The Bailey Department Stores Co.

National Labor Relations Board - Board Decisions

Jun 2, 1958

120 N.L.R.B. 1239 (N.L.R.B. 1958)

THE BAILEY DEPARTMENT STORES CO. 1239
tenance unit, in accordance with settled Board policy they are pres-
ently entitled to a self-determination election with respect to their
inclusion with the production and maintenance employees.' Accord-
ingly, we shall direct elections in the following voting groups :
A. All production and maintenance employees at the Employer's
Denver, Colorado, plant, excluding truckdrivers, office clerical em-
ployees,' guards, and supervisors as defined in the Act.
B. All truckdrivers.
The unit determination will be dependent upon the outcome of the
elections. If a majority of the employees in voting group B vote for
the Petitioners, they will be taken to have indicated their desire to be
represented as part of the production and maintenance unit. In such
event, their votes will be pooled with those of the employees in voting
group A.' If a majority of employees in the pooled group select the
Petitioners, the Regional Director is instructed to issue a certification
of representatives to such labor organization for a unit of combined
voting groups, which we find under such circumstances to be appro-
priate for the purposes of collective bargaining. In all other events,
the Regional Director is instructed to issue a certification of results
of elections, as appropriate in the circumstances.
[Text of Direction of Elections omitted from publication.]
5 The Zia Company, 108 NLRB 1134; see also Illinois Cities Water Company, 87 NLRB
109.
9 The employee who dispatches the trucks is excluded, as the parties agree he is primarily
a clerical employee.
1 In the event the votes are pooled, they shall be accorded their face value.
The Bailey Department Stores Co. I and Retail Clerks Interna-
tional Association, AFL-CIO, and Office Employees Interna-
tional Union, Local Union 17, AFL-CIO, Joint Petitioners.
Case No. 8-RC-3132. June 2, 1958
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 Carroll L. Martin,
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 Leedom and Members Rodgers and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
I The Employer's name appears as amended at the hearing.
120 NLRB No. 118.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Employer moved to dismiss the petition upon the ground,
inter alia, that the Petitioners, as two unions acting jointly, do not
constitute "a labor organization" within the meaning of the Act.
This ground for the motion is without merit. We have long held
that two or more labor organizations may act jointly in representing
employees in an appropriate unit. The Joint Petitioners' indicated
at the hearing that, in the event of their certification, they intend to
bargain jointly for the requested unit of employees as to their terms
and conditions of employment. We find that the Joint Petitioners
constitute a labor organization within the meaning of the Act .2
3. As another ground for its motion to dismiss, the Employer con-
tends that there was no showing of interest to support the petition
for joint representation by the Petitioners. This ground for dismissal
is also rejected.' The adequacy of interest showing to support a
petition is a matter for administrative determination and may not
be attacked collaterally in this proceeding. Subsequent to the hearing,
the Employer filed a motion for administrative determination, ad-
vancing evidence indicating that the Petitioners' interest showing was
several instead of joint and, as such, less than 30 percent of the
employees in the unit. However, even if such were so, we have said
that authorization cards for representation by individual unions
could be combined to support a petition for joint representation' We
are satisfied that the showing to support the instant petition is ade-
quate. Accordingly, the Employer's motion to dismiss is hereby
denied.'
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 parties were in agreement as to the appropriateness of a
unit of the Employer's selling and nonselling employees at its main
department store and three branch stores in Cuyahoga County, Ohio.
The only issues relate to the composition of the unit. Although the
parties stipulated to the unit placement of a number of employee
2 Vanadium Corporation of America, 117 NLRB 1390
8 A third ground for dismissal, that the petition was signed for Retail Clerks Interna-
tion Association by an official of one of its locals instead of by an international represent-
ative, is also without merit. Such technical defect, which was cured at the hearing and
was in no way prejudicial to the Employer, is no basis for dismissal Cf. Rathbun
Holding Corporation, 116 NLRB 1002, footnote 1.
