Sears Roebuck and Co.

In the Matter of SEARS ROEBUCK AND COMPANY ATWATER KENT MAIL ORDER PLANT and UNITED RETAIL, WHOLESALE, AND DEPARTMENT STORE EMPLOYEES OF AMERICA, LOCAL 18, C. I. O. Case No. R-4617.-Decided August 13, 1941 Jurisdiction : general merchandising mail order industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition until certified by Board ; election necessary. Unit Appropriate for Collective Bargaining : shade factory and warehouse em- ployees with specific inclusions and exclusions. Mr. Oscar Grossman, of Chicago, Ill., for the Company. Mr. Louis F. McCabe, of Philadelphia, Pa., for the Union. Mr. Marvin C. Wahl, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 18 and April 22, 1941, respectively, United Retail, Wholesale, and Department Store Employees of America, Local 18, C. I. 0., herein called the Union, filed with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of Sears Roebuck and Company Atwater'Kent Mail Order Plant,' Philadelphia, Penn- sylvania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 13, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 2, as amended, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appro- priate hearing upon due notice. I The Company was designated in the petition as "Sears Roebuck and Company Atwater Kent Warehouse." A motion was made by the Company to amend the caption to accord with the designation given to the plant by the Company. No objection was made by the Union. The Trial Examiner referred the motion to the Board ; it is hereby granted. 34 N. L. R. B., No. 34. 244 SEARS ROEBUCK ET AL. 245 On May 15, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Union, and Warehousemen's Union, Local 169, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.2 Pursuant to notice, a hearing was held on May 26 and 28 and June,3, 4, and 5,1941, at Philadelphia, Pennsyl- vania, before Jack Davis, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made rulings on motions and cn objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Sears Roebuck and Company is a New York corporation which operates 595 retail stores, 10 mail-order plants, and 20 factories in 47 States. The only plant involved in this case is the Atwater Kent Mail Order Plant, located at Philadelphia, Pennsylvania. The prin- cipal materials and merchandise received at the Atwater Kent plant are drugs, heating and plumbing equipment, mill work, farm imple- ments, tires, furniture, trunks and suit cases, stoves, and kindred products. For the fiscal year ending January 31, 1941, approximate- ly $9,367,000 worth of these products were transported to the Atwater Kent plant from outside the Commonwealth of Pennsylvania; this amount comprised 95 per cent of the total dollar volume of materials and merchandise received at the plant. During the same period, about $5,500,000 worth of said materials and merchandise, comprising approximately 60 per cent of the total volume received in the plant, were shipped to points outside of the Commonwealth of Pennsylvania. The Company admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Retail, Wholesale, .and Department Store Employees of America, Local 18, is a labor organization affiliated with the Congress of Industrial Organizations which admits to membership employees of the Company. ? The latter union neither appeared nor was represented at the hearing. 451269-42-vol. 34-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION On March 17, 1941, the Union requested the Company to bargain collectively with it as the exclusive representative of the employees in the Atwater Kent plant of the Company, stating that it repre- sented a majority of said employees. The Company refused so to recognize the Union until the Board certified it as the statutory representative of its employees. A statement of the Regional Direc- tor introduced into evidence shows that the Union represents a sub- stantial number of employees in the unit which it alleged to be ap- propriate.3 We find that a question has arisen concerning the representation of employees at the Atwater Kent Mail Order Plant of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union contends that the appropriate unit consists of certain employees of the Atwater Kent plant of the Company. The Com- pany claims that the appropriate unit should also include employees at its Boulevard plant which is also located at Philadelphia. At the hearing the parties agreed that employees in the following depart- ments or classes should be included in the appropriate unit : merchan- dise handlers, elevator men, porters, Department 170 (billing) at the Atwater Kent plant, Department 178 (parcel-post weighing), and Department 201 (restaurant). They agree to exclude from the unit executives, managers and assistant managers, confidential secretaries, mail-truck drivers, Departments 150 and 637 (record clerks), except the warehouse files clerks and memo and short-racks employees, whom the Union wishes to include and