Spencer Shoe Corp.

National Labor Relations Board - Board Decisions

May 10, 1945

61 N.L.R.B. 1058 (N.L.R.B. 1945)

In the Matter of SPENCER SHOE CORPORATION and SPENCER ASSOCIATES'
and UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES
OF AMERICA, LOCAL 282, C. I. O.
Case No. 1-REDS. Decided May 10, 1945
Mr. Edward J. Ziegler, of Boston, Mass., for the Company.
Messrs. Lester W. Cooch and Dudley A. Weiss, of Boston, Mass., for
the Independent.
Mr. Isadore S. Immerman, of New York City, for the C. I. O.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Spencer Shoe Corporation, Boston,
Massachusetts, herein called the Company, alleging that a question
affecting commerce had arisen concerning the representation of its
employees, the National Labor Relations Board provided for appro-
priate hearings.upon due notice before Robert E. Greene, Trial Exam-
iner. Said hearings were held at New Haven, Connecticut, on Janu-
ary 10 and March 22, 1945. The Company, Spencer Associates, herein
callecl the Independent, and United Retail, Wholesale and Department
Store Employees of America, Local 282, C. I. 0., herein called the
C. I. 0., appeared and participated. All parties 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 hearings are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Spencer Shoe Corporation is a Massachusetts corporation with its
principal office at Boston, Massachusetts. It owns and operates a
61 N. L. R. B., No. 179,
1058
SPENCER SHOE CORPORATION 1059
chain of retail shoe stores extending into the States of New York,
Rhode Island, Connecticut, Massachusetts, and New Hampshire.
Materials purchased annually for resale at these stores are valued
at approximately $1,600,000, and, for the most part, are received from
States other than the ones in which they are sold. During the year
1943, the Company's total sales exceeded $2,250,000 in value; during
the first 6 months of 1944 they totaled $1,145,000. All of the sales are
made within the States where the various stores are located.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATION'S INVOLVED
United Retail, Wholesale and Department Store Employees of
America, Local 282, affiliated with the Congress of Industrial Or-
ganizations, is a labor organization admitting to membership em-
ployees of the Company.
Spencer Associates is an unaffiliated labor organization admitting
to membership employees of the Company.'
III. THE QUESTION CONCERNING REPRESENTATION
The Independent, as the first labor organization among the Com-
pany's employees, came into existence in 1940 and on December 1
of that year executed a written collective bargaining contract with the
Company on a company-wide basis covering employees in all its stores.
The parties entered into a second similar contract on September 22.,
1941, which read, in part, as follows :
This agreement shall take effect December 1, 1941, and shall
be in effect until December 1, 1942. It shall automatically renew
itself on said December 1, 1942, for a term of one year, unless
a notice in writing terminating the agreement is sent by either
party to the other by registered mail, 30 days before its anni-
versary date.
Neither party gave notice of termination before December 1, 1942,
and after December 1, 1943, they started negotiations for a new con-
1 At the hearing, the C I. 0 disputed the existence of the Independent as a functioning
labor organization at the present time The record discloses that, during the spring of
1944, the president of the Independent conferred with the Company "constantly" in an
effort to negotiate a new collective bargaining agreement ; that throughout the year 1944,
the Company made numerous settlements with the Independent relating to the compensa-
tion of Head Clerks in a number of its stores , and that general membership meetings of
the Independent took place in June 1943, and in December 1944 The record also includes
documentary evidence of dues check-offs by the Company for the months of October and
November 1944 for the benefit of the Independent, and a witness called by the C. I O.
testified that he had paid dues to the Independent continuously until November 1944.
Under these circumstances, we find that the Independent is not a defunct organization
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract. The record is not clear as to what arrangements were made
concerning the extension of the contract during the 1944 negotiations.
The president of the Company testified that they "let it ride until
[they could] agree on a new contract and see what the war [would]
do to the men's earnings," and an attorney for the Independent stated
that the contract was extended "pending the discussions at straighten-
ing out certain stores and until we drafted a new contract."
On September 25, 1944, the C. I. O. made a written demand upon
the Company for recognition as the exclusive bargaining represent-
ative of all employees in its retail stores situated in the State of Con-
necticut. The Company at first exchanged correspondence with the
C. I. O. and even joined in one conference, but later, with the Inde-
pendent asserting its claim to representation for employees in all
stores of the chain, the Company took the position that it could not
recognize either labor organization until certified by the Board in an
appropriate unit. In view of the conflicting claims to representation
made by the C. I. O. and the Independent, the Company filed the in-
stant petition on November 15, 1944.2
The Independent and the Company contend that, subsequent to De-
cember 1, 1943, they extended the 1941 contract until December 1, 1944.
