Louis Pizitz Dry Goods Co.

In the Matter of Louis PIZITz DRY GOODS COMPANY, EMPLOYER and RETAIL, WITOLESALE AND DEPARTMENT STORE EMPLOYEES UNION, CIO, PETITIONER Case No. 10-R-1822.-Decided November 5, 194( Mr. Kenneth, Perrine, of Birmingham, Ala., for the Employer. Mr. John, J. Sch,uiter, of Birrniiighani, Ala., for the Petitioner. Mr. Thar ren H. Leland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held on July 11 and 12, 1946, at Birmingham, Alabama, before Frederick A. Aicher, hearing officer. At the hearing, the Employer moved to dis- miss the proceeding. The motion is hereby denied.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT T. TIlE-BUSINESS OF TIIE EMPLOYER Louis Pizitz Dry Goods Company, an Alabama corporation, main- tains a warehouse, and a department store in Birmingham, Alabama. ' In support of its motion to dismiss, the Employer contends (1) that it is not engaged in commerce within the meaning of the Act; (2) that the Petitioner has failed to meet the registration and/or the filing of annual reports requirements of an Alabama statute, known as the Bradford Act, and hence is disqualified from representing the employees of the Employer; and (3) that while the Petitioner's Local 436 may have an interest among its employees, the -Petitioner itself has no such interest, because authorization cards sub- mitted to the Board designated the local and not the Petitioner. Upon the facts set forth in Section I. infra, we later find that the Employer's first con- tention is without merit For reasons set forth in a previous proceeding in which the Em- plover was involved (Matter of Louis Pizitz Dry Goods Company, 56 N. L R B 1026), we hereby reject the Employer's second contention And we also are of the opinion that the Employer's third contention lacks merit we have held that the requirement that a petitioning union submit proof of representation is but an administrative' expedient "adopted to enable the Board to determine for itself whether or not further proceedings are warranted . . " Matter of 0 D. Jennings d Company, 68 N L R B 516 We are satisfied, moreover, that the Petitioner has a substantial interest in this proceeding, mas- mnuch as its local is merely one of its branches. 71NL14B,No.84. . 579 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This proceeding is concerned only with the Employer's department store. During the past year the Employer purchased a variety, of merchandise for its department store, valued at approximately $5,000,000, of which about 80 percent was received from points outside the State of Alabama. During the same period the value of merchan- dise sold at the Employer's department store approximated $8,000,- 000. Also during the same period the store's mail order business approximated $100,000 in value, of which about $3,000 worth of merchandise was shipped to points outside the State of Alabama. Despite the Employer's contention to the contrary, we find that it is engaged in commerce within the meaning of the National Labor Relations Act.2 11. TIIE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer .3 III. THE QUESTION CONCERNING REPRE SENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit of all employees of the Employer who are directly engaged in the retail sale or handling of merchandise, and who maintain and service the building , excluding maintenance employees who are represented by other unions . The Employer con- tends, however, that substantially a store-wide unit is appropriate.' As a result of this dispute, there are specific employees whom the Petitioner would exclude and the Employer would include; these employees are discussed below. In addition , there are employees whom the Petitioner would include and the Employer would exclude; these employees are also treated below. Finally , there are employees whom the Petitioner would include and concerning whom the Enm- 2 See Matter of J. L Brandeis it Sons, 53 N L R B 352 , and cases cited therein We have previously asserted jurisdiction over the Employer 's store. Matter of Louts Ptiznt.: Dry Goods Company, supra $ Evidence adduced at the hearing discloses that the Petitioner is clearly a labor organi- zation within the meaning of the National Labor Relations Act. The parties agree to include those employees listed in Appendix A, attached hereto , and they agree to exclude those employees listed in Appendix B, also attached hereto. LOUIS PIZITZ DRY GOODS COMPANY 581 ployer takes no clear position, and an employee whom the Employer would include and concerning whom the Petitioner takes no clear position; we also consider these employees below. A. Employees whom the Petitioner would exclude and the Employer would include Office and clerical employees: There are certain office and clerical employees whom the parties agree to include 5 and there are other office and clerical employees' whom the Petitioner would exclude as workers not directly engaged in retail sale or handling of merchandise. We are satisfied, however, that all of the office and clerical employees