Louis Pizitz Dry Goods Co.

National Labor Relations Board - Board Decisions

Nov 5, 1946

71 N.L.R.B. 579 (N.L.R.B. 1946)

In the Matter of Louis PIZITz DRY GOODS COMPANY, EMPLOYER and
RETAIL, WITOLESALE AND DEPARTMENT STORE EMPLOYEES UNION,
CIO, PETITIONER
Case No. 10-R-1822.-Decided November 5, 194(
Mr. Kenneth, Perrine, of Birmingham, Ala., for the Employer.
Mr. John, J. Sch,uiter, of Birrniiighani, Ala., for the Petitioner.
Mr. Thar ren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held on July
11 and 12, 1946, at Birmingham, Alabama, before Frederick A.
Aicher, hearing officer. At the hearing, the Employer moved to dis-
miss the proceeding. The motion is hereby denied.' The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
T. TIlE-BUSINESS OF TIIE EMPLOYER
Louis Pizitz Dry Goods Company, an Alabama corporation, main-
tains a warehouse, and a department store in Birmingham, Alabama.
' In support of its motion to dismiss, the Employer contends (1) that it is not engaged
in commerce within the meaning of the Act; (2) that the Petitioner has failed to meet
the registration and/or the filing of annual reports requirements of an Alabama statute,
known as the Bradford Act, and hence is disqualified from representing the employees of
the Employer; and (3) that while the Petitioner's Local 436 may have an interest among
its employees, the -Petitioner itself has no such interest, because authorization cards sub-
mitted to the Board designated the local and not the Petitioner.
Upon the facts set forth in Section I. infra, we later find that the Employer's first con-
tention is without merit For reasons set forth in a previous proceeding in which the Em-
plover was involved (Matter of Louis Pizitz Dry Goods Company, 56 N. L R B 1026),
we hereby reject the Employer's second contention And we also are of the opinion that
the Employer's third contention lacks merit we have held that the requirement that a
petitioning union submit proof of representation is but an administrative' expedient
"adopted to enable the Board to determine for itself whether or not further proceedings
are warranted . . " Matter of 0 D. Jennings d Company, 68 N L R B 516 We are
satisfied, moreover, that the Petitioner has a substantial interest in this proceeding, mas-
mnuch as its local is merely one of its branches.
71NL14B,No.84. .
579
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This proceeding is concerned only with the Employer's department
store. During the past year the Employer purchased a variety, of
merchandise for its department store, valued at approximately
$5,000,000, of which about 80 percent was received from points outside
the State of Alabama. During the same period the value of merchan-
dise sold at the Employer's department store approximated $8,000,-
000. Also during the same period the store's mail order business
approximated $100,000 in value, of which about $3,000 worth of
merchandise was shipped to points outside the State of Alabama.
Despite the Employer's contention to the contrary, we find that it
is engaged in commerce within the meaning of the National Labor
Relations Act.2
11. TIIE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer .3
III. THE QUESTION CONCERNING REPRE SENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until 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 mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all employees of the Employer who
are directly engaged in the retail sale or handling of merchandise,
and who maintain and service the building , excluding maintenance
employees who are represented by other unions . The Employer con-
tends, however, that substantially a store -wide unit is appropriate.'
As a result of this dispute , there are specific employees whom the
Petitioner would exclude and the Employer would include; these
employees are discussed below. In addition , there are employees
whom the Petitioner would include and the Employer would exclude;
these employees are also treated below. Finally , there are employees
whom the Petitioner would include and concerning whom the Enm-
2 See Matter of J. L Brandeis it Sons, 53 N L R B 352 , and cases cited therein We
have previously asserted jurisdiction over the Employer ' s store. Matter of Louts Ptiznt.:
Dry Goods Company, supra
$ Evidence adduced at the hearing discloses that the Petitioner is clearly a labor organi-
zation within the meaning of the National Labor Relations Act.
The parties agree to include those employees listed in Appendix A, attached hereto ,
and they agree to exclude those employees listed in Appendix B, also attached hereto.
LOUIS PIZITZ DRY GOODS COMPANY 581
ployer takes no clear position, and an employee whom the Employer
would include and concerning whom the Petitioner takes no clear
position; we also consider these employees below.
