Famous-Barr Co.

National Labor Relations Board - Board Decisions

Dec 24, 1942

46 N.L.R.B. 305 (N.L.R.B. 1942)

In the Matter of THE MAY DEPARTMENT STORES COMPANY, DOING BUSI-
NESS AS FAMOUS-BARR COMPANY and DEPARTMENT STORES EMPLOYEES
UNION, LOCAL 372, AFFILIATED WITH UNITED RETAIL, WHOLESALE &
DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O.
Case No. R-4,580.-Decided December 04, 19112
Jurisdiction : general retailing industry.
Practice and Procedure : petition dismissed when unions made insubstantial
showings In an appropriate unit, and unit claimed by petitioner was found.
inappropriate; company-wide unit claimed by -petitioner held inappropriate
when it improperly excluded two large disputed groups.
Mr. Charles K. Hackler, for the Board.
Mr. Milton H. Tucker and Mr. Robert T. Burch, of St. Louis, Mo.,
for the Company.' 0
Mr. M. J.,Levin, Mr. Victor B. Harris, and Mr. Ben Schein, of St.
Louis, Mo.,•and Mr. Francis Heisler, of Chicago, Ill., for the C. I. O.
Cllr. Herbert S. Thatcher, of Washington, D. C., and Mr. Elmer P:
Theiss, Mr. Don Ellinger, Miss Verna Grayson, Mr. J. T. Latham, and
Mr. Daniel J. Murphy, of St. Louis, Mo., for the A. F. of L.
Miss Viola James, of counsel to the Board. '
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon petition duly filed by Department Stores Employees Union,
Local 372,affiliated with United Retail, Wholesale & Department Store
Employees of America and Congress of Industrial Organizations,
herein called the C. I. 0., alleging that a question affecting commerce
had arisen concerning the representation of employees of The May
Department Stores Company, doing business as Famous-Barr Com-
pany, St. Louis, Missouri, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Will Maslow, Trial Examiner. Said hearing was held
at St. Louis, Missouri, on November 18, 21, and 23, 1942. The Board,
46 N. L. R. B., No. 36.
'305
504086--43-vol. 46--20
'306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.the Company, the C. I. 0., and the American Federation of Labor and
,its affiliated International Unions, herein collectively called the A. F.
of L., appeared and participated. All parties were afforded full op-
portunity 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. -
On December 3, 1942, the A. F. of L. and the Company filed briefs.
,On December 4, 1942, the C. I. O. filed a brief, and on December 7,
1942, the Company filed a reply brief. All the briefs have been con-
sidered by the Board. The Company, in its briefs, moved to dismiss
the petition of the C. I. O., for the reason that neither the C. I. O. nor
.the A. F. of L. made a sufficient showing of representation, and for
the reason that the unit sought by the C. I. O. is inappropriate. For
the reasons stated below, the motion is granted.
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 corporation,
owning and operating several large department stores in various parts
,of the country. One-of these is the Famous-Barr Company at St.
Louis, Missouri, whose employees are involved herein. At St. Louis,
the Company owns and operates a main store and several warehouses,
and is engaged in the business of selling merchandise and service.
During the last year, the Company purchased and transported mer-
chandise, valued at approximately $27,000,000, approximately 70 per-
cent of which was transported to the Company from points outside
the State of Missouri. During the same period, the Company sold
and transported merchandise in excess of $27,000,000 in value, of
which approximately 12 percent was transported from St. Louis, to
points outside the State of Missouri. We find that the Company is
engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
Department Stores Employees Union, Local 372, affiliated with
United Retail, Wholesale & Department Store Employees of America
and the Congress of Industrial Organizations, and the American
1 See Matter of The May Department Stores Company, doing business as The May Com-
pony, and Retail Clerks International Protective Association, Retail Shoe Salesmen, Local
Union No. 420, A. F. of L., et at ., 39 N. L. R. B. 471.
THE MAY DEPARTMENT STORES COMPANY 307
Federation of Labor and its affiliated International Unions, are labor
organizations; each admitting to membership employees of the
Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
On October 28, 1942, the C. I. O. requested recognition as the bar-
gaining, agent for the Company's employees, and conferences between
the Company and the C. I. O. were held on November 2 and 9, 1942.
Thereafter, the Company refused the bargaining request on the
ground that the unit 'sought by the C. I. O. was not appropriate.
The parties agreed on a company-wide unit, including the em-
ployees of the main store and the St. Charles Street warehouse, but
excluding, in general terms, supervisory, managerial, executive, con-
fidential, and temporary employees; employees who are covered by
existing contracts; and the Spring Avenue warehouse employees.
The parties are in disagreement, however, as to whether numerous
classifications of employees should be included or excluded, and they
also differ in regard to the precise definition of various categories.
In general terms, the C. I. O. would exclude, and the A. F. of L. and
the Company would include, regular extra, part-time, and seasonal
employees; employees in, leased departments and demonstrators; the
Pine Street warehouse employees and, other "outside", employees;
employees who have special skills; and office and clerical employees..
The Company is a large department store, and utilizes in its business
numerous buildings, among them a main store, 3 warehouses, and a
customers ' garage. As shown by the pay .roll, the functions of the
