The Lamson Brothers Co.

National Labor Relations Board - Board Decisions

Jan 13, 1945

59 N.L.R.B. 1561 (N.L.R.B. 1945)

In the Matter of THE LAMSON BROTHERS COMPANY and UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O.
Case No. 8-R-1529.-Decided January 13, 191p5
Mr. Thomas E. Shroyer, of Cleveland, Ohio, for the Board.
Messrs. Marshall, Melhorn, Wall and Bloch, by Messrs. Leland L.
Lord and Henry R. Bloch, of Toledo, Ohio, for the Company.
Mr. David A. Guberman, of Toledo, Ohio, for the C. I. O.
Mr. Isadore Kohler, of Toledo, Ohio, M. Joseph A. Padway, by
Mr. James A. Glenn, of Washington, D. C., for the Retail Clerks,
Building Service, Building Trades, Waitresses, Stenographers, I. B.
E. W., Carpenters, Bakers, Garment Workers, Meat Cutters, Firemen
and Oilers, Upholsterers, Sign Painters, and Bartenders.
Smith,,Klein and Klivans, by Mr. -Oscar J. Smith, of Toledo, Ohio,
for Retail Associates.
Mr. Erwin A. Peterson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Retail, Wholesale and Depart-
ment Store Employees of America, affiliated with the Congress of
Industrial Organizations, herein called the C. I. 0., alleging that a
question affecting commerce had arisen concerning the representation
of employees of The Lamson Brothers Company, Toledo, Ohio, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before David Karasick,
Trial Examiner. Said hearing was held at Toledo, Ohio, on Septem-
ber 28, 29, 30, and October 2, 1944. At the commencement of the hear-
ing the Trial Examiner granted motions to intervene made by Retail
Associates Incorporated, herein called Retai I Associates, and by Retail
1 Retail Associates is an association of retail department stores in Toledo, Ohio, which
claims an interest in this proceeding. Retail Associates is more fully, discussed under
"Appropriate Unit" infra.
59 N. L. B. B., No. 285.
1561
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks International Protective Association Local Nos. 128 and 633,
herein called Retail Clerks; The Building Service Employees Interna-
tional Union, Local No. 3, herein called Building Service; Toledo
Building Trades Council, herein called Building Trades; The Wait-
resses Union Local No. 335, herein called Waitresses; The Stenog-
raphers, Typists, Bookkeepers, and Assistants' Union Local No. 19V08,
herein called Stenographers; The International Brotherhood of Elec-
trical Workers, Local No. 1076, herein called I. B. E. W.; International
Brotherhood of Carpenters and Joiners, Local Nos. 1359 and 1138,
herein called Carpenters; Baker and Confectionery Workers Union,
Local No. 302, herein called the Bakers; The United Garment Workers
of America, herein called Garment Workers; the Amalgamated Meat-
Cutters and B. W. A. of North America Union, Local No. 466, herein
called Meat-Cutters; The International Brotherhood of Firemen and
Oilers, Local No. 2, herein called Firemen and Oilers; The Upholsterers
International Union of North America, Local No. 115, herein called
Upholsterers; The Sign Painters Union. Local No. 546, herein called
Sign Painters ; and The Bartenders', Cooks and Waiters Union Local
No. 216, herein called the Bartenders; all affiliated with the American
Federation of Labor, herein collectively referred to as the A. F. L.
The Board, the Company, the Petitioner, and the above-named inter-
venors, appeared and participated.2 All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. At the hearing, the Com-
pany and Retail Associates moved to dismiss the petition upon the
grounds that the unit requested is inappropriate and that the Board
lacks jurisdiction. The A. F. L. moved to dismiss the petition upon
the grounds that there is no question concerning representation because
the unit requested is inappropriate, and the C. I. O. failed to make
a substantial showing of interest. Decisions on the motions were re-
served for the Board. For reasons appearing hereinafter the motions
are hereby denied. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. All parties
were afforded an opportunity to file briefs with the. Board. Upon
motion of the Board, and pursuant to notice to all parties, a hearing
was duly held before the Board in Washington, D. C., on. December
7, 1944, for the purposes of oral argument. All parties were.repre-
sented by counsel and participated in the hearing.
