Sears Roeuck & Co.

National Labor Relations Board - Board Decisions

Dec 2, 1942

45 N.L.R.B. 961 (N.L.R.B. 1942)

In the Matter Of SEARS ROEBUCK & COMPANY and LOCAL 18, UNITED
RETAIL'`VHOLE$AI.E & DEPARTMENT STORE EMPIAYEES OF AMERICA,
C. I. O. ;
Case No. R=444,5 -Decided December 2, 19 9k
Jurisdiction , general merchandise retail and mail order industry.
Investigation and" Certification of Representatives : existence of question:
refusal to grant recognition until certification by the Board; election necessary.
Unit Appropriate for Collective Bargaining : all employees of Company's two
warehouse plants, with specified exclusions, where employees were originally
part of one plant which Government appropriated.
Mr. Louis Jackson, of Philadelphia, Pa., for the Company.
Mr. Louis F. McCabe and Mr. Philip Dorfnucri, of PhilaTdel'phia, Pa.';
for the C. I. O.
Mr: AlbertJ. Bader, of Philadelphia, Pa., for the A. F. L.
Mr. Ramey Donovan, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local 18, United Retail, Wholesale &
Department Store Employees of America, C. I. 0., herein called the
C. I. 0., alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Sears Roebuck & Company,
Philadelphia, Pennsylvania, herein called the Company, the National
Labor Relation Board provided for an appropriate hearing upon due
notice before Robert H. Kleeb, Trial Examiner. Said hearing was held
at Philadelphia, Pennsylvania, on October 26 and 27, 1942. At the'
hearing Local 169, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, A. F. of L., filed a
motion to intervene, which was granted. The Company, the C. I. 0.,
and the A. F. L. appeared, participated, and were afforded full oppor-
tunity 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.
45 N. L. R. B., No. 141.
493503-43-vol. 45-61 961
962 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Sears Roebuck & Company is a New York corporation. It operates
-595 stores, 10 snail-order plants, and more than 10 factories' in 47
States and in Hawaii. The present proceeding involves 2 merchan-
dise warehouse plants, the one at 24th and. Market Streets and the
other at Broad Street and Lehigh Avenue hereinafter referred to as
the 24th and'Market and the Broad and Lehigh plants, respectively,
in Philadelphia, Pennsylvania. Both these plants supply merchan-
dise to retail outlets of the Company as well as merchandise to fill
mail orders.. Since the inception of operations at these plants in
October 1941, to the time of the hearing. each plant received merchan-
dise, of a value, in excess of $1,000,000 and shipped out merchandise of
a value in excess of $1,000,000. Of the afore-mentioned merchandise
at the 24th and Market plant approximately 96 percent originated at
points outside the State of Pennsylvania and approximately 78 per'
cent was shipped outside the State; at the Broad_ and Lehigh plant
approximately 90 percent of the merchandise received calve from
outside Pennsylvania and approximately 84 percent of the shipments
were shipped to points outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Local 18, United Retail, Wholesale & Department Store Employees,
of America, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
Local 169, Warehouse Employees Union of the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization affiliated with the American Federa-
tion of Labor, admitting to membership employees of the, Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
On or about September 8, 1942, the Company broke off collective
bargaining negotiations with the C. I. O. because of the request made'
by the A. F. L., on August 31, 1942, to bargain collectively with the
Company as the exclusive representative of the employees in the 24th
and Market and the Broad and Lehigh plants and the A. F. L.'s claim
that it represented a majority of said employees.' The Company
' As the result of a hearing and subsequent election the C. I. 0., on September 30, 1941,
had been certified by the Board as the collective bargaining representative of the em-
SEARS ROEBUCK & COMPANY 963
refused to grant recognition to the A. F. L.• because of the C. I. O.'s
claim and because there was a question as to the appropriate bar-
gaining unit.