A. Employees whom the Petitioner would exclude and the Employer
would include
Office and clerical employees: There are certain office and clerical
employees whom the parties agree to include 5 and there are other
office and clerical employees' whom the Petitioner would exclude as
workers not directly engaged in retail sale or handling of merchandise.
We are satisfied, however, that all of the office and clerical employees
are bound by a strong community of interest. The record reveals,
moreover, that all of these employees are subject to the store rules and
regulations and that they have similar working hours and conditions
of employment. Accordingly, we shall include all office and clerical
employees.
Trainee buyers, and assistant buyers: The record reveals that
neither the trainee buyers nor the assistant buyers now possess marked
supervisory authority. Nevertheless, they are being trained for
supervisory positions. On the basis of their functions and their posi-
tion in the store hierarchy, we shall exclude them.7
The engraver in the stationery department: This employee hand
engraves initials on stationery with the use of a vise and engraving
tools. Although he does no selling, he performs his work on the sell-
ing floor and actually handles stationery which is sold by the Em-
ployer. Accordingly, we shall include him.
The engraver in the men's furnishing department: This employee
engraves belt buckles in the men's furnishing department. He occu-
pies a position similar to that of the engraver in the stationery de-
partment. Accordingly, we shall also include the engraver in the
men's furnishing department.
Candy workroom employees: These employees are candy makers.
Their product is sold by the Employer. We shall include them.
Shoe repair department employees: These employees are principally
engaged in shoe building, shoe rebuilding, and shoe repair. All are
located on the selling floor and sell articles such as laces, heels, 'and
polish. We perceive no valid distinction between the duties of em-
ployees in this department and those of employees in other depart-
5 These employees are the markers , pickup boys , sheetwriters , order fillers , authorizers
and stock clerks, all of whom are listed in Appendix A.
° Among these employees are adjustment clerks, tracers, mail clerks , telephone operators,
receiving clerk, multigraph operators , employees in the treasurer 's department , employees
in the auditing department, employees in the accounts receivable department , employees
in the accounts payable department , office cashiers , file clerks, statisticians , invoice clerks,
order checkers , tube room cashiers , and floor cashiers.
7 See Matter of J. L. Brandeis & Sons, 54 N. L . R B 880.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meats , who are hereinafter included in the appropriate unit. Al-
though the department is operated as a concession, the record reveals
that when an employee is hired, the Employer inserts an advertisement
in the newspaper requesting individuals with specific qualifications to
call at its employment office. Thus, persons who respond to the ad-
vertisement are then interviewed in a manner similar to that of any
other prospective employee of the Employer. While the concession-
aure sets the salary of employees in his department, it must meet the
scale set by the Employer. Employees in the concession are paid by
the Employer, who, in turn, is reimbursed by the concessionaire. The
Employer reports employees in this department for Social Security
purposes. We are satisfied that employees in the shoo repair depart-
ment are ennployeps of the Employer within the meaning of the Act
who should be included in the unit. Accordingly, we shall include
all but the concessionaire himself.
Interior decorators: These employees are not attached to any special
department and frequently leave the store to advise customers with
reference to home furnishings. They receive commissions on sales.
We are satisfied that they have interests intimately related to those of
other employees who are included in the unit. We shall, therefore, in-
clude them.
Promotion department: This department is comprised of a public
relations manager, assistant advertising maliager, copy writer, assist-
ant display manager, window dressers, sign writers, artists, personal
shoppers and the customer relations manager. We are convinced that
these employees are professional workers with interests basically un-
related to those of other employees included in the unit. Accordingly,
we shall exclude them.8
Operations department purchasing agent: This employee purchases
paper, twine, packing materials, and stationery for the store and the
shops for prices and samples. He also acts as a floor walker a substan-
tial part of his working time. As hereinafter indicated, floor walkers
are included in the unit. Accordingly, we shall include the operations
department purchasing agent.
Floor walkers: These employees answer customers' questionns, report
under-staffed departments to buyers, Fund direct sales people to waiting
customers. It is clear that they do not possess supervisory authority.
We are of the opinion that floor walkers have interests intimately re-
lated to those of other employees included in the unit. Consequently,
we shall include floor walkers.
Nurse: This employee operates a small dispensary for sick cus-
tonners and employees. She is clearly it professional worker. We shall
exclude her.°
8 See Matter of Montgomery Ward and Company , Inc, 64 N L B. B 674
9 See Matter of Montgomery Ward and Company , Inc, 53 N L B . B. 1300
LOUIS PIZITZ DRY GOODS COMPANY 583
Housekeeper: Charged with the responsibility of maintaining san-
itary conditions throughout the store, this employee supervises the
porters and maids. We shall exclude her as a supervisory employee.