Upon the entire record in the case, the Board makes the following :
9 International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
North America , A . F. L., was served with notice but did not enter appearance at the
hearing . Amalgamated Clothing Workers of America , C. I. 0., was also served with notice
and appeared at the hearing ; however , it did not intervene.
THE LAMSON BROTHERS COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
1563
The Lamson Brothers Company is an Ohio corporation owning and
operating a retail department store in the city of Toledo, Ohio. It
also has a branch store in Maumee, Ohio. We here are concerned
only with theToledo, Ohio store. The store comprises 100 depart-
ments, 10 departments of which are leased to other persons but
held out to the public as departments of the store. In these 100
departments, the Company had at the time of the hearing approxi-
mately 885 employees in all classifications, and it offers for sale to the
public thousands of items and services to satisfy personal and house-
hold needs and desires.
.During the year 1943, the Company purchased merchandise for re-
sale at its store in Toledo, Ohio, at a cost of more than $2,000,000. Its
sales for the same period were in excess of $2,000,000. Approximately
60 percent of the goods purchased by the Company originated outside
the State of Ohio. Approximately 3' percent of its sales was made to
customers outside the State of Ohio. The Company has five trucks
one of which makes at least one delivery a week into the State of
Michigan. It advertises in two Toledo newspapers which have some
circulation in southern Michigan.
In view of the foregoing facts, we are of the opinion and we find
that the Company's operations affect commerce within the meaning
of the National Labor Relations Act.3
II. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale and Department Store Employees of
America, is a labor organization affiliated with the Congress of In-
dustrial Organizations, admitting to membership employees of the
Company.
Retail Clerks International Protective Association Local Nos. 128
and 633; The Building. Service Employees International Union Local
No. 3, Toledo Building Trades Council; The Waitresses Union Local
No. 335; The Stenographers, Typists, Bookkeepers and Assistants'
Union Local No. 19708; The International Brotherhood of Electrical
Workers, Local No. 1076; International Brotherhood of Carpenters
and Joiners, Local Nos. 1359 and 1138; Baker and Confectionery Work-
ers Union Local No. 302; The United Garment Workers of America;
The Amalgamated Meat-Cutters and B. W. A. of North America
Union, Local No. 466; The International Brotherhood of Firemen and
Oilers, Local No. 2; The Upholsterers International Union of North
8 See Matter of J. L. Brandeis and Sons, 53 N. L. R. B. 352.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'America, Local No. 115 ; The Sign Painters Union, Local No. 546;
The Bartenders ', Cooks and Waiters Union, Local No. 216 , are all
labor organizations affiliated with the American Federation of Labor
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 1, 1944, the Petitioner notified the Company,'by letter, that
it represented a majority of the Company's employees and requested
a collective bargaining conference. By a letter dated May 3, 1944,
the Company suggested that the C. I. O. file a petition with the Board
to determine the collective bargaining representative.
A statement of the Field Examiner, introduced into evidence at the
hearing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate.4
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 CIO contends that the appropriate bargaining unit should con-
sist of all employees of the Company at Toledo, Ohio, excluding all
office employees, drivers, tailors,' and supervisory employees. The
Company, Retail Associates, and the AFL contend that the only appro-
priate unit consists of the employees of all the stores which are mem-
bers of Retail Associates, and, accordingly, that the CIO's petition
should be dismissed.
For the past 32 to 33 years the leading retail stores of Toledo have
belonged to an association known as the Merchants Retail Board of
Toledo. The Retail Board was formed to work out mutual problems
of the stores, such as hours of employment, wages, working conditions,
Christmas hours, night openings, credit contracts, etc. So far as
the record discloses it has never engaged in collective bargaining. The
executive committee of the Retail Board was composed in 1937 of the
city's leading department stores, namely, Lasalle and Koch, Lion
Store, Sears-Roebuck, Lamson Brothers, and Tiedtkes.