are bound by a strong community of interest. The record reveals, moreover, that all of these employees are subject to the store rules and regulations and that they have similar working hours and conditions of employment. Accordingly, we shall include all office and clerical employees. Trainee buyers, and assistant buyers: The record reveals that neither the trainee buyers nor the assistant buyers now possess marked supervisory authority. Nevertheless, they are being trained for supervisory positions. On the basis of their functions and their posi- tion in the store hierarchy, we shall exclude them.7 The engraver in the stationery department: This employee hand engraves initials on stationery with the use of a vise and engraving tools. Although he does no selling, he performs his work on the sell- ing floor and actually handles stationery which is sold by the Em- ployer. Accordingly, we shall include him. The engraver in the men's furnishing department: This employee engraves belt buckles in the men's furnishing department. He occu- pies a position similar to that of the engraver in the stationery de- partment. Accordingly, we shall also include the engraver in the men's furnishing department. Candy workroom employees: These employees are candy makers. Their product is sold by the Employer. We shall include them. Shoe repair department employees: These employees are principally engaged in shoe building, shoe rebuilding, and shoe repair. All are located on the selling floor and sell articles such as laces, heels, 'and polish. We perceive no valid distinction between the duties of em- ployees in this department and those of employees in other depart- 5 These employees are the markers , pickup boys , sheetwriters, order fillers , authorizers and stock clerks, all of whom are listed in Appendix A. ° Among these employees are adjustment clerks, tracers, mail clerks, telephone operators, receiving clerk, multigraph operators , employees in the treasurer's department, employees in the auditing department, employees in the accounts receivable department , employees in the accounts payable department , office cashiers , file clerks, statisticians , invoice clerks, order checkers , tube room cashiers , and floor cashiers. 7 See Matter of J. L. Brandeis & Sons, 54 N. L . R B 880. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meats, who are hereinafter included in the appropriate unit. Al- though the department is operated as a concession, the record reveals that when an employee is hired, the Employer inserts an advertisement in the newspaper requesting individuals with specific qualifications to call at its employment office. Thus, persons who respond to the ad- vertisement are then interviewed in a manner similar to that of any other prospective employee of the Employer. While the concession- aure sets the salary of employees in his department, it must meet the scale set by the Employer. Employees in the concession are paid by the Employer, who, in turn, is reimbursed by the concessionaire. The Employer reports employees in this department for Social Security purposes. We are satisfied that employees in the shoo repair depart- ment are ennployeps of the Employer within the meaning of the Act who should be included in the unit. Accordingly, we shall include all but the concessionaire himself. Interior decorators: These employees are not attached to any special department and frequently leave the store to advise customers with reference to home furnishings. They receive commissions on sales. We are satisfied that they have interests intimately related to those of other employees who are included in the unit. We shall, therefore, in- clude them. Promotion department: This department is comprised of a public relations manager, assistant advertising maliager, copy writer, assist- ant display manager, window dressers, sign writers, artists, personal shoppers and the customer relations manager. We are convinced that these employees are professional workers with interests basically un- related to those of other employees included in the unit. Accordingly, we shall exclude them.8 Operations department purchasing agent: This employee purchases paper, twine, packing materials, and stationery for the store and the shops for prices and samples. He also acts as a floor walker a substan- tial part of his working time. As hereinafter indicated, floor walkers are included in the unit. Accordingly, we shall include the operations department purchasing agent. Floor walkers: These employees answer customers' questionns, report under-staffed departments to buyers, Fund direct sales people to waiting customers. It is clear that they do not possess supervisory authority. We are of the opinion that floor walkers have interests intimately re- lated to those of other employees included in the unit. Consequently, we shall include floor walkers. Nurse: This employee operates a small dispensary for sick cus- tonners and employees. She is clearly it professional worker. We shall exclude her.