Herpolsheimer Co.

National Labor Relations Board - Board Decisions

Oct 9, 1952

100 N.L.R.B. 1452 (N.L.R.B. 1952)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The messenger 's duties are not clerical or performed principally in
the office. But he is directly responsible to the office manager, and is
excluded from the existing production and maintenance unit sep-
arately represented by the Petitioner . In these circumstances, we
reject the Employer's contention that his interests are so different
from those of the office and clerical employees as to preclude his in-
clusion in the present unit.
Accordingly , we find that all office and clerical employees at the
Employer 's Calvert City, Kentucky , plant, including the chief clerk,
the maintenance department clerk , the yard department clerk, the
switchboard operator , and the messenger , but excluding the plant
superintendent 's secretary , the personnel director 's secretary , the office
manager 's secretary , and professional employees and supervisors as
defined in the Act , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
HERPOLSHEIMER COMPANY 1 and RETAIL CLERKS UNION, LOCAL 1682,
RETALD CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER.
Case No. 7-RC-1863. October 9, 1952
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 Russell Bradley, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.2
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 Styles and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
1The name of the Employer appears as amended at the hearing.
2 The Employer at the hearing moved to dismiss the petition , contending that the Peti-
tioner had failed to show adequate interest among the employees it seeks to represent. This
is a matter which is administratively deternrined and is not the subject of litigation. We
are, moreover , satisfied that the Petitioner had made adequate showing of interest in the
unit which the Board finds appropriate herein. The motion is therefore denied. W. F.
Schra$t & Sons Corp ., 86 NLRB 77.
DO NLRB No. 232.
HERPOLSHEIMER COMPANY 1453
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
The Employer owns and operates a main department store and
two branch appliance stores in Grand Rapids, Michigan, and a branch
store in Holland, Michigan.3 The Petitioner is seeking a unit com-
prised substantially of selling and nonselling employees, with certain
specific exclusions. The Petitioner would exclude and the Employer
would include the employees at the branch store in Holland. The
parties are also in disagreement with respect to the inclusion or exclu-
sion of certain departments or groups of employees.
Scope of the Unit
The record shows that the employees in all of the Employer's stores
involved in this proceeding, including the branch store at Holland,
are hired and trained by managerial and supervisory personnel at the
main store in Grand Rapids. They are subject to the same merit
and job classification plans, receive identical wages, work the same
hours, and share equally all benefits with other employees. There,
are frequent transfers from one store to another, usually for the
convenience of the employees. The Holland branch store, like the
others, is subject to the centralized control of the Employer's man-
agerial hierarchy at the main store in Grand Rapids. Thus, although
the manager of the Holland store makes effective recommendations
as to the hire and discharge of employees at that store, actual hiring,
discharge, and other changes in the terms and conditions of employ-
ment are made by management at the Grand Rapids main store.
Except for the geographical separation of about 25 miles, there is
no reason offered for excluding the Holland store employees. The
Board has held that, under circumstances such as these, geographical
separation alone is insufficient reason for excluding employees from
the unit.' Accordingly, we shall include Holland branch store em-
ployees in the unit.
Composition of the Unit
The Petitioner, although seeking what amounts to a unit of selling
and nonselling employees, would nevertheless exclude the employees
in the advertising, display, and modeling department, the mainte-
nance employees, and the leased department employees employed at
the main store in Grand Rapids.
Advertising, display, and modeling department: The 16 adver-
tising and display employees do layout work, proofreading, and sign
card writing, and window trimming. They are hired by the personnel
3 The Employer also owns and operates other stores of a like nature , but those stores are
outside the administrative division here involved , and there is no issue with respect to them.
4 The Muller Company, Ltd., 98 NLRB 737.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
director, who also acts as head of the advertising, display, and model-
ing department. They are supervised by the sales promotional man-
ager. They are paid on a weekly basis, as are other nonselling
employees, have the same working hours, receive the same insurance
