Block and Kuhl Department Store

National Labor Relations Board - Board Decisions

May 6, 1949

83 N.L.R.B. 418 (N.L.R.B. 1949)

In the Matter of BLOCK AND KUHL' DEPARTMENT STORE and RETAIL
CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNION #536
Cabe No.13-RC=444.=Deeided May 6,1949
DECISION
AND
'DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before • Philip Licari,
hearing officer of the National Labor Relations Board. The hearing
officer 's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. "
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers ' in 'connection with this case to a
three-member panel [Members Reynolds ,- Murdock, and Gray].
Upon the entire record in this case , theBoard finds :
1. The Employer is an Illinois corporation , maintaining its office
and principal place of business in Peoria , Illinois . It is engaged in the
operation of a number of retail department stores in the States of
-Illinois and Iowa .' It operates ' a central purchasing department and
warehbuse in Peoria . Its store at Galesburg, Illinois, is the only one
involved in this proceeding .' During the year 1948 the Employer
-purchased merchandise in excess of $5,000 ,000 in value, of which
'amount more than $3 ,500,000 in value was shipped to the Employer's
general warehouse in Peoria, Illinois , from points outside the State
of,Illinois . All goods received at its Peoria warehouse are removed
from . their original packages; invoiced , priced, and reshipped to its
retail stores. No retail store has any direct dealing with sources of
goods located outside the State of Illinois . Of the total goods pur-
chased 31/2 percent was shipped to the Employer 's stores in Iowa. Dur-
ing the same period gross sales in all stores were in excess of $5,000,000,
all of which were made to local customers within the respective States.
Retail sales at the Galesburg , Illinois, store were in excess of $200,000.
The Employer contends that the Galesburg store, as all its stores,
is operated as an independent unit ; that there is no direct flow of
merchandise to this store from points outside the State of Illinois;
that the retail sales at the Galesburg store are intrastate in character,
1 There are 14 stores in the State of Illinois , including the store in Galesburg, Illinois,
and 2 stores in the State of Iowa.
.83 N. L. R. B., No. 63.
418
0?--C'l
%ZYNCEiBUE^G' FOUND RY COMPANY 419
and that because 'of these facts the Employer's Galesburg store is ,not
engaged-in commerce within the meaning of the Act. We have, how-
ever, heretofore, held that, in deciding whether or not jurisdiction of
the Board attaches in any given case, the totality of the Employer's
operations and its effect on commerce may properly be considered.2
Under the circumstances and upon the basis of the record in this
case, we find, contrary to the contentions of the Employer, that insofar
as the Galesburg store is concerned the activities of the . Employer
affect commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction here.
2. The labor organization involved claims to represent the em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
4. The Petitioner and the Employer agree that all employees in
its Galesburg, Illinois, store, including janitors, elevator operators,
office employees, and window trimmers, but excluding employees who
work less than 18 hours a week, seasonal employees, tailors, legitimate
buyers, watchmen, delivery boys, managers, office managers, assistant
managers, and all other supervisors within the meaning of the Act,
constitute a unit appropriate for the purposes of collective bargaining.
However, the Petitioner would exclude, and the Employer would
include, employees in certain leased departments together with em-
ployees, Hugg, Ramsey, Johnson, and Cypher, who are classified as
department heads.
The Employer has entered into lease arrangements with different
companies for the operation of four departments in its Galesburg
store .3 In consideration of the furnishing of space and certain facili-
ties, the Employer receives a stipulated percentage of the sales income
from the leased departments. The lessees of these departments estab-
lish their own merchandising policies and operate their departments
free'from any direct control by the Employer.4 Each leased depart-
ment is operated by a department manager and-an occasional part-
time employee. Although the Employer may aid initially by sug-
gesting some suitable person for the job of department manager, the
hiring of a department manager is entirely within the control of the
lessee of the department concerned. Moreover, the terms and condi-
tions of employment, and the compensation of the employees in the
leased departments, although in conformity with the store's general
policy, are fixed by the lessees. Under the circumstances, we believe
2 Matter of Tanner-Brice Company, 82 N. L . R. B. 477.
These departments are the shoe, men's clothing , stationery and books , and millinery.
4 The merchandise for these departments Is'stocked by the lessees of the respective leased