° 8 See Matter of Montgomery Ward and Company , Inc, 64 N L B. B 674 9 See Matter of Montgomery Ward and Company , Inc, 53 N L B . B. 1300 LOUIS PIZITZ DRY GOODS COMPANY 583 Housekeeper: Charged with the responsibility of maintaining san- itary conditions throughout the store, this employee supervises the porters and maids. We shall exclude her as a supervisory employee. Appliance service man: This employee services appliances for cus- tomers in their homes, and he also demonstrates their use in the store. He is clearly engaged in the handling of merchandise for retail sale. We shall include him in the unit. Monogram, machine operator: This employee, who works side by side with sales personnel, operates a monogram machine which initials linens and handkerchiefs. We are satisfied that she occupies a position similar to that of the engravers in the stationery and men's furnishing department. Accordingly, we shall include her. Art needle-work instructors, hemstitchers and buttonholers: The record reveals that these employees perform finishing operations on items sold in the department. They carry their own sales tickets and work with sales people in the department. The duties of these em- ployees are akin to those of other employees included in the unit. Therefore, we shall include them. Technicians, receptionist, and dispensers in the optical department: The technicians grind and polish lenses and sometimes sell merchan- dise; the dispensers sell optical findings; and the receptionist routes customers to the optometrist 1° We are persuaded that these employees have interests intimately related to those of other employees included in the unit. Accordingly, we shall include them. Photographic department employees: The employees of the conces- sionaire of this department, a concession, are engaged in the retail sale of photographs. We are satisfied that they are employees of the Employer within the meaning of the Act. Accordingly, we shall in- clude them. Beauty shop department employees: This department is comprised of beauticians, hair stylists, manicurists, and similarly engaged em- ployees. We can perceive no valid distinction between employees in the beauty shop department and other employees who are included in the unit. We shall, therefore, include the beauty department em- ployees. Warehouse manager: This employee directs and supervises the activi- ties of a number of subordinates who place merchandise in its proper place in the warehouse. As a supervisory employee, he will be excluded from the unit. Layaway department supervisor: This employee directs the activities of subordinate workers, who store merchandise until the customer is 10 The optometrist, listed in Appendix B, is excluded as a professional worker by agreement of the parties. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ready to claim it. As a supervisory employee, he'will be excluded from the unit. Stock manager: This employee directs the activities of stock clerks in the stock room. As a supervisory employee, he will be excluded from the unit. Assistant credit manager and the installment collection manager: Although these employees do not possess marked supervisory authority, they are being trained for supervisory positions. On the basis of their functions and their position in the store hierarchy, we shall exclude them. B. Employees whom the Petitioner would include and the Employer would exclude Demonstrators: These employees,who work in various departments, are specially trained sales people retained by manufacturers to sell their products in the Employer's store. The regular wages of demon- strators, however, are usually paid by the Employer who, in turn, is reimbursed by the manufacturers. In the hiring of demonstrators, the Employer usually selects two or three individuals who, it believes, will be suitable for the manufacturer, and the manufacturer then selects one. Demonstrators sometimes make sales of store merchandise other than those products they are demonstrating. Evidence adduced at the hearing discloses that the hours and working conditions of demonstra- tors do not vary from those of other employees. The demonstrators are subject to the general store rules and regulations governing the work of all employees in the store. It is clear that the Employer has considerable control over the discharging of demonstrators. We are satisfied that demonstrators are employees of the Employer within the meaning of the Act, and that they have a strong community of in- terest with other employees included in the unit. Accordingly, we shall include the demonstrators." C. Employees whom the Petitioner would include and concerning whore, the Employer takes no clear position Dressmaker, silk-goods department: This individual, a concession- aire, is self-employed. We shall exclude her. The key department employees: Employees in this department, a concession which has not yet begun to operate, will sell new locks, repair old locks, and make and sell new keys. As in the case of the shoe repair department employees, we are satisfied that