in an exceedingly rare instance that the Board will refrain from drawing such an inference. In the instant case, however, the assumption that the loss of its majority by local 291, CIO, was attribu- table in any way to the Company's refusal to bargain is clearly rekiut- ted. The fact that an overwhelming majority of the members of Local 291, CIO, were not employees of this Company but of other Chicago department stores, convincingly shows that the vote to affili- ate with Local 291, A. F. L., could not have been the result of this Company's refusal to bargain."' In view of all the circumstances attending the transfer in affiliation, we are of the opinion, and filed, that the defection in membe.ahip from*Local 291, CIO, was not at- tributable to any alleged unfair labor practices on the part of the Company. Accordingly, we will not withhold directing an election among the Company's employees pending a determination of the un- fair labor practices charges now on file in the Thirteenth Region." In reaching this conclusion we have considered the views of our colleague and are at a loss to understand -the point of his contention that this involves a departure from precedent, since the Board has never blindly adhered to a certification in any case which has pre- sented a question of doubt as to the identity of the bargaining rep- resentative for whom the employees voted. The decisions of the Board are virtually uniform that in such circumstances the Board will solve the problem by ordering a new election. The mere fact that there has been a refusal to bargain, based entirely upon the Company's desire to test the Board's unit finding in the earlier rep- resentation case, affords no justification for departing from our normal rule of decision, since there is now a genuine doubt as to whether the intervenor is really the organization which the employees chose. We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IY. THE APPROPRIATE UNIT The A. F. L. is seeking the same unit found appropriate by the Board in October, 194512 The Company contends, as it did in the practices antedated the election , the Board has invariably set aside said election. See Matter of Wire Rope Corporation of America, Inc., 62 N. L. R. B. 380; Matter of Goodall Company, 68 N. L. R. B. 252. 10 In fact, the uncontradicted evidence reveals that when the employees in this unit met to vote on changing their affiliation , they were told that this transfer would mean a much greater delay in obtaining satisfaction against the Company for refusal to bargain as there would have to be an additional proceeding before the Board to certify the A. F. of L. local as their bargaining agent. In spite of this, the employees voted unanimously at the meet- ing to transfer their affiliation to the A. F. L. "Nothing in the above finding shall be construed as a predetermination of the issues in Case No. 13-C-2727. Iz Carson Pirie Scott & Company, supra. There are approximately 40 employees in the appropriate unit. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior case, that the unit is inappropriate. The evidence reveals no substantial change in the duties and interests of the employees in- volved since the prior Board proceeding. Accordingly, we see no reason to depart from our unit determination therein. We find there- fore that all fitters, relief fitters, tailors, tailors' helpers, pressers, pants markers, pants rippers, examiners, and machine operators, em- ployed in the men's and boys' alteration shop, section 653, of the Com- pany's retail store, except for the general office clerks, wrappers, the supervisor, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES Local 291, CIO, indicated at the hearing that in the event the Board directed an election, it might not desire to appear on the ballot. However, we shall accord Local 291, CIO, a place on the ballot, pro- vided, however, that it may withdraw its name by giving notice to the Regional Director within five (5) days of the date of the issuance of our Decision and Direction of Election herein. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. 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 Rela- tions 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 represent- atives for the purposes of collective bargaining with Carson Pirie Scott & Company, 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, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- CARSON PIRIE SCOTT & COMPANY 941 ceding 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 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 represented by Department Store Employees Union, Local 291, of the Building Service Employees' International Union, affiliated with the A. F. of L., or by Department Store Employees Union, Local 291 of the United Re- tail, Wholesale, and Department Store Employees of America, C. I. 0., for the purposes of collective bargaining, or by neither. MR. JOHN M. HOUSTON , dissenting : 1 40 I have had occasion to point out recently the damaging effect of decisions which permit attacks upon our certifications within a rea- sonable period of time after we have issued them 13 The majority now has gone beyond all previous decisions in which our certifying function was frustrated and has entertained this petition in the face of an admitted refusal to bargain with the exclusive representative. I must reiterate my disagreement. 13 See Matter of Electric Sprayit Company and Moe Bridges Corporation, 67 N. L. R. B. 780.