4Vanadium Corporation of America, supra
5 On January 24, 1956, the Employer filed another motion to dismiss on the ground
that one of the Joint Petitioners, Office Employees International Union, Local Union 17,
AFL-CIO, allowed its compliance with Section 9 (g) of the Act to lapse Questions of
compliance such as this one are determined administratively by the Board and may not
be litigated by the parties. Moreover, on March 17, 1958, the Board issued an adminis-
trative determination that such Local's compliance with Section 9 (g) did not lapse
and that the Board would continue to process the instant case Accordingly, the motion
to dismiss on that ground is hereby denied.
THE BAILEY DEPARTMENT STORES CO . 1241
classifications and categories, hereinafter set forth, they disagreed
as to the following classifications :
Alleged confidential employees: The Employer contends that pay-
roll clerical employees, secretaries to merchandise managers, accounts
payable clerical employees, and statistical department employees
compile and have access to confidential information which if disclosed
by them would be detrimental to the best interests of the Employer.
However, as it is clear from the record that none of these employees
assist and act in a confidential capacity to persons who formulate,
determine, and effectuate management policies in the field of labor
relations, we find that the employees in the above-named categories
are not confidential employees as we define them.6 Accordingly, we
shall'include them in the unit.
Employees in the advertising and display departments: The Em-
ployer contends that artists, copywriters, and proofreaders in the
advertising department and window trimmers in the display depart-
ment should be excluded from the unit on the ground that their
interests are substantially different from those of other employees
included in the unit. The record shows that there are 4 artists, 4
copywriters, apparently 1 proofreader, and 3 window trimmers located
at the main store. The artists are hourly paid at a higher rate than
selling employees. They draw sketches of merchandise for sales
promotions. The copywriters are salaried. They write advertising
-copy and lay out cuts for sales promotions. The window trimmers
prepare window displays based upon themes supplied by the display
manager. Although prior art training is a qualification sought by
the Employer in its employment of artists and window trimmers and
the work of copywriters is intellectual in nature, it does not appear
that any of these employees in the advertising and display departments
is a professional employee. We do not believe that the interests of
these employees, as far as appears in the present record, are so differ-
ent from other employees sought as to warrant excluding them from
the broad unit of selling and nonselling department store employees.
We shall therefore include these employees in the unit?
The registered nurse: The Employer would exclude the registered
nurse on the ground that she is a supervisory and professional em-
ployee. The registered nurse performs the usual duties of a nurse
with regard to the health or hygiene of employees. She makes recom-
mendations based upon her examination of the health of applicants
for employment and she authorizes release from duties of employees
claiming to be sick. We do not believe that the nurse's authority in
these respects makes her a supervisor. However, in accord with the
e The B. F. Goodrich Company, 115 NLRB 722 ; Goldblatt Bros., Inc., 118 NLRB 643.
'+Herpolshel.mer Company, 100 NLRB 1452; The Farr Department Store, 107 NLRB
1501 ; Goldblatt Bros ., Inc., supra, footnote 11.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's long-standing practice of excluding nurses from other units
because of diverse interests, we shall exclude the registered nurse from
the unit herein.'
Alleged managerial and/or supervisory employees: The Employer
contends that assistant buyers, the assistant traffic manager, the pur-
chasing agent, the head merchandise adjuster and her assistant, and
the training director are supervisory and managerial employees.
There are 26 assistant buyers, each of whom, together with a buyer,
is over one or more of the 75 departments at the main store. The buyers
were stipulated to be supervisory and managerial employees. They do
the principal buying for their respective departments," which requires
that they go on out-of-town buying trips. In the absence of buyers,
the assistant buyers are in charge of selling employees in their respec-
tive departments and, at times, they exercise limited buying authority.
While on the selling floor,10 assistant buyers have general direction of
selling activities, have authority to discipline employees for infrac-
tions of rules, and themselves make sales to customers. They also
approve various types of sales transactions made by selling employees.
