Lane Bryant, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1943

52 N.L.R.B. 1536 (N.L.R.B. 1943)

In the Matter of LANE BRYANT , INC., A MICHIGAN CORPORATION and
RETAIL CLERKS ' UNION LOCAL No. 1512 A. F. of L.
Case No. 7-R-1495.-Decided October 22, 1943
Mr. Lester S. Smith,, of Detroit , Mich., for the Company.
Mr. Phillip F. Koerner , of Detroit , Mich ., for the Union.
Mr. A. Sumner Lawrence , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Retail Clerks' Union Local No. 1512,
A. F. of L., herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Lane Bryant, Inc., a Michigan Corporation, Detroit, Michigan, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Frank L. Danello,
Trial Examiner. Said hearing was held at Detroit, Michigan, on
September 25, 1943. The Company and the Union appeared, par-
ticipated, 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. All parties were
afforded the opportunity to file briefs with the Board.
Upon the, entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lane Bryant, Inc., a Michigan Corporation, has its principal place
of business in Detroit, Michigan, where it owns and operates a retail
store dealing in women's ready-to-wear clothing. All of the capital
stock of the Company is owned by Lane Bryant, Inc., a Delaware
corporation which operates directly, or through wholly owned sub-
sidiaries, a chain of stores in various sections of the United States.
52 N. L. R. B., No. 261.
1536
LANE BRYANT, INC. 1537
As a subsidiary corporation, the Company is subject to the financial
control and supervision of the Delaware corporation, which maintains
at its New York office a purchasing staff that supplies the Company
with part of the merchandise required for the operation of its business.
During the period from January 1, 1943, to June 30, 1943, the Com-
pany's purchases for resale amounted to approximately $447,396, of
which purchases about 98 percent was purchased and shipped to it
from points outside the State of Michigan. During the same period,
the Company's Detroit store had gross sales amounting to approxi-
mately $745,000, of which about .4 percent represented out-of-State
business. In addition to its usual purchases and sales involving inter-
state commerce, the Company at times ships overstocked items of
merchandise from its Detroit store to other Lane Bryant subsidiaries
located outside the State of Michigan.
The Company contends that the substantial purchases of goods from
out-of-State sources together with the other factors hereinabove re-
ferred, to, do not confer jurisdiction upon the Board in the present
proceeding. This contention has, however, been raised in previous
cases upon facts substantially similar to those shown by the present
record and decided adversely to the position taken by the Company.,,
We find that the Company is engaged in commerce within the meaning
of the National Labor Relations Act.
IL THE ORGANIZATION INVOLVED
• Retail Clerks' Union Local No. 1512 is a labor organization affili-
ated with the American Federation of Labor, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about January 21, 1943, and on several occasions thereafter, the
Union, claiming to represent a majority of the Company's employees,
requested that the Company recognize it as the bargaining agent of
such employees. The Company declined to grant the Union's request
for recognition.
1 See Matter of Boston Store of Chicago , 37 N. L R. B. 1145; Matter of M. E. Blatt Com-
pany, 38 N. L. R. B. 1210; Matter of The May Department Stores , 39 N. L. R B 471;
Matter of The J. L. Hudson Company , 42 N. L. R. B. 536; Matter of Hearst Mercantile
Company, 44 N. L . R. B. 1342; Matter of J. L. Brandeis if Sons, 47 N. L. R B 614, 50
N L R B. 325. The position of the Board has been upheld by the Courts in the following
court cases: National Labor Relations Board v. Kudile , 130 F. (d) 615 (C. C. A. 3), cert.
denied 63 Sup. Ct. 436 ( January 4, 1943 ) enforcing Matter of Rudolf if Charles %udile, co-
partners doing business under the name of Kudile Bros , Hasbrouck Heights Dairy, 28
N. L. R. B. 116; National Labor Relations Board v. J L. Hudson Company 135 F (2d) 380
(C. C. A. 6) ; National Labor Relations Board v. Suburban Lumber Co ., 121 F. ( 2d) 829 (314
U. S. 693, cert . denied).
1538 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
A statement of the Regional Director, introduced, in evidence at
the hearing, indicates that the Union represents a substantial num-
ber of employees in the unit hereinafter found appropriate.2
We find that a question affecting commerce-has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
- The Union urges the adoption of a unit consisting of all employees
engaged in selling and handling merchandise, including maids, por-
ters, and elevator operators, but excluding buyers, department heads,
office employees, office manager, advertising manager, store manager,
and night watchmen. The only issue raised by the Company with
respect thereto concerns the office employees whom the Company con-
tends should be included within the appropriate unit. The evidence
reveals that, while the Union has been inconsistent in its attitude
toward the inclusion of office employees and has entered into consent
election agreements including office employees of the Company, the
Union has never admitted to membership the employees in this group,
the members of which are apparently being organized by a separate
A. F. of L. organization known as the Office Workers Union. In view
of the fact that office workers constitute a separate identifiable group,
representation of which is desired by the Office Workers Union, and
since the Board does not as a matter of practice usually place office
employees in the same unit with employees performing non-clerical
duties, we shall exclude them.'
We find that all employees of the Company engaged in selling
and handling merchandise, including maids, porters, and elevator
operators, but excluding buyers, department heads, office employees,
office manager, advertising manager, store manager, and night watch-
men and all supervisory employees who have the authority to hire,
promote, discharge, discipline or otherwise effect changes in the status
of employees or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.,
2 The Regional Director reported that the Union had submitted 46 authorization cards,
of which 28 bore the apparently genuine original signatures of persons whose names appear
on the Company 's pay roll dated June 19, 1943, containing 71 names within the claimed
appropriate unit. ,
3 See Matter of J. L Brandeis f Sons, 50 N. L. R B. 325. The Board has directed an
election in a unit otherwise found appropriate, notwithstanding that the petitioning Union
had formerly been a party to a consent election agreement embracing employees not re-
quested by the Union in its petition or included in the appropriate unit. See Matter of Ken-
tucky Fluorspar Company, 52 N. L. R.-B 227.
LANE BRYANT, INC.
V. THE DETERMINATION OF REPRESENTATIVES
1539
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit, who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 Re-
lations 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 Lane Bryant,
Inc., a Michigan Corporation , Detroit, Michigan , an election by secret
ballot shall be conducted as soon as possible but not later than thirty
(30) days from the date of this Direction , under the direction and
supervision of the Regional Director for the Seventh Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above , who were employed during the pay-roll period immedi-
ately 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 employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election , to determine whether or not they desire to
be represented by Retail Clerks ' Union Local No. 1512, A. F. of L.,
for the purposes of collective bargaining.
549875-44-vol. 52-98