6 The Field Examiner reported that the C. I. O. submitted 352 authorization cards : the
names of 189 persons appearing on the cards were listed on the Company 's pay roll of July
8, 1944, which contained the names of 600 employees in the unit petitioned for. Although
the unit hereinafter found appropriate contains a number of fringe groups not included in
the unit petitioned for, we do not find the difference between the requested unit and the unit
found appropriate so appreciable as to warrant dismissal of the petition . The AFL relied
on IN contractual relationship with the Company to substantiate its claim of interest.
6 The drivers are represented by the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of North America , A. F. L. The tailors are represented by Amal-
gamated Clothing Workers of America , C. I. O.
THE LAMSON BROTHERS COMPANY 1565
In the latter part of 1936, and the early part of 1937, the AFL and
several CIO unions started organizational drives among the employees
of the various department stores. When claims of representation were
raised by' various locals of the AFL concerning the employees of the
Lion Store, these matters were taken up by the Lion Store with the
executive committee of the Retail Board. This committee met with
business representatives of various AFL locals. In order to facilitate
bargaining with the AFL the committee then formed Retail Associ-
ates, Inc., in June 1937. One of the purposes of the said corporation
is "to foster and maintain amicable relations between the members
and their employees." Retail Associates voluntarily recognized the
various locals of the AFL as the exclusive representative of all the
employees of the various stores that composed its membership; and
on August 31, 1937, it signed its first contract with the AFL covering
said employees. New contracts were signed in 1938, 1939, 1941, and
1942. The 1939 contract was automatically extended to cover 1940.
The 1942 contract was renewed for the year 1943, with modifications
as set forth in a stipulation between the parties, and a directive of the
War Labor Board. All the contracts were entered into on or about
July 1, or within a few weeks thereafter, to remain in effect until
June 30 of the following year, and to continue in effect from year to
year thereafter in the absence of notice to terminate, amend, or revise
%
the same.
In all the foregoing, contracts, Retail Associates, signing by its presi-
dent, has been identified as the employer party. The member stores,
through delegates serving on the negotiating committee of Retail As-
sociates, have apparently authorized the latter orgainzation to bind
them to each contracts Neither the charter nor the "Code of Regula-
tions and Bylaws of Retail Associates, Inc," discloses the membership
of that organization, nor do the contracts with the AFL identify the
stores covered by the agreement. Oral testimony at the hearing, how-
ever, discloses that the original members of Retail Associates were
Lasalle and Koch, Lion Store, Tiedtkes, Fair Store,' Lamson Brothers,
and Sears-Roebuck. On September 11, 1943, Sears-Roebuck withdrew
from Retail Associates. The present membership of Retail Associates
consists of the remaining five stores.
During the negotiations for the first contract with Retail Associates
there were some 13 or 14 AFL Local unions.s These local unions de-
cided to act in concert to deal with Retail Associates, and accordingly
formed Toledo Retail Trades Council, herein called Trades Council.
° The bylaws of Retail Associates provide, In part, that "matters of contracts with
employees . . . shall be left exclusively to the membership and shall be decided by a ma-
jority vote of the membership." The record shows that In practice decisions of the nego-
tiating committee representing all member stores have been unanimous.
' Apparently a subsidiary of Tiedtkes.
8 These are the unions listed as Intervenors in this proceeding.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only labor organization signing the 1937 contract, and named in
the recognition clause, was the Trades Council, described in the recog-
nition clause as a voluntary association affiliated with the American
Federation of Labor, whose membership consisted of the various local
labor unions which had members in the retail stores in Toledo, Ohio.
Subsequent contracts were obscure as to the identification of the labor
organizations and the manner in which they were bound. The Trades
Council was listed in the recognition clause as the sole bargaining
agent in the 1938 and 1939 contracts, and it was also listed as a signa
tory in those years, but no signature appears for the Trades Council
on any contract following the first one; nor is it named in any of the
contracts following the 1939 document.' In 1938 and 1939, 13 of the
intervening AFL unions, and in addition, the Amalgamated Clothing
Workers (a CIO organization), were listed as signatories to the con-
tract, together with the Trades Council, but in 1938 only 5 AFL unions
actually signed the contract by their business representatives, and the
1939 contract bears the signatures of representatives of only 3 unions.
