Cherry and Webb Co.

National Labor Relations Board - Board Decisions

Feb 5, 1951

93 N.L.R.B. 9 (N.L.R.B. 1951)

CHERRY AND WEBB COMPANY 9
duties of the parties with reference to the current contracts,4 we are
of the opinion that these contracts are not a bar to a present determina-
tion of representatives.
We find that questions affecting commerce exist 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. We find that employees in all classifications of office work in the
Employer's Stamping and Bond plants, Buffalo, New York, includ-
ing janitresses in the business offices and time-study and methods men,
but excluding all other employees, confidential and professional em-
ployees, and supervisors as defined in the Act, constitute, in each plant,
a separate unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act .-5
[Text of Direction of Elections omitted from publication in this
volume.]
4 While the Employer is agreeable to the disposition of the representation questioned by
the Board , it contends that the current contracts should be honored until their expiration.
The legal issues raised in this connection , however, cannot properly be determined by the
Board in a representation proceeding under Section 9 (c) of the Act. Although the
possible choice of a bargaining representative by these employees necessarily will operate
to affect the rights and obligations of the parties , the duty of either party to bargain
under existing or new contracts is a matter that must be determined by the application
of other provisions of the Act in the light of a factual situation not now before us. See
Boston Machine Works Company, supra.
6 These units conform substantially to the current contract units which all parties agreed
to be appropriate We do not list the numerous job exclusions detailed in the contracts,
as they appear to fall within one of the general exclusionary groups in the unit description.
CHERRY AND WEBB COMPANY, PROVIDENCE 1 and RETAIL , WHOLESALE
AND DEPARTMENT STORE UNION , CIO, PETITIONER . Case No. I-
RC-1923. February 5, 1951
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 Joseph Lepie, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
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 Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
' The name of the Employer appears as amended at the hearing.
93 NLRB No. 8.
10 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion 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 Employer conducts a retail department store in Providence,
Rhode Island. The Petitioner seeks a unit consisting of all the selling
and nonselling employees of the Employer, excluding buyers, assistant
buyers, floor managers, department managers, assistant manager of the
alteration department, employees of the personnel department, office
and clerical employees, employees of the credit department, truck
drivers and truck driver helpers, watchmen, guards, and supervisors
as defined by the Act. The Employer agrees that this unit is generally
appropriate.
The display department.-This department consists of the display
manager, the assistant display manager, and one display employee.
All parties agree that the display manager, who has the power to hire
and discharge employees, is a supervisor and therefore should be ex-
cluded from the unit. The Employer contends, but the Petitioner
disagrees, that the assistant manager also is a supervisor, as well as a
professional employee and an employee whose interests are more
closely allied with management than with the rank-and-file employees
of the store. The assistant manager of the display department is
carried on the executive payroll and thus is eligible for a bonus not
available to the rank-and-file employees. He is in constant consulta-
tion with management through its buyers and department managers on
what merchandise to advertise and display and how to do so. He does
not punch a time clock and does not account for his time. Under these
circumstances, we find that the interests of the assistant manager of
the display department are more closely allied with those of manage-
ment than with those of the rank-and-file employees? We shall there-
fore exclude him from the unit.
The Employer claims, but the Petitioner disagrees, that the one eni-
.ployee of the display department is a professional employee and that
his interests are more closely allied with those of management than
with those of the rank-and-file employees. This employee helps the
manager and assistant manager of the display department to arrange
displays and advertising throughout the store. He letters the signs
used in such advertising. While "some sort of art training" is re-
2 Charles Livingston & Sons, Inc., 86 NLRB 30.
CHERRY AND `EBB COMPANY 11
quired for his position, the extent and nature of such training is not
specified in the record. This employee is at present attending a school
of design, but has not completed his course. Furthermore, he is not
carried on the executive payroll and does not consult with management.
While it is not clear whether or not he punches a time clock, it appears
that he is accountable for his time and that he is expected to spend at
least 40 hours a week at his work. Under these circumstances, the
Board finds that the employee in the design department is not a pro-
fessional employee 3 and that his interests are not more readily identi-
fiable with management than with the employees. We shall therefore
include him in the unit.
The advertising employee.-The Employer employs one employee
who writes advertising copy for radio and newspapers. The Em-
ployer contends that the individual occupying this position should
be excluded from the unit on the ground that she is a professional
employee or alternatively that she has no community of interest with
the other employees in the unit. The Petitioner took no position on
the question. This individual is a. college graduate who majored in
English and specialized in advertising. Prior to her present employ-