The Independent further urges that the contract is a bar to the instant
proceeding. It is clear that the 1941 contract did not provide for auto-
matic renewal beyond December 1, 1943. The understanding between
the Company and the Independent following December 1, 1943, was
not reduced to writing and was at best an oral agreement extending
the 1941 contract for an indefinite term. Thus, no bar exists to a
present determination of representatives.3 Furthermore, even assum-
ing that the 1941 contract had been extended for a further year by
a written agreement which revived the automatic renewal clause, the
C. I. O. nevertheless made a, timely demand for recognition, preventing
its operation as a bar.4
A statement of the Trial Examiner, read into the record at the hear-
ing, indicates that the C. I. O. represents a substantial number of em-
ployees in the unit it alleges to be appropriate.'
2 At the hearing, the Company further stated that regardless of what unit the Board
might find appropriate, it did not feel that it could bargain with either union until there
had been a certification by the Board
3Matter of Eicor, The , 46 N. L. R B. 1035 ; and Matter of Ben Sadof, Arthur Sadoff,
and David Nemschoff, d/b/a Ben Sadoff Iron & Metal Company , 58 N L R. B. 1574
4 See Matter of Mill B, Inc ., 40 N. L. R. B. 346.
5 The Trial Examiner stated that the C. I. O. submitted 17 acceptance -of-membership
cards bearing apparently genuine signatures , and that all of those cards bore names of
employees appearing on the Company 's pay roll for the period ending December 30, 1944,
which contained the names of 33 employees in the unit alleged to be appropriate by the
C I O
The Independent relies upon its 1941 contract to establish its interest in this proceeding.
11
SPENCER SHOE CORPORATION 1061
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Independent and the Company contend that all full-time clerks
employed in the retail stores throughout the Company's chain consti-
tute an appropriate unit for collective bargaining purposes. The
C. I. 0. seeks to represent only those employees at the Company's
eight retail stores situated in the State of Connecticut, including "ex-
tras," and it contends that a unit limited to such employees is appro-
priate for collective bargaining purposes.
The Company's offices are located at Boston, Massachusetts, and all
matters pertaining to its general sales policies, labor relations, and
general administration are decided there. Immediately below the
president, and directly responsible to him, are three district managers,
each of whom supervises a number of retail stores. District #1 em-
braces stores in New Hampshire and Massachusetts; District #2 in-
cludes stores in Massachusetts, Rhode Island, New York City, and
one store in Connecticut; and District #3 covers seven stores in Con-
necticut and one in New York State. The stores are grouped in this
manner only to make possible a maximum use of public transportation
systems by the district managers during the present period of gasoline
shortage. In District #3 the Company also sought further to limit
the territory to be covered by its district manager because of the un-
usual shortage of labor in that area and the consequent necessity for
more frequent visits to the various stores by the district manager.
' In all other respects the Company functions as a single entity and
its operating methods are uniform throughout the chain. Its stores,
wherever located, are identical in appearance and the type of goods
handled. In the past there has been considerable transfer of em-
ployees among the stores in the various States. Moreover, as indi-
cated in Section III, above, there has been a history of collective
bargaining by employees of the Company on a chain-wide basis since
1940. Prior to the appearance of the C. I. 0. among employees in
the State of Connecticut, the only collective bargaining agreements
made by the Company had been with the Independent, and they em-
braced employees in all stores in the five States.
The C.' I. 0. contends that the boundaries of the State of Con-
necticut provide a suitable delineation for an appropriate unit, espe-
cially in view of the expressed desire of employees in that area to be
represented by a labor organization other than the Independent. We
do not agree. Although District #3 includes most of the Connecticut
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stores, it is not coextensive with that State's boundaries, one Con-
necticut store being excluded and one New York store included.
There is nothing in the record to distinguish the Connecticut stores
from the remainder of the chain. On the contrary, all employees of
the Company, wherever located, perform similar duties, are similarly
paid, and have the same general working conditions. In view of the
Company's centralized management and operations, the similarity in
the duties, skill, and working conditions of all its employees, and the
history of collective bargaining, we are of the opinion that a unit
limited to employees of the Connecticut stores is not appropriate for
collective bargaining purposes.
There are four classifications of employees in the Company's 34
stores. Each store has a Head Clerk, or No. 1 Clerk, who is gener-
ally responsible for the conduct of the business of his store, its volume
of sales, the protection and safekeeping of stock and fixtures, and the
employment of extras, or part-time employees. He receives an
agreed percentage of the gross volume of the store's sales as compen-
sation, but from this "cut," or commission, he pays wages to extras
and No. 2 Clerks, if he has any.
No. 2 Clerks are regular full-time employees; the Company em-
ployed only four of these at the time of the first hearing. They are
paid a share of the store commissions allotted to the No. 1 Clerk, the
exact percentage being subject to-negotiations among the Head Clerk,
the No. 2 Clerk, and the Company. According to the contract be-
tween the Company and the Independent, these clerks are employed
directly by the Company and not by the Head Clerks.
