Marshall Field & Co.

National Labor Relations Board - Board Decisions

Aug 10, 1944

57 N.L.R.B. 1244 (N.L.R.B. 1944)

In the Matter of MARSHALL FIELD & COMPA Y and MARSHALL FIELD
EMPLOYEES UNION, LOCAL 242, AFFILIATED WITH THE BUILDING SERVICE
EMPLOYEES INTERNATIONAL UNION (AFL) -
Case No. 13-R--D5..=Decided August 10, 1944
Pope and Ballard, by Messrs. Thomas C. Strachan, Jr., C. R. Kau, f -
man, and Ralph E. Bowers, of Chicago, Ill., for the Company.
Mr. Daniel D. Carmell, of Chicago, Ill., for the Building Service
Employees.
Messrs. Francis Heisler and Henry B. Unterberg, of Chicago, Ill.,
for the Department store Employees.
Mr. James M. Kennedy, of Chicago, Ill., for the Firemen and Oilers.
Mr. John Gavin, of Chicago, Ill., for the-Operating Engineers.
Mr. Wilson Frankland, of Chicago, Ill., for the Pipefitters.
Mr. Edwin C. O'Toole, of Chicago, Ill., for ,the Plumbers.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION -
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by Marshall Field Employees Union,
Local 242, affiliated with the Building Service Employees Inter-
national Union (AFL), herein called the Building Service Employees,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Marshall Field & Company, Chicago,
Illinois, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Robert R. Rissman, Trial Examiner. Said hearing was held at vari-
ous times between March 27, 1944 and May 26, 1944, at Chicago, Il-
linois. The Company, the Building Service Employees, Department
Store Employees Union Local 291, affiliated with the United Retail,
Wholesale and Department Store Employees of America (CIO),
herein • called the Department Store Employees;' International
Brotherhood of Firemen and Oilers, Local No. 7, herein called the
Firemen and Oilers; International Union of Operating Engineers.
57 N. L . R. B., No. 188.
1244
MARSHALL FIELD & COMPANY 1245
Local 399, herein called the Operating Engineers; and Pipefitters As-
sociation Local 597, herein called the Pipefitters, appeared, partici-
pated, 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. The Company's
motion to dismiss is denied for reasons hereinafter stated. All parties
were afforded an opportunity to file briefs with the Board. The Com-
pany's request for, oral argument is hereby denied. ,
1.Tpon the entire record in `the case; the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE CO31PANY
Marshall Field & Company, an Illinois corporation with its prin-
cipal office and place of business in Chicago, Illinois; is engaged.
among other activities 2 in the operation of a number of department,
stores in the city of Chicago and suburbs and also in Seattle, Wash-
ington. The State Street'store of the Company, located in Chicago,
Illinois, is the sole division of the Company's enterprises with which
the proceeding is concerned. In 1943, purchases by the Company of
articles for use and resale, at its Chicago store exceeded $30,000,000
In value, of which approximately 80 percent was shipped to it from
-points outside the State of Illinois. During the same year, the*Com-
pany's sales exceeded $40,000,000 in value, of which amount approxi-
mately 12 percent represented sales of merchandise transported to
customers in States other than the State of Illinois.
We find that the Company is engaged in, commerce within the mean-
ing of the National Labor Relations Act.
11. '1HE ORGANIZATIONS INVOLVED
Marshall Field Employees Union, Local 242, affiliated with the
Building Service Employees International Union; International
Union of Operating Engineers, Local 399`; Internntional Brotherhood
of Firemen and Oilers, Local No. 7; and Pipefitters Association Local-
597, all affiliated with the American Federation of Labor, are labor or-
ganizations admitting to membership employees' of the Company,
Department Store Employees Union, Local 291, affiliated with the
United Retail, Wholesale and Department Store Employees of Amer-
In addition to the above-mentioned orginuzations, an appearance_ was entered for
Journei•men Plumbers U-A Local 130, herein called the Plumbers, the representative for
which stated, at the hearing that the organization did not desire to intervene since its
interests were sufficiently represented by the Pipefitters
2 The other activities of the Company include a real estate business and the operation
of textile mills at vauous points in the States of North Carolina and Virginia.
