Boston Store of Chicago, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1941

37 N.L.R.B. 1140 (N.L.R.B. 1941)

In the Matter of BOSTON STORE OF CHICAGO, INC., and DEPARTMENT
STORE EMPLOYEES UNION LOCAL 291 OF CHICAGO, ILLINOIS , AFFILI-
ATED WITH C. I. O.
In the Matter of BOSTON STORE OF CHICAGO, INC., and DEPARTMENT
STORE EMPLOYEES UNION LOCAL 291 OF CHICAGO, ILLINOIS, AFFILI-
ATED WITH C. I. O.
In the Matter of BOSTON STORE OF CHICAGO, INC., and DEPARTMENT
STORE EMPLOYEES UNION LOCAL 291 OF CHICAGO, ILLINOIS , AFFILI-
ATED WITH C. I. O.
In the Matter of BOSTON STORE OF CHICAGO, INC., and DEPARTMENT
STORE EMPLOYEES UNION LOCAL 291 OF CHICAGO, ILLINOIS, AFFILI-
ATED WITH C. I. O.
Cases Nos. R 33?8. to R-3.85, inclusive-Decided December 31, 1941
Jurisdiction : retail department store industry.
Investigation and Certification of Representatives : existence of question: dis-
pute as to appropriate unit; refusal to accord union recognition, conflicting
claims of rival representatives ; contracts, entered into after notice of claim
of rival representative, or after filing of petition, no bar to; separate elections
to be held among employees in each of the units found appropriate.
Unit Appropriate for Collective Bargaining : separate units composed respectively
of carpenters, painters, and plasterers ; agreement as to ; unit composed of
all porters, maids , and window-washers, held appropriate notwithstanding
desire of competing union for a separate unit composed of window-washers.
Mr. Lester Asher, for the Board.
Mr. Hamilton Moses, Jr., of Chicago, Ill., for the Company.
Mr. Francis Heisler and Mr. Stanley F. Evans, of Chicago, Ill.,
for the C. I. O.
Mr. Daniel D. Carniell and Miss Sylvia G. Katz, of Chicago, Ill.,
for the Council, the Plasterers, the Painters, and the Carpenters.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On August 20, 1941, Department Store Employees Union Local
291 of Chicago, Illinois, affiliated with the C. I. 0., herein called
37 N. L. R B , No. 194.
1140
BOSTON STORE OF- CHICAGO, INC. - 1141
the C. I. 0., filed with the Regional Director for • the Thirteenth
Region (Chicago, Illinois) four petitions alleging that:'questions
affecting commerce had arisen concerning the representation of em-
ployees of Boston Store of Chicago, Inc., Chicago, Illinois, herein
called the Company, and requesting investigations and certifications
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49- Stat. 449, herein called the Act. On October 3,
1941, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Sections
3 and 10 (c) (2), of National Labor Relations Board Rules, and
Regulations-Series 2, as amended, consolidated the cases, ordered
an investigation in each,case, and authorized the Regional Director
to conduct it and to provide for an. appropriate, hearing upon due
notice.
,On October 8, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the, Company, the C. I. 0.,
and upon the following labor organizations, affiliated with the Amer-
ican Federation of Labor, which claimed to represent employees
directly affected by, the investigation : Department Store, Loft and
Factory Building Service Employees, Council of the Building Serv-
ice Employees International Union, herein called the Council;
United Brotherhood of Carpenters and Joiners of America, Chicago
District Council, herein called the Carpenters ; Painters' District
Council No. 14, Brotherhood of Painters, Decorators, and Paper-
hangers of America, herein called the Painters; and Journeymen
Plasterers Protective and Benevolent Society Local Union No. 5,
herein called the Plasterers., Pursuant to notice,- a hearing was
held on October 23, 24, and 25, and November 10, •1941, at Chicago,
Illinois, before Will Maslow, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the Company, the C. I. 0.,
the Council, the • Carpenters, the Painters,, and the Plasterers were
represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties:
During the course of the hearing the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed .2
1 Copies of the notice of hearing were also served upon • Carpenters Union, Local No 1,
United Brotherhood of Carpenters and Joiners of America , and upon Chicago and Cook
County Building and Construction Trades Council.
9 On November 26, 1941 , there was , filed with the Board stipulations , agreed to by all
the parties , to correct certain errors in the transcript of the hearing . The stipulations
are hereby made a part of the record in these proceedings.