Company are divided into more than 350 departments. There is only
1 pay roll for all the employees, and it indicates no differentiation
between clerical and non-clerical, or selling and non-selling employees.
All -employment and personnel policies are handled and directed
through a central office. Generally the working conditions of all.the
employees are the same. Without discussing in detail all.the groups
in issue, and without making a final determination of the unit, the
record shows that 2 large disputed groups, regular extra employees
and office and clerical employees, many of whom are closely attached
to selling departments, should not be excluded from the unit, contrary
to the contention of the C. I. O.
The Company, like other department stores, maintains a list of
regular extra employees on whom it calls to meet the normal fluctua-
tions of business . There were, 778 "regular selling extras" and 201
"regular non-selling extras," 2 on the pay roll submitted to the Trial
2 "Regular selling extras" are those employees on the regular extra list . who work in sell-
ing departments "Regular non-selling extras" are those on the regular extra list who
work in non -selling departments , and apparently may include clerical , office, stockroom,
warehouse , and any employees who do not make sales to customers.
t
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner. These employees 'do not work on fixed days, but work
whenever the Company needs them. They may work a whole week
or several days or 1 or 2 days a week or month. They are assigned
to various departments and may be shifted about during the day.
Their salaries are comparable to those of the regular employees of the
Company, and their working conditions are generally the same. Be-
cause of insurance requirements, they do not participate in group in-
surance and the employees' Welfare Association. However, they are,
allowed discounts for their own purchases from the Company, and they
receive Christmas bonuses. Generally, they perform the same duties
as regular extras whom we included in a unit established as appropriate
in another store owned by the same Company.3 On the basis of the
present record, we are of the opinion that they properly should be
included in a unit with regular full-time employees.
There are approximately 650 to 700 employees whom the G. I. O.
would exclude on the ground that they are office and clerical employees.
While about half of these appear to be engaged in strictly office and
clerical work, most of the remainder, who are assigned to various
selling and non-selling departments, are in frequent contact with cus-
tomers and perform duties closely allied with those of other' employees
whom the C. I. O. would include. It is apparent from the record that
they have the same working conditions and benefits as other regular
employees of the Company. So-called office and clerical employees
in departments sought to be excluded by the C. I. O. are frequently
transferred, both temporarily and permanently, to departments that
the C. I. O. would include. Moreover, the office and clerical employees
are eligible for membership in the C. I. O. While we do not decide
that all office and clerical employees should be included, many of those
in dispute clearly should be in an industrial unit with other employees
sought by the C. 1. 0O.
Not only is the C. I. O.'s claimed unit inappropriate, but neither
labor organization has made a substantial showing of representation
in an appropriate unit. The C. 1. O. submitted a total of 924 un-'
duplicated membership application cards, bearing apparently genuine
original signatures: The November 7, 1942, pay roll listed 5,515 em-
ployees. Although only 580 cards were found by the Trial Examiner
to bear names appearing on this pay roll within the claimed unit, we
assume for present purposes that most of the balance of the cards,
which were not definitely established to be of persons not on the pay,
s See Matter of The May Department Stores Company , doing business as The May Com-
pany and Retail Clerks International Protective Association, Retail Shoe Salesmen Local,
Union No 420, A. F of L, et al, 39 N. L. It. B. 471.
4 In addition to the regular extra and office and clerical employees , there are other smaller
groups that the C. I 0. would exclude, but which might properly be included in an indus-
trial unit. ,
THE MAY DEPARTMENT STORES COMPANY 309
roll because of difficulties involved in checking, also bear names of
employees on the pay roll. With the inclusion of, the regular extra
employees and about half of the so-called office and clerical employees,
the representation showing of the C. I. O. is not substantial. The
'A. F. of L. submitted only 127 designation, cards at the hearing, which
were not checked against the pay roll because they bore no indication
of the department to which the person was assigned. •
Since the unit proposed by the C. I. O. is inappropriate, and since
neither the C. I. O. nor the A. F. of L. has presented evidence indicating
that it represents a substantial number of employees in an appropriate
unit, we hereby sustain the Company's motion to dismiss the petition.
ORDER
Upon the basis of the above findings of fact and the entire record
in the case, the National Labor Relations Board hereby orders, that
the petition for investigation and certification of representatives of
employees of The May Department Stores Company, doing business
as the Famous-Barr Company, St. Louis, Missouri, filed by Depart-
ment Stores Employees Union, Local 372, affiliated with United Retail,
Wholesale & Department Store Employees of America, C. I. 0., be,
and it hereby is, dismissed. ,
MR. GERARD D. REmLY took no part in the consideration of the above
Decision and Order.