When not on the selling floor, assistant buyers perform a variety of
duties , such as checking stocks, buying certain types of merchandise,
assisting in displays, scheduling time of selling employees, routing
merchandise to the branch stores, and reporting stock needs. There
are no buyers or assistant buyers at the branch stores. However, there
are 15 divisional heads over selling employees at the branches. The
parties stipulated that divisional heads at the branches were super-
visors. The Employer testified, without contradiction, that the super-
vision exercised by assistant buyers over selling employees was similar
to that exercised by the buyers and the branch store divisional heads.
Upon all the foregoing, we believe that the selling and nonselling
assistant buyers are supervisors as defined in the Act, and we shall
exclude them from the unit.
The assistant traffic manager has immediate supervision of 10 em-
ployees in the traffic office. At least 1 day a week he substitutes for
the traffic manager, an admitted supervisor, and at such times is over
50 employees in the traffic office and the receiving room. The assistant
traffic manager has authority to discipline employees under him and
effectively to recommend transfers to other departments. He may
also make binding settlements of claims with carriers as to damaged
merchandise and shortages. We find that the assistant traffic manager
is a supervisor under the Act's definition.ll As such, we shall exclude
him from the unit.
8 Standard Oil Company ( Indtiana) 80 NLRB 1022
9 Including the corresponding departments in the branch stores.
10 There are 8 selling assistant buyers, who spend up to three -quarters of their time
on the selling floor , and there are 18 nonselling assistant buyers, who spend about half of
their time on the selling floor
11 Scars Roebuck ct Company, 112 NLRB 559, 562.
THE BAILEY DEPARTMENT STORES CO. 1243
The purchasing agent buys supplies for all the stores and prepares
reports and records in connection with such supplies. She assigns
work to 2 employees in the supply room and to 1 in the multilith room.
She has authority to discipline these employees and effectively to
recommend wage increases and transfers. The head merchandise
adjuster and her assistant are over 13 merchandise adjusters and tele-
phone shoppers. Both the head adjuster and her assistant have au-
thority to discipline employees and effectively to recommend discharge
and wage increases. The head adjuster settles all monetary claims,
and she may make promotions and recommend transfers of employees
under her. Her assistant acts for her at least 1 day a week. We find
that the purchasing agent and the head merchandise adjuster and her
assistant are managerial and supervisory employees and shall exclude
them from the unit.12
The training director gives formal training to new employees in
the Employer's policies and practices. She also retrains and gives
supplementary training to employees on an individual basis. Iii addi-
tion, she assists sales employees who have overages and shortages in
their cash receipts. Upon the basis of her knowledge of their capa-
bilities and aptitudes, the training director effectively recommends
retention or transfer of employees. We find that she is a supervisor
and shall exclude her.13
The Employer contends that certain other employees are super-
visory :
The receiving room supervisor directs the work of 40 employees.
The unit control supervisor has four employees under him. He sched-
ules their working hours and is responsible for the records prepared
by them. The elevator supervisor directs the work of 13 regular
elevator operators. She schedules their working hours and calls in
additional operators as needed. She interviews operator applicants
and approves them prior to hire by the personnel office. The head
cashier at each branch store is in charge of the payroll office. At each
branch, the head cashier is over 2 or 3 employees who act as telephone
operator or cashier part of the time and perform other tasks assigned
to them by the head cashier the rest of the time. The accounts receiv-
able supervisor assigns work to 16 employees under her immediate
supervision. The will call supervisor has five employees under her
and is responsible for all records kept by the department. She sched-
ules the working hours and directs the work of the employees under
her. As to all of these alleged supervisors, the record shows that they
have authority to discipline employees and effectively to recommend
wage increases, promotions, and/or transfers. Upon the foregoing,
12 Copeland Refrigeration Corporation, 118 NLRB 1364.
1 1 Eljer Co ., 108 NLRB 1417, 1421.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find that the receiving room supervisor, the unit control supervisor,
the elevator supervisor, the accounts receivable supervisor, the will
call supervisor, and the head cashiers at the branch stores are super-
visors as defined in the Act. They shall therefore be excluded.