As noted above, the 1939 contract was automatically extended for 1940.
In 1941 the recognition clause of the contract listed the 14 intervening
AFL unions as the contracting parties, each acting as the bargaining
agent for all employees of the stores comprising Retail Associates
within its trade, jurisdiction. The same 14 unions were listed as signa-
tories to the agreement, and all but two signed.1° Two of the 14 or-
ganizations, the Firemen and Oilers and the Upholsterers, were
dropped from the recognition clause of the 1942 and 1943 contracts,
and from the list of signatory unions. In those same years the Car-
penters, though listed in the recognition clause, disappeared as a sig-
natory party. The Firemen and Oilers, Upholsterers and Carpenters
are, nevertheless, intervenors in this proceeding. Whether or not the
employees within the jurisdiction of these organizations were in any
way covered by the contracts after 1941, retains in doubt.
The contracts contained provisions for employees' discount on store
merchandise, rest periods, seniority, 1-week's notice of lay-off or the
equivalent in pay, leave of absence for sickness, 3 days' leave with pay
in the event of death in the immediate family of the employee, the fur-
nishing and laundering of all uniforms, etc., required by the employer,
double time for Sundays and certain holidays, 4 hours' work or pay
'guaranteed to all employees requested to report to work, and no over-
time work in any department where regular or full-time employees are
laid off or working short hours. After 1940, vacation provisions were
contained in the body of the contract, whereas they had formerly been
covered in schedules attached to the contracts.
9 The record does not show the reason for this change or what happened to, the Toledo
Retail Trades Council.
1° No signature appeared for either the Bakers or the Firemen and Oilers.
THE LAMSON BROTHERS COMPANY 1567
. As to grievances, the contracts provide that the grievance com-
mittee shall consist of not more than three regular employees, and
that the employer will meet with such committee to consider or adjust
any disagreement or grievances, no employee to be docked for time
spent in such meetings."' The first three contracts provided for final
arbitration of disputes by a board of arbitrators named by the Retail
Associates and the Trades Council. The 1941 and 1942-43 contracts
provide that disputes between the parties other than disputes as to
Wages and commissions shall be "discussed" at meetings of a board of
12 members, consisting of 6 members appointed by Retail Associates
and 6 members appointed by the AFL, to be held once each month.
In these latter contracts there is no provision providing for any arbi-
tration proceedings or for the settlement of any dispute as to wages
and commissions.
Wages were not covered in the body of the contracts, but were speci-
fied in attached schedules. Each contract contained a clause providing
"it is hereby agreed that the hours, wages, and working conditions
especially stated in the attached schedules as applying to the establish-
ment mentioned therein in reference to specific employees shall apply
to all firms, members of the Retail Associates, Inc., whether mentioned
in said schedules or not, and in every such case where minimums are
established, shall be the minimum for the stores operating under the
same circumstances." The schedules attached to the contract provide
wage rates and, frequently, vacations for employees in each of the occu-
pational categories over which the participating AFL unions asserted
jurisdiction. Many of these schedules in each of the contracts were
identified as applicable to "all stores," and such schedules set forth
minimum scales only. In addition, special schedules covering either
actual wages or minimum scales for particular classes of employees at
particular. stores appeared in all the contracts." However, as far as
the employees at Lamson's were concerned, they were presumably cov-
ered only by the minimum wages established for "all stores," or other
stores "operating under the same circumstances," except as to two small
craft groups, namely, the employees in the women's alteration room,
who had a special schedule in the 1938 and 1939 contracts, and the
bakery shop employees for whom there are special schedules in the 1941
and 1942-43 contracts.13 A Lamson official testified that the 1937 con-
tract resulted in a reduction of the working hours of sales clerks to 42
hours per week, and in a $2 per week increase in the minimum wages
11 The recognition clause of the contract , though recognizing the AFL as the sole bargain-
ing agent , reserves the right of any employees to "discuss " with their employers any
grievances.
u Sometimes minimums were specified and sometimes actual wages of named individuals
.were provded.