Appliance service man: This employee services appliances for cus-
tomers in their homes, and he also demonstrates their use in the store.
He is clearly engaged in the handling of merchandise for retail sale.
We shall include him in the unit.
Monogram, machine operator: This employee, who works side by
side with sales personnel, operates a monogram machine which initials
linens and handkerchiefs. We are satisfied that she occupies a position
similar to that of the engravers in the stationery and men's furnishing
department. Accordingly, we shall include her.
Art needle-work instructors, hemstitchers and buttonholers: The
record reveals that these employees perform finishing operations on
items sold in the department. They carry their own sales tickets and
work with sales people in the department. The duties of these em-
ployees are akin to those of other employees included in the unit.
Therefore, we shall include them.
Technicians, receptionist, and dispensers in the optical department:
The technicians grind and polish lenses and sometimes sell merchan-
dise; the dispensers sell optical findings; and the receptionist routes
customers to the optometrist 1° We are persuaded that these employees
have interests intimately related to those of other employees included
in the unit. Accordingly, we shall include them.
Photographic department employees: The employees of the conces-
sionaire of this department, a concession, are engaged in the retail
sale of photographs. We are satisfied that they are employees of the
Employer within the meaning of the Act. Accordingly, we shall in-
clude them.
Beauty shop department employees: This department is comprised
of beauticians, hair stylists, manicurists, and similarly engaged em-
ployees. We can perceive no valid distinction between employees in
the beauty shop department and other employees who are included in
the unit. We shall, therefore, include the beauty department em-
ployees.
Warehouse manager: This employee directs and supervises the activi-
ties of a number of subordinates who place merchandise in its proper
place in the warehouse. As a supervisory employee, he will be excluded
from the unit.
Layaway department supervisor: This employee directs the activities
of subordinate workers, who store merchandise until the customer is
10 The optometrist , listed in Appendix B, is excluded as a professional worker by
agreement of the parties.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready to claim it. As a supervisory employee, he'will be excluded
from the unit.
Stock manager: This employee directs the activities of stock clerks
in the stock room. As a supervisory employee, he will be excluded
from the unit.
Assistant credit manager and the installment collection manager:
Although these employees do not possess marked supervisory authority,
they are being trained for supervisory positions. On the basis of their
functions and their position in the store hierarchy, we shall exclude
them.
B. Employees whom the Petitioner would include and the Employer
would exclude
Demonstrators: These employees,who work in various departments,
are specially trained sales people retained by manufacturers to sell
their products in the Employer's store. The regular wages of demon-
strators, however, are usually paid by the Employer who, in turn, is
reimbursed by the manufacturers. In the hiring of demonstrators, the
Employer usually selects two or three individuals who, it believes, will
be suitable for the manufacturer, and the manufacturer then selects
one. Demonstrators sometimes make sales of store merchandise other
than those products they are demonstrating. Evidence adduced at the
hearing discloses that the hours and working conditions of demonstra-
tors do not vary from those of other employees. The demonstrators
are subject to the general store rules and regulations governing the
work of all employees in the store. It is clear that the Employer has
considerable control over the discharging of demonstrators. We are
satisfied that demonstrators are employees of the Employer within
the meaning of the Act, and that they have a strong community of in-
terest with other employees included in the unit. Accordingly, we
shall include the demonstrators."
C. Employees whom the Petitioner would include and concerning
whore, the Employer takes no clear position
Dressmaker, silk-goods department: This individual, a concession-
aire, is self-employed. We shall exclude her.
The key department employees: Employees in this department, a
concession which has not yet begun to operate, will sell new locks,
repair old locks, and make and sell new keys. As in the case of the
shoe repair department employees, we are satisfied that personnel of
the key department are employees of the Employer within the meaning
" See Matter of May Department Stores Company, 59 N L R B 976 Matter of May
Denartneent Stores Company, 54 N L R B 230 , and Matter of Hale Brothers Stores, Inc.
62 N. L. R. B. 367.
LOUIS PIZITZ DRY GOODS COMPANY 585
of the Act. We shall include the key department employees, except for
the concessionaire himself.