Seasonal extras : The Employer at the time of the hearing had 79
names in its active file of employees available for work during its 6
seasonal selling peaks and other departmental promotions during the
year. Some of these employees have been employed from time to
time by the Employer for 20 years. Others are housewives interested
in working only a certain number of days a year. Many are former
full-time employees. Should these employees for any reason become
unavailable for seasonal employment, their names are placed in a
dead file until they notify'the Employer that they are again available.
When holidays fall within their periods of employment, these em-
ployees receive holiday pay. However, only those employees who
worked ninety 8-hour days during the year are entitled to Christmas
bonuses, and only those who worked 1,000 hours, or an average of 20
hours per week, during the preceding year, are eligible for health and
hospitalization insurance and for sick benefits.
The Employer would include all of the employees in its active
"extra" file on the ground that they perform the same work as regular
employees for substantial periods during the year and are therefore
regular part-time employees. The Petitioner contends that they are
intermittent employees and would exclude all but those who worked
an average of 20 hours per week during the preceding year.
Under the Board's present policy, where the parties are unable to
agree as to the unit placement of part-time employees, such employees
will be included if the Board finds that they work with regularity;
otherwise, they will be excluded. Here, the part-time employees
involved have certain characteristics which would warrant our finding
that they worked regularly. Thus, as ]on- as they remain in the
Employer's active "extra" file, they may expect employment during
each of the Employer's seasonal selling peaks, a period totaling at
least 30 weeks in the year. On the other hand, insofar as the employ-
ees in the active file are not obligated to work when called, there is
some basis for denominating them as intermittent employees. How-
ever, we note that of the 79 employees who are now in the active file,
about 50 worked at least ninety 8-hour days, or 720 hours, during
1957. We believe that such frequency of seasonal department store
employment is sufficient to constitute regular part-time employment.
We shall therefore include in the unit all employees in the Employer's
active "extra" file who worked at least 720 hours during the preceding
year.
Accordingly, we find that the following employees employed at the
Employer's main department store and three branch stores in Cuya-
CALIFORNIA TEXTILE MILLS 1245
hoga County, Ohio, constitute a, unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
All full-time and regular part-time selling and nonselling
employees, including active "extra" employees who worked 720 hours
during the preceding year, all artists, copywriters, proofreaders,
window trimmers, payroll clerical employees, secretaries to merchan-
dise managers, accounts payable clerical employees, and statistical
department employees, but excluding all employees covered by existing
collective-bargaining contracts, all confidential employees," the regis-
tered nurse, all extra employees working less than 720 hours during
the preceding year, the purchasing agent, the head merchandise
adjuster, the assistant head merchandise adjuster, 'all other mana-
gerial employees,'-' store detectives, night watchmen, the assistant
traffic manager, the receiving room supervisor, selling and nonselling
assistant buyers, the unit control supervisor, the training director, the
elevator supervisor (or dispatcher), the head cashiers at the branch
stores, the accounts receivable supervisor, the will call department
supervisor, and all other supervisors as defined in the Act.te
[Text of Direction of Election omitted from publication.]
14 Stipulated as secretaries to the president , comptroller , and store operating manager ;
and personnel clerical at the main stoic.
15 Stipulated as buyers , merchandise managers , division heads of branch stores, traffic
manager , director of stock, outside competitive shopper , display manager, and floorlady.
11 Stipulated as general ledger bookkeeper , sales audit supervisor , accounts payable su-
pervisor , statistical department supervisor , cashier and payroll supervisor , credit manager,
assistant credit manager , employment manager , maintenance superintendent , assistant
stores operating manager , packingroom supervisor , personnel managers at branch stores,
store managers at branch stores, superintendents at Lakewood and Lakeshore stores, assist-
ant manager and superintendent at Euclid store , assistant store manager at Lakewood
store, promotional manager, and advertising manager.
California Textile Mills and Bay Area Joint Board of Textile
Workers of America , AFL-CIO. Case No. 20-CA-1269. June 3,
1958
DECISION AND ORDER
On October 9, 1957, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report, a copy of which is attached hereto. Thereafter, Respondent
filed its exceptions to the Intermediate Report and supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with the case to a three-member
panel [Members Bean, Jenkins, and Fanning].
120 NLRB No. 169.