J. L. Brandeis & SonsDownload PDFNational Labor Relations Board - Board DecisionsJun 9, 194350 N.L.R.B. 325 (N.L.R.B. 1943) Copy Citation In the Matter of J. L. BRANDEIS & SONS and JOINT COUNCIL OF RE- TAIL CLERKS, INTERNATIONAL PROTECTIVE ASSOCIATION, L. U. 616; ,BUILDING SERVICE EMIPLOYEES,L. U. 226; SIGN, SCENE'AND PICTORIAL PAINTERS, L. U. 752; AND HOTEL AND RESTAURANT EMPLOYEES L. U. 614; AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-519/.Decided June 9, 1.943 Kennedy, DeLacy c Svoboda , by l11r. Ralph E. Svoboda and Mr. Harry R. Henatsch , of Omaha, Nebr ., for the Company. Mr. David Weinberg , of Omaha, Nebr., for the Joint Council. Mr. A. Suzmner Lawrence , of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE ,Upon an amended petition duly filed by the Joint Council of Re- tail Clerks, International Protective Association, L. U. 616; Building Service Employees L. U. 226; Sign, Scene and Pictorial Painters, L. U. 752; and Hotel and Restaurant Employees L. U. 644, affiliated with the American Federation of Labor, herein called the Joint Coun- cil, alleging that a question affecting commerce had arisen concerning the representation of employees of J. L. Brandeis & Sons, Omaha, Nebraska, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Eugene R. Melson, Trial Examiner. Said hearing was held at Omaha, Nebraska, on April 14, 15, and 16, 1943. The Company ant', the Joint Council appeared, participated, and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby 'affirmed. Both the Company and the Joint Council filed briefs which have been duly considered by the Board. 50 N. L. R. 13, No 48. . 530105-44--22 325 I- 326- ' DECISIIONS 1OF NATIONAL LABOR RELATIONS BOARD ' Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY' J. L. Brandeis,& Sons, a Nebraska corporation, has its principal office and place of business in Omaha, Nebraska, where it is engaged in the operation of a retail department store and two drug stores considered as departments of the main store. During the fiscal year ending February 1, 1942 the Company's purchases for resale amounted in value to approximately $4,799,641, of which purchases about 75 percent was purchased and shipped to it from points outside the State "of Nebraska. During the same period, the Company's sales totaled approximately $7,730,630, of which. about 10.5 percent was made to customers in States other than the State of Nebraska. Also during this period the Company's mail order business amounted to approxi- mately $121,274. of which about 18.8 percent represented mail orders going outside the State of Nebraska. The Company estimated that of its total sales for this period, approximately 30 to 35 percent were charge accounts, of which 7.6 percent by volume or 6 percent by value represented out-of-State business. ' In addition, during the year 1942, the Company caused to be delivered through means of a local express agency, a total of 8,900 packages to customers outside the State of Nebraska. The Company does not engage in any advertising on a Nation-wide basis. The Company's Omaha store advertises in the Omaha World Herald, a newspaper published in Omaha, Nebraska, but also with a substantial circulation in the State of Iowa. It also advertises over 4 local Omaha stations. In addition it advertises in the Non Pareil, a newspaper published in Council Bluffs, Iowa. As of April 2, 1943, the Company employed a total of approximately 950 non-supervisory employees exclusive of leased departments. , The Company contends that substantial purchases-of goods from out-of-State sources does not confer jurisdiction upon the Board and that the out-of-State sales are not of sufficient quantity or of such a nature as to change the essential local character of the business of the Company's Omaha store. The Company further contends that its records of sales during the period of a strike In February 1943 show that the strike had no effect upon commerce. However, an examina- tion of the figures submitted by the Company shows a substantial i I- 1 Aside from additional facts furnished by the Company at the hearing, the findings as to the business of the Company are, by stipulation of the parties, based upon evidence introduced in a previous case involving the Company See Matter of J. L Brandeis d Sons and Local No 285 of the Amalgamated Clothing Workers of America , afiliatcd with the Congress of Industrial Organizations, 47 N. L It B. 614. i J. L. BRANDEIS & SONS 327 falling off of sales during the 4-day strike, period immediately follow-, ing February 22, 1943: The Company submitted no, figures with respect to any effect of the