John W. Thomas & Co.

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage concerted activities among you by discharges or by dis- criminating in any other manner in regard to hire, or tenure of employment, or any term or condition of employment. WE WILL NOT in any like or similar manner interfere with, restrain , or coerce you in the exercise of your right to self-organization , to form labor organizations , to bargain collectively through representatives of your own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make whole James McLachlan, George Ryan, and Joy Ann Henry for any loss of pay sustained as a result of the discriminating against them and, if suitable vacancies exist or occur , offer them employment. CRESCENT WHARF AND WAREHOUSE COMPANY, Employer. Dated ................ By....................................................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by other material. JOHN W. THOMAS & CO. and LOCAL 1086, RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. of L., Petitioner JOHN W. THOMAS & CO. andHOTEL AND RESTAURANT EMPLOYEES UNION, LOCAL 458, A. F. of L., Petitioner. Cases Nos. 18-RC-1879 and 18-RC-1902. May 8, 1953 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Erwin A. Peterson, 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 these cases to a three-member panel [Members Houston, Styles, and Peterson]. Upon the entire record in these cases, 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 Section2 (6) and (7) of the Act. 4. The Petitioner in Case No. 18-RC-1879 seeks a unit of all regular and regular part-time selling and nonselling em- ployees at the Employer's department store in Minneapolis, Minnesota, including employees in the leased departments, cashier-wrappers, stock employees, receiving and marking i Hotel and Restaurant Employees Union, Local 458, A. F. of L., intervened and thereafter filed a petition which was duly consolidated with this proceeding. 104 NLRB No. 122. JOHN W. THOMAS & Co. 869 employees, delivery department employees, office and clerical employees, telephone operators, and alteration department employees, but excluding employees in the coffeeshop, fur factory, maintenance department, beauty and body molding salons, confidential secretaries, guards, professional em- ployees, buyers and assistant buyers, department managers and assistant managers, and all other supervisors.2 The Employer maintains that a unit confined to salespersons including the leased departments is appropriate.' Accordingly, the Employer does not oppose the Petitioner's request to exclude certain occupational groups and would further exclude while the Petitioner would include the following categories:4 Cashier-wrappers: Working behind a counter in full view of customers and serving one or more departments on a selling floor, the cashier-wrapper makes change and wraps packages at the request of the salesperson. The package and change are then handed back to the salesperson or the package is sent by pickup man to the delivery department. If the sale is a charge sale, the cashier-wrapper makes a proper notation and calls the charge board in the credit department. Cashier-wrappers work under the supervision of the store superintendent's office and the Employer considers them part of the selling department. Stock employees: Assigned to the various sales departments under the supervision of the buyers, the stock employees carry merchandise from various locations in the store such as receiving and marking department and alteration departments to the selling floor cashiers' desks. Receiving and marking department employees: All incoming merchandise is unpacked, counted, examined, and then priced by the buyer of the department concerned. The appropriate sales ticket is put on the merchandise which is then taken to the selling department. The employees in the receiving and marking room consult the order files and compare quanti- ties shipped with the order copy in the files of the main office. The receiving and marking copy of completed orders is forwarded to the main office and there processed to the book- keepers for entry in the books and payment. Delivery department employees: All packages sent out of the store clear through this department andmerchandise requiring 2 The Petitioner 's unit request appears as amended at the hearing. 8 The Employer adduced testimony purporting to show a history of bargaining in the major retail store field in Minneapolis based on Board consent elections and voluntary recognition for separate units of selling as well as various categories of nonselling employees. There is no history of bargaining covering the employees of the Employer other than oral agree- ments pertaining to building service and fur factory employees . Area bargaining practice can have no compulsive significance in view of uniform Board policy to include department store selling and nonselling employees in an optimum unit. 4Building Service Employees Union, Local 26. A. F. of L., intervened to urge the exclusion of building service employees from the unit; Amalgamated Clothing Workers of America, Local 224, C. I. 0., intervened to urge the exclusion of employees in the alteration depart- ments; and International Fur and Leather Workers Union. Local 71, intervened to seek the exclusion of fur factory employees . However, none of these labor organizations seeks a place on the ballot. 