Sears, Roebuck & Co.

In the Matter of SEARS, ROEBUCK & Co., EMPLOYER and DEPARTMENT STORE EMPLOYEES DIVISION, UNITED OFFICE AND PROFESSIONAL WORKERS OF AMERICA, C. I. 0., PETITIONER In the Matter of SEARS, ROEBUCK & Co., EMPLOYER and AMERICAN FEDERATION OF LABOR, PETITIONER Cases Nos. 10-R-1986 and 10-R-1940, respectively.Decided Feb- ruary 1 2, 1948 Mr. Harry H. Kahn, of Chicago, Ill., for the Employer. Mr. Edwin E. Waller, of Miami, Fla., for the UOPWA. Mr. Clyde Foster, of Miami, Fla., for the AFL. DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed, a consolidated hearing in these cases was held at Miami, Florida, on June 27, 1946, before Alba B. Martin, 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 Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Sears, Roebuck & Co., a New York Corporation, is engaged in -the operation of a retail department store in Miami, Florida. During the past year, the Employer purchased in excess of $1,000,000 worth of merchandise, approximately 90 percent of which originated outside the State of Florida. During the same period the Employer's retail sales exceeded $1,000,000, approximately 4 percent of which represented shipments outside the State of Florida. We find that the Employer is engaged in commerce within the mean- ing of the Act. 1 Pursuant to Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board his delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [Houston, Reynolds, and Gray] 76 N. L. R B , No. 25 167 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED American Federation of Labor, herein called the AFL, is a labor organization claiming to represent employees of the Employer. United Office and Professional Workers of America, Department Store Employees Division, affiliated with the Congress of Industrial Organizations, herein called the UOPWA, is a labor organization, claiming to represent employees of the Employer.' III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize either of the petitioning labor organizations as the exclusive bargaining representative of employees of the Employer until it has been certified by the Board in an appro- priate unit. We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The AFL and the UOPWA contend that employees at the Employer's Miami store, including selling and non-selling employees, constitute an appropriate unit. The Employer, in effect, contends that selling and non-selling employees should not be combined in the same unit. All parties agree that employees of the personnel department, security department, the store manager and his secretary, and the superintend- ent and his secretary should be excluded. They further agree that extra and part-time employees, supervisors and confidential employees should be excluded front the unit. Although all parties agree with respect to the exclusion of confidential employees, they disagree as to the confidential status of the employee discussed below. The Employer operates a retail department store, a gasoline service station, an automobile accessory store, and a parking lot. In connec- tion with the operation of its retail department store, the Employer maintains a warehouse which is located approximately 1 mile from the store. The service station and automobile accessory shop are located across a narrow street from the main store. The parking lot is 2 The Employer contended, at the hearing, that United Office and Professional Workers of America is not a labor organization and has no authority to represent the Employer's employees The term "labor organization " under the piovisions of Section 2 (5) of the Act, means, "Any organization of any kind, or any agency or employee representation committee or plan, in which employees paiticipate and which exists for the purpose, in whole or in part, of dealing with employers concerning gisevances , labor disputes , wages, rates of pay, hours of employment, or conditions of work." Inasmuch as UOPWA is clearly within the scope of this definition , we find no merit in the Employer 's contention. SEARS, ROEBUCK & CO. 169 adjacent to the service station and accessory shop. During the course of its operations the Employer employs approximately 350 employees, all of whom are under the supervision of the store's general manager. Each department is under the supervision of a division or department manager; in addition each department has an assistant manager who takes charge of the department during the absence of the division manager.3 As previously noted, the Employer objects to the inclusion of selling and non-selling employees in the same unit on the ground that the two groups lack community of interest. Accordingly, it desires to exclude from the appropriate unit all employees employed in its ware- house, mechanical service shop, gasoline service station, automobile accessory shop, receiving room, supplies, maintenance department, furniture set-up employees, shipping platform employees, the pas- senger elevator operators, employees in the radio repair room, and tailor shop, and the parking lot attendant. The record shows that all employees, both selling and non-selling, are employed by the Employer's personnel department; are paid on an hourly basis; participate in the same employee benefits and privileges, such as group insurance, cash discounts, profit-sharing, sick leave and vacations; and use the same employee facilities. Upon the basis of the foregoing, we are of the opinion that selling and non-selling em- ployees have common interests and that they may be included in the same unit for the purposes of collective bargaining. The Employer urges that all employees who have knowledge of or are in a position to have knowledge of the Employer's business and financial operations or its labor relations, are confidential employees and should be excluded from the unit. On this basis the Employer would exclude all employees of the auditing, customers' service, cashier, merchandise, advertising and display, receiving, and credit depart- ments, and telephone operators. We do not agree. While it is true that, in the performance of their duties, all the foregoing employees have or may have access to information concerning the Employer's financial and business operations and to other data, the record discloses that these employees do not assist or act in a confidential capacity to persons exercising managerial functions in the field of labor relations. We shall, therefore, include. them in the unit.4 Accordingly, we find that all employees at the Employer's Miami store, including selling and non-selling employees, but excluding extra and part-time employees, employees of the personnel and security 3 The record shows that the various assistant division managers direct the working force under them and are supervisors as defined in the Act. 4 Mattel of Phillips Petroleum Company, 73 N L R B. 236 ; Matter of Sheffield Farms Company, Inc., 73 N. L. R B 572 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departments, confidential employees, and the store manager and his secretary, the superintendent and his secretary, division managers, assistant division managers, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 5 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Sears, Roebuck & Co., Miami, Florida, 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 Direc- tor for the Tenth Region, and subject to Sections 203.61 and 203.621 of National Labor Relations Board Rules and Regulations-Series 5, 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, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by American Federation of Labor for the purposes of collective bargaining. " We shall not place the UOPWA on the ballot, in the election hereinafter directed, inas- much as it has failed to comply with Section 9 (f) and ( h) of the Act. Matter of Wilson Transit Company, 75 N L R B. 181, Matter'of Sigmund Cohn & Co., 75 N L R. B. 177.