strike upon the Company's purchases, a large part of which occur in interstate commerce. On the basis of the facts set forth above, we find the contentions of the Company to be without merit and conclude that it is engaged in commerce within the meaning of the National Labor Relations Act.2 H. THE ORGANIZATION INVOLVED Retail Clerks, International Protective Association, L. U. 616; , Building Service Employees L. U. 226; Sign, Scene and Pictorial Painters, L. U. 752; and Hotel and Restaurant Employees L. U. 644, which together constitute the Joint Council, are labor organizations affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about February 4, 1943, the Unions comprising the Joint Council requested recognition from the Company as exclusive bargain- ing representatives for certain employees of the Company. The Com- pany declined to recognize such Unions upon the ground that its oper- ations were not within the jurisdiction of the Act and upon the further ground that the unit proposed by the Unions was inappropriate. A statement by the Field Examiner, introduced, in evidence at the hearing, indicates that the Joint Council represents a substantial number of employees of the Company in the unit hereinafter found appropriate.3 . We find that a question affecting commerce has arisen concerning the representation of employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Joint Council urges the adoption of a unit consisting of the employees in a number of departments and portions of departments, 2 See Matter of J. L. Brandeis & Sons and Local No •285 of the Amalgamated Clothing Workers of America, affiliated with the Congrr ,s of Industrial organizations , 47 N L R B 614, and cases cited therein . See also N L B B v J L Hudson Company, 135 F (2d) 380 (C C A 6). 3 The Field Examiner reported that the Joint Council had submitted 391 signed appli- cation-for-membership cards , of which 67 were dated between January and December of 1942 , 23 in January 1942, 294 in February of 1943 , and 7 undated ; that of the 391 cards, 351 appeared to bear genuine original signatures of persons whose names were on the pay roll of February 13, 1943 , containing 957 names within the alleged appropriate unit. The Field Examiner, further'repoited that since checking the application 'cards with the Com- pany's pay roll, the Union submitted 33 additional cards not included in the preceding l bi,u i.cuieu h,. r 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegedly in conformity with the provisions governing eligibility 'of employees to membership in one of the unions comprising the Joint ,council.4 The Company urges, a store-wide unit of all employees of the Company other than supervisors. While the Joint Council claims a craft basis for its proposed unit, it is-obvious that such unit is at least semi-industrial in character as shown by the inclusion therein of numerous departments containing employees without any particular skill or claimto craft characteristics. Basically, the unit consists of employees directly concerned with sales or the promotion thereof, or who perform services incidental thereto, and general maintenance employees. Excluded are office, clerical, pro- fessional, and certain special service employees. An analysis of the proposed unit indicates that, in general, and with certain modifica- tions set forth below, it is in conformity with the general pattern adopted by the Board in department store cases. The exclusions proposed by the Joint Council cover approximately 216 employees out of a total of about 1,074 employees, including em- ployees of leased departments, but exclusive of supervisory employees. Such exclusions comprise certain leased departments, employees who are eligible for membership in other labor organizations, departments whose employees are already represented by a certified bargaining representatives, and office and clerical workers who are presently being organized by a separate A. F. L. affiliate, known as the Office Workers Union.