A. S. Beck Shoe Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1942

41 N.L.R.B. 1043 (N.L.R.B. 1942)

In the Matter of A . S. BECK SHOE CORPORATION and RETAIL CLERKS,
LOCAL 262, AFL
Case No. R-3782.-Decided June 17,1942
Jurisdiction : shoe retailing industry.
Investigation and Certification of Representatives: existence of question : fail-
ure to prove majority ; election necessary.
Unit Appropriate for Collective Bargaining : all regular, contingent, and extra
salesmen, including a named employee, and all regular and extra sales girls
employed at the Company's Washington, D. C., store, but excluding the hostess,
cashier, wrapper, stock boy, and porter, and the manager and assistant manager.
Schlesinger and Krinsky, by Mr. I. E. Schlesinger, of New York
City, for the Company.
Smith and Mills, by Mr. Lawrence J. Mills, Jr., of Washington,
D. C., for the Union.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Retail Clerks, Local 262, AFL, herein
called the Union, alleging' that a question affecting commerce had
arisen concerning the representation of employees of A. S. Beck Shoe
Corporation, New York City, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing before
Albert P. Wheatley, Trial Examiner. Said hearing was held at Wash-
ington, D. C., on April 29, 1942. The Company and the Union ap-
peared, participated, and•were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
The parties filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
A. S. Beck Shoe Corporation, a Delaware corporation, having its
principal office in New York City, operates 108 retail shoe stores in
41 N. L . R. B., No . 193. 11 .
1043
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1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some 20 States of the United States and in the District of Columbia.
The Washington, D. C., store, which is involved herein, sells at retail,
shoes, hosiery, and handbags, and receives such items of merchandise,
of a value in excess of $100,000 annually, from points outside the
District of Columbia. Its gross annual sales amount to more than
$100,000.
II.• THE ORGANIZATION INVOLVED
Retail Clerks, Local 262, is a labor organization affiliated with the'
American Federation of Labor, admitting to membership employees
of the, Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union requested the Company, by letter dated March 2, 1942,
to enter into bargaining, negotiations with the Union as the repre-
sentative of the Company's employees. The Company, through its
attorneys, questioned the Union's' claim of majority and stated that
the Company would negotiate with the Union if the Union submitted
satisfactory evidence of majority representation in an appropriate
bargaining unit.
A statement of the Regional Director, introduced into evidence,
indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found to be appropriate.'
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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
At the hearing, the Union urged a unit composed of the regular,
contingent, and extra-shoe salesmen exclusive of the manager and as-
sistant manager, employed by the Company. The,Company'contended
that sales girls, and a hostess, cashier, wrapper, stock boy, and porter
should be included in the unit. In its brief, the Union appears to have
modified its request so as to include in the unit urged all employees
"designated as sales persons," conceding, apparently, that sales girls,
employed in selling hosiery and handbags, should be included.2
' The Regional Director's statement shows that the Union submitted 12 authorization
cards ; that all cards bear apparently genuine signatures of persons whose names appear on
the Company's pay roll for the week ending March 13' 1942. There are approximately
22 employees in the unit found to be appropriate.
2 The brief filed by the Union contains the statement that, "The Union does not seriously
maintain that saleswomen who are engaged primarily, and regularly in the sale of acces-
sories or findings shall be excluded from the appropriate bargaining unit." *It also con-
tained a request for the exclusion of one employee, referred to by the Company, as'an
"extra" or ""extra day-by-day sales girl -No reason was assigned for, this request. ' In
any event, we shall include her in the unit found appropriate. , I ,
A. S. BECK SHOE CORPORATION 1045
Sales girls as well as salesmen are eligible to membership in the
Union and both have been included in a series of bargaining contracts
which have been made by the Union with four other local retail shoe
stores in the past 2 years. The Company's sales employees work to-
gether in the store's shoe, hosiery, and bag departments, on the same
floor, have the same working hours and supervisors,' are paid on a
salary and commission basis, and cooperate on sales of hosiery and bags
for which both salesmen and sales girls receive a commission. We see
no reason for distinguishing between salesmen and sales girls and are
of the opinion that both should be included in the unit.
The hostess, cashier, wrapper, stock boy, and porter. perform the
usual functions which their respective classifications denote. Their
duties, the nature of their work, and the basis of their compensation
are essentially different from those of the sales employees. The Union
contends that they are not eligible to membership in the Union, but
are admitted to other unions, and that the Union has made no attempt
to organize these employees. While the Company urges that the
eligibility provision of the Union's constitution indicates that these
employees are eligible to membership, it is significant that in prac-
tice these classes of employees have not been admitted to membership
and are not covered by the contracts between the Union and other'local
retail shoe stores. Under all the circumstances, we shall exclude the
hostess, cashier, wrapper, stock boy, and porter from the unit found
appropriate.
The parties also differed as to Edward F. deWolfe, sought to be
included by the Union as a regular salesman and excluded by the Com-
pany as a supervisory employee. Although deWolfe is listed on the
Company's pay roll as a "regular salesman," he is also designated by
the Company as-the "second assistant" manager., He spends about
half of his time in supervising the other salesmen, attending to stock,
• and performing duties with respect to the store generally, and the
balance of his time in selling. There is, however, no limitation upon
the time he may engage in selling or upon the number of sales he may
make, and his salary is comparable to that of the other regular sales-
men. It appears that while the manager and assistant manager are
entrusted with the keys to the store, deWolfe is not. The record fur-
ther establishes that deWolfe has never assumed the responsibilities
of the manager or the assistant manager. In view of'the foregoing,
we shall include deWolfe in the unit found appropriate.
We find that all regular, contingent, and extra salesmen, including
Edward F. deWolfe, and all regular and extra sales girls 3 employed
by the Company at its Washington, D. C., store, but excluding the
hostess, cashier, wrapper, stock boy, and porter, and the manager and
3 The Company does not list any of its sales girls as "contingent "
1046 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
assistant, manager, 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 shall direct that the question concerning representation which
has arisen be 'resolved by an election by secret ballot. The Union
requested, in the event of a direction of election, that eligibility to vote
be determined as of the pay-roll period immediately preceding March
2, 1942, the date of its request upon the Company to bargain, for the
asserted reason that it then represented a majority and that three
sales employees had been added to the Company's pay roll since that
date. ' The reason assigned by the Union for the request is without
,merit. Accordingly, we shall follow our usual practice and direct
that those eligible to vote in the election shall be the employees in
the appropriate unit who were employed during the pay-roll' period
immediately preceding the date of the Direction of Election 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 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 8, 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 purposes of collective bargaining with A. S. Beck Shoe
Corporation, New York City, an election by secret ballot shall be
conducted as soon 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 Fifth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Section 9, of said Rules and Regulations, among 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 of Election, including any such employees who did not work
during such pay-roll period because they were ill or on vacation or
in the active military service or training of the United' States, or
temporarily laid off, but excluding employees who have since quit or
been discharged for cause, to determine whether or not they desire
to be represented by Retail Clerks, Local- 262, AFL, for the purposes
of collective-bargaining.