283230 0 - 54 - 56 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over the, normal packing is handled here. Employees in all the foregoing departments enjoy the same working hours, over- time, company benefits, vacations, and discount privileges as do the salespersons. While they are paid on an hourly basis in contrast with the salary and commission paid selling em- ployees,5 all store employees except those in the coffeeshop participate in a suggestive selling plan whereby commissions are earned on referral sales. In view of the close proximity of the foregoing nonselling employees to the selling areas, the common conditions of employment prevalent throughout the store, and the integration of their work tasks with the functions of the selling force, we shall, pursuant to the Board's usual practice, include these employees in the same unit with the sales employees.6 Office and clerical employees: The Employer's office is located on the fourth floor of the store building and contains the credit, accounts receivable, and accounts payable employee groups under the supervision of the controller. The credit department consists of "pullers" and "stuffers," reception clerk, credit rating clerk, contract clerk, and charge board operator. Saleschecks, which have cleared the audit depart- ment, are sent to the credit department to be placed in the charge account folder. At the end of a billing period, all saleschecks are pulled, placed in the statement billhead, and passed on to the stuffers who put them in envelopes to be routed to the addressograph department for mailing. Adjacent to the office are the receiving cashiers who receive payments on account and the mail clerk who takes care of all incoming mail. In accounts payable and receivable are the bookkeepers and statistical clerk. The office also includes a paymaster, payroll clerk, adjustment clerk, and stenographers. Working in the selling area and considered by the Employer as part of the selling force under the buyers are the mer- chandise clericals who maintain records of the merchandise in the selling departments. These unit control reports are first submitted to the buyers and the totals are then incorpo- rated in the office records by the statistical clerk. In rush periods individual merchandise clericals go on the selling floor and assist in selling. Tied in with the credit department is the addressograph department which handles all outgoing mail. Closely connected with both the office and the selling floor is the mail-order department which processes communi- cations regarding requests for merchandise. Mail orders are written up and distributed by an employee in the department to a salesperson who fills the order and returns the form to the mail-order department. A utility clerk alternately per- forms receiving and marking, personnel, and office duties. Reception and appointment clerks in the fur factory, alteration 5 The record is not clear as to whether the selling employees are considered salaried or hourly rated employees 6Robertson Brothers Department Store. Inc ., 95 NLRB 271; Maas Brothers , Inc , 88 NLRB 129; Spiegel Fashion Shops, 85 NLRB 437. At the hearing the Employer agreed to the inclusion in the selling unit of cashier- wrappers and stock employees. However, in its brief the Employer limits its unit position to salespersons. JOHN W. THOMAS & CO. 871 departments, and beauty salons perform the essentially clerical tasks of recording incoming and outgoing garments and arranging appointments. All office and clerical employees receive the same benefits, discounts, and vacations as do the salespersonnel. They punch the same time clock, are hired by the personnel department, and work the same hours as sales employees except that only credit clericals work evenings. The direct integration of much of the work of the office and clerical employees with that of other employees in the store, and the community of interest generally of selling and non- selling employees, in our view, warrants their inclusion in the unit. Moreover, no union seeks to represent them in a separate unit. We shall, therefore, include the office and clerical employees in the unit.t Alteration departments: The main alteration department on the fourth floor of the store building is devoted to the repair and alteration of women's apparel. Coat alterations are per- formed on the third'floor, corsets onthe first floor, and dress, coat, and sportswear in the basement. All alteration depart- ments are physically separated from the departments they serve. The work of the alteration departments is performed by fitters and sewers, pressers, and tailors. Alteration de- partments are under the store superintendent except that the manager of the fourth floor alteration department also hires alteration personnel . The employees involved perform the usual functions associated with their occupations and do hand as well as machine pressing and sewing. After a dress is sold it is fitted on the floor. Either the fitter or the sales employee makes out the alteration memo and attaches it to the garment, whereupon a stock girl from the sales department removes the garment to the fourth floor. If a refitting is required, the customer goeq to the fourth floor and the recep- tion clerk calls in the fitter and perhaps the sewer. The customer picks up the finished garment at the alteration desk and pays the alteration department cashier. Fitters spend about 50 percent of their time on the selling floor and the remainder in the alteration department. Employees in the alteration department participate in the company benefit, suggestive selling, and discount programs and, withthe excep- tion of evening work, maintain the same working hours as do sale spersonnel? We believe the similarity in working conditions, the common supervision under the superintendent, and the close dependence of their functions to selling, justify the inclusion of alteration employees in the unit. Further, we note that no union is seeking to represent these employees in a separate unit. Accordingly, we shall include the alteration employees in the overall unit. 10 7Silverwood's, 92 NLRB 1114; S. H. Kress, 92 NLRB 1114. As the three telephone operators are under the supervision of the store superintendent and enjoy the same benefits and working conditions as other store personnel, we shall include them in the overall unit. sFitters receive a 25 percent discount on store merchandise in common with salesper- sonnel. Employees who do not come in contact with the public receive a 15 percent discount. 