the Company to exclude, Depart- ments 180 and 180-X (house inspection and service of supply), De- partments 195 and 211 (plant protection, guards, fire inspectors), Department 204 (medical), gun-repair department, motor-repair de- 8 The Regional Director's statement shows that the Union submitted 289 membership application cards, all of which appeared to bear genuine original signatures . It states that the cards bear the names of a substantial number of employees on the Company's April 16, 1941, pay roll in the unit alleged to be appropriate . The pay roll lists 408 names in all. SEARS ROEIBUCK ET AL. 247 partment, general-auditing and franking department, all invoice passers, and the following office and clerical departments : Department 101 (general executive) ; Department 107 (employment and person- nel) ; Department 131 (general operating) ; Department 133 (general merchandising office) ; Department 139 (catalog addressing) ; De- partment 141 (catalog mailing) ; Department 142 (advertising) ; De- partment 146 (mail opening) ; Department 147 (entry) ; Department 148 (distribution and sales listing) ; Department 153 (credit and col- lections) ; Department 154 (traffic) ; Department 156 (central buy- ing) ; Department 157 (correspondence) ; Department 160 (collec- tions) ; Department 162 (index) ; Department 164 (timekeeping) ; Department 167 (bookkeeping) ; Department 168 (auditing) ; De- partment 168-A, 168-B, and 168-R (accounting) ; Department 169 (cashier) ; Department 170 (billing) at Boulevard plant; Department" 171 (refund and mailing) ; Department 189 (customer's letter infor- mation); Department 203 (telephone communications) ; Department 205 (tabulating) ; Department 206 (budgeting or purchasing) ; De- partment 299 (foreign shipping) ; Department 414 (order offices) ; Department 415 (telephone-order takers) 4 Apart from the foregoing, the Union seeks to include, and the Company to exclude, all shade-factory employees, work heads, and division heads having less than 10 men under their direction,5 extra employees, maintenance and powerhouse employees," all office and clerical employees within departments which are composed essentially of employees handling merchandise,' including Department 134 (pricing)," ticket-office clerks, warehouse files clerks, and memo and short-racks employees .9 The Atwater Kent and Boulevard plants. The Union contends that the Atwater Kent plant alone provides a basis for an appropriate unit on the grounds, inter alia, that work is substantially different from that at the Boulevard plant, that the employees of both plants consider themselves separate bargaining entities, and that organization of the employees of the Atwater Kent plant has so far exceeded organization at the Boulevard plant that to include both plants within the same unit * The record is not entirely clear as to whether all the above departments are at the Atwater Kent plant, the Boulevard plant, or at both plants . It appears that a single department in all Sears Roebuck plants carries the same number 5 The Company contends that all work heads and division heads should be excluded. 6 The Union wants these employees included only if an appropriate unit is found cover- ing the Boulevard and Atwater Kent plants ; the Company asks that they be excluded in any event. 4 The Company seeks to exclude all office and clerical employees, regardless of the departments with which they are connected 8 The Company wishes to exclude these employees in the event that the Atwater Kent plant alone is designated. 9 The warehouse files clerks and memo and short-racks employees are record clerks within Departments 150 and 637 , which both parties agreed to exclude The Union claims that they should be included in the unit as employees who work closely with merchandise handlers 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would submerge the unionization which has occurred and deprive em- ployees of the Atwater Kent plant of the benefits of the Act. It is the Company's contention that both plants together constitute a single mail-order unit, that no substantial difference exists between operations at the Atwater Kent and the Boulevard plants and that therefore there is no real basis for setting up a separate unit at the Atwater Kent plant. The Atwater Kent and Boulevard plants are 4.4 miles apart. Mail orders are delivered first to the Boulevard plant. The order is then in- voiced and recorded, and if the purchased goods are stored at the At- water Kent plant, it is sent there to be filled. Both plants store mer- chandise, but the Atwater Kent plant apparently handles larger, heavier items and carload items. There is some evidence that bigger men are employed at the Atwater Kent plant to handle the heavier mer- chandise. While there is one personnel office for both plants, separate personnel files are kept at each place. The evidence discloses that organizational activities commenced at the Atwater Kent plant in the summer of 1939. In