The third group of regular employees, about 35 in number, are
full-time sales clerks who are employed directly by Company repre-
sentatives and receive a fixed weekly salary. They do not share in
store commissions.
Finally, there are about 76 "extras," some of whom have worked
for periods of more thah a year, some a few months, and some only
a week or two. They do not work the same number of hours; some
work all week, some a few afternoons weekly, and still others only
Saturday afternoons. The Head Clerk decides how many extras, if
any, he desires to employ in his store and has complete control over
their hire, discharge, discipline, and wages. He pays their wages
out of the store commissions.
All parties agree to include Head Clerks, No. 2 Clerks, and full-time
salesmen and sales girls in the bargaining unit. The Company and
the Independent, however, would exclude all extras, claiming that
because of the indefinite periods of their employment they have inter-
ests different from those of full-time clerks. The C. I. O. urges that
extras be included.
SPENCER SHOE CORPORATION 1063
We do not perceive that extras work under conditions and terms so
different from those of full-time sales clerks that the interests of both
groups in collective bargaining are at variance. Although extras are
hired by head clerks, it is not disputed that they are as much employees
of the Company as the remaining clerks. Aside from the fact that in
some instances extras work fewer hours weekly or remain with the
Company a shorter period of time than regular clerks, their work is
similar to that of regular clerks in all other respects. In view of these
facts, we shall include extras in the unit hereinafter found appropriate.
We do not believe, however, that Head Clerks may properly be in-
cluded in a bargaining unit together with the Company's remaining
employees. The record is replete with evidence of their authority to
hire and discharge extras and even to bargain with them with respect
to wages. Head Clerks look upon extras as their own employees and
pay their wages from commissions which Head Clerks would other-
wise retain. In describing his relationship with extras he employs,
one Head Clerk testified :
I use him every week of the year in order to have him when I
need him at rush time. No, I mean rush season. I feel I have an
investment when I pay him for January and February, June and
July, so that he will be with. me at Easter Time and Christmas
time when I really need him. He is a liability during these four
months.
Moreover, while speaking of regular ales persons, as distinguished
from extras, the president of the Company testified that "in the actual
operations of a store, under the conditions as they existed in the past 2
years, the actual employment has been made by these Head Clerks for
the simple reason that it is not possible for a supervisory employee
such as a district manager to supply the help that these stores need."
In view of the foregoing facts and the entire record in the case, we
shall exclude the head clerks 6
We find that all employees in the Company's retail stores throughout
its chain, including extras, but excluding Head Clerks, district man-
agers, and all other supervisory employees with 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.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
See Matter of Pnggly-Wiggly of San Diego, /ne, , 60 N I. It B 47, and Matte, of
Safeway Stores, Inc , 59 N I. R B 936
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees 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 additions set forth in the
Direction.
As indicated in Section IV, above, some of the extras employed by
the Company work Saturdays only, others work a few afternoons
\yeekly, while still others work a full week as do regular full -time clerks.
In addition , it appears that some of them remain with the Company
only for a number of weeks while others work all year around. The
Company and the Independent contend, in effect, that none of the
extras has a sufficient interest in the selection of a collective bargaining
representative to be entitled to participate in the election . Apparently
the C . I. O. asks that the Board permit "regular " extras to cast ballots,
but it does not define the term. Some extras , such as college students,
assume this part-time work with the intention of remaining with the
Company only a short time , despite the Company's desire to retain
them. Others are employed with the understanding that they shall
remain only during a holiday season. It is clear that those extras
who are employed only for certain periods or work only a few hours
weekly, do not have a sufficient interest in the selection of a collective
bargaining representative to be eligible to vote, while others, who have
worked for longer periods and for a greater number of hours weekly
do have such an interest . Accordingly , we shall declare eligible to
vote only those extras who have been employed for the 3-month period
immediately preceding the date of the Direction of Election herein
and who have worked an average of 15 hours weekly throughout the
3-month period.
The Regional Director , in conformity with customary practice, may
conduct the balloting , in whole or in part, by mail, if such proceed-
ing is deemed by him to be expedient.
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 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Spencer Shoe Cor-
poration , Boston, Massachusetts , 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 , underthe direction and supervision
of the Regional Director for the First 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 Regulations, among
SPENCER SHOE CORPORATION 1065
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preced-
ing the date of this Direction , including 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 those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election and those extras who have not been employed for the
3-month period immediately preceding the date of this Direction and
worked an average of 15 hours weekly throughout that 3-month period,
to determine whether they desire to be represented by Spencer As-
sociates , or by United Retail , Wholesale and Department Store Em-
ployees of America, Local 282, affiliated with the Congress of Indus-
trial Organizations , for the purposes of collective bargaining, or by
neither.