Namm's, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1949

81 N.L.R.B. 1019 (N.L.R.B. 1949)

III the Matter of NAMM'S, INC., EMPLOYER and LOCAL 1250, DEPART-
MENT STORE EMPLOYEES UNION, CIO, PETITIONER
In the Matter Of NAMM'S, INC., EMPLOYER and DEPARTMENT STORE
EMPLOYEES UNION, LOCAL 1250, INDEPENDENT, PETITIONER
In the Matter of NAMM'S INC., EMPLOYER and LOCAL 804, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, AFL, PETITIONER
Cases Nos. 2-RC-810, 0-RC-848, and 2-RC-856, respectively.-
Decided February 25, 1949
DECISION
• ORDER
AND
DIRECTION OF ELECTION
Upon separate petitions duly filed, a consolidated hearing was held
before a hearing officer of the National Labor Relations Board. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
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 named below claim to represent 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.
I Before the hearing, Local 1250 , Department Store Employees Union, CIO, herein
called Local 1250-CIO, filed a request that Amalgamated Clothing Workers of America,
CIO, herein called the Amalgamated , be substituted as petitioner in Case No 2-RC-810,
and that Local 1250-CIO be permitted to withdraw from the proceeding No valid
reason appearing for such substitution , the request is denied . However , the name of
the Amalgamated , which intervened at the hearing upon a sufficient showing of interest,
will be placed on the ballot in the election hereinafter directed
Local 1250-CIO failed to appear at the hearing Its motion to withdraw from the
proceeding is hereby granted Accordingly, we shall dismiss the petition in Case No.
2-RC-810.
81 N. L. R. B., No. 156.
s 1019
1020 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Department Store Employees Union, Local 1250, Independent,
herein called the Independent, the Amalgamated, and the Employer
agree that the unit should embrace all regular full-time and 5-day
part-time store and warehouse employees, and should exclude a number
of specified categories. In addition, the Employer would exclude, and
the Amalgamated and the Independent would include, watchmen, cer-
tain demonstrators, Credit Union employees and Health Plan em-
ployees. Local 804, International Brotherhood of Teamsters, AFL,
herein called Local 804, requests that warehouse employees be placed
in a separate bargaining unit apart from the store employees. Retail
Clerks International Association, AFL, herein called the Retail Clerks,
which also intervened in this proceeding, agrees with the position of
the Amalgamated and the Independent except with respect to the ware-
house employees, as to whom it agrees with Local 804.
The Employer operates a single large department store in Brooklyn,
New York, where it employs approximately 1,200 persons. It also
maintains a warehouse 1/2 mile distant from the store 2 All merchan-
dise is displayed and sold in the store. Order slips are then sent to
the warehouse, where stock is prepared for shipment, and turned over
to United Parcel Service for delivery to the Employer's customers.
The entire operation is conducted under a unified management. All
warehouse files, pay roll records, and personnel and employment offices
are maintained in the store building.
Among the warehouse employees, totaling 35, are stockmen, in-
spectors, freight elevator operators, receiving clerks, graders and
shippers, porters, adjusters, and 2 truck drivers. Employees doing
similar work, such as receiving clerks, stockmen, adjustment clerks,
return clerks, furniture polishers and a freight elevator operator, are
also employed in the store, where the Employer maintains smaller
stockrooms for display and immediate delivery purposes. There is
some transfer of employees between the warehouse and the store.
Employees at both locations are subject to the same company policy
with respect to wages, hours, severance pay, vacation, sick benefits, and
other conditions of employment.
The earliest collective bargaining affecting any of the employees
involved in this proceeding resulted, in 1940, in a contract between
the Employer and Local 1499 of the Retail Clerks covering employees
in the warehouse and in the store receiving department. Thereafter,
in later contracts executed in 1941 and 1942, additional groups of
2 At the time of the hearing the Employer also operated a second small warehouse
employing four persons. In its brief to the Board the Employer advises that the use of
the second warehouse has been discontinued, in furtherance of an intention indicated
at the hearing. 0
t NAMM'S INC. 1021
employees were added to this unit. In 1945, following an election
conducted by the New York State Labor Relations Board, Local
1250-CIO was certified by the State Board as bargaining repre-
sentative for a single unit of all employees of the store and ware-
house, excluding certain categories not here in dispute. Contractual
relations between the Employer and Local 1250-CIO, established on
this broad unit basis, continued to January 31, 1949, when their most
recent agreement expired.
It is clear from the foregoing salient facts and from the record
as a whole that the warehouse activities are closely integrated with
those of the store, that the warehouse employees perform work sim-
ilar to that of a large number of store employees, and that the in-
terests in wages, hours, and other conditions of employment of both
groups are closely related. Under these circumstances, and in view
of the bargaining history on the broader unit basis, we believe that
there is insufficient basis for severing the warehouse employees from
the existing bargaining unit.' Accordingly, we find that the unit
requested by Local 804 is inappropriate for collective bargaining pur-
poses, and shall dismiss the petition in Case No. 2-RC-856.
