H.P. Wasson and Co.

H. P. WASSON AND COMPANY 249 H. P. WASSON AND COMPANY and RETAIL, WHOLESALE & DEPARTMENT STORE UNION, CIO, Petitioner. Case No. 35-RC-853. April 21, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harry Berns, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor, organization involved claims to represent certain employees of the Employer. 3. 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. 4. The appropriate unit: The Employer and the Petitioner agree generally that the appropriate unit consists of all em- ployees at the Employer's Indianapolis, Indiana, store, including truckdrivers and warehouse employees,[ but excluding em- ployees in the leased departments, carpenters, painters,: guards, professional employees, buyers, and all other super- visors as defined by the Act. The parties disagree , however, as to whether the employees in the categories listed below should be included in the unit.' The "On Call" Employees The Employer operates a department store. Its regular sales personnel consists of full-time employees and part-time em- ployees working from 8 to 36 regular scheduled hours every week. During the busy seasons, for special sales, and some- times during the absence of an unusual number of regular em- ployees, the Employer supplements its personnel by calling to work individuals on an "on call" list. This list consists of individuals, many of them former employees of the Employer, whose circumstances do not permit them to accept regular 1 The Pentioher originally excluded the truckdrivers and warehousemen. The Employer wished to include them and at the hearing introduced evidence to substantiate its position. Thereafter the Petitioner amended its petition to include the truckdrivers and warehousemen !The carpenters and painters are presently represented by craft unions of their respective trades. 5 The Employer moved to dismiss the petition on the ground that the unit requested by the Petitioner is inappropriate As the Petitioner has indicated its willingness to proceed with an election in whatever unit found appropriate by the Board and as its showing of interest is sufficient to support a petition in the unit hereinafter found appropriate , the Employer's motion to dismiss is denied. 104 NLRB No. 35. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, but who are willing to work occasionally . The parties agree to include the regula r ' full-time and regular part-time sales employees , but the Employer wishes to include and the Petitioner to exclude the "on' call" employees. Individuals may have their names placed on the "on call" list by requesting the Employer to put them there. Their names will be kept on the list until they request their removal or they are' removed by the Employer because they have refused repeated offers of employment . The Employer rotates available employment for the employees on the "on call " list by offer- ing employment opportunities in alphabetical order. Of the 64 employees on the list, 21 did not work at all during the period of January 1 to February 24, 1953, the date of the hearing, and, an additional 27 averaged less than 1 day of work a week during this period . The "on call" employees , when working , are sub- ject to generally the same conditions of employment as the full -time'-or regular part-time employees . However, unlike regular `full - and part -time employees , " on call" employees are not 'attached to any one department but work wherever they are needed ; they do not participate is the vacation, in- surance, and mutual benefit plans available to most other employees of the Employer;4 and they may use their discount privileges only on the day they actuallyworkfor the Employer. The Board ' s unit findings are based upon functionally related occupational categories irrespective of the number of hours of employment .s As "on call" employees perform the same functions as do regular full -time and part -time employees, they must necessarily be included in the unit. In view of their limited and irregular employment , however, we find that the "on call" employees of the Employer are essentially casual, rather than regular part -time employees . Therefore , although the nature of their work warrants their inclusion in the unit, we find them ineligible to vote.6 The Alleged Supervisors The Petitioner contends , and the Employer denies, that the individuals in the categories discussed below are supervisors and should be excluded from the unit. The assistant buyers : Each of the Employer ' s selling de- partments is in the charge of a buyer , an admitted supervisor who, in most instances , is assisted in his duties by an assistant buyer . Depending on the department in which they work, as- sistant buyers spend from 5 to 80 percent of their time selling to customers . The rest of their time is spent on merchandising work, such as maintaining inventories , inspecting merchandise, and answering questions from sales personnel . Their method of compensation varies from department to department, but 4Regular part- time employees who work less than 2 days a week are also not eligible for vacation benefits and those who work less than 33 hours a week are not eligible for insurance or mutual aid benefits. s J. C. Penney Company, 86 NLRB 920. 