433257-42-VOL. 37-73
1142 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
Upon ,the entire record in these proceedings, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Boston Store of Chicago, Inc., a Delaware corporation with its
principal ,office and place of business in Chicago, Illinois; owns and
operates a retail department store in Chicago where it is engaged in
the purchase, sale, and distribution of a general line of merchandise,
including food products, household furnishings and equipment, furni-
ture, hardware, electrical supplies, plumbing supplies, musical instru-
ments, sporting goods, dry goods, luggage, men's wearing apparel, and
other articles, commodities, and merchandise. During 1940•purchases
by the Company of articles for use and resale, at its retail department
store exceeded $6,000,000, approximately 60 per cent of which were
shipped to it from points outside the State of Illinois. During the
same period the total sales of the Company exceeded $13,000,000, of
which amount appioximately 1.49 per cent represented sales of
merchandise transported to customers located in States other than
the State of Illinois.
For the purposes of these proceedings, the Company concedes that
its business and operations affect commerce, within the meaning of the,
Act.
II. THE ORGANIZATIONS INVOLVED
Department Store Employees Union Local 291 of Chicago, Illinois,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to its membership employees of the Company.
Department Store, Loft and Factory Building Service Employees,
Council of the Building Service Employees International Union,
Chicago Window Washers Union, Local 34, United Brotherhood of
Carpenters and Joiners of America, Chicago District Council, Painters
District Council No. 14, Brotherhood of Painters, Decorators, and
Paperhangers of America, and Journeymen Plasterers Protective and
Benevolent Society Local Union No. 5 are labor organizations affiliated
with the American Federation of Labor, admitting to membership
employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
On May 15, 1941, the Council requested a conference with the Com-
pany for the purpose of collective bargaining, notifying it that the
Council, through its affiliated labor organizations, was the statutory,
representative of the porters and scrubwomen employed, by the Com-
BOSTON'ST'ORE' bF--CHICAGO, -INC.- 1143
pany and that Chicago Window Washers Union, Local 34, one of, its
affiliated labor organizations,-herein called the Window Washers, had
been designated by a majority of the window washers. Conferences
were held between the Company, the Council, and the Window Washers
in May, June, and July, 1911. In July the Council ,arid the Window
Washers threatened to call a strike unless the Company entered into a
collective bargaining contract. -
On or about July 11, 1941, the C. I. O. informed the Company that
it was the statutory representative of the Company's employees and
requested a conference for the purpose of collective bargaining. Con-
ferences were held between the C. I. O. and the. Company on July 18
and- 19, at which conferences the Company informed the C. I. O. that
the Council claimed to represent certain of its employees and was,
threatening- to call a strike in an attempt 'to secure- a collective,bar-
gaining contract. The C. I. O. informed the Company that it would
"approve"-of the Company entering into some 'form, of 'relationship
with the Council, but not a collective bargaining contract. The C. I: O.
did not relinquish its claim'to represent the porters, scrubwomen, and
window washers` employed by the Company.
On July 20, 1941, the Company and the Council entered into an
agreement, by the terms of which the Council was recognized as ex-
clusive bargaining agency "on a craft basis" of the Company's porters,
scrubwomen, and window washers, and which provided that the Com-
pany and the Council would confer on July 25 and for 30, days there-
after in an attempt to negotiate a collective bargaining contract. The
Council was recognized in this agreement as the bargaining represent-
ative of the window washers and signed the agreement on behalf of
its affiliated organizations, including the Window Washers. There-
after the Council attempted to confer with the Company and was
informed that the Company was negotiating with the C. I. O. with
respect to clerks employed by the Company and wished to postpone
conferences with the Council until such negotiations were completed:
On August'l, 1941, the Company and the C. I. O. entered into an
agreement jointly to request- the Board's Regional Director to conduct
an election by secret ballot among the Company's employees, exclud-
ing, among others, those whom the Council and the.Window Washers
claimed to represent, and painters, carpenters, and plasterers.. The"
agreement provided that if the C. I. O. was certified by the Regional
Director as a result of theelection, the Company and the C. 1. 0. would
enter into collective bargaining negotiations and incorporate any terms
agreed upon in a union-shop agreement. With respect to the employees
to be excluded • from voting in the election, the agreement contained
the following paragraph : - ,
The Union agrees, in consideration of the execution hereof, that it
will not request recognition by the Company of said Union as the
1144 DECISIONS -OF NATIONAL, LABOR RELATIONS BOARD
sole collective bargaining agency of-[those employees excluded from,
voting in -the- election]-, except after Certification of said Union as
such sole collective bargaining agency by the National Labor Relations
Board.