1
1246 DECISIONS OF, NATIONAL, LABOR RELATIONS BOARD
ica and, the Congress of Iridu''trial Organizations, is a labor organiza.
tion admitting to membership employees 'of the, Company.
III. TIIE QUESTIONS CONCERNING REPRESENTATION,
'Prior and subsequent) to the filing of the petition by the Building
Service Employees, tli'petitioning organization requested that the
Company recognize it as the exclusive barg^iining agent for certain
employees in the Company's State Street store. The Company de-
clined to grant such recognition without a certification by 'the Board
-and stated at the hearing that it did not recognize the-Building
Service Employees as the exclusive bargaining representative for any
of its employees.
4
Statements of the Trial, Examiner and other; evidence introduced
at the hearing indicate that 'each of the several labor organizations
involved represents a substantial number of eh'ipioyees in the units
which it claims'to be appropriate g;
We find that'questions affectirig commerce •lhave` arisen concerning
t herepresentlition of employees of the "Company within the meaning
of Section 9 (c) and Section 2' (6) and (7) of the Nati'nal',Labor
Relations Act.'
IV. TIIE' APPROPRIATE UNITS
The Building Service Employees in its amended petition urges the
adoption of three units consisting of (1) the employees in certain
i
Number in unit------------------------------------------ 26
Cards submitted by petitioner------------------------------ 17
Cards found on pay roll---------------------------------- 16
(b) Candy Kitchen unit :
Number in unit------------------------------------------ 39
Cards submitted by petitioner------------------------------ - 38"
Cards found on pay roll---------------------------------- 33 _
(c) Barger unit: -
Number in unit------------------------------------------ 852
- .--------- ----- -Cards submitted by petitioner --- 491- --- -------- -
Cards found on pay roll ----------------------------------- • 330
8-The Trial Examiner reported that the Building Service Employees had submitted
designations in the claimed appropriate units as follows :
(a) Bakery unit : -
The Department Store Employees relies on its certification in a prior proceeding (38
N.' L. R. B. 1146) as evidence supporting its interest in the units requested by the peti-
tioner. So far as the Engineers, Firemen ,and Oilers, and the Pipefitters are concerned,
the Company concedes that each of them represents a majority of the employees in its
respective unit,'the appropriateness of which is challenged by the Company.
4 The Department Store Employees' contention that the present proceeding is barred
by reason of the outstanding certification of that organization covering certain of the
employees herein concerned, is without merit in view of the fact that such certification
has been in existence for a period of more than 1 year and the further circumstance that,
as the result of a disaffiliation on the part of a substantial number of employees and the
formation' therefrom of a new labor organization',' there is an unresolved doubt with respect
to the identity of the organization which the employees desire to represent them. See
Matter of United States Rubber Company, 41 N. L. R. B. 1005; Matter of Harbison-Walker
Refractories Company, 44 N. L. R. B. 816. - -
'MARSHALL FIELD & COMPANY 1247
departments and portions of departments of the Company's main
Chicago stores.`within the divisions known as the Operating Service
Division and the Construction and Maintenance Division,` (2) the
employees of the Bake Shop, Fand',(3) the employees in the Candy
Kiicheri. The Company urges a store-wide unit of all employees of
the Company, other than supervisors. The intervening unions, other
than the Department Store Employees, seek harmonious craft units
of employees within their respective jurisdictions, which employees
are excluded from the units proposed `by the Building 'Service Em-
ployees. The position of the Department Store Employees is that the
main unit proposed by the petitionerris inappropriate' since'it varies
from, the unit previously found appropriate in the proceeding which
resulted in the certification of the Department Store Employees.
