Stack & Co.

National Labor Relations Board - Board Decisions

Feb 1, 1952

97 N.L.R.B. 1492 (N.L.R.B. 1952)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a contract's term, or permitting a group of dissident members to ex-
press their dissatisfaction with the bargain made by the representative
holding the contract. Indeed, the circumstances in the Boston Ma-
chine case were such that no salutary stabilizing purpose could have
been served by applying the contract bar rule. The Board was con-
vinced from the facts before it, that the bargaining relationship there
had become so confused that an immediate direction of election was
the only means by which the Board could hope to assist the employer,
the employees and a bargaining representative to continue to live to-
gether with some semblance of stability. While the Board has directed
elections in subsequent schism cases where the facts were not as clearly
indicative of a complete breakdown in the bargaining relationship as
in the Boston Machine case, the Board has become increasingly aware
that this exception to the contract bar rule may, by too broad an ap-
plication, become an unwarranted means of circumventing that rule.
Where the factual basis of the alleged schism consists of nothing more
than the sort of formal meeting that took place in this case, the Board
does not believe that an exception to its normal contract bar doctrine
is warranted. We shall, accordingly, dismiss the petition.
Order
Upon the basis of the entire record in the case, the National Labor
Relations Board hereby orders that the petition filed herein be, and
it hereby is, dismissed.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
STACK & COMPANY and LOCAL No. 27, RETAIL CLERKS INTERNATIONAL
ASSOCIATION , AFL, PETITIONER . Case No. 18-RC-1319 . February
1,192
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Erwin A. Peterson, 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members 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.
97 NLRB No. 230.
STACK & COMPANY 1493
2. The labor organization involved claims to represent certain 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 Petitioner seeks a unit of all employees at the Employer's
department store in Superior, Wisconsin, including office clerical em-
ployees, heads of stock, and the advertising employee, but excluding
employes of the leased departments, janitors, the service department
employees , seasonal and temporary employees, buyers, and other super-
visors. Although the Employer agrees with the proposed unit in
other respects, it disputes the unit placement of the following cate-
gories of employees.
The leased department employees.-The shoe department, the mil-
linery department, and the beauty salon are owned and operated by
outside companies, two of which operate similar departments in other
stores. The Petitioner would exclude the eight nonsupervisory em-
ployees in these departments, whereas the Employer would include
them.
These departments are operated under oral lease arrangements, sub-
ject to termination on 60 days' notice. Their sales' proceeds are turned
over to the Employer, which pays all operating expenses, deducts an
amount for rent, and credits the outside companies with the balance.
The public regards them as part of the Employer. The Employer
watches the prices which they charge and can require their managers
to make reductions to meet competition.
The leased departments may hire no new employees without having
them interviewed and approved by the Employer, although the de-
partment managers also pass upon their qualifications. Often these
departments obtain needed personnel from the Employer's waiting
list. On other occasions they place advertisements in the newspaper in
the Employer's name, and applicants fill out application forms which
bear the Employer's name. There is interchange of part-time and
temporary employees between the leased departments and the rest of
the store.
Leased department employees must abide by all the rules and regu-
lations applicable to other employees. Their wages, though theoreti-
cally determined by the lessees, must conform to a scale agreed to by
the Employer." They enjoy the same vacations, discounts on store
merchandise, sick leave, and other benefits as do the other employees.
New employees obtained from the Employer's waiting list are paid
the same rates which they receive when called in to work for the Em-
ployer. All leased department employees receive their pay from the
' Moreover , the Employer 's general manager testified without contradiction that, even
within this agreed -upon scale, the lessees would not make wage increases without first
consulting him.
986209-52-vol. 97---9 5
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer. The Employer has full power to discharge employees of
the leased departments without the consent of the lessees, but it always
first consults the department managers involved. The latter them-
selves make no discharges without first consulting the Employer.
Since 1941, the contracts in force between the Employer and the
Petitioner have excluded the employees of the leased departments.
Such a history of exclusion, however, is not controlling.2 In view of
the high degree of control exercised by the Employer over the hire,
dismissal, wages, and working conditions of these employees, and the
similarity between their working conditions and those of the other
store employees, we find them to be employees of the Employer and
shall include them in the unit in accordance with the Employer's
request .3
. Heads of stock.-The Petitioner would include, but the Employer
would exclude as supervisory, five salespersons designated as "heads
of stock:" The Employer contends that the heads of stock perform
for small departments the same function performed for the larger
departments by the five buyers, whose exclusion from the unit as super-
visors is agreed upon. More specifically, the heads of stock not only
do selling, but also make out purchase orders, record markdowns and
customer requests, plan displays, report sales, and see that their de-
partments are properly stocked. About a month and a half after the
petition herein was filed, the Employer notified them that they were
expected to "supervise all help," see that "all store rules and regula-
tions are adhered to," schedule lunch hours, and make recommenda-
tions to the general manager regarding the transfer or dismissal of
employees. The record is not clear as to whether all of these same
instructions were given them in October 1950, when they were first
made heads of stock and given a short training course in their new
duties.
Only 2 of the 5 heads of stock normally have even a single employee
under them upon whom to exercise any authority; and of these 2,
one works in a department which is actively supervised by 1 of the 5
buyers. Only for a month at Christmas and for several days at special
