Foreman & Clark

National Labor Relations Board - Board Decisions

Jun 12, 1947

74 N.L.R.B. 77 (N.L.R.B. 1947)

In the Matter of FOREMAN & CLARK, EMPLOYER and RETAIL SHOE &
TEXTILE UNION, LOCAL 410, AFL, PETITIONER
Case No. 00-B-1940.-Decided June 12, 1947
Mr. C. Richard Lange, of San Francisco, Calif., for the Employer
and the Retailer's Council.
Mr. Roland C. Davis, of San Francisco, Calif., for the Petitioner.
Miss Irene R. Shriber, of counsel to the Board.
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this case was held at San
Francisco, California, on February 7, 1947, before Robert E. Tillman,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and hereby affirmed. At the close of the
hearing, the Employer and the San Francisco Retailer's Council,
herein called the Council,' requested the Board to reopen the record
for the purpose of admitting certain exhibits into evidence and allow-
ing argument thereon. For the reasons hereinafter stated, this request
is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS or FACT
1. THE BUSINESS OF THE LIMPLOYEAZ
Foreman & Clark, a Delaware corporation whose principal office
and place of business is in Los Angeles, California, operates 10 retail
men's and boys' clothing stores in the States of Missouri, Washington,
and California. This proceeding is concerned only with the Em-
ployer's store in San Francisco, California. During the year 1946,
the Employer purchased for resale in its San Francisco store, more
than $200,000 worth of merchandise, of which more than 90 percent
was obtained from points outside the State of California. During the
'At the hearing, the Council was permitted to intervene in the proceeding
74 N L R. B., No 19. 77
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same period, sales in the San Francisco store exceeded $300,000, of
which approximately 1 percent was to out-of-State customers.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of certain employees of the Employer un-
til the Petitioner has been certified by the Board in an appropriate
unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE ALLEGED APPROPRIATE UNIT
The Petitioner seeks a unit composed of the sales clerks in the
clothing departments of the Employer's store, excluding,, the sales
clerks in the shoe department. The Employer and the Council op-
pose the establishment of the requested unit and contend that the
only appropriate unit is one embracing the clothing sales clerks of the
employer-members of the Council of which the Employer is a member.
The Council is an unincorporated association of 32 retail clothing
and shoe stores located in San Francisco. It was organized in 1936
for the purpose of engaging in collective bargaining with labor or-
ganizations on a Council-wide or multiple-employer basis. The Coun-
cil has been authorized by its membership to enter into collective bar-
gaining agreements on behalf of its members, and in the 11 years of
its existence it has executed several such agreements with various
labor organizations including the Petitioner. Bargaining relations
between the Council and the Petitioner date back to July 1937 when
they signed their first contract. This contract covered the shoe fit-
ters of approximately 30 store-nnembers of the Council. New con-
tracts were signed in 1938, 1940, 1945, and 1946,2 and in addition to
the shoe fitters, they covered sales clerks of hosiery, bags, and other
accessories as well as cashiers. and wrappers. The Employer did
2 The record shows that the Council and the Petitioner had no contractual relations from
July 1941 through July 1945 The contract signed in 1945, however, was made retroactive
to November 12, 1943.
FOREMAN & CLARK 79
not employ any sales clerks covered by these contracts until after the
1945 contract was signed when it engaged a shoe salesman. It there-
after became a party to the 1945 contract and to the contract executed
in July 1946, the latter being currently in force. Both these con-
tracts included not only the Employer's shoe salesman, but the stock
clerk, the 3 cashiers, and the 2 wrappers. In addition to these 7 em-
ployees, 12 other employees of the Employer are covered by Council
contracts. One contract covers the 9 employees in the busheling de-
partment,3 one, the janitor ,4 and one, the 2 employees in the,display
department.5
The only employees of the Employer not covered by Council con-
tracts are the 13 sales clerks whom the Petitioner now seeks to repre-
sent on a single-employer basis. These salespeople work in men's
clothing and furnishings departments. The Employer and the Coun-
cil contend that the appropriate form of bargaining unit for these
employees is one that includes the clothing sales clerks of the 8 store-
members of the Council who deal in men's and boys' clothing. The
record shows that the afore-mentioned employers, including the
Employer herein, have authorized the Council to represent them in
collective bargaining with the Petitioner concerning the sales clerks
herein.
For over 5 years prior to the filing of its petition herein, the
Petitioner has attempted to represent the men's clothing sales clerks
of the employer-inembers of the Council on a Council-wide basis. In
1941, it sought to include them in a contract covering shoe sales clerks
and submitted a proposed agreement to the Council to that effect.
However, no contract was executed that year. During the negotia-
Lions in 1945 and 1946, the Petitioner again subnlittecl_ proposed agree-
ments covering clothing sales clerks as Well as shoe clerks. After the
1946 contract was signed, the Petitioner attempted to negotiate a
separate agreement with the Council for the clothing salespeople.
The record shows that three bargaining conferences were held between
November 1 and 14, 1946, during the course of Which the Petitioner
acknowledged that a Council-wide unit was an appropriate unit for
clothing sales clerks and bargained for them on this basis. Nego-
tiations broke down because of a dispute over the terms of a proposed
agreement and not because of any disagreement regarding the scope
of the unit.
' This contract was executed with the Amalgamated Clothing Workers of America, CIO
4 This contract was executed with the Building Service Employees Union, Local 87, and
the Janitor and Elevator Operators Union , Local 117
6 This contract was executed with the Sign, Scene and Pictorial Painters Union, Local
510.
755420-48-vol 74-7
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing facts and the entire record -in the case,
we are of the opinion that a unit of sales clerks confined to the Em-
ployer's store is inappropriate. The Council, on behalf of the Em-
ployer herein and its other members, has had a successful history of
collective bargaining. That history has included several years of
contractual relations with the Petitioner with respect to employees
whose functions are not substantially different from the employees
whom the Petitioner would now represent on a single-employer basis.
Moreover, the Petitioner as well as the Council and the Employer have
recognized the Council-wide unit as an appropriate form of unit for
the clothing sales clerks. The break-down of the November 1946
negotiations is not sufficient reason for holding that a unit for the
Employer's sales clerks alone is appropriate.6 Under all these cir-
cumstances, including the fact that the Council has been duly author-
ized by the Employer and its other members to bargain in their behalf,
we find that the single-employer unit requested by the Petitioner is
inappropriate for the purposes of collective bargaining. We shall,
therefore, dismiss the petition herein.
ORDER
IT IS HEREBY ORDERED that the petition for investigation and certifi-
cation of representatives of employees of Foreman & Clark, San
Francisco, California, filed by Retail Shoe & Textile Union, Local 410,
AFL, be, and it hereby is, dismissed.
Matter of United For Manufacturers ' Association, Inc, 49 N L R B 1405, 1411
Matter of New Bedford Cotton Manufacturers ' Assoceation, 49 N. L R B 1315, 1354