Sears, Roebuck & Co.

SEARS, ROEBUCK & COMPANY 311 SEARS, ROEBUCK & COMPANYand RETAIL UNION OF NEW JERSEY, LOCAL 108, affiliated with RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, CIO, Petitioner. Case No. 4=RC-1898. April 2Z, 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 Leonard C. Gilbert, hearing officer. The hearing officer's rulings made at the hearing are free from prejudical error and are hereby affirmed. 1, 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 Peter- son] . Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning 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: I At the outset of the hearing; the Employer moved to dismiss this proceeding on the grounds that ( 1) the hearing officer was disqualifiedbecause he had participated in the investi- gation of unfair labor practice chargespreviouslyfiled against the Employer by the Petitioner, and (2) these charges should have been processed before any action was taken on the petition. In support of the first motion, which the tl>;aring officer denied, the Employer relied upon Section 5 (c) of the Administrative Procedure Act (Public Law 404. 79th Cong ., Chap. 324; 5 U.S.C;A. Sec. 1001, et seq). As proceedulg.$ involving certification of employee representa- tives are specifically excepted from Sections 5, 7, and 8 of the Administrative Procedure Act, we find no merit in this motion . See Angelus Chevrolet Co., 88 NLRB 929; Deep Oil Develop- ment Company, 74 NLRB 941. With respect to the second motion, which the hearing officer also denied, it appears that ttie Piiitioner filed a waiver of its right to object to this pro- ceeding on the basis of the charges it had filed against the Employer. The Board has repeatedly held that it will hot, under such circulnstanccs, delay a representation proceeding. South- western Michigan Broadcastit Coluipany, 94 NLRB 30; Stow and Davis Furniture Co., 92 NLRB 80. The hearing officer's denial of these motions is therefore affirmed. The Employer also contended that the hearing officer erred in denying its request for an adjournment of the hearing iii order that it might appeal the foregoing rulings directly to the Board. In connection with This contention, the Employer urged that Section 102. 28 of the Board's Rules and Regulations affords a party "a right at any time to take an immediate appeal to the Board." That section is inapposite as it pertains to appeals from rulings of Trial Examiners made in unfair labor practice cases. As Section 102.57 (c), which is controlling here, provides that "Unless expressly authorized by these Rules and Regulations , rulings by the regional director and by the hearing officer shall not be appealed directly to the Board except by special permission of the Board, but shall be considered by the Board when it reviews the entire record," we find, contrary to the Employer's dontention, that the hearing officer properly denied the Employer 's request for an adjournment. The hearing officer referred to the Board the Petitioner 's motion to strike any brief filed herein by the Employer on the ground that the Employer refused to take a position at the hearing with respect to the appropriateness of the proposed unit. As each party is entitled, under the Board's Rules and Regulations, to file a timely brief commenting on the evidence and setting forth its position, we deny this motion. See Arthur B. Woods, Lewis A. Woods, and George Lindahl, co-partners doing business as Valley Concrete Company. 88 NLRB 519. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner seeks a unit of all selling and nonselling em- ployees at the Employer ' s main store, farm store , and service station on Stockton Street, Trenton , New Jersey, as well as the employees in the Employer ' s warehouse on Laylor Street in that city, including regular part- time selling and nonselling employees , but excluding confidential employees , seasonal em- ployees , executives , division managers , department heads, and all other supervisors as defined in the Act. The Employer took no position at the hearing with respect to the appropriateness of the unit . In its brief, however , the Employer contended that the telephone operators , the personnel and placement depart- ment employees , and the secretary to the manager and opera- ting superintendent should be excluded on the ground that they are confidential employees , and that the advertising manager should be excluded because he posseses supervisory or execu- tive authority . Moreover , the Employer requested that the Board reopen the record for the purpose of adducing further evidence with respect to the duties of the nonselling department heads as well as the number of employees they supervise. We shall therefore consider the unit placement of these individuals. Telephone operators : The telephone operators perform the usual duties of their classification . They transmit incoming and outgoing telephone calls and messages for telegraphic com- munications , and operate a loudspeaker system to announce special sales to customers . It appears that on occasion they may receive or transmit messages concerning labor relations. Because of their connection with these messages , the Employer contends that the telephone operators are confidential em- ployees and should be excluded from the unit . The Board has previously held , however, that the fact that telephone operators may occasionally obtain information on labor relations does not constitute a substantial reason to deny them the rights of collective bargaining •2 Accordingly, we find that the Employer's telephone operators are not confidential employees and we shall therefore include them in the unit. Personnel and placement department employees : The Em- ployer has two employees in the personnel and placement de- partment. Their duties involve the maintenance of a "tickler file" which contains information as to the eligibility of em- ployees to participate in the Employer ' s profit- sharing plan and the group - insurance system . Moreover , they also maintain the personnel records of the employees which reflect such matters as disciplinary action taken against such employees. Although the Employer urges the exclusion of these individuals as confidential employees , apparently on the ground that their duties are related to matters affecting the Employer ' s labor relations , the record does not establish that these individuals assist any department head who possesses any duties or re- sponsibilities with respect to the formulation or effectuation of the Employer ' s general labor relations policies . Accordingly, we find that the personnel and placement employees are not 2 See American Locomotive Company , 92 NLRB 115 ; Phillips Oil Company , 91 NLRB 534. SEARS, ROEBUCK & COMPANY 313 confidential employees , and we shall therefore include them in the unit.I Secretary to the manager and operating superintendent: The store manager and the operating superintendent share the services of one secretary . This individual handles correspond- ence for these two supervisors , including the memoranda which they prepare regarding personnel relations . The Employer con- tends that this secretary should be excluded from the unit be- cause of her relationship to the manager and operating superin- tendent. However , the Employer stated at the hearing that these two supervisors , who are local officials of a nationwide concern, do not formulate the Company ' s general labor relations policies but rather administer such policies which have been adopted on the nationwide level by other officials of the Em- ployer. As the manager and the operating superintendent do not establish labor relations policy for the entire Company, and as it does not appear that the secretary attends any meetings at which general labor relations policy is formulated, we find that she is not a confidential employee . We shall therefore in- clude her in the unit.4 Advertising manager: The advertising department at the Em- ployer ' s Trenton establishment consists of the advertising manager and his assistant . The advertising manager canvasses the various advertising media to determine the most effective means by which the Employer ' s goods and services may be presented to the buying public. He is allotted a certain budget with which to arrange an advertising program , formulates advertising policy for the Employer in concert with the mana- ger, and prepares promotional brochures which are distributed to customers in the stores . The assistant to the advertising manager maintains constant contact with employees on the selling floors to determine the efficacy of the advertising pro- gram. The record does not establish to what extent , if at all, the advertising manager possesses supervisory authority over his assistant . However, without deciding the advertisingmana- ger's supervisory status under the Act , we find that the work and interests of this individual are so diverse from those of the employees in the unit as to warrant excluding him.5 Nonselling department heads: In its brief, the Employer requested that the record be reopened to adduce further testi- mony with respect to the duties which the department heads perform and the number of employees these individuals super- vise. However , the record reveals , and the Employer con- firms in its brief, that each nonselling department head exer- cises the same supervisory functions as the supervisors in the selling department whom the parties do not dispute are supervisors within the meaning of the Act. As the record con- tains sufficient evidence with respect to the functions of these individuals , which clearly indicate that they are supervisors, 3 See Phillips Oil Company, 91 NLRB 534, 538. 4 See Ball Brothers Company, Incorporated, 87 NLRB 34. 5 See Cherry and Webb Company, 93 NLRB 9. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall exclude them from the unit. Accordingly, the Em- ployer ' s request to reopen the record is denied. Accordingly , we find that all selling and nonselling employees at the Employer ' s main store , farm store , and service station on Stockton Street , Trenton, New Jersey, as well as the em- ployees in the Employer ' s warehouse on Laylor Street in that city, including regular part -time selling and nonselling em- ployees , but excluding confidential employees , seasonal em- ployees , executives , division managers , department heads, and all other 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. (Text of Direction of Election omitted from publication.] OSWEGO FALLS CORPORATION and UNITED PAPER WORKERS OF AMERICA, CIO, Petitioner. Case No. 17- RC-1505. April 22, 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 William J. Cassidy, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim 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 Petitioner requests a unit limited to the production and maintenance employees of the Employer ' s Kansas City, Kansas , plant. The Employer and the Intervenor, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers of U. S. and Canada, Local Union No. 510, AFL, contend that because of a bargaining history on a broader basis, these employees may only be represented together with employees at the Employer's Fulton, New York, plant. The Employer ' s main plant is at Fulton, where it operates a pulp mill, a paper mill, and a conversion plant for the manufacture of paper food containers and enclosures. At its branch plant in Kansas City, as well as at certain other plants not here involved, it makes only paper food containers. The Fulton and Kansas City plants are 1,200 miles apart and have separate managers , but there is a single production 104 NLRB No: 45.