Famous and Barr Co.

National Labor Relations Board - Board Decisions

Jun 16, 1943

50 N.L.R.B. 669 (N.L.R.B. 1943)

-In the Matter of THE MAY DEPARTMENT STORES COMPANY, DOING
BUSINESS AS FAMOUS AND BARR COMPANY and ST. Louis JOINT COUN-
CIL, UNITED RETAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES
OF AMERICA, CIO
Case No. R-5331.-Decided June 16, 1943
Messrs. Milton H. Tucker, and Robert T. Burch, of St. Louis, Mo.,
for the Company. _
Mr. Victor B. Harris, of St. Louis, Mo., for the CIO.
Mr. Joseph A. Padway, by Mr. Robert A. Wilson, of Washington,
D. C., for the A. F. of L.
Mr. Wallace E. Royster, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by St. Louis Joint Council, United Re-
tail, Wholesale & Department Store Employees of America, CIO,
herein called the CIO, alleging that a question affecting commerce had
arisen concerning the representation of employees of The May De-
partment Stores Company, doing business as Famous and Barr Com-
pany, St. Louis, Missouri, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Howard Meyers, Trial Examiner. Said hearing was
held at St. Louis, Missouri, on May 7 and 8, 1943. The Company,
the CIO, and the American Federation of Labor and its affiliated
International Unions, herein collectively called the A. F. of L., ap-
peared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
During the hearing both the A. F. of L. and the Company moved for
the dismissal of the petition. For reasons appearing in Section IV,
infra, these motions are denied. All the parties have filed briefs
which the Board has considered. _
50 N. L. R. B., No. 89.
669
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670 DECISIONS OF,'NATIONAL LABOR RELATIONS BOARD
Upon the entire record in\the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The May Department Stores Company is a New York corpora-
tion owning and operating department stores in several States. In
St. Louis the Company does business' under the trade name of Fa-
mous and Barr Company and it is with the employees of the St.
Louis store that we are here concerned. During 1942 the Company
purchased merchandise for its St. Louis store,of a value of approxi-
mately $27,000,000, of which approximately 70 percent was shipped
to that store from points outside Missouri. During the same year,
sales of the St. Louis store exceeded $27,000,000, of which' approxi-
mately 12 percent was shipped by the Company from the St. Louis
store to, points outside Missouri. While the Company does not con-
cede the jurisdiction of the Board, on the basis of the above stipu-
lated facts we find that the Company is engaged in commerce within
,the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
St. Louis Joint Council, United Retail, Wholesale & Department
Store Employees of America, is a labor organization affiliated with
the Congress of Industrial Organizations. The Joint Council rep-
resents various locals of United Retail,' Wholesale & Department
"Store Employees of America, in St. Louis which admit to member-
ship. employees of the Company.
American Federation of Labor and its affiliated International
Unions are labor organizations admitting to membership employees'
of the Company. 1 '
III. THE QUESTION CONCERNING REPRESENTATION
On March 11, 1943, the CIO wrote the Company stating that it
represented a majority of the employees in the busheling department
in the St. Louis store and requesting an appointment for a bar-
gaining conference. 'On March 13, 1943, the Company acknowl-
edged receipt of the CIO letter and' stated that it would submit
the question to its legal counsel. No further communication has
been received from the Company. At the hearing the Company
refused to, recognize -the CIO as the representative of the employees
within the claimed unit.
A statement of the Regional Director, introduced into evidence'
at the hearing and a statement of the Trial Examiner made at-the
THE MAY DEPARTMENT STORES COMPANY 671
hearing, indicates the membership of the CIO and the A. F. of L.
in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of, the Company within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
In its petition the CIO requests a unit of all employees in the
busheling room, second floor, department 280, and busheling room,
basement, department 281, excluding the second floor foreman and
all other employees of the Company. The A. F. of L. and the Com-
pany oppose this unit and both contend essentially for a unit em-
bracing all employees in the main store, the St. Charles Street ware-
house, and the Pine Street warehouse of the Company, including
regular, extra, part-time, and seasonal employees.
The Company has two busheling departments in its store located
on the second floor and in the basement. The employees in these
departments fit and alter men's clothing purchased in the store and
are designated as fitters, markers, tailors, pressers, and finishers:
Their work traditionally has been regarded as a skilled trade. For
some years prior to 1920, employees doing such work for this Com-'
pany were members of a craft union which for. a period was party
to a collective bargaining contract with an employers' association.
The Company was a member of this association and its busheling
department employees were covered by the contract. Since 1920 the
Company, has recognized no union as the representative of these
employees, although for many years the Company has recognized
craft unions as the representative of teamsters, electricians, carpen-
ters, painters, and upholsterers; and substantially all the employees
working in -the Company's Spring Avenue warehouse are represented
by A. F. of L. unions.
On November 6, 1942, the C. I. O. filed a petition requesting a
unit of the Company's selling employees. The Company and the
A. F. of L. opposed the unit requested on the ground that it was not
sufficiently inclusive. At the hearing the parties agreed on an essen-
tially industrial. unit but the Company and the A. F. of L. con-
tended for further inclusions, among them regular extra, part- time,,
,The Regional Director stated that the CIO submitted 25 cards, of which 24 bore ap-