- While it would not be inappropriate to include office work- ers if the Joint Council had organized them, we shall exclude them since they constitute a separate identifiable group which is presently being organized by the Office Workers Union. However, we perceive no valid reason for some of the proposed inclusions and exclusions. For example, the Joint Council would include tube girls who make change for a cash sale on the theory that, though not actively and di- 6 Of the unions comprising the Joint Council, the Hotel and Restauiant Employees Union clauns jurisdiction over the following departments department 131 (Emplo)ees ' lunch- room) , department 87 (Cafeteria ), department 86 (Soda Fountain ), department 303 (Soda Fountain No 1), department 404 (Soda Fountain No 2) The Sign , Scene and Pictorial Painters Union claims department 47 (window Trmuuers ) anti depattment 150 (Sign Shop) The Building Set vice Enmployees ' Union claims depaitnient 39 (porters and maids), department 42 (elevator operators and starters ), depaitment 44 (watchmen ), and depart- ment 160 (warehouse-2 elevator operators only ). The Retail Clerks claims jurisdiction over the balance of the departments with exception of the following departments and groups of individuals barbei shop , beauty salon , shoe repair department , watch repair de- paitinent , department 35-miscellaneous ( non-selling only ), department 36 (alteration), .department 43 (delivery ), department 45 (main office ), department 77 (auditors), de- partment 140 ( unit contiol ), department 57 (advertising ), depattment 66 (credits), de- partment 82 (tailor shop ), department 93 (laundry ), department 97 (carpenter . and me- chanical ), mechanical engineers , department 154 (collections ), department 160 (warehouse), department 84-supply and print shop ( printer only ) In addition ,' the Joint Council a ould , exclude fi om its pi oposed , unit, employees , administrative personnel , and super- visoiy employees having the right to hire or discharge The Company , though contesting the proposed exclusion of office employees , agrees that executives and supervisory employees having the right to hire and discharge should be excluded from the appropriate unit. I J. L. BRANDEIS & SONS 329 rectly engaged in selling or handling merchandise, they help to com- plete the sale; however, it proposes to exclude the tube girls in the credit department who receive sales slips from salespersons and ap- prove the charge prior to completion of the sale. From a functional standpoint, the two groups are similar. The Joint Council also proposes to include employees who work in the bank and post office maintained by the Company in the store, as performing services inci- dental, to sales, brit to exclude fitters and package handlers. In our opinion, both of these proposed excluded categories are sufficiently closely related to selling and handling of merchandise to warrant in- cluding them in'the unit. Without discussing all the disputed cate gories in detail, we find that the departments or the named groups therein, listed in Appendix A, excluding supervisory employees as hereinafter defined, are included in-the appropriate unit. The Joint Council would include certain leased departments while excluding others. The employees of the leased departments are not employed by the Company but are employed by the lessees subject to the approval of the Company and the rules and regulations governing the operation of the Company's store. Unlike ordinary employees, employees of leased departments do not receive bonuses from the Com- pany and are not covered by the Social Security payments made by the Company on behalf of its employees. In addition, it appears that employees of leased departments in most instances perform 'special services and come under the jurisdiction of other unions affiliated with the A. F. of L. We find that employees of leased departments have insufficient interests in common with those included within the appropriate unit. We accordingly exclude them from such unit. Other departments or portions thereof we find to consist of eriI- ployees who are purely office employees, certain clerical employees, and certain.traditional craft groups, not directly related to the selling of merchandise,- or engaged in services incidental, thereto, and are therefore to be excluded. We shall also exclude employees who have heretofore been found to constitute an appropriate unit and for whom a collective bargaining representative has been certified.6 All of these excluded departments or parts of departments are listed in Appendix B. We find that all employees of the Company, including those in de- partments listed in Appendix A, but excluding those in departments 6 See Matter of May Department Stores doing business as The May Company and Retail Clerks International Protective Association , Retail Shoe Salesmen , Local Union No 420, A. F. of L., 39 N. L. R B. 471 , Matter of Montgomery IPard & Co , Inc. and United Retail, Wholesale and Department Store Employees of America, Local No 269, 41 N L R B. 122. See Matter of J L. Brandeis & Sons and Local 285 of the Amalgamated Clothing Work- ers of America, Affiliated with the Congress of Industrial organizations , 47 N L It B 614 (certification issued March 25, 1943, covering departments 36 and 82) ti 330 N DECbSSOINIS OF NATIONAL LABOR RELATIONS BOARD listed in Appendix B, and 'all -super'visory employees who have the authority to hire, 'discharge, or recommend such action, constitute a unit appropriate for the purposes of collective bargaining within ' the' meaning of Section '9 (b) of'the Act. V. THE DETERMINATION OF REPRESENTATIVES - We find that the question concerning representation which has arisen can best be resolved by an, election by secret ballot among the em- ployees in the unit found appropriate in Section IV, above. The Joint Council requests that employees employed less than 90 days prior to, the Board's Direction' of Election be' deemed 'ineligible to vote, apparently with,the object of excluding so-called "strike' breakers"' who were hired in the latter part of February 1943. We perceive no reaon for , differentiating between employees hired before and after the strike. The strike is not' claimed to have been caused by unfair labor, practices, and it appears that all employees who went out on strike were reemployed on their return to work. We shall accordingly adhere to our usual practice and shall direct an election among the employees in the appropriate unit who were employed dur- ing, the pay-roll period immediately preceding the date of the Direc- tion of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION i 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 aiid pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby ^ ' DIRECTED that, as part of the investigation' to ascertain representa- tives for the purpose of collective bargaining' with J. L. Brandeis & Sons, Omaha, Nebraska, an election by secret ballot shall be con- ducted 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 Director for the Seventeenth Regioii, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 10, of said Rules and Regulations, 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, and includin'g' employees in the armed forces of the United States, J. L. BRANDEIS & SONS 331 who present themselves in person' at the polls, but excluding em- ployees who have since quit or been discharged for cause, to determine whether or not they desire to-be represented by the Joint Council' of Retail Clerks, International Protective Association, L. U. 616; Build- ing Service Employees L. U. 226; Sign, Scene and Pictorial Painters, L. U. 752; and Hotel and Restaurant Employees L. U. 644; affiliated with American Federation of Labor,' for the purposes' of collective, bargaining. APPENDIX A _ The following departments are entirely- included within the ap- propriate unit : ' Main Floor Department 35------------------ Squares 4-------------------- Men's Furnishings - ------------- Silks 8------------------- Dress Goods 21 -------------------- Linens. 91--------- --- -------- Blankets 19--l ------------------ Gloves 15------------------- Jewelry - 127--------------- ___- Watches 110 ------------------- Silverware 49------------------- Drugs 0__________________ Notions 69__________________ Leather Goods 31___________________ Umbrellas 34___________________ Neckware 20-------------------- Handkerchiefs 12------------------- Hosiery 111 ------------------- Children's Hosiery 13 -------------------- Trim & Laces 86___________________ Soda Fountain 87 ------------------- Cafeteria 122__________________ Pictorial Patterns 54 ------------------- Vogue Patterns 102___________________ Butterick Patterns ------------------- Brandson Shoes 3------------------- Dr. Scholls I 332 DECCISiIONS OF NATIONAL LABOR RELATIONS BOARD Second Floor Department 67------------------ Sweaters 56------------------- Junior Dresses 64------------------- Furs 2------------------- Coats 70-------------- ---- Economy Dresses 90------------------- Dresses 18------------------- Ladies ', Shoes 104--------------------- Red Cross Shoes 120------------------- I. Miller Shoes 129------------------- I . Miller Hosiery 6------------------- Millinery Third Floor Department 72------------------ Infant's Wear 65 --------------------- Children's Dresses 40------------------- House Dresses 48------------------- Kimonas & Robes 88------------------- Uniforms 116------------------- Silk Underwear 17------------------- Corsets 29------------------- Arts 113------------------- Lamps 105------------------- Gifts Fourth Floor Department 5------------------ Men's Clothing 117------------------ Men's Pants 22----------- ------- Men's Hats ,112---------------..