Atlantic Mills Servicing Corp. of Cleveland, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1957

117 N.L.R.B. 65 (N.L.R.B. 1957)

ATLANTIC MILLS SERVICING CORPORATION OF CLEVELAND, INC. 65
their votes will be pooled with those in voting group (b)." The Re-
gional Director conducting the elections is instructed to issue a certifi-
cation of representatives to the union selected by a majority of the
employees in the pooled group, which the Board in such circumstances
finds to be appropriate for purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
11 If the votes are pooled , they are to be tallied by counting votes for Teamsters Local
No. 955 as valid votes cast, but neither for nor against any union seeking to represent
the more comprehensive unit ; all other votes are to be accorded their face value, whether
for representation by a union seeking the comprehensive unit or for no union
Atlantic Mills Servicing Corporation of Cleveland , Inc., and its
subsidiaries Atlantic Mills Menswear of Cleveland , Inc., At-
lantic Mills Fashions of Cleveland , Inc., Atlantic Mills Chil-
dren's Apparel of Cleveland , Inc., Atlantic Mills Accessories of
Cleveland , Inc., and/or Virginia Dare Stores Corporation 1 and
Retail Clerks International Association , Local 41, AFL-CIO,
Petitioner. Case No. 8-RC-2787. January 16,1957
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 Edward A. Grupp, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. Virginia Dare Stores Corporation, a Delaware corporation with
its principal place of business in New York City, New York, operates
self-service department stores in some five States under the trade name
of Atlantic Mills Shopping World 2 Only the store located in Bedford,
Ohio, is here involved. Atlantic Mills Servicing Corporation of
Cleveland, Inc., a wholly owned subsidiary of the Virginia Dare Stores
Corporation, holds a lease on the premises in Bedford. Atlantic Mills
Menswear of Cleveland, Inc., Atlantic Mills Fashions of Cleveland,
Inc., Atlantic Mills Children's Apparel of Cleveland, Inc., and At-
lantic Mills Accessories of Cleveland, Inc., affiliated subsidiaries of
the Virginia Dare Stores Corporation, operate a ready-to-wear cloth-
ing department at the Bedford store. The parties agree that all the
above-named entities constitute the Employer herein.
1 The Employer's name appears as amended at the hearing.
2In addition, Virginia Dare Stores Corporation operates 29 retail women's ready-to-wear
stores under the Virginia Dare name in approximately 10 States. The record does not
disclose the value of annual sales made by these establishments.
117 NLRB No. 19.
423784-57-vol. 117-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that, during the 4-month period beginning in
May 1956, when the Bedford store commenced operations, until August
31, 1956, Virginia Dare Stores Corporation shipped from its New
York facilities directly to the Employer's ready-to-wear department
goods valued at $376,662. During the same period, the Employer re-
ceived direct shipments of goods from out-of-State manufacturers
valued at $318,539. The Employer's sales during the 4-month period
totaled approximately $669,000.
The Petitioner contends that the Employer's direct out-of-State
purchases for the 4-month period from May to August, when projected
on a 12-month basis, satisfy the Board's jurisdictional standard for
the assertion of jurisdiction over retail store establishments. While
the Employer does not deny that it is engaged in commerce within the
meaning of the Act, it refused to stipulate that its operations bring
it within the Board's jurisdictional rules.
It seems clear that the Employer's direct out-of-State purchases,
when projected on a 12-month basis,3 are in excess of $1,000,000. Ac-
cordingly, as the Board's direct inflow requirement for the assumption
of jurisdiction over retail stores has been met,4 we find that the Em-
ployer is engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act to assert jurisdiction over it.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question 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 appropriate unit :
The Petitioner seeks a unit of all employees of the Employer at
the Bedford, Ohio, store, including employees of all leased depart-
ments, as well as employees in the Employer's ready-to-wear depart-
ment, but excluding guards, watchmen, and all supervisors as defined
in the Act. Alternatively, the Petitioner requests a unit of employees
confined to the Employer's ready-to-wear department. The Em-
ployer contends that the Petitioner's primary unit request is inap-
propriate because it includes employees of leased departments over
whose terms and conditions of employment the Employer exercises
no essential control. However, the Employer agrees that the Peti-
tioner's alternative unit request, limited to the employees in the ready-
to-wear department, is appropriate for collective-bargaining purposes.
There is no history of collective bargaining at this establishment.
Atlantic Mills Servicing Corporation of Cleveland, Inc., holds a
lease on the Bedford store and sublets space on the premises to 11
3 See Carpenter Baking Company, Inc., 112 NLRB 288.
4 See Hogue and Knott Supermarkets, 110 NLRB 543.
ATLANTIC MILLS SERVICING CORPORATION OF CLEVELAND, INC. 67
independent corporations 5 who operate various departments featuring
such items as shoes, hardware, toys, etc. The ready-to-wear depart-
ment, which is owned and operated by this Employer, is not a leased
department.