This paragraph was placed in the agreement because of the C. I. O.'s
refusal to abandon any . future claim to represent such employees. In
the agreement porters, scrubwomen, and window washers are listed
among employees excluded from ."voting in,_ the -election under the
heading-"Crafts With Which the Company Has Agreements Written
or' Verbal." With respect to this, the C. I. O. testified that during the
negotiations. leading to the agreement the C. I. O. had no knowledge
of any- contract covering.these employees and than the Company, stated
that there was no such contract, but only a stipulation to avert a strike.
The C. I. O: took the position that it would recognize existing con-
tracts; but would attempt to bargain for employees not covered by a
contract and concerning whose `representation a question existed.
'On' August 19, 1941, the Regional Director conducted a consent
election among the Company's employees, excluding; among others,
porters, scrubwomen, window washers, carpenters, painters, and plas-
terers. The C. I. O. received a majority of the votes cast- in the
election. -
On September 4, 1941, pursuant to the above-mentioned agreement
between the Company- and *the Council, the Company and the Window
Washers entered into an exclusive bargaining contract, effective as of
July 21, 1941. The Council testified that an agreement covering por-
ters and scrubwomen.was completed at that time also, but had not yet
been signed at the time of the hearing.3 -
When the Company and the Council entered into the agreement of
July 20,.1941, the-Company, the Council, and the Window Washers
knew that the C. I. O. was claiming to represent the employees cov-
ered by the 'agreement. Moreover, the C. I. O. has never relinquished
its claim to represent these employees. That contract, therefore, con-
stitutes no bar to an, investigation and determination of the questions
which have arisen concerning representation of employees of the Com-
pany.4 Nor does the contract of September 4, 1941, between the Com-
pany and the Window Washers or the alleged agreement covering
8 On September 13, 1941, the Company and the Council entered into an exclusive bargain-
ing contract covering receiving and shipping -room employees . These employees were not
excluded from- the unit set out in the agreement of August 1 between the Company and
the C. I 0. Prior to the consent election the Regional Director learned that the Council
claimed to represent these employees and by agreement they were excluded from voting at
the election . These employees are not involved in this proceeding
. 4 Matter of Vincent Steel Process Company and International Union, United Automobile
Workers of America, C . I. 0., 32 N. L. R B, No. 158; Matter of The American Oak Leather
Company, 1401 Dalton St., Cincinnati , Ohio and The International Fur & Leather Workers
Union, Local 214, afJlliated With the Congress of Industrial Organizations , 31 N. L R. B.,
No. 175.
BOSTON STORE. OF' CHICAGO, ",INC: 1145
porters and scrubwomen constitute'a bar, since they were entered into
subsequent to the filing of the petitions of the C. Ii-0.'in the instant
proceedings.5
A statement of the Regional Director introduced into evidence and
statements of the Trial Examiner made at' the -hearing' show that the
C. I. 0., the Council, and the Window Washers each represent a sub-
stantial number of employees in the unit each claims to be appropriate.'
- We find that -questions - have-arisen concerning the representation
of employees of the Company.
IV. THE • EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate, and substantial
• -relation to trade, traffic, and commerce among the several States
5Matter of Georgia Power Company and Utility Workers Organizing Committee, 32
N. L. R B. , No. 125 ; Matter of Wickwire Spencer, Steel Company and Federation Industrial
Union, 18 N . L R. B 372
a The statements of the Regional Director and of the Trial Examiner show the following :
'(a)' In the alleged unit of porters , maids , scrubwomen , and window washers the C. I. 0.
submitted 65 membership cards , dated from February to September 1941 , the signatures
on 62 of the cards appearing to be genuine original signatures and those on 3 of the cards
being printed . The names on all 65 cards appear on the - Company's pay roll of July 26,
1941, containing the names of 81 employees in the alleged unit. The Council submitted
45 application and designation cards in the above unit , 26 of which were signed in April
and 19 in May 1941, the signatures on all the cards appearing to be genuine and those of
persons whose names appear on the above pay roll. There are 39 duplicates among the
cards submitted by the C. I 0. and by the Council . At the hearing the C. I. 0. submitted
3 additional membership cards , two being dated duffing October 1941 and the third being
undated . The Tiial Examiner stated that the name on only one of the cards appears on
the Company ' s pay roll of October 20, 1941.
(b) The parties - stipulated at the hearing that an - examination of the working papers
used by the Regional Director in preparing his statement showed that both the C I. 0.
and the Council submitted a card for each of the four window washers employed by the
Company. The Window Washers submitted to the Trial Examiner a paper dated September
4, 1941 , authorizing the Window Washers to represent the signers thereof and superseding
and cancelling any prior authorization to any other person or organization to represent
them. The Trial Examiner stated that all four signatures appeared to be genuine and were
the names of persons appearing on the Company ' s pay roll of October 20, 1941, containing
the names of four window washers.
