Darling Utah Corp.

National Labor Relations Board - Board Decisions

Aug 9, 1949

85 N.L.R.B. 614 (N.L.R.B. 1949)

In the Matter of DARLING UTAH CORPORATION, EMPLOYER and RETAIL
CLERKS INTERNATIONAL ASSOCIATION, A. F. L., PETITIONER
Case No. 00-RC-541.-Decided August 9,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition .duly filed, a hearing was held before Harry Bam-
ford, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Gray].
Upon the entire record in this case the Board finds:
1. The Employer, a Delaware corporation, operates a retail store
in Salt Lake City, Utah. During the fiscal year ending January 31;
1949, the Employer made purchases of merchandise for its store in
excess of $250,000, of which 95 percent was shipped to it directly from
outside the State. During the same period it made sales in excess
of $500,000 of which approximately 96 percent was sold within the
State. The Employer is a wholly owned subsidiary of the Darling
Stores Corporation, incorporated in the State of New Jersey, which
owns and operates 107 stores in 30 States. The Darling Stores Cor-
poration made purchases during the year ending January 31, 1949,
amounting approximately to $18,000,000, and sales amounting approx-
imately to $28,000,000.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.,.
2. The labor organization involved claims, to represent employees of
the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sectidn 9 (c)
(1) and Section 2 (6) and (7) of the Act.
1 Matter of Whitney 's, 81 N . L. R. B. 75; Matter of Whitney's Department Stores,
73 N. L. R. B. 1245.
85 N. L. IL. B., No. 113.
614
DARLING UTAH • CORPORATION 615
4. The appropriate unit :
The Petitioner seeks certification as representative of a unit com-
posed of all the Employer's employees in its Salt Lake City, Utah, store,
excluding guards and supervisors as defined in the Act. The Employer
contends that the appropriate unit should include the employees of the
Employer's concessionaires . There is disagreement also about two de-
partment managers, one bookkeeper whom the Employer considers a.
confidential employee, and a few employees who regularly work on
Saturdays only, all of whom the Petitioner would include and the
Employer would exclude from the unit.
Leased department employees: The Employer operates a retail store
selling principally dresses, women's coats, blouses, skirts, underwear,
beach wear, and other women's and children's ready-to-wear clothes.
It leases out to concessionaires the following departments : the shoe
and electrical appliances departments, photographic studio, beauty
salon, and restaurant.2
Although the Employer exercises some control over the leased de-
partment employees, he has nothing to do with their pay rates or with
actually paying them. The concessionaires themselves or their man-
agers determine'how much and at what periods to pay their employees,
and issue their pay checks. These employees work under the direct
control and supervision of the concessionaires. The employees of con-
cessionaires also have different vacation and sick leave privileges from
those of the Employer's employees.
We believe that the employees of the concessionaires do not possess
sufficient interests in common with employees in other departments of
the store to be joined for collective bargaining purposes with the latter.
We shall therefore exclude them from the unit.'
Department managers: One of these managers is in charge of the
dresses, coats, and suits department, which has four sales girls. The
other is in charge of the children's department, which has one sales girl.
The Employer's general manager testified that both these managers are
in complete charge of their respective departments. Both direct the
work of the girls in their respective departments, give them time off
when and if appropriate, reprimand them for poor work, and each can
effectively recommend the hiring or discharging of the sales girls under
' All the concessionaires have intervened in this proceeding and were represented by
the Employer's counsel. They all requested that the employees in their leased depart-
ments be included in the same unit with the other employees of the Employer.
3 Matter of J. M. High Company, 78 N. L. R. B. 876, and cases cited therein. Cf.
Matter of Taylor 's Oak Ridge Corporation , 74 N. L. R . B. 930 . See also Denton's Inc.,
T/A the Robinson -Schwenn Stores, 83 N. L. it. B. 35.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her direction. We find that the two department managers, are
supervisors within'the meaning of the Act:'
Bookkeeper: The Employer asserts that the bookkeeper is a confi-
dential employee, pointing to the fact that she has access to the Em-
ployer's. safe where the Employer's ;files on its labor relations are kept.
As bookkeeper she has knowledge of the salaries of the various em-
ployees and of the financial arrangements between the Employer and
concessionaires. She has, however, no functions to perform involving
the Employer's labor relations. She does not open and read the mail
from the main office, nor does she type any letters addressed to the
main office by the local manager regarding labor relations. We find
that this bookkeeper is not a confidential employee within the Board's
customary definition and shall include her in the unit.5
Part-time employees: There are four regular part-time employees,
three sales girls and one cashier, who work each Saturday. These
employees do the same work as the other employees in their particular;
categories. On Saturdays they arrive at and leave the store at the
same time as the other regular store employees. They receive about
the same rate of pay as the others do. We find that as regular part-
time employees they possess sufficient interests in common with the
other employees in the store to warrant their inclusion in'the unit.'
We find that all the employees of the Employer's Salt Lake City,
Utah, store, including the bookkeeper and regular part-time employees,
but excluding employees in the leased departments, guards, the depart-
ment managers, and other supervisors as defined in the Act, constitute
a unit appropriate for collective bargaining purposes within the meaai-
ing of Section 9 (b) of the Act.
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-
vision 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, 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
4 Matter of Foster Wheeler Corporation, 79 N. L. R. B. 1062. Cf. Matter of Block and
Kuhl Department Stores, 83 N. L. R. B. 418.
5 Matter of W. K. B. H., Inc., 81 N. L. R. B. 63; Matter of Chrysler Corporation, 84
N. L. R. B. 516 ; Matter of ,Inter-Mowntazn *Telephbne Co:, 79'N. L. R. B. 715.
6 Matter of Burrows & Sanborn, Inc., 81 N. L. R. B. 1308.
DARLING UTAH CORPORATION 617
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 re-
instated prior to the date of the election , and also . excluding employees
on strike who are not entitled to reinstatement , to determine whether
or not they desire to be represented , for purposes of collective bargain-
ing, by Retail Clerks International Association , A. F. L.