The Company's contention- that the only appropriate unit*is a store-
wide unit has been previously considere& and rejected by the Board.6
While the Company introduced in the present proceeding considerable
evidence 'indicating i, community of interest ' among all store em-
ployees generally, we are 'of the opinion, and; find, that the evidence
is insufficient to warrant a departure from our previous finding that
one or more lesser units may be appropriate.,
There remains for consideration the question of the appropriateness
of the various units proposed by the labor organizations herein' con-
cerned. In the case of, the Building Service Employees, the principal
unit, while including certain employees not covered by the former
general unit for which the Department Store Employees was,certified
as bargaining representative,' does, nevertheless,.present a homogene-
ous, identifiable group consisting largely of employees in maintenance
and operating departments who are engaged 'principally in the han-
dling of merchandise or the performance of other types of manual
labor.' Without discussing all the categories in detail, we find that
employees listed in Appendix A, but excluding those, listed in Appen-
dix B, and all supervisory employees who have authority to hire, pro-
mote, 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 mean-
ing'of Section 9 (b) of the Act.' '
The remaining two units requested by the Building Service Employ-
ees cover employees of the Bake Shop and the Candy Kitchen, respec-
tively. ' While both, of these' units include employees who have a
See 36 N L. R. B. 748.
The principal additions to the previous unit comprise employees in 'the shipping rooms,
inspecting and packing , opening and marking rooms, and stockrooms
I While the proposed unit includes certain craft employees engaged in maintenance and
construction work, it does not'include craft employees generally.
8 See Matter of Montgomery Ward & Co., Inc., 50 N. L. It. B.'163.
1248 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD,
functional relationship, with employees not included therein, the evi-
dence discloses that the employees in the Bake Shop and the Candy
Kitchen, respectively, constitute, in general, well-defined groups en-
gaged in the performance of work substantially different 'from that
of operating and maintenance employees. Accordingly, we find that
the employees of the Bake Shop and the employees of the Candy
Kitchen, employed at the Company's State Street Chicago store, ex-
cluding the food checker and office assistant in the Bake Shop, exclud-
ing clerical employees in the Candy Kitchen; and excluding'further all
supervisory employees in both groups having authority to hire, pro-
mote, discharge, discipline, or otherwise 'effect 'changes in the status
of employees or effectively recommend such action, constitute separate
appropriate units within the,meaning of Section 9 (b) of the Act.
In addition to the unit requested by the Building 'Service Employees,
there remains for consideration the, units requested by the Operating
Engineers, the Firemen and Oilers,,and the Pipefitters, trespectively.
Of the units concerned, those requested by the Operating Engineers
and the Firemen and Oilers are identical with the units for which these
organizations were certified in the prior proceeding hereinabove re-
ferred to.9 In the absence of evidence indicating that such units are
no longer appropriate or that the employees therein are claimed by
other craft organizations, we shall adhere.substantially to our former
finding. Accordingly, ,we find that all engineers and refrigerating
engineers, exclusive of the chief engineer-; and firemen and oilers
including the boiler room maintenance man, employed at the Com-
pany's State Street Chicago. store, excluding in- both instances' all
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees or effec-
tively recommend such action, constitute separate appropriate units
within the meaning of Section 9 (b) of the Act.
In, the case ofthe Pipefitters,10 the proposed unit would include the
employees in the earlier steam fitters' group with the employees in the
plumbers' group, which latter' group failed to select -a bargaining rep-
resentative and. was not included in any of- the units for -which the
Board issued certifications.', In the absence of any claim on the part
of the Plumbers to the employees in the plumbers' group and in view
of the equal jurisdiction of the Pipefitters with respect to, these em-
ployees, we find that they may properly be included in the Pipefitters'
unit.. We find that all steam fitters, welder steam fitters, and tube con-
structors and plumbers, employed at the Company's State Street Chi-
cago store, excluding the master plumber, the steam fitter foreman, and
938N L'R.B.1146. ' - -
10 The Pipefitters is the same labor organization as the Steamfitters Protective Association
which participated in the prior hearing.
