Bon Marche

National Labor Relations Board - Board Decisions

Oct 15, 1957

118 N.L.R.B. 1621 (N.L.R.B. 1957)

. BONMARCHE 1.621.
some of them are employed by certain of the other corporations.
It is clear, however, that all are employed by the enterprises which
-we. have found,to constitute a single Employer, that all. were hired
by the Employer's vice president; and that all have the same im-
mediate supervision. Accordingly, we find that the following em-
ployees of the corporations that we have found herein to be a single
employer constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act:
All over-the-road truckdrivers, warehousemen, and mechanics' em-
ployed by the Employer excluding office clerical employees, watch-
men, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Consolidated Retail Stores , Inc., d/b/a Bon Marche and Retail
Clerks International Association Local 1682, AFL-CIO, Peti-
tioner. Case No. 7 RC-3338. October 15, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
On April 11, 1957, pursuant to the Board's Decision and Direction
of Election,' an election by secret ballot was conducted under the di-
rection and supervision of the Regional Director for the Seventh
Region, among the employees in the unit found appropriate by the
Board. Following the election, the parties were furnished a tally of
ballots. The tally shows that 28 ballots were cast, of which 14 were
for the Petitioner, 11 were against the Petitioner, and 3 ballots were
challenged. As the challenged ballots were sufficient in number to
affect the results of the election, the Regional Director, pursuant to the
Board's Rules and Regulations, conducted an investigation and, on
June 10, 1957, issued and served upon the parties his report on chal_
lenged ballots. On June 20, 1957, the Employer filed exceptions _to
the Regional Director's report.
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 [Members Murdock, Rodgers, and Bean].
The Regional' Director's investigation discloses that during the
course of the election thebellots-of Edward M. Helzer, Roger Warfield,
and Annie Hornberger were challenged by the Board's agent because
their names did not appear on the eligibility list. Two of the voters
casting challenged ballots, namely' Helzer and Warfield, are shoe
salesmen employed in the- shoe department.
a Consolidated Retail Stores, Inn., d/b/a Bon Marohe, Case No. 7-RC-8338, issued
March 14,1957, not reported in printed volumes of Board Decisions and Orders.
118 NLRB No. 222.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
Iii its Decision and Direction of Election, the Board found that
both the shoe department and the millinery department were leased
departments, and specifically excluded from the appropriate unit all
leased department employees. In regard to the leased departments
the Board found as follows :
The Petitioner would exclude and the Employer would include
employees employed in the shoe department and millinery depart-
ment, leased by Senack Shoes, a subsidiary of Consolidated Retail
Stores, Inc., and O. R. & 0., respectively. The lessees hire their
own employees, establish their wage rates, working hours, vaca-
tions, and sick leave. However, the Employer exercises some
general control over employees in these departments to see that
they conform to general store rules and regulations, and the
store manager could discharge such employees for theft or in-
subordination. The Employer pays the leased department em-
ployees and withholds social security payments and other tax
payments, but it is, in turn, reimbursed by the lessees. As it
appears that the Employer does not control the essential terms
and conditions of employment governing the leased department
employees, we find that these employees do not have a sufficient
community of interest with other employees to warrant their
inclusion in the unit, and we shall exclude them.
Subsequently, on March 27, 1957, the Employer filed a motion re-
questing the Board to reconsider its decision excluding employees of
the shoe department and the millinery department. In its motion, the
Employer disputed only the Board's evaluation of the evidence appear-
ing in the record. Thus, it contended that it retained essential control
over the millinery department employees; that the millinery depart-
ment operated in strict conformity with the personnel policies and
practices which applied to all other employees in the store; and that
the Employer did control all the operations and policies of the shoe
department. In addition, it contended-that the Board was not entirely
accurate in characterizing the shoe department as being leased by a
wholly owned subsidiary of the Employer, and for the first time in
these proceedings urged, in effect, that the Board should find that
Senack Shoes was an "established division" of the Employer. How-
ever, the Employer offered no additional facts to support its con-
tentions. As the record fully supported the findings made in the
Decision and Direction of Election, and as the Employer submitted
no additional evidence other than merely to state that Senack Shoes
was an established division of its operations, the Board denied the
motion for reconsideration on April 10, 1957. On April 11, 1957, the
election in this matter was held.
BOIL "MARCHE 1623
By letter dated May 1, 1957, addressed to the Board's Regional
Office, the Employer took. the position that the challenges to the
ballots of Helzer and Warfield should be overruled on the ground
that Senack Shoes is a division of the Employer and therefore the
shoe salesmen are its employees.2 To support these contentions, the
Employer submitted, for the first time in these proceedings, the fol-
lowing information concerning Senack Shoes.
The sale of shoes in the stores at Consolidated Retail Stores,
Inc. is an operation of a division of our Company known as
Senack Shoe Division. It is not a leased department, nor is it a
separate association, partnership, company or corporation. All
of its funds are the funds of Consolidated Retail Stores, Inc. All
of its bills are bills paid by Consolidated Retail Stores, Inc. All
of its profits or losses are included in the financial statements of
Consolidated Retail Stores, Inc.
The Senack Shoe Division of Consolidated Retail Stores, Inc.,
is operated under the direct supervision of Joseph Fox, one of
our Vice Presidents. For convenience of operation and because
of its nearness to the shoe market, this Division maintains offices
in St. Louis. This location facilitates the purchasing of shoes
and supplies. In somewhat the same manner Consolidated Re-
tail Stores, Inc. also operates a dress division, a coat and suit
division, a children's clothing division, small wears division, as
well as the shoe division. All of these divisions, together with
the stores, comprise Consolidated Retail Stores, Inc.