The watch repairman: This employee repairs watches in a depart-
ment operated as a concession. As in the case of the shoe repair de-
partment, we are satisfied that he is an employee of the Employer
within the meaning of the Act. Accordingly, we shall include him.
D. The employee whom the Employer would include and concerning
whom the Petitioner takes no clear position
The watchman: This employee stays in the store at night, works at
the A. D. T. clock, and inspects for fire and leakage. We are satisfied
that he is engaged in duties relating to the maintenance of the store,
and has interests intimately related to those of other employees in the
unit. We shall include the watchman.12
We find that all employees of the Employer directly engaged in the
retail sale or handling of merchandise, and who maintain and service
the building, including all office and clerical employees," the engraver
in the stationery department, the engraver in the men's furnishing
department, candy workroom employees, shoe repair department em-
ployees, interior decorators, the operations department purchasing
agent, floorwalkers, the appliance service nnan, the monogram machine
operator, art needle-work instructors, hemstitchers and buttonholers,
technicians, receptionist and dispensers in the optical department,
photographic department employees, beauty shop department em-
ployees, demonstrators, key department employees, the watch repair-
man, the watchman, and those employees listed in Appendix A,
attached hereto, but excluding concessionaires, trainee buyers and
assistant buyers, promotion department employees, the nurse, the
housekeeper, the warehouse manager, the layaway department super-
visor, the stock manager, assistant credit manager, installment collec-
tion nmanager, maintenance employees represented by other unions,
employees listed in Appendix B, attached hereto, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action,' constitute a unit appropriate for the purposes
" See Dotter of the May Department Stores Company, supra
13 Among these employees are adjustment clerks , tracers, mail clerks , telephone operators,
receiving clerk , multigraph operators , employees in the treasurer ' s department , employees
in the auditing department , employees in the accounts receivable department , employees
in the accounts payable department , office cashiers , file clerks , statisticians , invoice clerks,
order checkers , tube room cashiers , and floor cashiers.
14 Excluded from the unit as supervisory employees are the delivery superintendent, the
comptroller , and the accounts payable department supervisor The record indicates that
these employees fall within the meaning of definition of supervisory personnel.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining within the meaning of Section 9 (b) of the
Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Louis Pizitz Dry Goods Com-
pany, Birmingham, Alabama, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) clays
from the date of this Direction, under the direction and supervision
of the Regional Director for the Tenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Sections 203.55 and 203.56, of National Labor Relations Board Rules
and Regulations-Series 4, among the employees in the unit found
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing 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 them-
selves in person at the polls, but excluding those 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, Wholesale and Department
Store Employees Union, CIO, for the purposes of collective bar-
gaining.
APPENDIX A
Sales people in the following
Departm en,ts
Hosiery
Gloves
Notions
Tobacco
Men's Hats
Boys' Clothing and Furnishing
Linen
Pattern
Fur
School Books
Ladies' Shoes
Mien's Shoes, etc. (p. 77)
Pictures and Mirrors
Novelties and Jewelry
Books and Fiction
Sewing Machines
E'inployees
Porters
Maids
Elevator Operators
Freight Elevator Starter
Passenger Elevator Starter
Paper Balers
Delivery Drivers
Delivery Helpers
Pickup Boys
Slieetwriters
Order Fillers
Craters
Wrappers and Packers
Millinery Designers
Selling Assistant to the Floral
Designer
LOUIS PIZ ITZ DRY GOODS COMPANY 587
Sales people in the following
Departments
Bakery Goods
Lingerie
Ladies' Dresses
Ladies' Suits and Coats
Drugs
Housedresses
Wallpaper and Paint
Foundation Garments
Children's and Infants' Wear
Sportswear
Housecoats and Robes
Music
Millinery
Housefurnishing
Lamps
Toys
Drapery
Rugs
Major Appliances
Furniture
Flowers
Employees
Employees in the Prescription
Department
Layaway Department Authorizers
and Stock Clerks
Markers
APPENDIX B
Construction Foremen
Carpenters
Painters
Electricians
Air Conditioning Engineers
Cabinetmakers
Furniture Refinishers
Laborers
Draftsmen
Culinary and Restaurant Em-
ployees
Soda Fountain Employees
Pitchmen
Detective
Chief Cashier
Confidential Secretaries
Alteration workers covered by
ILGU contract
"Extra" Employees :
Optometrist
Paymaster
Pay-roll clerks