Sears-Roebuck & Co.

In the Matter of SEARs-ROEBUCK & COMPANY, EMPLOYER and RETAIL CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION, AFL, LOCAL UNION No. 368, PETITIONER Case No. 16-R-1859.-Decided February 12, 1947 Mr. Philip C. Lederer, of Chicago, Ill., and Messrs. Alex F. Weis- berg and J. Hart Willis, both of Dallas, Tex., for the Employer. Mr. L. N. D. Wells, Jr., of Dallas, Tex., for the Petitioner. Mr. Warren H. Leland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Dallas, Texas, on October 30, 1946, before Glenn L. Moller, hearing officer. 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 I. THE BUSINESS OF THE EMPLOYER Sears-Roebuck & Company, a New York corporation with principal offices in Chicago, Illinois, is engaged in the business of merchandising, in connection with which it operates retail stores and mail order houses in various States. This proceeding is concerned only with the' Employer's Lamar Street retail store in Dallas, Texas. Annually, the Employer receives at this store, merchandise from points outside 1 At the hearing, the Employer objected to a line of questioning by the hearing officer which related to the appropriate unit, on the ground that the particular matters under examination had been agreed upon between the Employer and the Petitioner . Although agreement by the parties is a factor considered by the Board in these matters, the ultimate determination of the appropriate unit is in each case exclusively within the Board's admin- istrative discretion . N. L. R. B. v. Hearst Publications, 322 U. S. 111 , 134; May Depart- ment Stores v. N. L. R B, 326 U S 376, 379-380 ; N. L. R. B v. Norfolk Southern Bus Corporation, 159 F. ( 2d) 516 (C C A. 4) We therefore affirm the propriety of the healing officer 's examination of witnesses . N. L. R. B. v Frank Bros Co, 137 F. (2d) 989, 991 (C C A 1), affirmed 321 U S. 702; N L R. B. v. Newberry Lumber Chcmieal Co, 123 F (2d) 831, 838 (C C. A 6). 72 N. L. R. B., No. 108. 566 SEARS-ROEBUCK & COMPANY 567 the State of Texas valued in excess of $1,000,000. During the same period, the Employer ships from this store to points located outside the State, merchandise valued in excess of $25,000. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION 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 meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit comprised of all employees at the Em- ployer's Lamar Street retail store, excluding office and clerical em- ployees, service department employees, tailor shop employees, the seamstresses in the drapery department, cashiers, personnel depart- ment employees, advertising department employees, contingent and extra employees, department heads and assistant department heads, and all other supervisory employees. The Employer agrees generally with the appropriateness of the unit sought 2 except that it would also include employees of the service department and the tailor shop and the seamstresses in the drapery department. Service department employee: There are approximately 28 em- ployees in the service department whose function it is to repair, adjust, and explain to customers the operation of various household items, such as refrigerators, stoves, and radios, sold by the store. They also sell replacements and other articles of repair for these items. These employees are located on the main floor of the store, and have actual contact with customers of the Employer. Although these service department employees are sometimes engaged in installing and repair- ing equipment in customers' homes, their hours and general working conditions are substantially the same as those of other employees in the unit. Accordingly, we shall include them in the Unit .3 2 The parties also agree that the unit of the Lamar Street store includes the farm store, nursery, and automobile service station owned by the Employer, and which are located directly across the street from the principal store 3 See Matter of Sears, Roebuck and Co., 66 N. L. R. B. 285, 289. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seamstresses in the drapery department, and tailor shop employees: There are five seamstresses in the drapery department whose duties consist of cutting, making up, and sewing of draperies, slip covers, and other upholstery material. The tailors are engaged in altering ready-made garments in order to complete them for delivery. These employees possess skills substantially different from those of the other employees involved herein to justify their exclusion from the Unit .4 Accordingly, we shall exclude them from the unit. We find that all employees at the Employer's Lamar Street retail store, including service department employees, but excluding office and clerical employees, the seamstresses in the drapery department, tailor shop employees, cashiers, personnel department employees, ad- vertising department employees, contingent and extra employees, de- partment heads, and assistant department heads, and all other super- visory employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or effec- tively recommend such action, constitute a unit appropriate for the purposes 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 pur- poses of collective bargaining with Sears-Roebuck & Company, Dallas, Texas, an election by secret ballot shall be conducted as early as pos- sible, but not later than thirty (30) days from the date of this Direc- tion, under the direction and supervision of the Regional Director for the Sixteenth 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, 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 or not they desire to be represented by Retail Clerks International Protective Association, AFL, Local Union No. 368, for the purposes of collective bargaining. - * See Matter of May Department Stores Company, 50 N. L. R. B 669; and Matter of Carson Pirie Scott, 69 N. L R. B. 935