The Regional Director concluded, however, that as the Board had.
specifically excluded from the unit the shoe salesmen in the leased
shoe department, and as the Board had denied the Employer's motion
for reconsideration concerning the unit placement of leased depart-,
meet employees, Helzer and Warfield were excluded from the unit.
Accordingly, he recommended that the challenges to their ballots
be sustained.
The Employer excepts to the Regional Director's conclusions and
recommendations, and contends that the Board's unit determination
with respect to the shoe department was based upon "improper in-.
formation and incomplete information." It urges that a hearing be
held in which "it be permitted to testify . . . concerning the status
of the employees in the shoe department, the shoe department itself
and the overall operations of the Employer." For the reasons stated
below, we find no merit in these contentions, and we reject the Em-
ployer's request to adduce additional evidence on the unit issue.
2 Apparently , the Employer no longer contends , as it did during the course of the hear-
ing and in the motion for reconsideration , that the millinery department employees
should also be included In the unit.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's findings in its Decision and Direction of Election, as
set forth elsewhere herein, were based principally on the testimony
of Warren J. Klein, the Employer's store manager., Thus, .on direct
examination by the Employer's counsel, Klein testified that the shoe
department was one of the "leased departments" in the store, and
that it .was leased by Senack Shoes, "a wholly owned subsidiary" of
the Employer. Subsequently, during questioning by counsel for the
Petitioner, Klein testified that "even though this (Senack Shoes) is a
subsidiary of Consolidated, the fact is it is operated as any other
leased department, a true leased department." Other testimony of
Klein clearly indicated that the lessees, including Senack Shoes, hire
their own employees, establish their wage rates, working hours, vaca-
tions, and sick leave, and that the Employer did' not control the
essential terms and conditions of employment governing these leased
departments' employees.
The Employer would now have the Board consider the foregoing
testimony given by its principal witness during the representation
hearing as improper and incomplete, and would have the Board hold
another hearing, at this late date, to receive testimony which would
controvert that evidence which the Employer itself has already pre-
sented.3 It offers no excuse for its failure to produce such evidence
at the hearing, nor does it claim that the evidence it now wishes to
introduce is newly discovered. Moreover, it does not contend that
it did not have an opportunity at the hearing to introduce all pertinent
.evidence on the unit issues.
In view of these circumstances we do not believe that we would
be warranted in reopening the hearing. If, after an election, the
Board were to permit the parties to a representation proceeding to
repudiate their evidence on unit questions and give them an oppor-
tunity to. substitute other evidence, which was reasonably available to
them at the time of the original hearing, there would be no finality to
representation proceedings nor to Board decisions and the way would
be open to unwarranted and dilatory claims. See N. L. R. B. v. A. J.
Tower Company, 329 U. S. 324, 331-335.4 Accordingly, we deny the
Employer's request to reopen the hearing, and adopt the Regional
Director's recommendation to sustain the challenges to the ballots of
Helzer and Warfield.
3It would appear that the Employer now seeks to introduce evidence showing that
Senack Shoes is not, as found in the Decision and Direction of Election , a subsidiary of
the Employer , but is one of its divisions ; and further seeks to show that the shoe depart-
ment in the Employer's store is not a leased department , as was also found in the
Decision and Direction of Election.
* See also Continental Bus System, Inc., 104 NLRB 599; Port Houston Iron Works,
Inc., 103 NLRB 1489, 1491 ; Hagen Manufacturing Company, Inc ., 100 NLRB 1321.
WESTINGHOUSE ELECTRIC CORPORATION 1625
As we have sustained the challenges to the ballots of Helzer and
Warfield, the ballot of Hornberger cannot affect the results of the
election. We, therefore, find it unnecessary to consider the challenge
to Hornberger's ballot.
As the tally of ballots shows that the Petitioner received a majority
of the valid votes cast, we shall certify the Petitioner as the collective-
bargaining representative of the employees in the appropriate unit.
[The Board certified Retail Clerks International Association, Local
1682, AFL-CIO, as the designated collective-bargaining representa-
tive of the employees of Consolidated Retail Stores, Inc., d/b/a Bon
Marche, Grand Rapids, Michigan, department store, in the unit here-
tofore found appropriate.]
Westinghouse Electric Corporation and Local 68, International
Union of Operating Engineers , AFL-CIO, Petitioner. Case No.
22-RC-1 (formerly 2-RC-84103). October 15, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board herein on March 1, 1957,1 an election by secret ballot was field
on March 29, 1957, under the direction and supervision of the .Re-
gional Director for the Second Region, among the employees in. the
appropriate unit. Upon completion of the election, the parties were
furnished with a tally of ballots which showed that all five of the
eligible voters voted for the Petitioner, and none for the Intervenor,
Local 420, International Union of Electrical, Radio & Machine
Workers, AFL-CIO. .
On April 2, 1957, the Intervenor filed timely objections to conduct
allegedly affecting the results of the election.' In accordance with
the Board's Rules and Regulations, the Regional Director conducted
an investigation, and, on May 29, 1957, issued and duly served upon
the parties his report on objections. In this report, the Regional.Di-
1 117 NLRB 520
2 On May 10, 1957, the Petitioner requested permission to withdraw its petition for
certification of representatives filed herein. By order denying request dated August 5,
1957, the Board denied this request as untimely filed.
On August 27, 1957, the Intervenor filed a motion for reconsideration requesting that
the Board set aside this order, because 4 of the 5 employees signed checkoff authorization
cards for the Intervenor in July 1957, subsequent to the withdrawal request. The Board
has held that repudiation by employees of an election, made shortly thereafter, may'. not
overturn and void the election results, because conclusive effect must be given to, the
results of a Board-conducted election for a reasonable period. Accordingly, the motion is
hereby denied. Soerens Motor Company, 100 NLRB 1388, 1390.
118 NLRB No. 224.