Maas Brothers, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1950

88 N.L.R.B. 129 (N.L.R.B. 1950)

In the Matter of MAAS BROTHERS, INC., EMPLOYER and RETAIL CLERKS
INTERNATIONAL ASSOCIATION, AFL, PETITIONER
In the Matter Of MAAS BROTHERS, INC., EMPLOYER and OFFICE EM-
PLOYEES INTERNATIONAL UNION, AFL, PETITIONER
Cases Nos. 10-RC-688 and 10-RC-733.Decided January 16, 1950
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, a hearing was held before James W.
Mackle, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Employer owns and operates a retail department store and
warehouse at Tampa, Florida, and a retail appliance store at Ybor
i Office Employees International Union, AFL, appeared at the hearing , and requested per-
mission to intervene in the proceeding on the basis of a showing of interest in a unit of office
and clerical employees . It also filed a petition, docketed as Case No. 10-RC-733, for
certification of representatives in such unit of office and clerical employees , and moved to
consolidate that petition for hearing with the current proceeding . The hearing officer
granted the motion to intervene and referred the motion to consolidate to the Board. As
the Employer urges a unit of selling and nonselling employees which would include the
office and clerical employees , the interests of the latter are clearly involved in this pro-
ceeding. We shall therefore grant the motion to consolidate.
. 88 NLRB No. 38.
129
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City, a. suburb of Tampa. The department store, warehouse, and
appliance store are within a radius of 3 miles 2
Retail Clerks International Association, AFL, hereinafter called
Retail Clerks, seeks a unit consisting of certain selling and nonselling
employees, excluding restaurant employees, maintenance employees,
office and clerical employees, leased department employees, warehouse
employees (except seamstresses, a meatcutter, and a stockman), mer-
chandise assistants, head artist, a carpenter in the advertising de-
partment, confidential secretaries, guards, watchmen, professional
employees, and supervisors.
Office Employees International Union, AFL, hereinafter called
Office Employees, requests a unit consisting of office and clerical em-
ployees, excluding all other employees, a comptometer operator who
records sales, a secretary and messenger in the advertising depart-
ment, guards, professional employees, and supervisors.
The Employer urges a unit comprising all employees, excluding pro-
fessional employees, guards, confidential secretaries, and supervisors.
There is no previous bargaining history with respect to the em-
ployees involved in this proceeding.3
Approximately 500 employees are involved in this proceeding.
Scope of the Unit
The Employer in addition to the Tampa store and warehouse, also
operates a branch appliance store at Ybor City which is part of metro-
politan Tampa,'and about 3 miles from the main store. Employed at
Ybor City are two sales clerks, a clerk, a driver, and a stockman, all of
whom are under the supervision of the department heads of the main
store. These employees are listed on the Employer's regular payroll;
they are entitled to all the benefits accorded main store employees and
are interchanged at tines with those employees. The Employer would
include the Ybor City and the main store employees in one over-all
unit. The Office Employees would include the clerical employee in
its requested unit of office and clerical employees. The Retail Clerks
takes no position with respect to these employees. On the basis of the
above facts, we are of the opinion that the employees in the Ybor City
store being in the same unit with the employees in the main store.
2 The Employer also operates a retail department store and warehouses at St . Petersburg,
Florida, which is about 22 miles from Tampa. The St. Petersburg store and warehouses
are operated as a separate entity apart from the Tampa operations, and none of the parties
is contending that the employees in the St. Petersburg store and warehouses be included in
the appropriate unit.
3 The Employer and Local No. 79, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , AFL, have a collective bargaining contract covering
a unit of truck drivers, which is currently in force. All the parties are agreed that the
truck drivers should be excluded from the unit.
MAAS BROTHERS, INC. 131
Composition of the Unit
The retail department store involved in this proceeding is divided
into two principal divisions, merchandising and service. The service
group is divided into a control division covering the general office
categories of accounting and credit, under the supervision of the con-
troller, and an operations division which is headed by the store man-
ager. The operations division includes customer service, receiving and
marking, delivery and warehousing, store operations and maintenance,
and the purchasing of supplies and equipment. Under the supervision
of the store manager is also the restaurant and bakery operation al-
though it is, organizationally, part of the merchandising division. The
merchandising division is divided into two broad groups designated as
soft lines and hard lines; in addition, the merchandising division has,
under its general jurisdiction, cost departments, leased departments,
and a sales promotion section which includes a unit control group to
gauge buying for the various sales departments.