(c), In the alleged unit of plasterers the C. I. 0. submitted two membership cards, both
dated during June 1941 , the signature on one card appearing to be a genuine original
signature and that on the other being printed . Each of the cards bears the name of a
person whose name appears on the Company ' s pay roll of July 26, 1941, containing the
names of two employees in the alleged unit. No proof of membership in the alleged unit
was submitted by the Plasterers. -
(d) In the alleged unit of carpenters the C. I. 0. submitted eight membership cards
dated during June 1941 , the signatures on all the cards appearing to be genuine original
signatures and those of persons whose names are on the Company's pay roll of July 26,
1941, containing the names of nine employees in the alleged unit. No proof of membership
In the alleged unit was submitted by the Carpenters.
(e) In the alleged unit of painters the C. I 0. submitted'seven membership card§,'all
dated during June 1941 , the signatures on all the cards ' appearing to be genuine original
signatures and those of persons whose names are on the Company 's pay roll of July 26,
1941, containing the names of nine employees in the alleged unit. No proof of membership
was submitted by the Painters. .
1146 DECISIONS ; OF NATIONAL- LABOR RELATIONS BOARD
and tend to lead -to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNITS
At the` hearing the parties stipulated and we find that the carpen-
ters, painters, and plasterers employed.by the Company at its depart-
ment store constitute three separate units appropriate for the pur-
poses of collective bargaining. The C. I: 0. desires that super-
visors having the right to hire and discharge be excluded from the
above units while the Carpenters and Painters wish that such em-
ployees be included. The record does not disclose the position of
the Plasterers with respect to supervisors. In accordance with our
usual custom we shall exclude supervisors having the right to hire
and discharge from the above units.
The parties stipulated and we find that all porters and maids em-
ployed in the Company's department store, including day floor por-
ters, night porters, locker-room porters, lamp-cleaning- porters,
washroom maids, locker-room maids, day and night scrubwomen,
and roving porters, excluding supervisors having the right to hire and
discharge, should -be included- in the appropriate bargaining unit.
The C. I. 0. contends that window washers should be included within
the above unit while the Council claims that such employees consti-
tute a separate appropriate bargaining unit. In support of its con-
tention the Council introduced evidence concerning the type of work
performed by the Company's window washers. However, we are
of the opinion that there is no sufficient distinction as to functions
or duties between the window washers and the other employees in
the above unit to justify considering them as a separate appropriate
unit. The Council also points out that the Window Washers has
bargained on behalf of the Company's window washers separately
-from the Council.., However, in the agreement of July 20, 1941, be-
tween the Company and the Council, the Council was recognized,
as exclusive bargaining agent for the window washers. In a
recent decision involving a similar business enterprise we found
that the Council can represent and bargain for its constituent local
unions.? We find no reason on the record here presented for depart-
ing from that conclusion. We,shall include window washers within
the above unit.
We find that all carpenters employed by the Company in its de-
partment store, excluding supervisors having the right to hire and
1 Matter of Marshall Field it Company and Department Store, Loft and Factory Building
Service Employees ' Council of the Building Service Employees' International Union (A. F. of
L.); Matter of Marshall Field it Company and Department Store Employees Union, Local
291, affi liated with the United Retail, Wholesale and Department Store Employees of America
(C. I. 0 ), 36 N. L. R B. 748 and 37 N. L. R B No. 8. _
BOSTON- ' STORE OF 'CHICAGO, _ INC., .1147
discharge, constitute a unit appropriate for the purposes of collec-
tive bargaining ; that all painters. employed by the Company in its
department store, excluding supervisors having the'right.to hire and
ddischarge, constitute a unit appropriate for the purposes *of -collective
'bargaining; that all plasterers employed by the. Company, in its de=
.partment, store, excluding supervisors having the right .to hire .and
,discharge, constitute a,unit appropriate for the, purposesof , collective
,bargaining; and that such units will insure to employees bf the
`Company .,the 'full benefit of their: right, to self-organization and
,otherwise.effectuate' the policies of the Act. . , - .