13 The bakery shop schedules bear a notation indicating that they were negotiated and
signed by Frank Clegg, who is the lessee of the bakery department at Lamson's.
618683-45-vol. 59-100
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such employees. Minimum wages thereafter remained relatively
static until 1943 when, on November 23 of that year, the Regional War
Labor Board, acting under its authority to rectify gross inequities and
raise substandard wages, approved joint applications for wage in-
creases for nearly all classes of employees in the stores covered by the
1943 contract.
The petitioner introduced a considerable amount of testimony to the
,effect that the AFL does not now and never did represent any employees
of the Company. A number of employees of the Company testified
that they were never approached by any representative of the AFL,
-or in any way solicited to join the AFL. They further stated that they
did not know of any employee who had been so solicited or were mem-
bers of the AFL. They also testified that no employee knew of the
contracts between Lamson Brothers, Retail Associates, and the AFL.
one of the witnesses knew of any instance where the AFL had taken
up any grievances for the employees of Lamson Brothers. In refuta-
tion of the foregoing, the AFL submitted general testimony to the
effect that it had distributed handbills to employees of department
stores in Toledo, including Lamson's,14 and that it has handled numer-
ous grievances for employees of the Company since 1937, and in par-
ticular, at least two important grievances during the last several months
prior to the hearing. In this connection, the AFL offered to prove
that one of its witnesses, an assistant to the business agent for the
Garment Workers and Retail Clerks, had handled an important griev-
ance involving seniority which was occasioned by an interdepartmental
transfer of an employee of the Company within 7 weeks before the
1iearing.15
The record is clear that the AFL never presented to any of the
stores or to Retail Associates, any proof of its claim to represent the
majority of all employees of the various members of Retail Associ-
ates, or that Retail Associates ever requested or demanded such proof.
The Company and Retail Associates admit that they have no knowl-
-edge now, nor have they ever had any knowledge as to how many
members the AFL unions have in the Lamson store, or in any of the
other stores. At the hearing the AFL failed and refused to submit
any evidence, either into the record, or to the Board's Attorney or
Trial Examiner to support its claim that it now, or ever did represent
any employees of Lamson Brothers other than those under the juris-
14 A number of these handbills were introduced into evidence, only one of which indicates
that it had been directed specifically to employees of Lamson Brothers.
15 The record does not indicate why this offer of proof was made and rejected inasmuch
.-as the Trial Examiner indicated that he would withdraw a prior adverse ruling and permit
the witness to testify as to his handling of the grievance in question. Nor, since the record
is unintelligible , can we determine the correctness of the Trial Examiner ' s ruling. For pur-
soses of our findings herein , however, we shall assume the facts to be as stated in the
offer of proof.
THE LAMSON BROTHERS COMPANY 1563
diction of the Garment Workers. The most favorable evidence in this
respect is that 2 AFL local union representatives testified as to mem-
bership in their locals. The Building Service representative testified
that in 1937 his union represented all of the 25 to 3-) employees of
Lamson Brothers, coming under the jurisdiction of his union. How
ever, this testimony was later stricken from the record by agreement
of all parties, apparently in contemplation that the Building Service
representative would produce documentary evidence showing that
employees of the Company were members of his organization. No
such evidence was produced. It was stipulated by all parties that
if a certain Lamson employee were called as a witness, she would
testify that she is a steward for the United Garment Workers, and
that of the 19 employees in the Company's alteration department com-
ing under the jurisdiction of that union, all are dues-paying members.
As previously stated, the C. I. 0. first attempted to organize em
ployees of the Company early in 1937. In May of that year the Toledo
Industrial Union Council of the C. I. 0. chartered a group of the Com-
pany's employees as Local 140, Clothing and Dry Goods Employees.
