Franklin Simon & Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1951

94 N.L.R.B. 576 (N.L.R.B. 1951)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. All employees in the electrical departments at the Employer's
Arthur and Magna mills, transmission linemen, including the trans-
mission line lead man, lineman helpers'12 signal maintainers, assistant
signal maintainers, and signal maintainer helpers.
However, we shall make no final unit determination for the em-
ployees at this time, but shall first ascertain the desires of the em-
ployees as expressed in the elections hereinafter directed. If a major-
ity of the employees in voting group b vote for the Electrical Workers,
they will be taken to have indicated their desire to constitute a
separate bargaining unit.
Although none of the parties to this proceeding raised the issue,
it appears possible that employees in the Employer's maintenance-of-
way mills ore haulage department are subject to the Railway Labor
Act,13 and hence are not employees within the meaning of the National
Labor Relations Act. The record in this proceeding does not make
it possible to determine such an issue. Accordingly, we shall make
no determination with respect to such employees, but shall allow them
to vote in the several elections subject to challenge. If any of their
votes are challenged and are sufficient in number to affect the elec-
tion results, we shall make a final determination with respect to the
unit placement of such employees at that time 14
[Text of Direction of Elections omitted from publication in this
volume.]
>z Included in this category is the truck driver permanently assigned to working with
the transmission linemen . The record reveals that he must have a knowledge of the tools,
equipment , and materials used by the linemen , and that, when not driving , he regularly
assists them as a helper Moreover, he was previously classified as a lineman helper,
and was only reclassified as a truck driver to give him the benefit of the higher wage
rate paid to truck drivers without any change in his duties
1148 Stat. 1185.
14 Cf Utah Copper Company, 57 NLRB 641.
94 NLRB No. 88.
FRANKLIN SIMON & COMPANY, INC. AND KAYS-NEWPORT, INC. and
DEPARTMENT STORE EMPLOYEES UNION, LOCAL 21, AFFILIATED WITH
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER.
Case No. 2-RC-.570. May 16, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Jack Davis, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
FRANKLIN SIMON & COMPANY, INC. 577
Upon the entire record in this case , the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.'
2. The labor organization involved claims to represent certain
employees of the Employers.
3. A question affecting commerce exists concerning representation
of the employees of the Employers within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit composed of the two full -time and one
part-time shoe salesmen employed in the shoe department leased
to Kays -Newport, at the East Orange, New Jersey, store of Franklin
Simon. Kays-Newport asserts initially that Franklin Simon is the
sole employer of these employees and, secondly , that if the Board
should find Kays-Newport to be the employer , the limited size of the
unit renders it inappropriate . Franklin Simon agrees with the Peti-
tioner that Kays-Newport is the employer of the shoe department
employees , and argues that, if Franklin Simon is found to be the em-
ployer, the only appropriate unit is a store -wide unit of all selling
employees.
The shoe department '- is operated by Kays-Newport pursuant to a
lease agreement , called a "license ," with Franklin Simon , for the ex-
clusive sale of women's shoes in the East Orange, as well as other
Franklin Simon , stores .3 Under the terms of the lease, the shoe de-
partment is supervised by a manager who is designated as an employee
of Kays-Newport and must be satisfactory to Franklin Simon. The
lease specifies that other shoe department personnel shall be "selected
and engaged" by Franklin Simon through its own personnel office,
upon the recommendation and in behalf of Kays-Newport , and that
Kays-Newport cannot employ any person to whom Franklin Simon
has a reasonable objection . Employees so hired are designated as
employees of Kays -Newport. Wages are to be fixed by Kays-New-
port, but are paid by Franklin Simon in the same manner as it pays
its own employees and Kays -Newport is to reimburse Franklin Simon
out of its cash receipts . Kays-Newport assumes responsibility for
the social security , unemployment compensation , workmen's compen-
' As more fully discussed in paragraph numbered 4, infra, Kays-Newport , Inc., and
Franklin Simon & Company, Inc, individually referred to as Kays-Newport and Franklin
Simon, respectively, and collectively as the Employers, are joint employers of the shoe
department employees in issue This department forms an integral part of the operations
of each of these multistate enterprises Accordingly, we find that jurisdiction should
be asserted over the Employers whether considered jointly or severally. Baron's Incor-
porated, 91 NLRB No. 190; The Borden Company, Southern Division, 91 NLRB 628.
' The shoe salesmen requested by the Petitioner, and a manager, comprise the total
personnel in the department.
3 There are at least two other leased departments in the East Orange store, namely,
the millinery department and beauty salon.
953841-52-vol. 94-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sation, employer's liability insurance, and withholding tax returns,
and must maintain public liability insurance. The business hours
of the shoe department must conform to those of the store and all
employees must abide by the store's rules and regulations. The lease
further provides that shoe salesmen shall receive the same vacations
and holidays, insurance and hospitalization benefits, Christmas bo-
nuses, and store discounts, as are given to the other employees. All
matters pertaining to the discipline or discharge of the leased de-
partment employees must be handled through the personnel office of
the Franklin Simon store. Finally, the lease requires that no dis-
cussions be entered into by the lessee with the shoe department em-
ployees or their representative regarding any labor dispute without
first notifying the lessor and giving the latter a chance to be present,
and no agreement in settlement of such dispute shall be effected with-
out the written consent of Franklin Simon.
