Stark's Boston Store

National Labor Relations Board - Board Decisions

Nov 10, 1953

107 N.L.R.B. 23 (N.L.R.B. 1953)

THE ERLANGER DRY GOODS CO. 23
THE ERLANGER DRY GOODS CO., d/b/a STARK'S BOSTON
STORE' and RETAIL CLERKS INTERNATIONAL ASSOCI-
ATION, RETAIL CLERKS UNION LOCAL NO. 94, AFL, Pe-
titioner . Case No. 8-RC-2079. November 10, 1953
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 John Vincek,
hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer operates three retail department stores
in Alliance, Canton, and Massillon, all in Ohio. This case in-
volves only the employees in the store at Alliance. The Em-
ployer has leased floor space or departments in its retail
stores, including the Alliance store, to three concessionaires.
They are Erlanger Shoes, Inc., Erlanger Home Furnishings,
Inc., and Harry Mayn Corporation. Those corporations operate
the shoe, home furnishings, and piece goods departments, re-
spectively.
The Employer's yearly sales, exclusive of the sales in the
3 leased departments, are in excess of $1,200,000, of which 2
percent is sold and shipped to points outside the State of Ohio.
The value of goods purchased by the Employer, exclusive of
the purchases of the 3 lessees, is in excess of $600,000, 80
percent of which is shipped to the Employer from points out-
side the State.
The Employer contends that its shipments in interstate com-
merce do not affect commerce within the meaning of the Act.
We disagree. It is true that the value of the annual shipments
made by the Employer directly to points outside the State of
Ohio is less than $25,000, and that the value of materials an-
nually shipped directly to the Employer through interstate
channels is less than $500,000--alternative minimum require-
ments established by the Board as standards to determine
whether jurisdiction should be exercised on the basis of inflow
or outflow.2 However, the Employer's inflow and outflow of
materials, when considered in ratio to the respective minimum
inflow and outflow requirements, are together equivalent to the
minimum requirements in either category. The Employer's
direct outflow figure of $24,000 is approximately 96 percent of
the minimum direct outflow requirement of $25,000. The
$480,000 direct inflow figure is approximately 96 percent of
the minimum inflow requirement of $500,000. The total of the
2 percentages is thus in excess of "100 percent." Thus viewed,
interference by a labor dispute with this Employer's interstate
t The Employer' s name appears as amended at the hearing.
2Stanislaus Implement and Hardware Company, Ltd., 91 NLRB 618 (direct outflow); and
Federal Dairy Co., Inc., 91 NLRB 638 (direct inflow).
107 NLRB No. 12.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business would, in our opinion, exert an impact upon commerce
as great as would be exerted in the case of companies having
interstate shipments of the value of either of the minimum
yardstick figures alluded to above. We find not only that the
Employer is engaged in commerce within the meaning of the
Act, but that the Board should exercise jurisdiction herein.3
Accordingly, the Employer's motion to dismiss the instant
petition on jurisdiction grounds is denied.
2. The labor organization involved claims to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit:
N The Petitioner seeks to represent a unit composed of all
employees of the Employer at its Alliance, Ohio, retail de-
partment store, including the employees of leased departments,
regular part-time employees,4 confidential employees, office
clerical employees, and watchmen, but excluding extra em-
ployees,' professional employees, and supervisors. Approxi-
mately 50 employees are involved in this proceeding. The re-
cord does not show whether there is a history of collective
bargaining for any of the employees involved. Although the Em-
ployer agrees with the proposed unit in other respects, it dis-
putes the unit placement of the following categories of emplo-
yees.
Employees of leased departments: The Employer leases
space for sales, warehouse, and office requirements to three
concessionaire companies who operate the shoe department,
piece goods department, and home furnishings department in
the Alliance store. The rental for this space is a percentage of
the total sales of the leased departments. The record is clear
that each lessee hires its own employees and that the lessor
has no direct authority to hire or discharge employees of the
lessees. However, the Employer exercises some general con-
trol over employees in these departments to see that they con-
form to general company policies or regulations. Although uni-
form discount provisions prevail for all employees, hours are
the same, and there is a store -wide hospitalization plan, there
is no interchange of personnel between the leased departments
and the rest of the store, except by termination by one lessee
and hiring by the other.
The employees of the three separate consessionaires are
paid by the Employer, who, in turn is reimbursed by the les-
3Rutledge Paper Products Co., 91 NLRB 625.
Chairman Farmer and Member Rodgers concur in this fording but do not thereby adopt the
Board's jurisdictional plan as a permanent policy.