departments.
420 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
that the employees in the leased departments do not possess suffi-
cient interests in common with the employees in the regular depart-
ment of the Employer to be joined together with the latter employees
for collective bargaining purposes. We shall, therefore, exclude from
the unit all employees in the leased departments.
The Petitioner would exclude the department heads previously
named upon the ground that they are supervisors within the meaning
of the Act. The Employer, on the other hand, opposes the exclusion
of such department heads and contends that the functions and duties
of these department heads are substantially similar to those of other
department heads, whom the parties have agreed to include in the
unit. The Employer's Galesburg store has approximately 22 regular
departments. Most departments employ only a single employee clas-
sified as a department head. The prescribed duties of a department
head are to sell merchandise, make up displays of merchandise, and
to tend to the general housekeeping in his department. If not waiting
on customers in his own department, or otherwise occupied, a depart-
ment head is required, if necessary, to wait on customers in other de-
partments. The Petitioner contends, however, that in addition to
these prescribed duties, department heads Hugg, Ramsey, Johnson,
and Cypher supervise the activities of personnel in other departments
in the absence of the floor manager. Thus, the Petitioner alleges, the
4' named department heads have authority to assign personnel to
serve in other departments as needed; to maintain discipline on their
floors; to authorize employees to leave their departments for brief rest
periods; and on occasion to interview prospective new employees.
The evidence, however, does not support the contentions of the Peti-
tioner. The Direction by the named department heads of the activi-,
ties of other employees is, if anything, of a routine character. What
the record clearly demonstrates is that employees Hugg, Ramsey, John-
son, and Cypher do not have authority to hire or discharge other
employees or effectively to recommend such action; nor do they have
effective authority to discipline other employees or responsibly to
direct their activities. We believe that employees Hugg, Ramsey,
Johnson, and Cypher are not supervisors within the meaning of the
Act,; and, accordingly, we shall include them in the unit.
We find that all employees s at the Employer's Galesburg, Illinois,
store including janitors, elevator operators, office employees, and win-
dow trimmers, but excluding employees who work less than 18 hours a
week, seasonal employees, tailors, legitimate buyers, watchmen, de-
livery boys, managers, office managers, assistant managers, and all
other supervisors as defined in the Act constitute an appropriate unit
Included are employees Hugg , Ramsey, Johnpon , and Cypher.
f)
LYNCHBURG FOUNDRY COMPANY 421
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
5. The Petitioner further requests that in any unit found appro-
priate employees without 60 days of consecutive employment prior
to the date of the direction of election should be held ineligible to
vote. The Petitioner maintains that only permanent employees have
sufficient interest in the terms and conditions of employment to be
entitled to vote; and that in the retail department store field no em-
ployee can reasonably be considered as permanent who has not been
employed for a period of at least 60 consecutive days. The Employer,
opposing the contention of the Petitioner, argues that, except for
seasonal employees who are excluded from the unit by the agreement
of the parties, all employees, whether working a full or part-time
schedule, are considered to be regular and permanent employees.
However, the Employer is willing to concede that any person who has
not been employed as a regular part-time or full-time employee at
-least 30 days prior to the date of the election should be ineligible to
vote. In the absence of any evidence in the record to show that new
employees are treated as temporary employees and without substantial
interests in the terms and conditions of employment, we shall, subject
to the limitations set forth in the Direction of Election, permit all
regular employees who have been on the Employer's pay roll for a
.period of at least 30 days prior to the date of the election, to vote in the
election e
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
visiori of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-' Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, 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, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine.
whether or not they desire to be represented, for the purposes of collec-
tive bargaining, by Retail Clerks International Association, Local
'Union No. 536.
0 Cf. Matter of Electric Hou8e1roid Utilitica Corporation, 73 N. L. R., B. 500.
844340-50-vol. 83-28