A statement of the Acting Regional Director, introduced into evi-
dence, shows that the C. I. O. and the A. F. L. each represents a sub-
stantial number of employees in the unit hereinafter found to be
appropriate 2
We, find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of, Section Q. (c) and Section 2 (6) and (7) of the Act.
1V. THE APPROPRIATE UNIT
Following the Board's Decision and , Direction of Election of
August 13, 1941, initiated by the prior petition of the C. I. 0.,
wherein the appropriate unit was found to consist of certain named
classifications of employees at the Atwater Kent, Philadelphia, plant
of the Company, the United States Government appropriated the
Atwater Kent plant and on September 1, 1942, the Company began
vacating the Atwater Kent premises .3 By approximately October 6,
1941, the Atwater Kent plant had been completely vacated by the
Company. Thereafter the departments, operations, and employees
that had been located at the Atwater Kent plant were housed at the
24th and Market and the Broad and' Lehigh plants of the Com-
pany."
The C. I. O. contends that the two plants together constitute a
single appropriate bargaining unit. -The Company and the A. F. L.
claim that each plant constitutes a separate appropriate bargaining
unit. At the hearing all parties agreed that the following classes
of employees should be excluded from whatever unit was found to
be appropriate : all company executives, managers, assistant managers,
ployees in the unit found appropriate at the Atwater Kent plant of the Company. (34
N L R B . 244; 35 N L It . B. 1097. ) As appears below , the operations formerly con-
ducted in the Atwater Kent plant are now conducted in the two plants here involved. On
December 6, 1941 , the C. I. 0 and the Company entered into a memorandum of under-
standing that by its terms expired September 1, 1942
3 The Acting Regional Director 's statement shows : that the C. I. O. submitted a list of
268 names and an affidavit by its secretary that the list contains the names of C. I. O.
members at the Company ' s 2 plants ; and that of • the 268 names , 158 appear on the
September 30, 1942 , pay-roll lists at both plants . The A. F. L. submitted 237 application
cards, 134 of which bear names of persons on the pay-roll lists at both plants . The pay
roll lists 404 names in the unit at both plants alleged to be appropriate by the C I 0 The
Acting Regional Director ' s statement also shows that at each plant , each labor organization
represents a substantial number of employees in each of the 2 plants
s Alleging the above-mentioned facts the Company , on September 3, 1941 , filed a motion
with the Board to set aside its Decision and Direction of Election which motion was denied
by the Board on September 5, 1941. -
i The heavier type of merchandise , such as plumbing , heating, and roofing material was
placed in the 24th and Market plant, while such products as carpets, rugs, furniture and
the like were allocated to the plant at'Broad and Lehigh
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidential secretaries, maintenance employees and fiieinen employed
at either of the two plants in question. They also agree that at the
24th and Market plant the employees in Departments 203' (telephone
operator), 243 (drafting and engineering), 297 (plumbing and heat-
ing sales promotion), and 211 (special officers) are to be excluded
from the unit found to be appropriate by the Board.
The parties agree that the employees in the following departments at
the 24th and Market plant should be included in whatever--unit the
Board finds to be appropriate: 32 (dairy supplying, fence, etc.'), 42
(plumbing and heating), 64 (millwork, insulation, and roofing), 170
(billing -freight and express), 178 (parcel post weighing and billing),
194 (elevators), 196 (porters), 155 (returns of merchandise), 176 (re-
ceiving), 188 (retail shipping), 191 (shipping), 192 (employees house
sales), and ticket office. By agreement of all parties the following
departments at the Broad and Lehigh plant were to be included;: 1
(furniture), 6 (trucks, sporting goods), 9 (garden tools), 18 (paper
cabinets), 30 (paint and ladders), 37 (floor coverings), 155 (returns),
176 (receiving), 178 (parcel post weighing), 188 (retail shipping),
194 (elevators), 196 (porters), 404 (shade factory), and ticket office.
It was likewise agreed that employees in Departments 203 (telephone
operator) and 133 (general merchandise superintendent's office) at the'
Broad and Lehigh plant should be excluded from the appropriate unit.