6Cf. S & L Co. of Pipestone , 96 NLRB 1418; Silverwood 's, 92 NLRB 1114. H. P. WASSON AND COMPANY 251 their total earnings are generally somewhat higher than those of the sales personnel and considerably belowthat of the buyers. Like the buyers they receive sick leave but no overtime. With the exception of the assistant buyer in the shoe depart- ment, who is separately considered below, assistant buyers have no authority to hire, discharge, or transfer employees, or effectively to recommend such action. They do not partici- pate in the merit rating of sales personnel. Their authority over the sales personnel is limited to assigning a salesperson to a customer if the salesperson has not become aware of the customer. They may approve the return of merchandise on routine returns, but have to get the approval of either the buyer or section manager if anything but a routine return is involved. During the absence of the buyer, the assistant buyer is re- sponsible for the routine operations of the department in accord- ance with prescribed rules of operation. If matters arise necessitating the exercise of independent judgment, he must consult the merchandise manager for his department. On the basis of this record, we believe that assistant buyers are essentially administrative assistants with routine and inter- mittent powers of direction.T Accordingly, we find that as- sistant buyers, other than the assistant buyer in the shoe department, are not supervisors and shall include them in the unit. , The assistant buyer in the shoe department is in charge of the children's shoe section, where he divides his time between selling and merchandising functions. There are two other salespersons in the children's shoe section. The assistant buyer in that section may reprimand these individuals and recommend their hire and discharge and,is consulted on their merit ratings. Under these circumstances, we find that the assistant buyer,,in the shop department is a supervisor and shall exclude him from, the unit.8 , The section managers : Individuals in this category are as- signed to areas on the selling floors generally comprising more than one selling department. They answer questions from customers, approve returns, watch for, and report fires and injuries, and, approve employee discounts„ They also check on the number of salespersons in each department and, if they consider it necessary, they may, with the approval of the buyers involved, transfer employees-from one department to another., They report infractions of the rules by sales- persons to their, supervisors, although without recommenda- tions; report the progress of new employees to the personnel department and to the employee training department; and assign employees their work stations and relief and lunch periods. They arrive at work earlier and leave later than the sales personnel; in most cases their salary exceeds the earnings of the sales personnel; and they attend super- visory meetings. Under all the circumstances, we find that TMaas Brothers, Inc., 88 NLRB 129. 8 Bonwit Teller, Inc., 84 NLRB 414. 9Buyers cannot transfer salespersons from one department to another. 2 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the section managers are supervisors within the meaning of the Act . Accordingly , we shall exclude them from the unit. Assistant in the alteration department: This individual works as a fitter in the alteration department . Her authority over the employees in that department is limited to seeing that, in the absence of her supervisor , the work is evenly distributed among the other fitters. As her powers of direction are routine and intermittent , we find that she is not a supervisor within the meaning of the Act and shall include her in the unit. Assistant in the fur workroom : This individual works as a cutter in the fur workroom. In the absence of the head of the fur workroom , he gives customers estimates on the cost of fur alterations and repairs . On occasion , other cutters also give customers estimates . He has no supervisory authority of any kind over the employees in the fur workroom. Under these circumstances , we find that he is not a supervisor with- in the meaning of the Act and shall include him in the unit. The assistants in the receiving and display departments': These individuals assist the managers of their respective departments by transmitting their instructions to the other employees in the department . They have no supervisory au- thority over these employees . Under these circumstances, we find that they are not supervisors within the meaning of the Act and shall include them in the unit. The assistant to the superintendent of the delivery depart- ment: This individual assists the superintendent of the delivery department by performing office work in connection with the Employer's deliveries. He has no supervisory authority over the truckdrivers or other employees in the delivery depart- ment. We find that he is not a supervisor within the meaning of the Act and shall include him in the unit. The supervisor of warehouse employees : This individual is the only person in immediate charge of the 4 stockmen at the warehouse . He works directly under the purchasing agent whose office is at the main store , 1 mile distant from the warehouse . He assigns the stockmen to certain loading and unloading jobs and is responsible for seeing that merchandise is properly distributed on the various floors of the warehouse. He is consulted in regard to the giving of merit ratings. We find that he a supervisor and shall exclude him from the unit. Group leader of the appliance repairmen : The Employer employs four service repairmen in its service division who see that appliances sold by the Employer are in proper work- ing condition before they leave the warehouse and who make repairs on appliances sold by the Employer, at the customers' homes . Ford, the most experienced of these repairmen, is designated as the group leader and receives about $10 a week more than the others . He is apparently responsible for the operation of the service division , which is headquartered in the warehouse ; he works directly under the purchasing agent who, as pointed out above , has his office at the main store; and he reports on the work done by the other service repairmen to the purchasing agent. We find that Ford, the group leader of the appliance repairmen , responsibly directs H. P. WASSON AND COMPANY 253 the work of the other repairmen. Accordingly, we find that he is a supervisor within the meaning of the Act and shall exclude him from the unit. Head of the shopping service: This