That organization which claimed a membership of about 80 employees
of the Company in 1937, was affiliated in 1941 with the petitioner. In
November 1942 the C. I. 0. in a letter to the Company asserted that it
represented a majority of the Company's employees and requested,
a bargaining conference. In reply, the Company suggested that a
petition be filed with the Board. The C. I. 0. thereupon filed its first
petition, which was withdrawn without prejudice in January 1943, at
the request of the Regional Director.' It again petitioned for an
.election among the Company's employees on May 1, 1943. This peti-
tion was dismissed by the Regional Director without a hearing. The
petition in the instant proceeding was filed on May 11, 1944.
Conclusion
The Company, Retail Associates, and the AFL contend that then
above-described contractual relations, covering a period of 7 years,
have established an association-wide unit appropriate for bargaining,
and that we are thereby precluded from finding in this proceeding that
the Company's employees alone comprise an appropriate unit. We do
not agree. It is clear that Retail Associates possesses sufficient au-
thority to engage in collective bargaining on behalf of its members to
be deemed an employer within the meaning of the Act,17 and that a
unit comprising the employees of all the member stores might be appro-
priate under proper circumstances. It is equally clear, however, that
16 The C. I. O. claims that it then learned for the first time of the AFL contract.
"Matter of Rayonier, Inc., 52 N. L. R. B. 1269; Matter of George F. Carlton Co., 54
N. L. R. B. 222; Matter of New Bedford Cotton Manufacturing Association , 47 N. L It. B..
1345; and Matter of Central Foundry Company, 48 N. L . R. B. 5.
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees of the Company alone constitute an inherently appro-
priate unit. Accordingly, those employees, as a separate group, are
entitled now to choose a bargaining representative unless we can infer
from their conduct during the past 7 years that they have been repre-
sented by the AFL, in common with the employees of the other mem-
bers of Retail Associates.18 Mindful of the beneficial stability and
uniformity of labor conditions likely to be achieved by bargaining on
the basis of units coextensive with the membership of associations of
competing employers in the same industry, we have often dismissed
petitions which reflected the desire of disaffected groups of employees
to break away from such units as a means of changing their bargaining
representatives.19 In those cases, however, we were satisfied that the
multiple-employer unit was established, and maintained through effec-
tive collective bargaining, with the actual consent, express or implied,
of the various constituent groups of employees therein.. -
In the instant case only 2 small craft groups among the 600 odd
employees of the Company have ever had the benefit of specially nego-
tiated wage schedules during the 7-year bargaining history. Whether
or not the large residue of the Company's employees ever actually
realized the benefits of effective representation is to be doubted. It is
clear that as to them the bargaining between the AFL and Retail Asso-
ciates produced, at most, only minimum wages and working conditions
negotiated for employees of "all stores" or other stores "operating
under the same circumstances," and that no facilities for handling
grievances of the Company's employees have been established either
by the contracts or otherwise. It is true that in a number of cases 20
the Board has held that bargaining on a multiple-employer basis for
basic uniform working conditions and minimum wages only had estab-
lished a multiple-employer unit which precluded a determination that
the employees of only 1 of the participating employers-comprised an
appropriate unit. In those cases, however, it appeared that adequate
machinery existed whereby all employees involved might participate
18.1n Matter of Pepsi Cola Bottling Company, 55 N. L. It. B. 1183, the Board held that
the history of collective bargaining was not determinative of the form of unit appropriate
for bargaining on behalf of the employees in question where the employees had never been
afforded an opportunity to choose or reject the union purporting to represent them in a
multiple-employer unit ; the union had neither solicited nor required them to join its
organization, although the company deducted "working permit" fees from their wages, and
had not invited the employees to attend union meetings ; and no opportunity had been
afforded them to present grievances through the offices of that union. See also Matter of
.Demuth Glass Works, Inc., 53 N. L. It. B. 451 ; Matter of Shipowners Association. of the
Pacific Coast, 32 N. L. R. B. 668; Matter of Thermal Coal Company, 51 N. L. It. B. 434 ;
Matter of Libby-Owens-Ford Glass Company, 31 N. L. R. B. 243; Matter of Chrysler Corpo-
ration, 42 N. L. It. B. 1145, and other Chrysler cases cited therein.