The 24th and Market and- the Broad and Lehigh plants. The
Company and the A. F. L. contend that each plant should be desig-
nated as a separate bargaining unit, the A. F. L. on the grounds,
principally, that with the physical break-up of the Atwater Kent
plant, new conditions and new separate plants came into being, that
the plants are physically separated by a distance of approximately
6 miles, that there is no interchange of merchandise or employees
between the two plants, that there are separate and distinct tele-
phone listings for each plant, that each plant has separate super-
vision, and that the employees themselves desire separate units. The
Company contends that since in the prior case the Board emphasized
physical and geographical separation in making its determination
as to the appropriate unit; 5 these factors are controlling in, the
instant case and render'separate units appropriate. It is the C. I. O.'s
contention that both plants -together constitute, a single appropriate
bargaining unit and, principally, that the mere physical break-up of,
the unit previously found by the Board to be appropriate does, not
affect the substantial integrity of the unit, that the Company's
business insofar as it relates to the'two, plants still functions, in an
integrated manner, that a division of the prior single, unit into two
G Our determination that the Boulevaid,plant should not be combined with the Atwater
Kent plant into one unit was based only in part, however, upon the physical and geographi•
cal separation of the two.
SEARS ROEBUCK & COMPANY 965
separate units would not afford the employees the full benefits of
the Act, and that at no time during its prior course of dealing with
the Company, culminating with a memorandum of understanding of
December 6,1941, had the Company advanced the contention' that one
bargaining unit was inappropriate for the two plants or that sep-
arate units were proper.
Although the two plants in question are 6 miles apart, maintain
separate accounting records, have no interchange of employees or
merchandise and have separate managers who direct the operations
of the respective plants, the record disclosed that the business of the
Company is carried on in substantially the same manner at the two
new plants as it had been when all operations were,housed at the
Atwater Kent plant. The managers in charge of the 24th and
Market and the Broad and Lehigh plants were in charge of the same
departments at•the Atwater Kent plant .6 The execution of a single
memorandum of agreensent for the employees of both plants and
the approximately 9,-mouth history of collective bargaining relations
between the C. I. 0. and the Company are indicative of the appro-
priateness-of the single unit. Mere change in the physical location
of departments and operations, albeit with the attendant circum-
stances disclosed in the record, does not render inappropriate a pre-
viously established collective bargaining unit, especially when the
essential functions and operations of the Company's business remain
unaffected.
In view of the afore-mentioned facts and other circumstances, we
find that the employees of the 24th and Market and the Broad and
Lehigh plants of the Company together constitute an appropriate
unit.
The 24th and Market and the Broad and Lehigh Departments. As
indicated above, the C. I. 0. and the Company seek to exclude from
the ,appropriate unit Departments 150 (record clerks), 157 (corre-
spondence), (195 watchmen), and manager's office (timekeepers and
cashier), at the 24th and Market plant and to exclude from the unit
Department .150 (record clerks), 637 (floor covering record clerks),
and manager's office (timekeepers and cashier) at the Broad and Le-
high plant. The A. F. L. contends that all these departments should
be included in the appropriate unit.
At the time of the prior Decision dealing with the Atwater Kent
plant, of the Company, ,, the, Board had, before it inter alia, the question
of the exclusion or inclusion 'from the unit of the employees in each
of the afore-mentioned departments. In that Decision we found that
the employees therein should be excluded from the appropriate bar-
0
6 Department 32, employing eight or nine-people at the time of the healing, had been
under the jurisdiction of one of the managers at the Atwater Kent plant ; it was shifted
to the Jurisdiction of the other manager when the two-plant operations became necessary.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining unit.-, We are not persuaded by the evidence adduced in the
instant proceeding that our prior finding was in error and, accordingly,
we shall exclude from the unit Departments 150 (record clerks), 157
(correspondence), 195 (watchmen), 637 (floor covering record clerks),
and manager's office (timekeepers and cashiers).