Watchmen: There are approximately 10 watchmen, who patrol the
store and warehouse at night; they make periodic tours, punch ADT
clocks throughout the premises, guard against fire, and report any
suspicious circumstance. About half their time is spent guarding
the doors so that only authorized persons are permitted to enter
or depart. They also check employees and customers entering or
leaving the store outside of working hours. They work under the
supervision of the protection manager, who also supervises a group
of daytime protection employees or store detectives. The foregoing
are the only guards or protection employees now used by the Em-
ployer. As the watchmen spend all their time protecting the Em-
ployer's premises and merchandise, we find that they are guards
within the meaning of the Act." We shall therefore exclude them
from the unit.
Demonstrators: There are a number of demonstrators, working for
the most part in the cosmetic department, who are paid in whole
or in part by one or more manufacturers whose products the Em-
ployer sells. The parties agree to exclude demonstrators whose wages
are paid entirely by one manufacturer, but they disagree as to those
who are paid either in part by the Employer or by more than one
manufacturer. These employees are specialized salespersons nor-
2 Matter of Montgomery Ward and Co., 77 N. L R. B 1363; Matter of Petersen and
Lytle, 60 N . L. R B. 1070.
1 See Matter of C. V. Hill and Co., 76 N L. R. B. 158.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally trained by the manufacturers, whose work is generally limited
to selling a particular manufacturer's products. They also sell other
articles located at their counter, but are never shifted to other coun-
ters or sections of the store. The Employer approves their employ-
ment in the store, rates them as it does its own employees, and may
discipline or discharge them. They work the same hours, and are
subject to the same rules and regulations as all store employees. The
only aspect of their employment which the manufacturer controls
is the determination of what portion of their wages is paid by the
manufacturer. In view of the foregoing, we find that the demon-
strators in dispute are employees of the Employer within the meaning
of the Act.' We shall therefore include them in the unit.
Credit Union employees: The parties agree to exclude the full-time
clerk employed by the Federal Credit Union. The unions would in-
clude, and the Employer would exclude, any additional employees who
may from time to time assist this full-time clerk. The Credit Union is
an entity apart from the Employer, organized under a federal statute.
Its funds are derived from the Employer's employees, and its affairs,
including the hiring of clerical help, are conducted by officers and di-
rectors elected annually by the employee shareholders. The directors
have complete control over the terms and conditions of employment of
Credit Union employees, whether permanent or temporary, and all
of them have been excluded from past contracts between the Employer
and Local 1250-CIO. Under these circumstances, we shall exclude all
employees of the Credit Union.
Ilealth Plan employees: The unions would include a clerk working
for the Health Plan, an office established pursuant to the 1947 contract
between the Employer and Local 1250-CIO for the administration of
a health and sick-leave benefit fund. The agreement requires the Em-
ployer to pay a monthly sum for each employee into this fund, and
provides for a Board of Trustees consisting of three union and three
management representatives to administer the plan and carry out its
functions. The regular clerk who maintains the records of the Health
Plan is employed by the Health Plan trustees, on terms and conditions
determined by them, and she is paid out of the funds of the Health
Plan. We shall exclude this employee of the Health Plan, and also
any temporary assistants that may from time to time be employed by
the Health Plan to assist her.
We find that all regular full-time and 5-day part-time employees at
the Employer's store and warehouse in Brooklyn, New York, including
demonstrators who are paid either in part by the Employer or entirely
by more than one manufacturer, employees in the leased department
° Matter of Denver Dry Goods Co., 74 N. L. R. B. 1167.
NAMM'S INC. 1023
covered by past contracts with Local 1250-CIO," and contingent em-
ployees who have worked 40 or more days during the 8-month period
preceding the date of the Direction of Election herein, but excluding
executives, assistant executives, junior assistants, temporary employees
hired for a period of less than 30 days, pay roll employees, welfare
employees, student cooperatives, training squad employees, secretaries
to executives above the rank of buyer or department heads, non-selling
supervisors who spend the major portion of their time doing super-
visory work, protection employees, guards, watchmen, comparison de-
partment employees, nurses, sewing teachers, employees covered by
existing labor contracts with unions not participating in these pro-
ceedings,' employees in leased departments now covered by contracts
with unions not participating in these proceedings, employees in leased
departments not now covered by any collective bargaining agreement,
Credit Union employees, Health Plan employees, professional em-
ployees, demonstrators paid entirely by a single manufacturer, and
all 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.
ORDER
IT IS HEREBY ORDERED that the petitions filed herein in Cases Nos. 2-
RC-810 and 2-RC-856 be, and they hereby are, dismissed.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Namm's, Inc., Brooklyn, New York,
an election by secret ballot shall be conducted as early as possible, but
not later than 30 days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Second Region,
and subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the unit found appropriate in paragraph numbered 4, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did not
work during said pay-roll 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 rein-
stated prior to the date of the election, and also excluding employees
8 Among these are the candy, millinery, restaurant, and camera departments,
' Among these are display employees, electricians, carpenters, and operating engineers
and firemen.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining, by
Department Store Employees Union, Local 1250, Independent, by
Amalgamated Clothing Workers of America, CIO, by Retail Clerks
International Association, AFL, or by none.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision, Order, and Direction of Election.