The authority of the personnel department extends throughout the
main store, appliance store, and warehouse. Employee benefits, such
as vacations, group insurance, hospitalization, medical benefits, shop-
ping and discount privileges, credit accounts, leaves of absence, credit
union privileges, are extended equally throughout the entire operation.
All employees are subject to a rating program, under the supervision
of the personnel department, and are rated in accordance with a selling
personnel and a nonselling personnel rating guide, principally on
personality factors and only in a minor degree on acquired skills.
Transfers of employees, both on a temporary and on a permanent basis,
are frequently made among the various departments. As indicated
above, the merchandising and service departments are interrelated in
their activities.
The Board has consistently recognized a unit of selling and nonsell-
ing employees as appropriate for department stores.' On the basis of
the above facts, we are persuaded that such unit of selling and non-
selling employees is appropriate here.
The Retail Clerks, although seeking what, in substance, amounts to
a unit of selling and nonselling employees, would nevertheless ex-
clude the restaurant employees, maintenance employees, the employees
in the leased departments, the office and clerical employees sought by
the Office Employees, certain of the warehouse employees, dnd certain
employees in miscellaneous categories. The unit placement of the
4 Bonwit Teller, Inc., 84 NLRB 414; Montgomery Ward d Company, Incorporated, 78
NLRB 1070; Sears, Roebuck d Co., 76 NLRB 167; J. C. Penny Company Store #1518, 86
NLRB 920.
882191-51-10 0
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the leased departments presents a special problem, as
does the question of establishing a separate unit of office and clerical
employees; both matters will therefore be discussed separately.
With respect to the restaurant, maintenance, and warehouse em-
ployees, the record shows the following :
The restaurant employees are part of the merchandising division,
as far as the store organizational set-up is concerned, but under the
supervision of the store manager who is head of the operating divi-
sion. In addition to employees who prepare food, this group includes
waitresses, a hostess, kitchen helpers, a maid, and two stockmen. Gen-
erally, all restaurant employees work full time and their total hours
in the store are approximately those of the other store employees.
There are transfers between the restaurant department and the sales
departments. The Retail Clerks are seeking to include other em-
ployees who are under the same general supervision, i. e., receiving
and marking, maintenance, and custodial employees.
There are four maintenance employees consisting of a carpenter,
an electrician, an engineer, and an engineer trainee. All are em-
ployed in the main store; they perform general repair work and
are under the supervision of the head of the operating division. There
is an additional carpenter who works exclusively in the advertising
department and is under the jurisdiction of the display manager as
part of the merchandising division.
There are approximately 80 warehouse employees, consisting of
bakers, cake decorators, drapery cutter, delivery clerks, installers of
floor coverings and window blinds, leaders; laborers, maid, seam-
stresses, meat cutter, mechanics and mechanic's helper, porters, pack-
ers, stockmen, servicemen, stock clerks, wrappers, and a painter and
painter's helper. Of these employees, the Retail Clerks would include
only the seamstresses, a maid, a meat cutter, and a stockman, on the
ground that these employees would normally work in the store as
part of the merchandising division. Thus, the Retail Clerks would
exclude packers and porters in the warehouse although it asks for the
same classifications in the store and the employees in such classifica-
tions perform almost identical duties, and it would include 1 stock-
man in the warehouse who works in the frozen food department but
would exclude 11 other stockmen in the warehouse who work in other
warehouse departments.
From the foregoing, it seems clear that the interests of the restau-
rant, maintenance, and warehouse employees whom the Retail Clerks
would exclude, are not sufficient severable and distinct from the other
5 A leader is a person who is senior in service in his department . The record shows, and
the parties are in agreement , that leaders are not spupervisors.
bMAAS BROTHERS, INC. 133
store and warehouse employees to warrant their exclusion from the
proposed unit.6 We shall therefore include the restaurant, mainte-
nance, and all warehouse employees in the unit of selling and non-
selling employees.