parently genuine original signatures of persons whose names appear on the Company's pay
roll of May 4, 1943. The cards were dated from September 29, 1942 to October 14, 1942.
The pay roll contains the names of 30 persons within the appropriate unit.
The Trial Examiner stated that the A F. of L. submitted 188 signed cards designating
either the American Federation of Labor or the American Federation of Labor and its
affiliated International Unions; 103 cards bore the apparently genuine original signatures
of persons whose names appear on the Company's pay roll of May, 7, 1943. None of the
cards submitted by the A. F. of L. contained the name of a person within the appropriate
unit."
672 DDOISTONS - OF 'NA'TTONAL LABOR RELATIONS B'OARiD
and seasonal employees. The Board, without making 'a final deter-
mination of a unit, was of the opinion that regular extra employees
should be included in the unit and dismissed the petition for failure
of the C. I. O. to make a substantial showing of, membership in the
unit thus constituted 2
All the parties agree that the optimum unit would include sub-
stantially all non-supervisory employees of the Company. The Com-'
pany and the A. F. of L. cite the Arlington Hills case 3 in support of
their position that the C. I. O. cannot, consonant with its avowed
intention to seek a store-wide unit, presently request certification as
,bargaining agent for a small portion of the larger unit. However,
since the employees involved in the Arlington Hills case did not
form a skilled, clearly identifiable, homogeneous group, and since
there was no history of bargaining by craft groups with the em-
ployer "therein, we do not consider the decision in that case to be
controlling here. The Company contends further that the unit now
sought is inappropriate'in that it fails to include employees in the
women's alteration department whose skills are similar to the skills
of the employees ' in the unit sought by the CIO. While we agree
that the record indicates a high degree of similarity in the work
done in the alteration of women's clothing and in the work done in
the busheling rooms, the departments are in different sections of the
store ; there is historically a sharp demarcation between the trades in-
volved; and it does not appear that there is a substantial inter-
change of personnel beween the women's and men's departments.
Traditionally, such workers have been represented by separate craft
unions.
Assuming, without deciding, that a store-wide, industrial unit will
best effectuate the purposes of, the Act, we note that no labor organi-
zation claims to represent the employees in such a unit. We believe
that collective bargaining should be made an immediate possibility
for the employees in the busheling rooms without requiring them to
await the uncertain date when the employees may be organized in a
larger unit. - We find accordingly that the employees in the bushel-
ing rooms constitute an appropriate unit. However, our finding in
this respect does not preclude a later determination at another stage
of self-organization that a larger unit is appropriate 4
The CIO would exclude from •the unit the foreman in Department
280, second floor busheling room;, the Company would exclude the
foreman in Department 281, basement busheling room. Both fore-
men appear to possess substantial supervisory authority and, in ac-
' Matter of May Department Stores Company ,, d/b/a Famous -Barr Company, 46 N. L.
R. B. 305.
3 Matter of Arlington Mills, 31 N. L. It. B. 21.
4 See Matter of Kansas City Star Company, 47 N. L. R. B. 386.
THE MAY DEPARTMENT STORES COMPANY 673
cordance with our settled policy in respect to such employees, we shall
exclude both foremen from the unit.
The record discloses that 2 non-supervisory employees are regularly
employed in the basement busheling department and 26 such em-
ployees in the second floor busheling department. During certain
sales, as many as 20 employees are employed in the basement depart-
ment. In conformance with our decision in the prior case, we shall
include such of these additional employees as are designated regular
extra employees; that is, those who return regularly to such employ-
ment when their services are required.
In view of the facts and circumstances outlined above we find that
all employees working in the busheling room, second floor, Depart-
ment 280 and in the busheling room, basement, Department 281, in-
cluding regular extra employees, but excluding the 2 foremen and
all other employees of the Company, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
Although the A. F. of L. has made no showing of membership
among the employees in the unit herein found appropriate, it appears
to represent a number of the employees of the Company and is
actively engaged in an organizing campaign. ' Inasmuch as an elec-
tion is to be held in this group, and since,the A. F. of L. has demon-
strated an interest in the organization of the Company's employees,
we shall accord it a place on the ballot.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the, National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The May De-
partment Stores Company, doing business as Famous and Barr Com-
pany, St. Louis, Missouri, an election by secret ballot shall be con-
ducted' as early as possible, but not later than thirty (30) days from
I
674 DECISIONS OF NAT1'0'NAL LABOR RELATIONS BOARD
the date of this Direction, under the direction and supervision of the
Regional Director for the Fourteenth Region, acting in.this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 10, of said Rules and Regulations, among the employees
,in the unit found appropriate in Section IV, above, who were' em-
ployed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves, in person at the polls, but excluding
any who have since quit or been discharged for cause, to determine
whether they desire to be represented by St. Louis Joint Council, United
' Retail, Wholesale & Department Store Employees of America, affili-
ated 'with the CIO, or by American Federation of Labor and its
affiliated International Unions, .for the purposes of collective bargain-
ing, or by neither.
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