The Bedford store is under the overall management of a store man-
ager employed by Virginia Dare Stores Corporation. The store
manager directly supervises the employees in the Employer's ready-
to-wear department. However, each of the leased departments is
under the supervision of a department manager. While the store
manager has authority to recommend to the respective leased depart-
ment managers that their employees be disciplined for infractions of
general store rules, i. e., eating or smoking on the selling floor, each
,of the department managers possesses the exclusive authority to hire
and discharge employees under him.
The record reveals that the home office of Virginia Dare Stores
Corporation in New York sets uniform hours of work as well as vaca-
tion periods for all employees. Holidays and other employee plans
are also centrally devised in the New York office of Virginia Dare
Stores Corporation. However, each leased department maintains its
own timecards, accounting records, and payrolls. Each leased depart-
ment pays its own employees, and makes its own payroll deductions
for income taxes, workmen's compensation, and social-security taxes.
Moreover, each department manager independently grants wage in-
creases to the employees in his department. Finally, there is no evi-
dence of interchange between the employees of the various leased
departments and the Employer's ready-to-wear department.
In view of the foregoing, and the entire record in this proceeding,
it seems clear that the independent corporations which lease space
from the Employer to operate their various departments, and not the
Employer, control the essential terms and conditions of employment
governing the leased department employees. Accordingly, we find
that the employees of the leased departments do not possess sufficient
interests in common with the employees of the Employer in the ready-
to-wear department to warrant including the leased department em-
ployees in a unit with the employees in the ready-to-wear department .6
We therefore find that a unit including all employees in the leased
departments and all employees in the Employer's ready-to-wear de-
partment is inappropriate. On the other hand, we find that the alter-
native unit requested by the Petitioner, consisting of all the employees
in the Employer's ready-to-wear department, is appropriate for pur-
8 The parties stipulated that the employees of one of these leased departments, which is
operated as a grocery store by Fazio's, should not be considered as part of the unit of
leased department employees whom the Petitioner seeks because the employees of this
department are currently represented by a sister local of the Petitioner.
9 See The Erlanger Dry Goods Co., 107 NLRB 23; The Fair Department Store, 107 NLRB
1501.
68 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining. We shall therefore direct that an
election be held among the employees in that department.
We find that the following employees of the Employer constitute
an appropriate unit for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act: All employees in the
Employer's ready-to-wear department at its retail store in Bedford,.
Ohio, excluding employees in the leased departments, guards, watch-
men, and all supervisors-as defined in the Act.
[Text of Direction of Election omitted from publication.]
Minute Maid Corporation and Cannery, Citrus Workers , Drivers,
Warehousemen and Allied Employees Local Union #444, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, AFL-CIO , Petitioner . Case No.
12-RC-14 (formerly 10-RC-3596). January 16,1957
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 Allen Sinsheimer,
Jr., hearing officer. ' The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds :
1. The Employer contends that the Board has no jurisdiction over
it and that , therefore , the instant petition should be dismissed. We
find no merit in this contention.
The Employer is a Florida corporation with its principal office
located at Orlando, Florida , and is engaged in the business of concen-
trating and processing citrus products . Its plant at Auburndale,
Florida, is the only one involved in this proceeding . As the Em-
I The Employer moves that the petition be dismissed on the ground that it is not sup-
ported by 30 percent of the employees in the unit as required by the Board's Rules and
Regulations, and on the further ground that the Board's application of the 30 percent
showing-of-interest rule to seasonal industries (to the effect that the showing may be
limited to current employees, excluding peak season employees, at a time when peak sea-
son operations are not being carried on) is an arbitrary and capricious rule, contrary
to the meaning and intent of the statute, and is not consistent with the Act or with the
Administrative Procedure Act.
These motions are hereby denied The Board has repeatedly held that the showing of
interest is a matter for administrative determination and is not a subject which is litigable
by the parties to a representation proceeding Furthermore, we are satisfied that Peti-
tioner's showing is adequate, even when measured against the number of employees
employed during the Employer's peak season operations. Furthermore, we have fre-
quently held in the past that a representation proceeding is not subject to the provisions
of the Administrative Procedure Act. F C. Russell Company, 116 NLRB 1015, and
cases cited therein Accordingly, we find no merit in these contentions.
The Employer has advanced various additional grounds for dismissing the petition.
For reasons stated hereinafter in this Decision the motions to dismiss are hereby denied
in toto.
117 NLRB No. 17.