• We find that all porters, maids, and window washers employed' by
,the Company in its' department store, including' day floor porters,
'night porters, locker-room porters, lamp-cleaning porters, wash,
"room maids, locker-room maids, day and night 'scrubwomen, and
.roving porters, but excluding supervisors having the right to hire
,and discharge, constitute a unit appropriate for the purposes of
collective bargaining, and that such unit will insure to employees of
the Company the full benefit of their right to;self,-organization and
.otherwise will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the questions which have arisen concerning the repre-
sentation of employees of the Company can best be resolved by elec-
tions by secret, ballot. Although the Carpenters, the Painters, and
the Plasterers did not submit evidence of representation in the units
;which we have found to be appropriate, in view of the fact that all
parties including these three craft organizations stipulated that the
separate craft units were appropriate, we shall- depart from our
usual rule and accord each of them a place on, the ballot in the
respective craft-unit elections. The Carpenters desires to be desig-
nated on the ballot as Carpenters District, Council of Chicago. We
shall so designate that organization. In the absence of any conten-
tion as to the pay roll to be used to determine eligibility to vote,
'we shall, in accordance with our usual practice, direct that the em-
ployees eligible to vote in the elections shall be those in the appro-
priate units who were employed during the pay-roll period immedi-
ately preceding the date of the Direction herein, subject to 'such
limitations and additions as are set forth ,in the Direction.
Upon the basis of the above findings.of fact and upon the entire
record in these proceedings, the Board makes the following :
CONCLUSIONS OF LAW
'I. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Boston Store of Chicago, Inc., at its de-
`1148 DECISIONS -,.OF :NATIONAL LABOR RELATIONS BOARD
•partmeint store located in Chicago, Illinois, within the meaning of
Section 9 (c) and Section 2 (6) and (7)' of the Act.
2. All carpenters employed by the Company at its department
store at Chicago, -Illinois, excluding supervisors having the right to
hire and discharge, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9' (b) of the Act.
3. All painters employed by the Company at its department store
at Chicago, Illinois, excluding supervisors having the right to hire
and discharge, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
4. All plasterers employed by the Company at its department store
at Chicago, Illinois, excluding supervisors having the right to hire
and discharge, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
5. All porters, maids, and window washers employed by the Com-
pany at its department store at Chicago, Illinois, including day floor
porters, night 'porters, locker-room porters, lamp-cleaning porters,
washroom maids, locker-room maids, day and night scrubwomen,
and roving porters, but excluding supervisors having the right to
hire and discharge, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of
the Act:
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, 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 authorized by the- Board
to ascertain representatives for the purposes of collective bargaining
with Boston Store of Chicago, Inc., Chicago, Illinois, separate elec-
tions by secret ballot shall be conducted as early as possible, but not
later than thirty (30) days from the date of this Direction of Elec-
tions, under the direction and supervision of the Regional Director
for the Thirteenth 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 those employees of Boston
,Store of Chicago, Inc., at its department store in Chicago, Illinois,
who fall within the groups indicated below and who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did -not work during such pay-
roll period because they were ill or on vacation or in- the active mili-
tary service br training of the United States, or temporarily laid
BOSTON STORE OF CHICAGO , INC. 1149
off, but excluding those employees who have since quit or been
discharged for cause :
(1) All carpenters , excluding supervisors having the right to hire
and discharge , to determine whether or not they desire to be repre-
sented by Department Store . Employees Union Local 291 of,, Chicago,
Illinois, affiliated with the Congress of Industrial Organizations, or
by Carpenters District Council of Chicago , affiliated with the Amer-
ican Federation of Labor, for the purposes of collective bargaining,
or by neither;
(2) All painters , excluding supervisors having the right to hire
and discharge , to determine whether or not they desire to be rep-
resented by Department Store Employees Union Local 291 of Chicago,
Illinois, affiliated with the Congress of Industrial Organizations, or
by Painters District Council No . 14, Brotherhood of Painters, Dec-
orators, and Paperhangers of America , affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or by
neither ;
(3) All plasterers, excluding supervisors having the right to hire
and discharge , to determine whether or not they desire to be rep-
resented by Department Store Employees Union Local 291 of Chicago,
Illinois, affiliated with the Congress of Industrial Organizations, or
by Journeymen Plasterers Protective and Benevolent Society Local
Union No. 5, affiliated with the American Federation of Labor, for
the purposes of collective bargaining , or by neither;
(4) All porters, maids , and window washers, including day floor
porters, night, porters,, locker-room porters, ,lamp -cleaning porters,
washroom maids, locker -room maids , day and night scrubwomen,
and roving porters, but excluding supervisors having the ,,right_to
hire and discharge , to determine whether they desire to be repre-
sented by Department Store Employees-Union Local 291 of Chicago,
Illinois , affiliated with the Congress of Industrial Organizations, or
by Department Store, Loft and Factory Building , Service Employees,
Council of the Building Service Employees International Union,
affiliated with the American Federation of Labor , for the purposes of
collective bargaining , or by neither.