11 See 38 N L R B 1146, 1148, 1150.
i
MARSHALL FIELD & COMPANY / 1249
all supervisory employees'with authority to hire, prolnote, 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 Sec-
tion 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We, shall direct that the questions concerning representation which
have arisen be resolved by elections by secret'ballot a`lnoirg the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction 32 '
The Company employs a number of employees known as "short
hour regulars," and also employees known as "generals." Short hour
regulars are part-time employees who work regular hours, are carried
on the'regular pay roll and enjoy substantially the same privileges and
such employeesbenefits as' regular full-time employees. However'
generally work an 'average of only 28 hours per. week, while a few,
-mainly college students, work less than 28 hours due to the necessity
of arranging their work schedules to meet their 'classroom require-
ments. By comparison therewith, the employees referred to as "gen-
erals" have no regularly recurring hours of work, but are subject
to call and to work assignments through the entire store organization ;
moreover, they'are not carried on the regular pay roll and are not
entitled to the employee benefits generally available to regular em-
ployees. The Company urges that "short-hour" regular employees
be deemed eligible to vote and would apparently have no objection
to the eligibility of the employees referred to as "generals." The peti'-
tioning,Building Service Employees contends that only full-time regu-
lar employees who work at least 4 days each week should bed eligible
to vote. 'In view of the regularity of employment and the substantial
amount of work performed by the short-hour employees, we find that
they have sufficient interest in the present election to entitle them to
a voice in the choice of a bargaining representative.13 However, since
it appears that the employees referred to as ' general employees have
no regular hours of employment and lack many of the privileges and
a
12 The suggestion of counsel for the Operating Engineers and the Firemen and Oilers
that , in , view of the undisputed claims of both organizations to majority representation In
their̀ ,respective units, these organizations be certified without the necessity of an election,
is inappropriate in the absence of a stipulation by all parties requesting a'certification on
the record See Matter of Aluriiinufn Company of Amerara, 56 N L R. B 4S, Matter of
Airplane Mfg. & Supply Co , 56 N L. R . B. 258: '
13 See Matter of National Machanerry Co , 56 N. L. R. B. 93 , Matter of Ken Rod Tube &
Lamp Corp , 56 N. L. R . B 186
601248-45-Vol 57-S0
1250 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
benefits of regular employees,,,we shall exclude the so-called general
employees from the group of eligible employees hereinafter set forth
in the Direction.
The Company and the petitioner agree, and we find, that "tempo-
rary" employees who are normally hired only for specific short periods,
such as the Christmas season, are ineligible to vote at the election.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the ,power vested in, the National, Labor,
Relations Board by Section 9 (c) of the National Labor Relations•Act,
and pursuant,to Article III, Section 9, of .National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Marshall Field &
Company, Chicago, 'Illinois, elections by, secret ballot, shall, be con-
ducted as early as possible,:but not later, than thirty (30) days from
the date•of this Direction of Elections, under, the direction and super-
vision, of the Regional Director for the Thirteenth 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 those 'employees of Marshall Field & Company who
fall' within. the groups, indicated below, and whose, names are listed
on the Company's pay roll for the period immediately preceding the
date of ' this Direction, of -Elections, including ,short-hour, regular
employees,, and, any 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 all temporary
employees, all employees on ',the general pay roll, and any who have
since,quit. or, been . discharged for ,cause and have not 'been' rehired or
,reinstated prior 'to the date of the elections : ,
(1), All employees intthe general unit, found appropriate in Sec-
tion IV,• above, to determine- whether they desire' to be represented
by Marshall Field Employees Union, Local 242, affiliated with the'
Building Service Employees,, International Union (AFL),, or ' by
Department Store Employee's Union Local. 291, affiliated with the
United Retail, Wholesale and Department Store Employees of
Axxierica (CIO), for the purposes of, collective bargaining, or by
neither; , , • .