individual takes telephone and mail orders and assigns other employees in her depart- ment to fill these orders. These assignments are routine and do not require the exercise of independent judgment. She is neither vested with, nor exercises, supervisory authority. Under these circumstances, we find that the head of the shop- ping service is not a supervisor within the meaning of the Act and shall include her in the unit. The Alleged Confidential Employees The Petitioner contends and the Employer denies that the employees in the categories discussed below are confidential employees and should be excluded from the unit. The assistant in the personnel department and the secre- taries to executives: Labor relations policies of the Employer are formulated by its top executives andthe personnel director. In connection with the formulation of such policies, these executives and the personnel director dictate letters and require the typing of materials by the two secretaries serving the executives and by the assistant in the personnel depart- ment. In addition to these duties, the assistant in the personnel department keeps records on merit ratings. She also interviews applicants for jobs, eliminates the most obviously unfit, and, in the absence of the personnel director, rates the aptitude tests submitted in connection with the applications. We find that the secretaries to the executives and the assistant in the personnel department are confidential employees and shall exclude them from the unit.1o The assistant traffic manager, the assistant manager in the credit department, the secretary to the credit mans er, the accountant, and the head of a-i[justments: The record does not indicate that any of these employees is in any way connected with the formulating of labor relations policies or serving in a confidential capacity to individuals formulating such policies. We find that they are not confidential employees and shall include them in the unit.li The employee counselor : This individual reports directly to the store manager. She is available to employees for counsel- ing on personal as well as work problems. Although she does not adjust grievances , she discusses them with management. She also checks the Employer's cafeterias and restrooms to ascertain whether they are operating according to the Em- ployer's standards. She attends funerals in employees' families and visits ill employees. We believe that her duties are 10 Copperweld Steel Company , 102 NLRB 1229; Ohio Steel Foundry Company, 92 NLRB 683. It is not clear whether the Petitioner wishes to include or exclude the clerk in the personnel department. As the record does not indicate that she is either a confidential em- ployee or a supervisor , we shall include her in the unit. 11 Siverwood 's, 92 NLRB 1114. It is also clear that these individuals are not supervisors. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diverse from those of the other employees and shall exclude her from the unit.12 The head of accounts receivable and the audit manager: It is clear from the record that these individuals are not con- nected with the formation of labor policies of the Employer or serving in a confidential capacity to individuals formulating such policies. Accordingly, we find that the head of accounts receiv- able and the audit manager are not confidential employees of the Employer. The record indicates, however, that they may be supervisors, although the evidence is not sufficient to make a finding in this regard. We shall permit the head of accounts receivable and the audit manager to vote subject to challenge. In the event that the counting of their ballots will affect the outcome of the election, a further investigation will be conducted to determine their supervisory status. The comparison shoppers: The Petitioner contends and the Employer denies that these employees should be excluded from the unit on the ground that their interests are separate from those of the other employees. The Employer's four comparison shoppers check prices and availability of merchandise at other stores. They are subject to the same personnel policies and receive the same benefits as do other employees of the Em- ployer. We find that they have the same interests as the em- ployees whom the Petitioner seeks to represent and we shall, therefore, include them. Accordingly, we find that all regular full-time and part-time employees at the Employer's Indianapolis, Indiana, store, in- cluding truckdrivers and warehouse employees, assistant buyers other than the assistant buyer in the shoe department, the assistants in the display, receiving, and alteration depart- ment and in the fur workroom, the assistant managers in the traffic and credit departments, the assistant to the superin- tendent in the delivery department, the head of the shopping service, the clerk in the personnel department, the secretary to the credit manager, the accountant, the head of adjustments, the head of accounts receivable, the audit manager,ls and the comparison shoppers, but excluding employees in the leased departments, carpenters, painters, guards, professional employee,s, the assistant in the personnel department, the secretaries to the executives, the' employee counselor, the section managers, the assistant buyer in the shoe department, the supervisor of the warehouse employees, the group leader of the appliance repairmen, and all other supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 14 [Text of Direction of Election omitted from publication-] "Cf. The Firestone Tire and Rubber Company, 73 NLRB 691. is For the reasons set forth above, the inclusion of the head of accounts receivable and the audit manager is solely for the purpose of permitting them to vote subject to challenge and is not to be taken as a final determination of their supervisory status. t4As found hereinbefore, although the "on call" employees are included in.the unit, they are ineligible to vote.