19 Matter of Rayonier, Inc.; Matter of George F. Carleton & Company; and Matter of New
Bedford Manufacturing Association, supra; Matter of Stevens Coal Company, 19 N. L. It. B.
98; Matter of F. L. Hartung Co., 50 N. L. It. B. 1 ; Matter of Alston Coal, 13 N. L. R. B.
-683.
20.See Matter of Detroit Michigan Stove Company, 55 N. L. It. B. 1514; Matter of Central
Foundry Company, 48 N. L. It. B. 5; Matter of New Bedford Cotton Manufacturers' Asso-
ciation, 47 N. L. It. B. 1345.
THE LAMSON BROTHERS COMPANY 1571
in collective bargaining with respect to matters not covered by the con-
tract and which were local in character.21 Here the record does not
show that any machinery exists, or that bargaining was conducted,
for the purposes of amplifying and translating the general provisions
of the contracts into terms applicable to the particular conditions ex-
isting in the Company's store. As to working rules, for example,
-always a vital subject in department store labor relations, the AFL
agreements provide, only that the management of each store shall
establish "reasonable" rules, and that employees may be discharged
for violation thereof; and there is nothing to indicate that the actual
working rules governing the conduct of Lamson's employees were ever
the subject of negotiation between Retail Associates and the AFL, nor
is there any showing that Lamson's employees at any time have been
informed of the progress or outcome of the annual contract negotia-
tions, or, indeed, of the fact that these contracts actually affected their
status. The inadequacy of the bargaining between the AFL and
Retail Associates for the purpose of determining the appropriate unit
is further evidenced by the fact that all of the contracts between the
parties were executed by representatives of different groups of AFL
unions, each of which in the instant situation appears to represent only
certain occupational groups of store employees. Thus, in 1937, the
Trades Council executed the contract with Retail Associates; while
5, 3, 12, and 11, of the unions which had constituted Trades Council
executed the contracts for 1938, 1939-40, 1941, and 1942-43, respec-
tively. As stated above, it is doubtful whether or not the employees
within the jurisdiction of the unions which did not sign the contracts
subsequent to 1937 were in any manner affected thereby. In general,
it appears that the only evidence of collective bargaining on an asso-
ciation-wide basis, including Lamson's employees, is the existence of
the written contracts, and we are of the opinion that such evidence
alone is wholly inadequate to demonstrate a "history of collective bar-
gaining" determinative of the issue presented here. The AFL was
invited to submit documentary evidence to show that at the time of its
initial contract it was the designated bargaining agent of a substantial
number of the Company's employees, but failed to do so. This oppor-
tunity was afforded the AFL, particularly during the oral argument
herein, contrary to our general practice, in order that it should have
full opportunity to offer evidence tending to refute the import of the
circumstances relied upon in reaching our conclusion 22 The absence
21 Cf. Matter of Pepsi Cola Bottling Company , footnote 18, supra.
72 It is our general practice in representation cases to refuse to admit evidence on the
question whether or not a majority of employees covered by a collective bargaining contract
had actually designated the contracting union as their representative at the time when
the contract was made, and to presume the regularity and legality of such contracts insofar
as the majority question is concerned . We contemplate no departure from that general
rule, which is properly applicable to the vast majority of representation proceedings in
.1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of such proof in the factual context provided ',by this record is signifi-
caiit corroboration of the conclusion we have reached. Certainly a
bargaining history which has evolved from contractual relationships
executed and administered by representatives whom the employees
purported to be affected have not either chosen, or accepted by consent
,or acquiescence in the dealings on their behalf, is not that type of
history entitled to the weight usually accorded by the Board to past
bargaining patterns as determinants in establishing appropriate units.
We conclude that the Company's employees constitute a separate unit
appropriate for bargaining within the meaning of the Act.