sale time would most of the heads of stock have other employees in
their departments. The Employer's store is a small one, employing
2 Memphis Cold Storage Warehouse Co., 91 NLRB 1404 , 1406 footnote 6; Benner Tea
Company, 88 NLRB 1409 , 1411 ; J. C. Penney Company, 86 NLRB 920, 922 footnote 11
In the Benner Tea case the Board observed : "The unit . . . is not inappropriate in this
case because the Petitioner has already been representing a less inclusive unit, or because
it comprises employees in different departments having different immediate supervision."
9 Robinson-Schwenn Store, 83 NLRB 35, 36; Louis Pizitz Dry Goods Co, 71 NLRB 579,
581-3; Hale Brothers Stores, Inc., 62 NLRB 367, 370-1. Cf. Franklyn-Simon & Co., 94
NLRB 576, where the department store exercised less control than the Employer herein
and the petitioning union named both the store and the operator of the leased department
as joint employers.
STACK & COMPANY 1495
only about 52 persons including supervisors. If the heads of stock
were in fact supervisors, the ratio of supervisors to employees would
be 16 to 36-an extremely high ratio for department stores.'
Because of the ready proximity of so many other persons of un-
questioned supervisory authority, we believe that the heads of stock
are actually never expected to, and never do, make any but routine
decisions affecting the working conditions of fellow employees. Upon
the foregoing grounds, and upon the record as a whole, we find that
they are not supervisors and shall include them .5
Office clericals.-In addition to the office manager and a confidential
stenographer, whom both parties agree to exclude, there are four office
clericals..,The•Employer would exclude these, whereas the Petitioner
desires their inclusion. Because they do their work in the same build-
ing with the sales employees and because their interests are similar-
we shall, pursuant to the Board's usual practice, include them in the
store-wide unit .6
The advertising employee, whom the Petitioner would include and
the Employer exclude, consults with the buyers to obtain descriptions
of the items to be advertised. She prepares copy and layouts which,
after approval by the general manager, she transmits to the advertising
media selected, with which she handles all production details. We
believe that her interests are different from those of the other em-
ployees, and we shall therefore exclude her.7
Accordingly, we find that all employees of the Employer at its
Superior, Wisconsin, store, including employees of the leased depart-
ments, office clerical employees, and heads of stock, but excluding
janitors , service department employees, seasonal and temporary em-
ployees, the advertising employee, buyers, and all other 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.
[Text, of Direction of Election omitted from publication in this
volume.]
MEMBER MURDOCK, dissenting in part :
,I disagree with the majority's unit finding in this case insofar
as it includes the employees in the leased departments. In my opinion
4 See, Stlverwoods', 92 NLRB 1114, 1120, where a ratio of 1 to 4 was held to be high.
In the present case, the ratio is that high ( 11 to 41 ) even when the heads of stocks are
included as nonsupervisory.
3 Salverwood 's, 92 NLRB 1114 , 1122. See also Foster Wheeler Corp., 94 NLRB 211, and
Franklin County Sugar Co, 92 NLRB 1341, 1343 footnote 5, finding that employees who
merely help break in new or seasonal employees are not supervisors as defined in the Act.
6 S. H. Kress & Co., 92 NLRB 15.
T Denver Dry Goods Co , 74 NLRB 1167, 1173.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the majority in resolving this issue failed to accord sufficient weight
to the distinctive employment interests of these employees and to the
fact that for the past 10 years they have been excluded from the
bargaining unit established by contracts I agree that the Board
should not predicate its determination of a unit placement issue on
a bargaining history involving a unit that includes or excludes an
employee category contrary in any important respect to the Board's
customary practice. That, however, is not the situation in this case.
Here the employees in the leased departments have certain employ-
ment interests that in my judgment are sufficiently different from those
of the other store employees to justify their exclusion from the estab-
lished unit. Thus (1) they are employees of the lessees who retain
and exercise the power to hire and discharge albeit subject to approval
by Stack & Company; (2) they are separately supervised by managers
who are employees of the lessees, not of Stack & Company; (3) they
work in separate areas; (4) full-time leased department employees do
not interchange with other store employees; and (5) the lessees have
complete discretion to determine their wage rates within the limits
,of the scale agreed to by Stack & Company; s and it is a fair infer-
ence that employees grievances would be handled by the lessees'
managers not by Stack & Company supervisors. In a recent case 10
involving substantially the same factual situation the Board held
that the leased shoe department employees there involved could con-
stitute a separate appropriate unit because their basic terms and
conditions of employment were determined by both the department
store and the lessee.
Inasmuch as the leased department employees as a group have
certain interests which differ from those of the other store employees
and could, under the holding in the Franklin Simon case, constitute
a separate unit, and because they have been excluded from the histor-
ical unit, and the Petitioner who seeks to exclude them apparently
has made no attempt to organize them, they should not, in my opinion,
be blanketed into the store-wide unit without regard to their separate
interests and desires. I would therefore exclude the employees in
the leased departments from the appropriate unit.
8 None of the department store cases cited by the majority in support of its finding
involved a bargaining history of exclusion of leased department employees . The cases
cited in footnote 2, supra, are , in my opinion , distinguishable from this case inasmuch as
they involved historical bargaining units from which employees having employment
interests identical with those of employees included in the unit were excluded.
9 The fact that the lessees may, as a matter of practice , consult the Employer before
effecting a wage increase for their employees does not lessen their control over this impor-
tant aspect of the employment relationship.
i° Franklin Simon & Company , Inc, and Kays-Newport, Inc., 94 NLRB 576. The fact
that the petitioner in that case named both the department store and the lessee as
employers does not render that decision inapposite with respect to the unit problem in
this case . I likewise cannot agree with the majority's statement that the department
store in that case had less control than here.