the spring of 1941, employees there went on strike. No strike was called at the Boulevard plant nor was there any attempt to induce those employees to join the strike. Organization has proceeded separately, the Atwater Kent plant being more strongly organized than the Boulevard. There is no formal organization at the Boulevard plant, where only a committee is in charge of organizational activities. There are approximately 4,456 em- ployees at the Boulevard plant and 488 at the Atwater Kent plant. While general membership meetings of the Union include employees of Atwater Kent, Boulevard, and other plants within the jurisdiction of Local 18, no joint organizational meetings were ever held between Atwater Kent and Boulevard employees. In view of the extent of the Union's organization and other circum- stances, we find that the employees of the Atwater Kent plant alone constitute an appropriate unit. The shade factory. The Company contends that this is a separate entity and constitutes a separate unit, while the Union claims that it is properly within the unit which it claims to be appropriate. The shade factory is located in the Atwater Kent building. It is separated from the rest of the plant by an aisle. It is owned by the Company, has a separate manager and division head, and manufactures window shades under the name "Mastercraft Window Shade Company." 'Orders for shades are received at the Boulevard plant and sent to the factory, to- gether with shipping labels addressed to the customers. After the order is filled it is sent to the shipping department of the Atwater Kent plant. Employees of the shade factory are hired at the Boulevard plant per- sonnel office. They are paid by the same paymaster as the other em- ployees at the Atwater Kent plant and have the same sick benefits and SEARS ROEBUCK ET AL. 249 profit-sharing plan; their time cards are kept in the same racks. While the Company's operating superintendent testified that the shade fac- tory paid rent for the floor space which it occupied, a landlord-tenant relationship did not exist, but rent was charged merely as a bookkeep- ing transaction, in order to determine the profit and loss of the factory. The Union has attempted to organize the shade factory, and some of its employees are members. We find that shade factory employees shall be included within the appropriate unit. Division and work heads. A work head is responsible for produc- tion and assigns work to the men under his direction. He works along with his men from 50 to 75 per cent of the time. He has power to recommend the disciplining of his men and when a lay-off is necessary, he may suggest who should be dismissed. The work of a division head is substantially the same as that of a work head but involves greater responsibilities. A division head generally spends less than half of his time working with the men. Some division and work heads are members of the Union. The Union seeks to include within the unit all division and work heads having less than 10 men under their direction. The Company wishes to exclude all of them. We find that the criterion proposed by the Union for the inclusion of division and work heads within the unit does not reflect with sufficient accuracy the relationship of their work to that of other employees within the unit or the extent of the management functions performed by them. A more reliable guide to the determination of such questions is, in our opinion, the amount of,time which they spend in production work. Accordingly, we find that all division and work heads who spend 50 per cent or more of their time in non-supervisory work shall be in- cluded in the appropriate unit, while those spending a majority of their time performing supervisory duties shall be excluded from the unit. Extra employees. One who is employed less than 24 consecutive weeks by the Company is considered an extra employee. Should he be laid off at any time before he has worked 24 consecutive weeks and then be rehired, it would be necessary to recommence- the 24-consecu- tive-week period in order to obtain the status of a regular employee. Extra employees receive lower wages than regular employees and do not receive vacations, hospitalization, or other benefits. Most of them are employed on a full-time basis although some do part-time work. At the Atwater-Kent plant, there were 252 regular employees and 236 extra employees as of June 5, 1941. Most of the extra employees are engaged in merchandise handling rather than in office or clerical work. The Union wishes to include and the Company to exclude, all extra employees. We find that all extra employees should be included with= in the appropriate unit. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0 f lee and clerical employees While agreeing to exclude office and clerical workers employed in departments which are exclusively office or clerical, the Union seeks to include such employees within departments which are composed essen- tially of employees handling merchandise, including Department 134 (pricing), ticket-office clerks, warehouse files clerks, and memo and short-racks employees. The Company seeks to exclude all office and clerical employees from the, unit. Department 134 (pricing). The evidence shows that -the employees within this department are engaged in checking prices on order tickets. They work in a segregated area of the merchandising department. We shall include them within the unit hereinafter found to be appropriate. Ticket-office clerks. The duties of these clerks consist of comparing invoice prices with prices set forth in the Company's catalog. - They work in departments comprised essentially of merchandise handlers, under the direction of the same manager who has control over the merchandise employees. We shall include them within the appro- priate unit. Warehouse files clerks. These employees check and file the ware- house index cards. We shall include them within the appropriate unit. Memo and short-racks employees. These employees are in charge of future orders, and we shall include them within the unit. We find that all shade-factory employees and all warehouse em- ployees at the Atwater Kent plant of the Company, including mer- chandise handlers, division and work heads who spend 50 per cent or more of their time in non-supervisory work, extra employees, ele- vator men and porters, office and clerical employees within depart- ments which are composed essentially of employees handling mer- chandise, including Department 134 (pricing), ticket-office clerks, warehouse files clerks, memo and short-racks employees, and em- ployees in Department 170 (billing), Department 178 (parcel-post weighing), and Department 201 (restaurant), but excluding execu- tives, managers and assistant managers, division and work heads who spend a majority of their time performing supervisory duties, con- fidential secretaries, maintenance and powerhouse employees, mail- truck drivers, Departments 150 and 637 (record clerks) except the warehouse files clerks and memo and short-racks employees, Depart- ments 180 and 180-X (house inspection and service of supply), Departments 195 and 211 (plant protection, guards, fire inspection), Department 204 (medical), gun-repair department, motor-repair de- partment, general-auditing and frank department, all invoice passers, and the following office and clerical departments : Department 101 SEARS ROEBUCK ET AL. 251 (general executive) ; Department 107 (employment and personnel) Department 131 (general operating) ; Department 133 (general merchandising office) ; Department 139 (catalog addressing) ; De- partment 141 (catalog mailing) ; Department 142 (advertising) Department 146 (mail opening) ; Department 147 (entry) ; Depart- ment 148 (distribution and sales listing) ; Department 153 (credit and collections) ; Department 154 (traffic) ; Department 156 (central buying) ; Department 157 (correspondence) ; Department 160 (col- lections) ; Department 162 (index) ; Department 164 (timekeeping) Department 167 (bookkeeping) ; Department 168 (auditing) ; De- partments 168-A, 168-B, and 168-R (accounting) ; Department 169 (cashier) ; Department 171 (refund and mailing) ; Department 189 (customer's letter information) ; Department 203 (telephone com- munications) ; Department 205 (tabulating) ; Department 206 (budg-' eting or purchasing) ; Department 299 (foreign shipping) ; Depart- ment 414 (order offices); and Department 415 (telephone-order takers), constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to collec- tive bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representation of the employees of the Atwater Kent plant of the Company can best be resolved by an election by secret ballot. Neither party made any suggestion as to the date to be used to determine eligibility to vote. In accordance with our usual practice, we shall direct that those eligible to vote in the election shall be the employees within the appropriate unit who were employed by the Company at its Atwater Kent plant during the pay-roll period immediately preceding the date of the Direction of Election, subject to such limitations and additions as are set forth in the Direction hereinafter. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Sears Roebuck and Company Atwater Kent Mail Order Plant, Philadelphia, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All shade-factory employees and all warehouse employees at the Atwater Kent plant of the Company, including merchandise 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handlers, division and work heads who spend 50 per cent or more of their time in non-supervisory work, extra employees, elevator men and porters, office and clerical employees within departments which are composed essentially of employees handling 'merchandise, in- cluding Department 134 (pricing), ticket-office clerks, warehouse files clerks, memo and short-racks employees, and employees in De- partment 170 (billing), Department 178 (parcel-post weighing), and Department 201 (restaurant), but excluding executives, managers and assistant managers, division and work heads who spend a majority of their time performing supervisory duties, confidential secretaries, maintenance and powerhouse employees, mail-truck drivers, Depart- ments 150 and 637 (record clerks) except the warehouse files clerks and memo and short-racks employees, Departments 180 and 180-X (house inspection and service of supply), Departments 195 and 211 (plant protection, guards, fire inspectors), Department 204 (medical), gun-repair department, motor-repair department, general- auditing and frank department, all invoice passers, and the following office and clerical departments: Department 101 (general executive) ; Depart- ment 107 (employment and personnel) ; Department 131 (general operating) ; Department 133 (general merchandising office) ; De- partment 139 (catalog addressing) ; Department 141 (catalog mail- ing) ; Department 142 (advertising) ; Department 146 (mail opening) ; Department 147 (entry) ; Department 148 (distribution and sales listing) ; Department 153 (credit and collections) ; Department 154 (traffic) ; Department 156 (central buying) ; Department 157 (cor- respondence) ; Department 160 (collections) ; Department 162 (index) ; Department 164 (timekeeping) ; Department 167 (book- keeping) ; Department 168 (auditing) ; Departments 168-A, 168-B, and 168-R (accounting) ; Department 169 (cashier) ;-Department 171 (refund and mailing) ; Department 189 (customer's letter informa- tion) ; Department 203 (telephone communications) ; Department 205 (tabulating) ; Department 206 (budgeting or purchasing) ; Depart- ment 299 (foreign shipping) ; Department 414 (order offices) ; and Department 415 (telephone-order takers), constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby SEARS ROEBUCK ET AL. 253 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Sears Roebuck and Company Atwater Kent Mail Order Plant, Philadelphia, Pennsylvania, an election by secret ballot should be conducted as early as possible, but not later than thirty (30) days from the date of the Direction of Election, under the direction and supervision of the Regional Director for the Fourth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all shade-factory employees and all warehouse employees at the Atwater Kent plant of the Company who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including merchandise handlers, division and work heads who spend 50 per cent or more of their time in non-supervisory work, extra employees, elevator men and porters, office and clerical employees within departments which are composed essentially of employees handling merchandise, including Department 134 (pricing), ticket-office clerks, warehouse files clerks, memo and short-racks employees, and employees in Department 170 (billing), Department 178 (parcel-post weighing), and Department 201 (res- taurant), employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but exclud- ing executives, managers and assistant managers, division and work heads who spend a majority of their time performing supervisory duties, confidential' secretaries, maintenance and powerhouse em- ployees, mail-truck drivers, Departments 150 and 637 (record clerks) except the warehouse files clerks and memo and short-racks employees, Departments 180 and 180-X (house inspection and service of supply), Departments 195 and 211 (plant protection, guards, fire inspectors), Department 204 (medical), gun-repair department, motor-repair department, general-auditing and frank department, all invoice passers, and the following office and clerical departments : Depart- ment 101 (general executive) ; Department 107 (employment and personnel) ; Department 131 (general operating) ; Department 133 (general merchandising office) ; Department 139 (catalog address- ing) ; Department 141 (catalog mailing) ; Department 142 (adver- tising) ; Department 146 (mail opening) ; Department 147 (entry) ; Department 148 (distribution and sales listing) ; Department 153 (credit and collections) ; Department 154 (traffic) ; Department 156 (central buying) ; Department 157 (correspondence) ; Department 160 (collections) ; Department 162 (index) ; Department 164 (time- keeping) ; Department 167 (bookkeeping) ; Department 168 (audit- ing) ; Departments 168-A, 168-B. and 168-R (accounting) ; Depart- 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment 169 (cashier) ; Department 171 (refund and mailing) ; Depart- ment 189 (customer's letter information) ; Department 203 (telephone communications) ; Department 205 (tabulating) ; Department 206 (budgeting or purchasing) ; Department 299 (foreign shipping) ; Department 414 (order offices) ; and Department 415 (telephone-order takers), and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Retail, Wholesale and Department Store Employees of America, Local 18, C. I. 0., for the purposes of collective bargaining.