The Muller Co., Ltd.

National Labor Relations Board - Board Decisions

Mar 18, 1952

98 N.L.R.B. 737 (N.L.R.B. 1952)

THE MULLER COMPANY, LTD. 737'
THE MULLER COMPANY, LTD. and LOCAL No. 87, OFFICE EMPLOYEES
INTERNATIONAL UNION7 AFL, PETITIONER. Case No. 15-RC-6°d.
Mardi, 18, 1952
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 J. M. Mitchell, 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 Herzog and Members Murdock and Styles].
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Acta
4. The Petitioner seeks to represent a unit of all employees at
the Employer's Lake Charles, Louisiana, department store and adja-
cent "bargain" store, with certain agreed inclusions and exclusions.
In addition, the Employer would enlarge the unit to include employees
in its two branch stores in other cities, and also employees of one leased
department, known as the camera shop; and would exclude its tele-
phone operator and payroll clerk, as confidential employees; its two
executive trainees, as occupying both a managerial and a supervisory
status ; and its watchmen. William G. McClanahan, d/b/a Mac's
Camera Shop, operator of the camera shop herein called the Inter-
venor, would exclude the employees therein.
The Employer is engaged in the operation of a department store
in Lake Charles. Its bargain store is located in the same business
block with the main store, but is separated from it by several unrelated
retail stores. The branch stores, located, respectively, in Sulphur
and De Ridder, 15 and 45 miles from Lake Charles, maintain and
sell stocks of furniture and household appliances. They also take
orders for goods stocked only at the main store in Lake Charles.
a
1 The Employer moved to dismiss the petition on the ground that the Petitioner "sub-
stantially changed" its unit request at the hearing„ and failed,to, make a satisfactory-
showing of interest for this unit. The record shows that the changes in the proposed unit.
are insiggifcant,=,and we are satisfied that Petitioner's showing. of interest is adequate.
The motion is denied.
98 NLRB No. 110.
738 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
Each branch is under a local manager, although the, stores have little
local autonomy, and are considered "departments" of the, main store.
Purchasing, advertising, and inventory are under the direct control
of officials in the main store. There are three employees in the
branch store at De Ridder and five in the other at sulphur. They
are hired by the Employer's Lake Charles personnel manager, and
receive identical wages, work the same hours, and share equally all
benefits with the Employer's other employees. The record also
shows that transfers have been made between the branches and the
main store, although their frequency is not specified.
We think it apparent from these undisputed facts that the branch
stores are completely subordinate to, and dependent upon, the main
store. Lacking independence in all but the most routine, local matters,
they are satellites of the Lake Charles operation. Branch store em-
ployees are treated exactly like those in Lake Charles. The interests
and working conditions of all the Employer's employees are identical.
We do not deem the geographical separation alone sufficient reason for
excluding these few employees from the unit. Accordingly, we shall
include in the unit all employees in the Employer's branch stores 2
There are four leased departments in the Employer's Lake Charles
store. As to three of them, all parties agree that the employees
therein should be included in the appropriate unit. The sole dispute,
therefore, involves the inclusion of regular sales personnel at the
camera department. This department has been operated by the In-
tervenor for approximately 1 year, subject to an oral agreement simi-
lar to, but not identical with, the written agreements under which
the other three leased departments function. All its cameras and
other equipment, unlike the merchandise sold in the other leased de-
partments, bear a tag showing that the department is operated by the
Intervenor., At his principal store in Lake Charles, the Intervenor
displays advertising urging customers to shop at "our camera depart-
ment' at Muller's."
Camera department employees are hired by the Intervenor, whose
lease does not require approval of new employees by the Employer.
Notice of personnel changes is given by the Intervenor to the Em-
ployer, however, as a matter of courtesy. Like employees of the
other leased departments, these employees are listed on the Employer's
payroll. However, the Intervenor, unlike the other lessees, fixes and
pays camera department salaries, and handles all income tax, social,
security, and unemployment compensation payments. Camera de-
partment hours conform, of course, to the Employer's store hours.
3 Bonwit Teller, Inc., 84 NLRB 414 ; cf. Singer Sewing Machine Company, 87 NLRB 460.
Y''' THE MULLERCOMPANY, 'LTD:' '' ' -- 739
Camera department personnel must become familiar with the Em-
ployer's sales slips, and must learn how to handle its charge accounts.