Office and Clerical Employees
The Petitioner would exclude office and clerical employees from its
proposed unit. The Intervenor seeks a unit comprising office and
clerical employees only. The Employer contends that a store-wide
unit is appropriate.
The Board has recognized that office employees in department stores
may have interests which are distinct from those of other employees.
Thus, office employees have been excluded from store-wide units as a
separate identifiable group of employees, where another union sought
to represent them.? On the other hand, when no union sought to rep-
resent such employees, the Board has generally included them in
store-wide units." Accordingly, where, as in this proceeding, the In-
tervenor is seeking to represent a unit which, for the most part, is
composed of office clerical employees, we find, in accordance with es-
tablished Board policy, a separate unit of such employees appropriate.
It appears clear from the record that the employees in the credit
department, general office, pay-roll department, general cash office,
accounting office, personnel office, and general clerical employees doing
accounting and statistical work, all of whom are in the control divi-
sion, under the general supervision of the controller, constitute a
homogeneous group of office clerical employees who may be established
in a separate bargaining unit.
We perceive no valid reason however for some of the other inclusions
proposed by the Intervenor. Thus, general clerical employees in
customer service and receiving and marking, under the jurisdiction of
the operations division, and supervised by the store manager, work
throughout the store in close proximity to the sales clericals in the
merchandising division and the other nonselling employees under the
supervision of the store manager; there are also general clerical em-
9 The Retail Clerks also contend that the maintenance employees , including the carpenter
in the advertising department ' and the painter and painter's helper in the warehouse,
should be excluded because they are commonly represented by craft unions who have juris-
diction over them. The Board has held that in the absence of evidence that other unions
are seeking to represent a group of employees or that these employees desire to be repre-
sented by other unions , a jurisdictional limitation on membership standing alone, is not a
valid reason for excluding such employees from a bargaining unit. Denton's Inc. T/A
The Robinson -Schwenn Store, 83 NLRB 35. See The P. B. Magrane Store , Inc., 84 NLRB
345, as to the nonseverability of these employees from a selling and nonselling unit of
department store employees.
7 Meier d Frank Company, 86 NLRB 517; J . L. Brandeis d Sons, 50 NLRB 325.
e Denton's Inc ., T/A The Robinson -Schwenn Store, supra.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the warehouse workroom and warehouse delivery who are
part of the operations division; the employees in unit control and
research are under the jurisdiction of the merchandising division and
work closely with the sales clerks throughout the store in determining
quantities of merchandise on hand and gauging the needs of the various
sales departments; there are cashiers in the restaurant who are under
the supervision of the store manager and whose interests are closely
identified with the other restaurant employees; and telephone opera-
tors, who like the custodial and maintenance employees, are also part
of the operations division. On the basis of the foregoing, we are of
the opinion that clerical employees,9 other than those in the control
division, more appropriately belong in the unit of selling and non-
selling employees than in the unit of office clerical employees.
Employees of Leased Departments
The following departments are operated under agreements, for the
most part in the form of leases, between the Employer and a number
of separate entrepreneurs : phonograph records, books, millinery,
shoes, hat bar, Hoover vacuum cleaners, sewing machines, shoe repair,
watch and jewelry repair, photo studio, beauty parlor, and outside
blinds. Approximately 83 employees are employed in those depart-
ments.
A separate contract covers each department. Generally, under the
terms of the contract, the lessee agrees that all employees employed by
him (the lessee) shall be contracted for in his (the lessee's) own name
through the Employer's employment department and shall be ac-
ceptable to the Employer; the Employer has the right to require the
dismissal of employees who conduct themselves to the dissatisfaction
of the Employer; all the employees in the department are required
to conform to the rules and regulations established by the Employer;