and sick benefits, and enjoy the same vacation and discount plans.
In addition, they are subject to the same job classification and merit
review plans. There has been considerable interchange in the past
with other nonselling employees. The models are engaged in model-
ing clothes for customers. They presently work 2 days a week for
a total of about 16 to 32 hours a month. During certain seasonal peaks,
they work 5 days a week for a total of about 80 hours a month. While
so employed, they enjoy generally the same working conditions and
receive the same benefits as other employees in this department, and
are under the same supervision. The record does not support the
Petitioner's contention that they are professional employees within
the meaning of the Act.
On these facts, we find that all the employees in the advertising,
display, and modeling department have a substantial community of
interest with the other selling and nonselling employees and they
will therefore be included -in the unit.
Maintenance employees: The Petitioner would also exclude all
maintenance employees. These consist of two painters, one carpenter,
and three electricians. They are hired by the personnel manager
and work throughout the main Grand Rapids store doing general
maintenance work. They have the same working hours, receive sub-
stantially the same wages, are subject to the same merit review and
job classification plans, and receive the same vacation, insurance, sick,
and discount benefits. We find no merit in the Petitioner's conten-
tion that they should be excluded because they might come under the
jurisdiction of a craft union. The Board has held that a jurisdic-
tional limitation by itself is no ground for excluding employees who
would otherwise be included in the units Accordingly, we include
the maintenance employees in the unit.
Leased departments : The leased departments are the beauty salon,
millinery shop, photo shop, shoe repair, books, watch repair, umbrellas,
and optical. Although the employees in these departments are
screened by the Employer's personnel manager, the actual hiring rests
with the lessee's manager. There is no limitation on the lessee as to
the increase or reduction of its employee complement so long as there
are enough employees adequately to carry on its business. Although
the employees must conform to the rules and regulations of the store,
they are under the direct supervision of the lessee's manager, who is
not subject to the control of the Employer. The lessee also has the
Denton 's Inc, 83 NLRB 35, 37 ; Denver Dry Goods Company, 74 NLRB 1167, 1174.
" Maas Brothers, 88 NLRB 129, 133.
RYAN INDUSTRIES, INC. 1455
right to regulate the amount and the method of compensation of its
employees although at present the benefits are generally the same as
those of store employees. As it is clear from the record that the lessees,
and not the Employer, control the essential terms and conditions of
employment governing these employees, we do not believe that they
should be included with the others for collective bargaining purposes.
We shall therefore exclude the employees of the leased departments
from the unit.7
We find that all employees, including the employees in the adver-
tising, display, and modeling department, and maintenance employees,
employed at the Employer's department store in Grand Rapids, Michi-
gan, the two branch appliance stores in Grand Rapids, and the branch
store at Holland, Michigan, but excluding 8 the employees in the leased
departments, restaurant employees, demonstrators, seasonal on-call
extra employees, cooperative students, executive trainees, garage
attendants, all employees in classifications represented by other labor
organizations, professional employees, confidential employees,9 and
supervisors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
7 Maas Brothers, Inc., supra , 134-135.
8 The parties agreed to all the described exclusions except the employees in the leased
departments.
Y The parties agreed to the exclusion of the two clerks in the payroll section as confi-
dential employees . United States Rubber Company , 76 NLRB 809, 810.
RYAN INDUSTRIES, INC. and MECHANICS EDUCATIONAL SOCIETY OF
AMERICA, IND., PETITIONER
RYAN INDUSTRIES, INC. and DETROIT INSTRUMENT MAKERS-INDEPEND-
ENT UNION, PETITIONER . Cases Nos. 7-RC-1877 and 7-RC-1883.
October 9, 1952
Decision and Direction of Election
Upon petitions duly filed, a consolidated hearing was held before
William E. Rhodes, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed."
I Local 155 , International Union , United Automobile , Aircraft & Agricultural Imple-
ment Workers of America (UAW-CIO), the Intervenor , moved to dismiss the petitions on
the grounds (1) that an existing contract between it and the Employer is a bar to the
petitions , and (2 ) that the units requested by the two Petitioners are inappropriate. For
reasons given in paragraphs numbered 8 and 4, the motion is denied.
100 NLRB No. 237.