4 The parties agreed to include those employees who are regularly employed on a part-
time basis.
5 The parties also agreed to exclude employees who work on call as they work only on
infrequent occasions and may refuse to come in when called.
THE ERLANGER DRY GOODS CO. 25
sees. The latter keep their own payroll records, make their
own payroll payments to the State Bureau of Unemployment,
and file their own withholding tax forms. In addition , the three
leased departments maintain their own accounting , are billed
individually and directly for services , as by the trucking firm
making home deliveries for the entire store, and do their own
buying and merchandising . Each lessee also carries its own
liability insurance.
It is clearfromthe record that the lessees , not the Employer,
control the essential terms and conditions of employment gov-
erning these employees . Thus, the lessees fix their salaries;
they must look to the lessees for wage increases ; and they are
separately supervised by managers who are employees of the
lessees, not of The Erlanger Dry Goods Co. The Employer has
no direct control over these personnel matters which clearly
constitute the fundamental basis of the employer-employee
relationship . We find that the employees of the three conces-
sionaires do not possess sufficient interests in common with
the employees of the Employer to be joined for collective-bar-
gaining purposes with the latter . We shall therefore exclude
employees of leased departments from the unit.6
The confidential employees : Although the parties agreed
that clerical employees should be included in the unit , the Em-
ployer contends that two officeworkers , Iona Osborne and
Loretta Tortora , are confidential employees and should be ex-
cluded. These two employees regularly perform the duties of
cashiers , make bank deposits , and have knowledge of the total
sales in the store. They also have access to personnel files
when the office supervisor is absent or on vacation . As these
officeworkers do not deal with labor relations or take any
part in formulating labor relations policy, we find that they
are not confidential employees . We shall therefore include them
in the unit.?
The watchman : In disagreement with the Petitioner , the Em-
ployer would exclude a full-time combination watchman-jani-
tor. He spends 75 percent of his time sweeping and cleaning the
department store and the remainder is devoted to monitorial
duties, including the checking of packages carried by employees
on leaving the store . He is the only guard or protection used
by the Employer . As this employee spends a substantial por-
tion of his working time performing guard duties , we find that
he is a guard within the meaning of the Act, and we shall,
therefore, exclude him from the unit.8
Accordingly , we find that all employees at the Employer's
Alliance , Ohio, retail department store, including regular part-
time employees and office clerical employees , but excluding
6 Maas Brothers , Inc., 88 NLRB 129; J . M. High Co., 78 NLRB 876.
iBond Stores , 99 NLRB 1029; The Muller Co., Ltd, 98 NLRB 737 ; American Locomotive
Co., 92 NLRB 115.
8 Walterboro Manufacturing Corp , 106 NLRB 1383.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of leased departments , extras, watchmen, guards,
professional employees , and 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.]
KAYE NOVELTY CO., INC. and UNITED GAS, COKE & CHEM-
ICAL WORKERS OF AMERICA, CIO, Petitioner . Case No.
2-RC-5955. November 10, 1953
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 I. L. Broadwin,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent cer-
tain employees of the Employer.
3. The Employer and Local 512, Amalgamated Miscella-
neous, Production & Cleaners Union, AFL, herein called the
Intervenor, urge as a bar to this proceeding a contract exe-
cuted by them on June 1, 1953, for a 1-year term. On June 12,
1953, the Petitioner wrote to the Employer requesting recog-
nition, and on June 15, 1953, filed its petition. As the petition
was filed soon after the execution of the contract between the
Employer and the Intervenor, it was prematurely filed and is
barred, unless the contract is prevented from operating as a
bar because the union-security provisions in the contract are
invalid.
The Petitioner does not specifically challenge the validity of
the union-security provisions in the contract. However, as the
contract is urged as a bar to an immediate election, we shall
examine these provisions to determine whether they exceed
the limited form of union-security agreement permitted by
Section 8 (a) (3) of the Act.' The contract contains the follow-
ing union-security provisions:
'Reo Manufacturing Corporation, 102 NLRB 1493. We do not believe it material that the
Petitioner did not take exception to the union- security provisions of the contract, but rather
chose to attack the validity of the contract on other grounds. Where a contract, containing
clauses which patently contravene the provisions of the Act, is part of the record, we deem
it our duty not to ignore that fact and not to sanction the use of such a contract as a bar to
an election.
107 NLRB No. 14