We find that all employees - in Departments 32 (dairy supplying,
fence, etc.), 42 (plumbing and heating), 64 (millwork, insulation, and
roofing), 155 (return of merchandise), 170 (billing), 176 (receiving),
178 (parcel post weighing and billing), 188 (retail shipping), 191
(shipping), 192 (employees house sales), 194 (elevators), 196 (porters),
1 (furniture), 6 (truck sporting goods), 9 (garden tools), 18 (paper
cabinets), 30 (paint and ladders), 37 (floor coverings), 155 (returns),
176 (receiving), 178 (parcel post weighing), 188 (retail shipping),
191 (shipping)," 194 (elevator operators), 196 (porters), 404 (shade
factory), division and workheads who spend 50 percent or more-of
their time in non-supervisory work; and ticket office, but excluding
executives, managers,, and assistant managers, confidentiitl secretaries;
maintenance employees, firemen, and all employees in Departments
150 (record clerks), 157 (correspondence), 203 (telephone operators),
243 (drafting and engineering), 297 (plumbing and heating sales pro-
motion), 211 (special officers), manager's office (timekeepers and cash-
iers), 195 (watchmen), 637 (floor covering record clerks), and 133
(general merchandise superintendent's office), at the 24th and Market
and Broad and Lehigh plants of the Company, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
c
We find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot. The C. I. 0. re-
7 Evidence in the case now before us indicates that Department 150 (record clerks),
and 157 (correspondence), did not exist at the Atwater Kent plant at the time of the
Board's Decision in the previous case it, is not entirely clear from the record Xthether or
not Department 195 (watchmen), 637 (floor coveting clerks), and manager's office (time-
keepers and cashier), were in existence at the Atwater Kent plant at the time of the prior
Decision . In any event, all these departments ( 150, 157 , 195. 637 , and managers office)
existed at ' the Boulevard plant of the Company or at the Atwater Kent plant when the
operations of those plants , together with the functions of the respective departments, were
considered by the Board at the time it rendered its poor Decision
8 At the bearing the parties set forth the numbers and descriptions of certain depart-
ments which they agreed should be included in the unit. In enumerating depart-
ments at the Broad and Lehigh plant that were to be included in the unit Depart-
ment 194 was listed twice whereas Department 191 was omitted From the entire record it
is clear that the parties intended that Department 191 (shipping ) at both plants be
included in the appropriate unit , and we so find
Since it was stipulated at the heating that there were no employees in Departments 239
(enclosing ) and 171 (refunds and mailing ), and that no determination need be made as
to those departments, we make no finding as to these departments
' I In the prior Board Decision (34 N. L. It. B 244) this class of employees was included
within the appropriate unit. In the absence of evidence that our prior inclusion of such
employees in the unit was in error we will again include the described employees.
SEARS ROEBUCK & COMPANY 967
quested at the hearing that the September 1, 1942, pay roll be used to
determine eligibility of employees to vote. The A. F. L. and the Com-
pany favored the use of the pay-roll period immediately preceding the
date of the Direction of Election . In the absence of any good reason
for,departing from our usual practice, we shall direct that the em-
ployees of the Company eligible to vote in the election shall be those
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and exclusions set forth in the Direction.
. DIRECTION OF ELECTION
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 Rela-
tions Board Rules and Regulations-Series 2 , as amended , it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives,for the purposes of collective bargaining with Sears , Roebuck &
Company, Philadelphia , Pennsylvania , an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction , under the direction and supervi-
sion of the Regional Director for the Fourth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 10, of said Rules and Regulations, among the
employees in the unit found to be appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction , including any such employees who did not
work during said pay-roll period because they were ill or on vacation
or in the active military service or training of the United States, or
temporarily laid off , but excluding any who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented by Local 18, United Retail, Wholesale & Department Store
Employees of America , C. I. 0., or by Local 169 , Warehouse Employees
Union, , International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , A. F. L., for the purposes of
collective bargaining , or by neither.