They must also have specialized training, given by the Intervenor,
before they are qualified to sell cameras and other photographic equip-
ment and supplies.
On the basis of the foregoing facts, we believe that regular camera
department personnel should be excluded from the unit. Although
they appear to the general public to be employees of the Employer,
they are almost exclusively subject to the Intervenor's,supervision
and control. Their wages and other compensation are handled by the
Intervenor alone, and their work requires training and knowledge
beyond that required of other sales personnel in the Employer's store.
Accordingly, we shall exclude from the unit all employees of the
leased department operated by the Intervenor."
There remains for consideration the question whether the telephone
operator and payroll clerk are confidential employees; the executive
trainees are managerial employees; and the watchmen are primarily
plant-protection employees.
The payroll clerk works in the office of the main store in Lake
Charles. She keeps all income tax and employee insurance records,
prepares the payroll, and is responsible for all matters affecting it.
Contrary to the Employer's contention, there is no showing that this
employee has access to any matters pertaining to the Employer's gen-
eral labor policy or that she deals with any material relating to the
Employer's over-all labor relations questions. In accordance with
established Board principles, we shall include her in the unit 4
There is one full-time telephone operator, who handles all calls
which come through the Employer's Lake Charles switchboard. The
Employer would exclude this employee because she can, if she so de-
sires, eavesdrop on confidential conversations. It is no part of her
duty to listen to such conversations, however. We find, therefore,
that the telephone operator is not a confidential employee, and we
shall include her in the unit.'
At the present time, the Employer has two executive trainees.
They are undergoing a term of training which will last from 6 months
to a year of progression from department to department throughout
the store. One currently works in the Employer's office, the other
is concerned with the Employer's purchasing and sales operations.
8 The P . B. Magrane Store, Inc., 84 NLRB 345; Block and Kuhl Department store, 83
NLRB 418; cf . Stack & Company, 97 NLRB 1492 ; The Robinson -Schwenn Store, 83
NLRB 35.
Cities Service Refining Corporation , 94 NLRB 1634 ; Mack Motor Truck Corporation,
94 NLRB 1284.
6 Lever Brothers Company, 89 NLRB 445.
740 DECISIONS OF .NATIONAL. LABOR -RELATIONS BOARD
The Employer concluded, that they _vFill,ligve access to `.`confidential,
records," but did "not assert that these,record.s pertain to .its labor re-
lations. College training is not a requirement for these employees.
At the present time, they are not responsible for hiring or discharging
of employees, although the record shows that they will probably ex-
ercise such powers, in the future. One of them, now serving as the
Employer's office manager, exercises "some supervision" at the present
time. Both' participate in management conferences, some of which
deal with personnel matters. They are paid, salaries although the
other employees in the unit receive wages, plus commissions. In view
of these facts and the supervisory or managerial status which the ex-
ecutive trainees will eventually attain, it is apparent that their inter-
ests are materially different from those of, the Employer's other
employees. Accordingly, we shall exclude them from the unit .6
The Employer has four nondeputized watchmen. Their primary
responsibility is to protect and guard the Employer's store and mer-
chandise against fire and theft. They work on 8-hour shifts, which
overlap the working day of the other employees. Approximately
one-quarter of their time is spent in vacuuming rugs throughout the
store. They have the sole responsibility for checking packages taken
from the store by other employees, and they require all persons enter-
ing the store after business hours to sign a registry book. They are
the only guards or protection employees now used by the Employer.
As they spend three-quarters of their time protecting the Employer's
premises and merchandise, we find that they are employed as guards
within the meaning of the Act, and we shall, therefore, exclude them
from the unit.?
Accordingly, we find that all employees at the Employer's main
store and bargain store in Lake Charles, Louisiana, and its branch
stores in Sulphur and De Ridder, Louisiana, including regular part-
time- 'employees, leased department employees paid from the Em-
ployer's payroll, the payroll clerk, and the telephone operator, but
excluding employees in the camera department, executive trainees,
watchmen, confidential secretaries, professional employees, temporary
part-time (seasonal) employees, and all supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.],
.
e S. H Kreae & Co., Store No 7; 94 NLRB No. 161.
7 Namm's Inc ., 81 NLRB 1019 . 1 - ' -