personnel of the key department are employees of the Employer within the meaning " See Matter of May Department Stores Company, 59 N L R B 976 Matter of May Denartneent Stores Company, 54 N L R B 230 , and Matter of Hale Brothers Stores, Inc. 62 N. L. R. B. 367. LOUIS PIZITZ DRY GOODS COMPANY 585 of the Act. We shall include the key department employees, except for the concessionaire himself. The watch repairman: This employee repairs watches in a depart- ment operated as a concession. As in the case of the shoe repair de- partment, we are satisfied that he is an employee of the Employer within the meaning of the Act. Accordingly, we shall include him. D. The employee whom the Employer would include and concerning whom the Petitioner takes no clear position The watchman: This employee stays in the store at night, works at the A. D. T. clock, and inspects for fire and leakage. We are satisfied that he is engaged in duties relating to the maintenance of the store, and has interests intimately related to those of other employees in the unit. We shall include the watchman.12 We find that all employees of the Employer directly engaged in the retail sale or handling of merchandise, and who maintain and service the building, including all office and clerical employees," the engraver in the stationery department, the engraver in the men's furnishing department, candy workroom employees, shoe repair department em- ployees, interior decorators, the operations department purchasing agent, floorwalkers, the appliance service nnan, the monogram machine operator, art needle-work instructors, hemstitchers and buttonholers, technicians, receptionist and dispensers in the optical department, photographic department employees, beauty shop department em- ployees, demonstrators, key department employees, the watch repair- man, the watchman, and those employees listed in Appendix A, attached hereto, but excluding concessionaires, trainee buyers and assistant buyers, promotion department employees, the nurse, the housekeeper, the warehouse manager, the layaway department super- visor, the stock manager, assistant credit manager, installment collec- tion nmanager, maintenance employees represented by other unions, employees listed in Appendix B, attached hereto, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend such action,' constitute a unit appropriate for the purposes " See Dotter of the May Department Stores Company, supra 13 Among these employees are adjustment clerks , tracers, mail clerks , telephone operators, receiving clerk , multigraph operators , employees in the treasurer 's department, employees in the auditing department , employees in the accounts receivable department , employees in the accounts payable department , office cashiers , file clerks , statisticians , invoice clerks, order checkers , tube room cashiers , and floor cashiers. 14 Excluded from the unit as supervisory employees are the delivery superintendent, the comptroller, and the accounts payable department supervisor The record indicates that these employees fall within the meaning of definition of supervisory personnel. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Louis Pizitz Dry Goods Com- pany, Birmingham, Alabama, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) clays from the date of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay- roll period immediately preceding the date of this Direction, includ- ing 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 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 or not they desire to be represented by Retail, Wholesale and Department Store Employees Union, CIO, for the purposes of collective bar- gaining. APPENDIX A Sales people in the following Departm en,ts Hosiery Gloves Notions Tobacco Men's Hats Boys' Clothing and Furnishing Linen Pattern Fur School Books Ladies' Shoes Mien's Shoes, etc. (p. 77) Pictures and Mirrors Novelties and Jewelry Books and Fiction Sewing Machines E'inployees Porters Maids Elevator Operators Freight Elevator Starter Passenger Elevator Starter Paper Balers Delivery Drivers Delivery Helpers Pickup Boys Slieetwriters Order Fillers Craters Wrappers and Packers Millinery Designers Selling Assistant to the Floral Designer LOUIS PIZITZ DRY GOODS COMPANY 587 Sales people in the following Departments Bakery Goods Lingerie Ladies' Dresses Ladies' Suits and Coats Drugs Housedresses Wallpaper and Paint Foundation Garments Children's and Infants' Wear Sportswear Housecoats and Robes Music Millinery Housefurnishing Lamps Toys Drapery Rugs Major Appliances Furniture Flowers Employees Employees in the Prescription Department Layaway Department Authorizers and Stock Clerks Markers APPENDIX B Construction Foremen Carpenters Painters Electricians Air Conditioning Engineers Cabinetmakers Furniture Refinishers Laborers Draftsmen Culinary and Restaurant Em- ployees Soda Fountain Employees Pitchmen Detective Chief Cashier Confidential Secretaries Alteration workers covered by ILGU contract "Extra" Employees : Optometrist Paymaster Pay-roll clerks