Poole Dry Goods Co.

National Labor Relations Board - Board Decisions

May 18, 1950

89 N.L.R.B. 1442 (N.L.R.B. 1950)

In the Matter of PooLE DRY GOODS COMPANY,' PETITIONER AND EM-
PLOYER and LOCAL 515, RETAIL, WHOLESALE AND DEPARTMENT STORE
UNION, CIO, UNION
Case No. 1-RM-76.-Decided May 18, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held in this case on March
30, 1950, at Springfield, Massachusetts, before Robert E. Greene,
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 [Members Reynolds, Murdock, and
Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. The question concerning representation :
The Employer and its predecessors have engaged in collective bar-
gaining with the Union, Local 515, Retail, Wholesale and Department
Store Union, CIO, since 1942. The parties have executed a series of
contracts, and the Union contends that the current. contract is a bar
to this proceeding. However, this contract provides that all employees
in the bargaining unit shall, as a condition of employment, be members
in good standing of the Union. No authorization election under Sec-
tion 9 (e) of the Act has ever been conducted. We find, therefore,
apart from other considerations and in accordance with well-estab-
lished Board principles that the contract is no bar to this proceeding.'
The Employer' s name appears as amended at the hearing.
2 C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
89 NLRB No. 196.
1442
POOLE DRY GOODS COMPANY 1443
A.question affecting commerce exists concerning the representation
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 3 in
Springfield, Massachusetts. Although the Employer contends that the
appropriate unit should be restricted to the selling employees in its
store, it emphasized, both at the hearing and in its brief, that it will
be agreeable to any unit finding made by the Board. The Union urges
the appropriatepess of the store-wide unit, including both selling and
nonselling employees,4 heretofore covered by the various collective
bargaining agreements executed with the Employer.
The Board has consistently recognized the appropriateness of a
store-wide unit of selling and nonselling employees in department
stores.5 This principle is especially applicable, where as here the
parties have themselves bargained on such a. basis for a number of
years. Accordingly, we find that the store-wide unit requested by the
Union is appropriate in this case. .
The Employer contends, and the Union denies, that the five assistant
buyers are supervisors or managerial employees. The record dis-'
closes that the assistant buyers spend almost all of their time per-
forming ordinary selling functions. The assistant buyers receive a
slightly higher base salary than the other selling employees,, but their
commissions are the same. They have the same hours and conditions
of employment as the selling employees. The assistant buyers have no
authority to pledge the Employer's credit for purchases, and their
chief function is to act in an advisory capacity to the buyers. The
person designated as assistant buyer is usually the employee with the
greatest seniority in the department. Although the store manager
testified that the assistant buyers have authority to recommend the
hire and discharge of employees in the absence of the buyers 6 we find
no basis for concluding that they possess the authority effectively to
recommend personnel action. It appears from the record that the
assistant buyers have never been informed of this authority nor have
they in fact ever exercised such authority. One of the assistant buyers
normally has no other employee in his department, and there are
only one, two, five, and six employees in the departments of the other
assistant buyers. Under these circumstances, we find that the assist-
The :employer employs a total of approximately 80 employees, excluding supervisors.
4 The nonselling employees include employees in the following departments : office and
clerical, maintenance, receiving and shipping, and display.
Maas Brothers, Inc., 88 NLRB 129; Denton's Inc., $3 NLRB 35.
6 The buyers are only away from the store on infrequent occasions.
889227-51-vol. 89-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ant buyers are not supervisors within the meaning of the Act;-- nor
are they managerial employees of the type which the Board has ex-
cluded from bargaining units 8
We find that all employees 9 of the Employer at its Springfield,
'Massachusetts, store, excluding confidential employees,"' guards,
executives, and supervisors 11 as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
5. The determination of representatives :
The Employer employs approximately 15 regular part=time em-
ployees. These employees work from 10 to 33 regularly scheduled
hours each week, and they have the same general working conditions
as full-time employees. ' In accordance with our general policy, we
find that the regular part-time employees are eligible to vote in the
election hereinafter directed 12
All employees must first serve a 60-day probationary period. Dur-
ing this period, probationers work the same hours and have the same
working conditions as regular employees. Probationary selling
employees, however, are hourly paid and do not receive a salary and
commissions until after the expiration of the 60-day period. The
Employer's store manager testified that a great majority of the pro-
bationary employees become regular employees. As probationary
employees. have a reasonable expectancy of becoming regular em-
ployees, and as they enjoy the same conditions of employment as
regular employees, we find, contrary to the contention of the Employer,
that they are eligible to vote in the election.13
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an:election by
secret ballot shall be conducted as early as possible, but not later than
7 Maas Brothers, Inc., supra.
8 Cf. Charles Livingston ci Sons, Inc., 86 NLRB 30.
0 The parties agreed, and we find , that persons employed in leased departments are not
employees of the Employer and are, therefore, not included in the unit.
10 The parties agreed, and we find , that the secretary to the Employer 's president is a
confidential employee. We find further , contrary to the Employer 's contention , that the
telephone operator , the payroll clerk, and other clerical employees are not confidential
employees as they do not, assist or act in a confidential capacity to anyone exercising
managerial functions with respect to the Employer 's general labor relations policy. Ball
Brothers Company, Incorporated , 87 NLRB 34. 411 Excluded as supervisors , in addition to the Employer 's top executives, are the credit
manager, the assistant office manager , the head of the shipping and receiving department,
the head of the maintenance and repair department, the buyers , and the supervisors of
the alterations and display departments.
12 L. Fatato , Inc., 87 NLRB 546.
13 Hudson Motor Car Company, 87 NLRB 452; Crossett Chemical Company, 71 NLRB' 433.
POOLE DRY GOODS COMPANY 1445
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 Election , 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 rein-
stated prior to the date of the election , and also excluding employees
on strike who are not entitled to reinstatement , to determine whether
or °not they desire to be represented , for purposes of collective bar-
gaining, by Local 515, Retail Wholesale and Department Store Union,
CIO.