F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

May 9, 1949

83 N.L.R.B. 439 (N.L.R.B. 1949)

,In the Matter of F. W . WOOLWORTH COMPANY, EMPLOYER and RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER
Case No. 9-RC-403.-Decided May 9, '1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Martin Sacks,
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 [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization named below claims to represent 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) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner requests a unit consisting of all regular full-time
and part-time employees at the Employer's store at 4011 Hamilton
Avenue, Cincinnati, Ohio, excluding the manager, office clerical em-
ployees, guards, professional employees, and supervisors within the
meaning of the Act. The Employer contends the unit should also
exclude the assistant manager, floor supervisors, seasonal employees,
and part-time employees working less than 15 hours a week.
The Employer's store is located in a 2 story building. The sales
clerks and the floor supervisors or floorladies 1 work on the main floor
where the Employer's merchandise is on display. The manager's
-office is on the mezzanine floor and is also occupied by the bookkeeper
and the cashier. The marking girl, assistant manager, head stock-
man, stock man and window trimmer work in the stock room on the
1 The manager of the store testified that the proper designation of this job was "floor
supervisor." While neither the past nor present occupant of this position used this term
but believed their position to be that of "floorlady ," we shall use the Employer 's designa-
tion herein.
83 N. L. R. B., No. 68.
439
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second floor. The order clerk spends half of her time in the office and
the remainder on the main floor selling . The regular full-time clerks
work approximately a 40-hour week and are paid a weekly wage.
-Part-,time employees are paid by the hour and work from 9 to 30
hours a week. Other part-time employees are hired during seasonal
rush periods such as Christmas.
The manager has full and complete charge of the store . When he is
absent from the store or on vacation , the assistant manager assumes
his duties . At those times he apparently has the authority to hire,
discharge and direct the work of the other employees . We find , there-
fore, that he is a supervisor within the meaning of the Act and will
,exclude him from the unit found appropriate.
The Employer also contends that floor supervisors should be
excluded . There are normally two of these employees assigned to the
main floor. Their duties , generally , are to see that customers are
-waited on and that counters are filled ; to sell during the clerk's rest
pperiods,and during rush hours ; to transfer change as needed; and to
see that the part -time employees who have no permanent counter
assignments are kept busy . They work the same hours and under the
same working conditions as the rest of the full-time sales personnel,
but are paid a higher wage . The testimony is conflicting as to their
power to hire, discharge , effectively recommend such action , or respon-
sibly direct the work of others. While the manager of the store testi-
fied that the floor supervisors had been instructed that they possess
such authority and had exercised it on occasion , there was direct testi-
mony to the contrary on the part of a former floor supervisor and an
employee at present in that position . The record indicates that the
extent of their authority is limited to reporting inefficiency or com-
plaints to the manager and carrying out his orders regarding them.
While it was asserted that the floor supervisors instruct new employees
in their jobs and are "exclusively " in charge of the assignment of part-
-time employees to counters , there is much evidence to the contrary.
Upon the full and complete record , we are convinced and we find that
the floor supervisors are not, in fact , supervisors within the meaning of
the amended Act, inasmuch as they lack the authority to hire, dis-
charge, effectively recommend such action , or responsibly direct the
work of subordinates.2
The part-time and seasonal employees the Employer wishes excluded
from the unit are not separate occupational categories . They perform
the same duties as full-time sales clerks with the exception that they
are not regularly assigned to counters and are not responsible for the
appearance of the counters. As such , they will necessarily be repre-
sented by the Petitioner if it wins the election we are directing herein.
2 See Matter of J. M. High Company , 78 N. L. R.' B. 876, and cases cited therein.
F. W. WOOLWORTH COMPANY 441
We find that these employees are in the unit and will discuss the sep-
arate question of their voting eligibility in paragraph 5, below.
We find that all. employees in the Employer's store at 4011 Hamilton
Avenue, Cincinnati, Ohio, including the floor supervisors but exclud-
ing- the manager, assistant manager, office clerical employees, guards,
professional employees, and supervisors within the meaning of the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. The determination of representatives :
Approximately 16 of the Employer's sales clerks work between 9
and 30 hours a week. Additional employees are hired during the rush
seasons and are classified as seasonal. The seasonal employees do not
appear to have any expectation of reemployment and are hired for the
season on a temporary basis. We do not believe that the tenure of the
seasonal employees is sufficiently regular and substantial to entitle
them to participate in the selection of a bargaining representative, and
we find that they are not eligible to vote in the election hereinafter
ordered. The part-time employees work at certain assigned' times dur-
ing the week and on Saturday. They work at regular hours and
apparently report without awaiting a special call. As we have noted,
they have substantially the same duties and working conditions as the
full-time employees. In accordance with our usual policy regarding
regular part-time employees, we find that the part-time employees of
the Employer have sufficient tenure of employment to be eligible to
vote in the election.3
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-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 exclud-
ing employees on strike who are not entitled to reinstatement , to deter-
mine whether or not they desire to be represented for purposes of
collective bargaining, by Retail Clerks International Association.
AFL.
8 See Matter of Denver Dry Goods Company, 74 N. L. R. B . 1167 , and cases cited therein.