ment she has several years' experience as a copy writer. The record
indicates that her work is varied and of an intellectual nature and
brings her into contact with representatives of management rather
than with rank and file employees. Without deciding her professional
status under the Act, we find that the work and interests of the ad-
vertising employee are too diverse from those of the other employees
to warrant including her in the appropriate unit. We shall therefore
exclude her.
Accordingly, the Board finds that the selling and nonselling em-
ployees at the Employer's Providence, Rhode Island, store, including
the employee of the display department, but excluding buyers, assist-
ant buyers, floor managers, department managers, assistant depart-
ment managers of the alteration and display departments, employees
of the personnel department, the advertising employee, office and
clerical employees, employees of the credit department, truck drivers
and truck driver helpers, watchmen, guards, and supervisors as de-
fined by the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (c) of the Act.
5. The determination of representatives:
The Employer contends that its permanent part-time employees,
employees who work full time part of the year in the alteration de-
partment, seasonal employees, and student employees are not entitled
3 Dey Brothers & Co, 85 NLRB 689.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to vote. The Petitioner contends that the permanent part-time em-
ployees and the employees in the alteration department are eligible
to vote.
Permanent part-time employees.-The Employer employs about 48
permanent part-time employees whd work at least 25 hours a week on
a regular predetermined schedule. While these employees, unlike the
full-time employees, are not eligible for hospitalization insurance, they
receive the same salary and commissions and are eligible for the same
vacation and bonus benefits as are the full-time employees. Because
of the close relationship in interests between the part-time employees,
and the full-time employees, and the number of hours the permanent
part-time employees regularly work, the Board finds in accordance
with its usual practice, that they are eligible to vote.4
Seasonal employees in the alteration department.-During the rush
seasons in the alteration department, which occur around Christmas
and Easter, the Employer hires about 18 additional employees for that
department. In the course of the year, these employees work full-
time a total of about 5 months. At the beginning of the season the
Employer calls those employees whom it employed during the previous
season, and about 50 percent of those called return to work. These
employees are not entitled to vacation or insurance benefits, but other-
wise share the working conditions of and perform the same duties as
the regular employees in the alteration department. Under these cir-
cumstances, the Board finds that the seasonal employees who were
employed in the alteration department in the last pre-Christmas
season are entitled to vote.'
Student employees.-The Employer employs about 56 student em-
ployees who work on Thursday nights and on Saturdays, and full
time during rush seasons when such seasons coincide with school va-
cations. They receive no commissions, vacation, or hospitalization
benefits. They are assigned no lockers as are regular employees.
They get a smaller discount than do other employees at the store.
They have no expectation of full-time employment and the turnover
in this group is very high. Under these circumstances, the Board
agrees that these casual student employees are ineligible to vote 6
Seasonal employees.-During rush seasons the Employer employs
additional employees on a temporary basis. These employees share
in none of the benefits of the other employees, and have no expectation
4F. B. Silverwood , a corporation, d/b/a Silverwood 's, 92 NLRB 114; J. C. Penney
Company, 86 NLRB 920.
Comico Products Corporation , 90 NLRB No. 159.
6 The Liberal Market, Inc., 90 NLRB No 126. There are some students, however, who,
are part of the group of regular part-time employees whom we have found to be entitled to
vote. Nothing contained in the above paragraph shall be construed as precludtug from
voting any students who are regular part-time employees.
I. S. BERLIN PRESS 13
of permanent employment. The Board agrees with the parties that
these seasonal employees are ineligible to vote.,
[Text of Direction of Election omitted from publication in this
-volume.]
4 F. B. Stilverwood, a corporation, d/b/a Silverwood 's, supra.
I. S. BERLIN D/B/A I. S. BERLIN PRESS 1 and BOOKBINDERS' AND PAPER
CUTTERS' UNION OF CHICAGO, LOCAL No. 8, INTERNATIONAL BROTHER-
HOOD OF BOOKBINDERS, AFL , PETITIONER . Case No. 13-RC-1511.
February 5, 1951
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 Joseph A. Butler, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 [Chairman Herzog and Members Houston and Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act. '
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7),of the Act.
4. The Petitioner requests a unit composed of cutting machine
operators, joggers, and folding machine operators, excluding all other
employees. The Employer agrees with the scope of the proposed
unit, but, unlike the Petitioner, would include a number of board
loaders and packer pullers, whom it classifies as folding machine
operators. There is also disagreement, not crystallized in the record,
emerging from the parties' changing contentions based on the alleged
supervisory status of certain employees in the folding machine and
cutting machine groups.
_ The Employer is engaged in commercial printing at its plant in
Chicago, Illinois, where it has about 300 employees 2
' The name of the Employer appears as corrected at the hearing.
2 Local 4, Amalgamated Lithographers of America , CIO, which did not appear at the
hearing, represents about 150 of the Employer ' s «orkmeh in other departments. The
employees involved here have never been represented in collective bargaining.
93 NLRB No. 6.