-- Boys' Furnishings 24------------------ Luggage 71------------------ Men' s Shoes 96------------------ Children 's Shoes Fifth Floor Department 33------------------ Toys 61----------------- Hardware 81------------------ House Furnishings 144------------------ Paints 80------------------ Crockery 134------------------ Stoves & Refrigerators 92------------------ Radios & Records J. L. BRANDEIS & SONS 333 Sixth Floor Department 27------------------ Rugs 89------------------ Linoleum 25------------------ Drapery Seventh Floor Department ( 94------------------ Furniture Basement Department 1------------------ Domestics 26------------------ Blankets 30------------------ Ladies Shoes 46------------------ Children's Shoes 107------------------ Men's Shoes 55------------------ Coats - 118------------------ Dresses 60------------------ Hosiery 108------------------ Knitwear 106------------------ Men's Furnishings 136------------------ Boys' Clothing 28----------- ------ Millinery 121------------------ Linens 49------------------ Drugs - 101------------------ House Dresses 128------------------ Muslin Underwear 119------------------ Children's 114------------------ Infants' '115------------------ Corsets 73------------------ Drapery 130------------------ Rugs 76------------------ Men's Clothing 10------------------ Overalls 125------------------ Silks 35------------------ .Squares 334 I DECISIONS OF NATIONAL LABOR RELATIONS BOARD Operating Help Department 37------- - Millinery Workroom 38-------------- _____- Inspectors 39----------- , Porters & Maids, 42-------------------,Elevators 44_______________ ___ Watchmen 47------------------- Window Trimmers 50___________________ Mail Order 52------------------- Bank 53___________________ Post Office 57------------------- Lay-Away Desk 58___________________ Transfer Desk 59___________________ Tubes 62---- ____'__-____--_- Fur Alteration 78-------- -- --------- loor Men 93------------------- Laundry 95-------------- Drapery Workroom 131-------------------- Employees Lunch Room 132___________________ Hosiery Repair 150___________________ Sign Shop Metropolitan Department 300------------------ Drug Dept. No. 1 _________________ -Soda-Fountain No. 1303-------------------- ,400__________________ Drug Dept.-No. 2 404__________________ Soda Fountain No. 2 As to the following departments, only the specific groups or indi- viduals therein referred to' are included within the appropriate unit : Department 35--------------- -__- Miscellaneous (telephone opera- tors, personal shopper, the ' comparison shoppers, the as- sistant to the merchandise de- partment) Department 41___________________ Receiving Room (stock handlers, checkers, and markers) Department 43------------------- Delivery (package handlers for transfer to the delivery room) Department 66___________________ Credits (tube employees) ' Department 84----------------- •__- (Supply & Print Shop) All non- supervisory employees other than the printer Department 160__________________ Warehouse (elevator operators) I J. L. BRANDEIS & SONS - 335 APPENDIX B The following departments are entirely excluded from the appro- priate unit : Department 36___________________ Alterations Department 45___________________ Main Office Department 77___________________ Auditor's Office Department 140__________________ Unit Control Department 51___________________ Advertising Department 82___________________ Tailor Shop Department 97___________________ Carpenter & Mechanical Department 154__________________ Collection Mechanical Engineers Shoe Repair Department Optical Department Stationery Department Flower Shop Candy Bar & Factory Barber Shop Beauty Salon Picture Frame Department Rinehart Marsden Photo Studio Watch' Repair Department Drescher Bros. Cleaning Department Artificial Flowers Department Sewing Machine Department Metro. #1 Liquor Department Metro. #1 Cigar Department Metro.' #2 Liquor Department Metro. #2 Cigar Department Bakery Department As to the following departments, only the specific groups or indi- biduals therein referred to are excluded from the appropriate unit Department.35------------------- Miscellaneous (typists, nurse, clerical workers, office girl, secretaries, head inspector) Department 66___________________ Credits (all employees other than tube employees) Department 41___________________ (Clericals who check invoices) Department 43___________________ (Delivery-all employees except package handlers for transfer to the delivery room) Department 84___________________ Supply & Print ' Shop (Printer only) , , , . Department 160__________________ Warehouse (all employees ex- cept elevator operators) Copy with citationCopy as parenthetical citation