As to the composition of the unit the parties agreed at the hearing
that in the event the Board should find a single-employer unit appro-
priate, the employees in Appendix A hereto should be included, and
that the employees in Appendix B, should be excluded. We see no
reason to depart from the inclusions and exclusions agreed to by all
the parties. The only dispute concerns the employees in Appendix
C. The employees in dispute work in the general office on the fifth
floor of the Company's store. The C. I. O. would exclude them, and
the Company and the AFL would include them. They are eligible
to membership in both labor organizations. The record is clear that
the employees in the general office department in dispute might very
well function as part of an over-all store unit, since they are an
integral part of the Company's business operations. The evidence
also indicates that there is a substantial interchange of sales employees
with the general office employees. We shall include these employees,
but exclude all supervisory employees coming within our usual
.definition.
We find that all employees of The Lamson Brothers Company at
Toledo, Ohio, including those listed in Appendices A and C, but
excluding all employees listed in Appendix B, and all supervisory
employees who have authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
.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
The parties stipulated, and we find, that all part-time employees
who have worked 1 or more days each week since September 28, 1944,
the first day of the hearing, are to be deemed regular part-time em-
ployees, and, as such, are eligible to vote in the election. The -petitioner
requested that its name appear on the ballot as the United Retail,
which a prior contract is material to the issues , e. g., where the contract is urged as a bar
to an immediate determination of representatives . In those typical cases to presume the
validity of the . contractfor.purposes of barring the petition results merely in-postponing
for a reasonable relatively brief period the conduct of an election.
THE LAMSON BROTHERS COMPANY 1573
Wholesale & Department Store Employees of America, CIO. The
AFL requested that its name appear on the ballot as the American
Federation of Labor. The requests are hereby granted.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion -herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (b) of the National Labor Relations
Act, and pursuant to Article III, Section 9 of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Lamson
Brothers Company, Toledo, Ohio, an election by secret ballot shall
be conducted 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 Eighth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations and to our
determination as to the eligibility of part-time employees set forth in
Section IT, above, 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 including employees in
the armed forces of the United States who present themselves in person
,it the polls, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior
to the date of the election, to determine whether they desire to be
represented by United Retail, Wholesale & Department Store Em-
ployees of America, CIO, or by American Federation of Labor, for
the purposes of collective bargaining, or by neither.
. MR. JOHN M. HousTON took no part in the consideration of the above
Decision and Direction of Election.
APPENDIX A
Receiving and Marking Clericals Sales Clerks
Supply Room Clericals Cashiers and Wrappers
Receiving Room Markers and Department Clericals
Checkers Store Protection Employees
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Watchmen
Maintenance Mechanics
Delivery Packers
Tea Room Employees
Copywriters and Artists
Sign Writers
Window Trimmers
Employees of the Photographic
Department
Mail and Telephone Shoppers
Post Office Clericals
Receiving Clericals
Stockroom Clericals
Delivery Clericals
Telephone Operators
Porters and Cleaners
Elevator Operators
Doormen
Gift Wrappers
Employees in the Alteration and
other Workrooms, with the ex-
ception of men's tailors
Beauty Parlor Operators
Merchandise Office Clericals
Unit Control Clericals
APPENDIX B
Executive Office Employees
Credit Manager
Display Manager
Receiving and Marking Room
Manager
Personnel Manager
Warehouse Manager
Delivery Manager
Delivery Drivers and Delivery
Hoppers
Warehouse Clericals
Comptroller and Assistant
Advertising Manager
.Merchandise Manager and As-
sistants
Department Buyers
Stylists
Floor Managers
Store Superintendent
Executive Clerical Employees
Employment and Training Em-
ployees
Men's Tailors
APPENDIX C
Merchandise Adjustment Office Direct Mail Stuffers
Employees Superintendent Office Clericals
Advertising Clerical Employees
CREDIT OFFICE
Clericals Authorizers
Stuffers Accounts Receivable Billers
Miscellaneous Employees
ACCOUNTING, OFFICE
Auditing Employees Accounts Payable Division
Statistical Division Cashier's Office and Payroll Divi-
Mail and Stenographers Division sion