In actual operation, the shoe department manager, who regards
himself as employed by Kays-Newport, receives his order from the
Kays-Newport regional manager in New York City and consults with
him about merchandise orders, inventory, and additional help. The
shoe salesmen receive their instructions from the department manager
and recognize him as their supervisor. He is responsible for the
conduct of the department operations, decides when overtime work
is required, selects employees for overtime work, arranges lunch hours
and working hours, can grant time off, and apparently makes teln-
porary layoffs without consulting Franklin Simon. He has authority
to discipline the shoe salesmen and, if he does so, the action taken is
recorded in the personnel office of Franklin Simon. There is no
evidence that the department manager's recommendations as to hiring
or dismissal of employees have ever been rejected.4
While, as noted above, the lease provides that wages are to be fixed
by Kays-Newport, these wages, in practice, are guided by the store
wages of Franklin* Sinion. However, the shoe salesmen work a 6-day
week, while the rest of the store clerks are on a 5-day week, with the
shoe salesmen working 40t/2 hours and the others 371/2 hours, and any
increase in wages, within the general limit established by Franking
Simon, is made by the department manager with the approval of the
Kays-Newport regional manager. The shoe department employees
use the same facilities, such as store entrances and wash rooms, as do
the other store employees. And, as described in the lease, they receive
the same benefits and discount privileges as the other employees and
are subject to the same rules and regulations. There is no interchange
4 Although Franklin Simon summarily discharged one shoe department employee for
stealing, concerning which the shoe department manager was afterward informed, this
inas apparently the only instance of such action
FRANKLIN SIMON & COMPANY, INC. 579
of personnel between the shoe department and the other departments
and there is a separate sales area for the shoe department operations.
There has been no history of collective bargaining with respect to
either the shoe salesmen or the other store employees.'
The Board has previously indicated that an employer-employee
relationship is established where the person for whom services are
rendered possesses the right of control over such fundamental matters
as the employees' day-to-day operations and their basic working con-
ditions.6 Here, it is apparent that a substantial right of control over
matters fundamental to the employment relationship is retained and
exercised by both Franklin Simon and Kays-Newport. Thus, for
example, Franklin Simon actively participates in the hiring and dis-
charging processes, the shoe department employees must receive the
same' vacations and other benefits as Franklin Simon extends to the
other store employees, and, in the event of any labor dispute regarding
the shoe department employees, no discussion can be entered into by
Rays-Newport without affording Franklin Simon the opportunity to
be present and no settlement agreement can be executed without the
written consent of Franklin Simon. On the other hand, Kays-
Newport determines such matters as wages, the number of employees
to be hired, and overtime privileges, and generally directs the day-to-
day functioning of the department. Under these circumstances, we
are of the opinion and find that Franklin Simon and Kays-Newport
constitute joint employers of the shoe department employees.'
As previously mentioned, the shoe department employees work dif-
ferent hours, under separate supervision, and in a separate area, and
there is no interchange with other store employees. In view of the
foregoing, and as their basic conditions and terms of employment are
subject to determination by both Franklin Simon and Kays-Newport,
we are further of the opinion that the shoe department employees
constitute a separate appropriate unit."
Accordingly, we find that all shoe department employees of the
Employers at the East Orange, New Jersey, store of Franklin Simon,
excluding the shoe department manager A and all other supervisors
5 Franklin Simon and the Petitioner entered into a consent election agreement prior
to the filing of the present petition, in which the stipulated unit excluded the employees
of all leased departments (Case No 2-RC-2472) However, the petition upon which
the consent election agreement was predicated was subsequently withdrawn.
6The Faller Automobile Company, 88 NLRB 1452 Cf. Maas Brothers, Inc., 88 NLRB
129, Grossman Department Store , Inc, 90 NLRB No. 275 ; Pariseau' s, Incorporated, 90
NLRB 1458
' Cf General Motors Corpoi ation, 60 NLRB 81.
`Cf Carter Publications Inc. 92 NLRB 1190; Atlas Imperial Diesel Engine Co.
and Hunt Foods Inc, 89 NLRB 372. See also Sterling -Linder-Davis Co , 91 NLRB No 91.
The contention of flays-Newport that the limited size of the unit renders it inappro-
priate Is clearly without merit . National Licorice Company, 85 NLRB 140.
The shoe depai tment manages is clearly a supervisor within the meaning of the Act
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as defined in the Act, constitute an appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.'°
[Text of Direction of Election omitted front publication in this
volume.]
MEMBERS REYNOLDS and STYLES took no part in the consideration
of the above Decision and Direction of Election.
IU Kays-Newport contends that the part -time shoe salesman should he excluded from
the unit. This employee works each Saturday and occasionally on other days during
the week , performing duties similar to those of the other shoe salesmen . We find that
he serves as a regular part-time employee , and that he is entitled to participate in the
election directed herein . H. B. Butt Grocery Company , 93 NLRB No. 88 ; Harms Hosiery
Co., Inc ., 91 NLRB 330.
THE BIRDSALL- STOCKDALE MOTOR COi iPANY f hd I NTERNATIONAL As-
SOCIATION OF MACHINISTS, LODGE No. 750. Cage No. 30-CA-113.
May 17,1951
Decision and Order
On February 21, 1951, Trial Examiner Irving Rogosin issued his
Intermediate Report in the abgvc-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
The Board has considered the stipulation entered into by the parties,
the Intermediate Report, the exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recomunenda-
tions of the Trial Examiner, with the following additions : 1
1. The Trial Examiner found that the Respondent is engaged in
commerce within the meaning of the Act.' The Respondent has
excepted to this finding and contends that it is not so engaged. The
record shows, and the Respondent admits, that it has dealer
agreements with General Motors Corporation, Pontiac Motor
I We find, contrary to the contention of the Respondent , that the complaint alleged
facts which support a finding that the Respondent is engaged in commerce within the
meaning of the Act. Accordingly, we hereby affirm the Trial Examiner's dismissal of
the Respondent 's motion to dismiss the complaint which was based on this ground.
2 The Trial Examiner, In the Intermediate Report, sets forth In detail the pertinent
commerce facts relating to the Respondent's business.
4 NLRB No. 117.1