9 Fitters work the evenings the store remains open. 10J. C. Pendey Company, 86 NLRB 920. Cf Foreman & Clark, Inc., 97 NLRB 1080 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner in Case No . 18-RC-1902 seeks a unit of all regular and regular part-time employees in the coffeeshop of the Employer's department store excluding the manager and all other employees . The Employer does not oppose the exclu- sion. The coffeeshop is located in the downstairs store and is physically separated from the sales area. The shop caters to the general public but store employees also use its facilities. Complete meals as well as sandwiches are served. Most of the jobs are filled by employees with experience in the restaurant field who are hired by the shop manager . Cooks, food service girls, waitresses , dishwashers , bus boy, and cashier are employed on4 an hourly basis, and enjoy some of the benefits accorded other store employees . However, they do not partici- pate in suggestive selling, are paid straight time for overtime work, receive free meals and uniform, and are entitled to a bonus after each year of service . The hours of work of coffee- shop employees involve reporting earlier and leaving earlier than the other store employees . There is no interchange between the coffeeshop and other departments in the store. The coffeeshop employees involved herein possess a dis- tinctiveness of employment interests not shared by the selling and nonselling employees which the Board recognizes, espe- cially in the absence of a history of bargaining on a storewide basis, as sufficient reason for granting separate representa- tion. We find, therefore , that the coffeeshop employees appro- priately constitute a separate unit." Accordingly , we find that the following constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (1) All regular and regular part -time selling and nonselling employees at the Employer's Minneapolis , Minnesota, depart- ment store , including employees in the leased departments, cashier-wrappers, head cashier,12 stock employees , marking and receiving department employees , delivery department employees , office and clerical employees , telephone operators, appointment and reception clerks, employees in the alteration departments , and second floor and downstairs floor managers, 1s but excluding employees in the fur factory, coffeeshop , adver- tising and display departments , beauty and body molding salons, maintenance department , carpenters and painter, con- fidential secretaries , 14 guards , professional employees, buyers, first floor floor manager, assistant buyers, leasedde- partment managers , millinery department assistant manager, shoe department and downstairs shoe department assistant man- agers, delivery department manager, controller , credit and 11 A. Polsky Company, 90 NLRB 1868. 12 The head cashier transfers cashiers from slow to busy desks. In view of the routine nature of the transfer , we include the head cashier in the unit as an employee. 1SFloor managers are responsible for directing traffic . Only the first floor floor manager makes effective recommendation as to discharge and transfer and we therefore exclude him from the unit as a supervisor. 14 The two confidential secretaries who assist store executives in matters involving labor relations policy are excluded. KAISER ALUMINUM AND CHEMICAL CORPORATION 873 assistant credit managers, and all other supervisors as defined in the Act. is (2) All regular and regular part-time employees in the coffeeshop of the Employer's Minneapolis, Minnesota, depart- ment store, including cooks, food preparation, food service, sandwich and salad employees, waitresses, dishwashers, bus boy, cashiers, and assistant manager, but excluding all other store employees, the manager, and all other supervisors as defined in the Act.'6 [ Text of Direction of Elections omitted from publication in this volume, ] is in accordance with Board policy, extra and "on call" employees though not eligible to vote are included in the unit. J. P. Wasson and Company, 104 NLRB 249. t6 See footnote 15, supra.. KAISER ALUMINUM AND CHEMICAL CORPORATION and NEAL D. SULLIVAN, WENDELL OLSON, D. G. MORRISON, KENNETH DOTSON, FORREST PATTEN, KENNETH STRAYER, HAROLD E. MORFORD, CHARLES PETTIT, and CLARENCE HALE. Cases Nos. 19-CA-409, 19-CA-484, 19-CA-485, 19-CA-486, 19-CA-487, 19-CA-488, 19-CA-518, 19-CA-521, and 19-CA-522. May 11, 1953 DECISION AND ORDER On August 12, 1952, Trial Examiner Wallace E. Royster issued his Intermediate Report in this consolidated proceeding, finding that the Respondent had not violated Section. 8 (a) (3) and (1) as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings,2 conclu- sions, and recommendations of the Trial Examiner only to the extent consistent with the following exceptions, modifications, and additions : 1. The Trial Examiner found, and we agree, that the Re- spondent did not violate the Act by discharging certain em- I These adequately present the positions of the parties ; therefore the General Counsel's request for oral argument is hereby denied. 2 The General Counsel excepts, with some merit, to certain fact findings the Trial Ex- aminer either made or failed to make . As the decision states those facts which the Board finds material, including a resolution of the credibility of certain witnesses , the Board need not, and does not, state those particular instances in which the General Counsel's exceptions have merit. 104 NLRB No. 102.