the lessee has the right to fix and regulate the salaries, commissions,
bonuses, and gratuities for these employees, and to determine whether
they are entitled to vacations; and the lessee agrees to maintain a
staff of employees sufficient, in the opinion of the Employer, to conduct
the operations of the department in an efficient manner.10
9 I. e., the clerical employees in the merchandising and operations division.
10 The contract with the millinery department lessee also provides that the lessee shall
maintain a minimum wage scale for these employees in accordance with the wage standard
established by the Employer . The contract with the sewing machine department lessee
provides that the lessee "shall conform to all laws and regulations now in force or which
may be enacted by any government authority requesting its business , including employer-
employee relations ." The contract with the photo studio department lessee provides that
"salaries . . . shall be paid by the store . . . and shall be charged to the account of the
[lessee] in the monthly settlements ; all taxes on salaries of such employees shall be reported
and paid by the [lessee ]." The contract with the Hoover Company is, in effect , a dealer-
ship arrangement and merely ,provides that "the personnel of this organization is to be
MAAS BROTHERS, INC. 135
The record shows that the employees of these departments are eli-
gible to participate in general store employee benefits, are included in
the store's rating program, and, when appropriate duties permit, are
transferred to and from other departments in the store. However,
it is clear from the agreements and the testimony that the lessees, not
the Employer, control the essential terms and conditions of employ-
ment governing these employees. Thus, the lessees fix their salaries
.and wages ; they must look to the lessees for wage increases; the lessees
have the right to change their compensation from a salary to a com-
mission basis; the lessees can grant or not grant bonuses or other
gratuities; the lessees can determine whether these employees should
or should not have vacations, with or without pay. The Employer has
no control over any of these matters which clearly constitute the
fundamental basis of the employer=employee relationship.
By virtue of the foregoing- we do not believe that these employees
.should be joined with the others for collective bargaining purposes.
We shall therefore exclude employees of leased departments from
the unit."
Merchandise Assistants
There are five employees called merchandise assistants in the mer-
chandising division. They are employees who usually have been in
their respective departments longer than the other employees, and
perform routine duties assigned to them by the buyer of the depart-
ment. In addition to selling, they check on the stock and see to it
that there is enough merchandise available for selling. The record
does not indicate that they have any supervisory functions or authority.
We shall therefore include them in the unit of selling and nonselling
employees.
Assistant Buyers
The Employer employs 12 assistant buyers, one in each of 12 sepa-
rate sales departments. The Employer would include them and the
Petitioner would exclude them.
satisfactory to the dealer [Employer]." There is no written lease arrangement between
the Employer and the All-Weather outside blinds organization. According to a stipulation
between the parties the "Hosiery Repair Department is not, strictly speaking, a leased
department but merely a contract arrangement." The employees of the sewing machine,
Hoover, outside blinds, and hosiery repair departments are not on the Employer's payroll.
Most of these agreements stipulate that these employees "shall be contracted for in his
[the lessee's] own name," and the employees are specifically described as the lessee's
employees.
11 The P. B. 31agrane Store, Inc., supra; Block and Kahl Department Store, 83 NLRB 418;
Darling Utah Corporation, 85 NLRB 614; J. M. High Company, 78 NLRB 876, 878; Cf.
Denton's Inc. T/A Robinson-Schioenn Store, supra. In that case, the department store,
unlike the Employer here, exercised "a substantial amount of control over the tenure,
pay rates and working conditions of the leased department employees."
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that during the time that- buyers are absent,
assistant buyers are responsible for the department. 12 If a situation
arises during a buyer's absence which requires the exercise of inde-
pendent judgment, the assistant buyers go to a superior, usually the
merchandise manager, and report the facts rather than take inde-
pendent action themselves. Assistant buyers have no authority to hire
or discharge employees. They occasionally make recommendations
which are not in themselves effective but rather the source of an inde-
pendent investigation. This is true not only when buyers are present
but also when the latter are away, in which case the merchandise
manager makes his own independent investigation. On the basis of the
record, we believe that the assistant buyers perform the functions of
administrative assistants with routine and intermittent powers of
direction. Accordingly, we find that assistant buyers are not super-
visors and shall include them in the unit of selling and non-selling
employees. 13
Miscellaneous Categories
The fashion coordinator is in charge of style shows, weddings, and
special functions. The record indicates that she ordinarily supervises,
one employee. On that basis, we shall exclude her from the unit..
A nurse is listed as part of the personnel department, under the control
division. She is a registered nurse, and in addition to her nursing
duties also conducts screening interviews for employment applicants
with the power to reject applicants found by her to be unsatisfactory..