(2) All employees in the Bake Shop unit found appropriate in
'Section IV above, to determine whether they desire to be represented
by Marshall Field Employees Union, Local 242, affiliated with the
Building Service Employees International Union (AFL), pr by
MARSHALL FIELD & COMPANY , 1251
Department Store Employees Union Local 291, affiliated with the
United , Retail, Wholesale and Department Store Employees - of
America '(CIO), for the purposes, of collective bargaining, or,-by
neither; „
(3) All employees in the Candy Kitchen unit found appropriate in
Section IV, above, to determine whether they desire to be represented
by Marshall Field Employees Union Local 242; affiliated with the
Building Service Employees International Union (AFL), 6r-by De-
partment Store Employees Union, Local, 291, affiliated with the United
Retail, Wholesale: and Department Store Employees ,'of America
(CIO), for the purposes of collective bargaining, or by neither;
(4) All employees in the engineers'- unit found appropriate in Sec-
tion IV, above, to determine whether or not they desire to be repre-
sented by International Union of Operating Engineers, Local 399, for
the purposes of collective bargaining;
(5) All employees in the firemen and oilers' unit found appropriate
in Section IV, above, to determine whether or not they desire to be
represented by International Brotherhood of Firemen and 'Oilers,
Local No. 7, for the purposes of collective bargaining;
(6) All employees in the pipe fitters' unit found appropriate 'in
Section IV; above, to determine whether or not they, desire' to be
represented by Pipefitters Association Local 597, for' the purposes of
collective bargaining.'
CHAIRMAN MILIIS took no part in the consideration of the above
Decision and Direction of Elections.
APPENDIX A ' ' .. _
1.. All employees' of the 'Shipping and Receiving Docks other than
the,parking attendant.'
2.' All employees of the Merchandise Stock Rooms.
3. All employees of the Opening 'and Marking Rooms other than
confidential clerks , clerical employees , and apron writers.
4. All employees of the China Opening and Stock Rooms, other
than the phone and record clerks, 'and record clerks.
5. The following employees of the, Inspecting Department : all
merchandise collectors , all'Suburban Service Checkers ,- and all wrap-,
pers sometimes called inspector wrappers other than wrappers *ho
work as cashier inspectors on selling floors. • -
6. The cash register man in the Cash Register Department.
7. All employees in Packing and Shipping Section,other than sten-
ographers , clericals , and records clerks.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The following employees of the Supply Service, namely em-
ployees of the Supply Central Stockroom , order fillers , head stock-
men, baleroom supervisor; baleroom attendant , the salvage 'superv'isor,
salvage man, and stock girls in the Will-Call Division.
9. All employees of the Elevator Service.
10. All employees of the Housekeeping Service.
11. All employees of the Building and Fixture Service other than
office clericals , laboratory cost clerks , bill and order and record clerks.
12. All employees of Mechanical Service ( including the sprinkler
fitter and helper), other . than tengi leers; costs , and' budgets , order and
planning, trouble desk , steamfitters and welders , plumbers, plumber
contractor and assistant foremen , tube constructor , electrical engi-
neer, temperature control clerk, operating engineers , and firemen and
oilers included in other units.
13. All section maids.
APPENDIX B
1. The parking attendant in Shipping and Receiving Docks.
2. Confidential clerks, clerical employees, 'and apron writers in the
Opening and Marking Rooms.
3. Phone and record clerks, and record clerks in the China Opening
and Stock Room.
4. Cashier inspectors of the Inspecting Department who work on
selling floors. •
5. -Stenographers, clericals, and records clerks, in Packing and Ship-
ping Section.
6. Stenographers, record clerks, adjustment and information clerks
of the Supply Central Stockroom.
7. All employees of the Will-Call ^ Division except stock girls.
8. Office clericals; laboratory cost clerks, bill and order and record
clerks in Building and Fixture Service.
9. Engineers, cost's and;budgets; order and planning, trouble'desk,
steamfitters and welders, plumbers, plumber contractor and assistant
foreman, tube constructor, electrical' eiigineei, temperature control
clerk, and operating engineers, firemen and oilers included-in other
units.
10. All departments and groups' not specifically 'or 'otherwise in-
cluded in Appendix A: •