On the btisis of the above facts, we shall exclude her from the unit..
Conclusions
In accordance with the above findings, and on the basis of the
entire record, the following two groups of employees of the Employer
at its stores and warehouse at Tampa, and Ybor City, Florida, exclud-
ing from each group leased department employees, employees covered
by the Teamsters contract, confidential secretaries, guards, watchmen,
professional employees, and supervisors'14 constitute separate units
12 No buyer is away as much as 50 percent of the time. In the frozen food, underwear,
corsets, toilet goods departments , buyers are out of town about four times a year and
in the appliances , china , draperies , and furniture departments . about twice a year ; in all
cases , the trips are of short duration.
11 Wise, Smith & Company, use., 83 NLRB 1019.
14 The record is not clear whether the head artist has supervisory duties or whether the
production manager, program book director , training coordinator , and training adminis-
trator have managerial functions which would warrant their exclusion . We shall therefore
permit them to vote, subject to challenge . The Employer hires regular part-time employees
who regularly work 30 hours per week ; they are shown on the pay roll as regular employees
and receive all company benefits . In accordance with the agreement of the parties, we
shall include these employees . The Employer employs casual or contingent employees dur-
MAAS BROTHERS, INC. 137
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9. (b) of the Act. :
(a) All selling and nonselling employees described in Appendix A;
(b) All office clerical employees described in Appendix B.
DIRECTION OF ELECTIONS 15
As part of the investigation to ascertain representatives for the,
purposes of collective bargaining with the Employer, elections by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Elections, including employees who did not work:
during said payroll period because they were ill or on vacation or'
temporarily laid off, but excluding those employees who have since.
quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the elections, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine-
whether or not, for purposes of collective bargaining, the employees in
Unit (a) desire to be represented by Retail Clerks International Asso-
ciation, AFL, and the employees in Unit (b) desire to be represented.
by Office Employees International Union, AFL.
APPENDIX A
Employees who prepare merchandise for selling
Receiving clerks Stockmen
Sales and miscellaneous clerical employees
Sales clerks
Floormen
Headers
Merchandise assistants
Trainees
Wrappers
Packers
Cashiers (merchandising,.
customer service, opera-
tions, and restaurant)
Checkers
Clerical employees in cus-
tomer service, receiving'
and working, and unit
control and research
ing busy seasons ; these employees have no expectation of being permanent and are not
entitled to benefits extended to other employees. In accordance with the agreement of
the parties, we shall exclude these employees.
10 Any participant in the election directed herein may, upon its prompt request to, and.
approval by, the Regional Director, have its name removed from the ballot.
138 DECISIONS OF NATIONAL LABOR
Advertising department
Artists
Carpenter
Copy writer
Messenger
Custodial employees
Porters
Maids
Repair and alteration department
Fur repairmen
Fur cleaners
Fur fitters
Furniture refinishers, in-
cluding trainee
Restaurant employees
Cooks
Chef
Dining room help
Hostess
Kitchen help
Maintenance employees
Carpenter
Electrician
Engineer and assistant
engineer
Warehouse employees
Bakers
Cake decorators
Drapery cutter
Delivery clerks
Installers
Headers
Laborers
Maid
Seamstresses
Miscellaneous categories
Personal shoppers
Production manager
Program book director
RELATIONS BOARD
Sign writer
Secretary
Trimmer
Elevator operators
Monogrammer
Rug binder
Tailor
Maid
Stockmen
Salad and sandwich maker
Waitresses
Soda dispenser
Painter and painter's
helper
Meat cutter
Mechanics, including
helpers
Porters
Packers
Stockmen
Servicemen
Stock clerk
Wrappers
Training administrator
Training coordinator
MAAS BROTHERS, INC. 139
APPENDIX B
Addressograph clerks
Authorizers
Bookkeepers
Bookkeeping machine operators
Billing machine operators
Paymasters
Clerks in accounting and
statistical
Cashier (credit office)
Comptometer operators
Collectors
Calculating machine operators
Interviewers
Investigators
Headers
Mail clerks
Recorder operators
Receptionist
Typists