Stern Brothers

National Labor Relations Board - Board Decisions

Mar 11, 1949

81 N.L.R.B. 1386 (N.L.R.B. 1949)

In the Matter of STERN BROTHERS, EMPLOYER and DEPARTMENT STORE
EMPLOYEES' UNION, LOCAL 5 (INDEPENDENT), PETITIONER
In the Matter of STERN BROTHERS, EMPLOYER and LOCAL 5, RETAIL,
WHOLESALE & DEPARTMENT STORE UNION, CIO, PETITIONER
In the Matter of STERN BROTHERS, EMPLOYER and LOCAL 804, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, PETITIONER
In the Matter of STERN BROTHERS, EMPLOYER and LOCAL 32-B, BUILD-
ING SERVICE EMPLOYEES' UNION, AFL, PETITIONER
Cases Nos. 2-RC-824, .-RC-852, .-RC-909, and 2-RC-1017, respec-
tively.-Decided March 11, 1949
DECISION
DIRECTIONS OF ELECTIONS
AND
ORDER
Upon petitions duly filed, a consolidated hearing in this case was
held before a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Upon the entire record in the case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioners and Retail Clerks International Association, A.
F. L., the Intervenor, are labor organizations which claim to repre-
sent employees of the Employer.
3. Questions affecting commerce exist 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, Local 5, Retail, Wholesale & Department Store
Union, CIO, herein called the C. I. 0., and the Department Store
Employees Union, Local 5 (Independent), herein called the Independ-
ent, contend that the appropriate unit is the present unit, which, in
81 N. L . R. B., No. 228.
1386
STERN BROTHERS 1387
general, consists of all selling and non-selling employees of the Em-
ployer, with certain exceptions, at its department store in New York
City and the warehouse operated in connection therewith including all
warehouse employees and the passenger elevator operators.
Local 804, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, herein called the Team-
sters, seeks a unit of all the employees at the warehouse including the
messenger who operates between the warehouse and the store, and the
two furniture finishers who work at the store.
Local 32-B, Building Service Employers' Union, AFL, herein called
Local 32-B, seeks a unit of all passenger elevator operators and start-
ers at the Employer's store.
Retail Clerks International Association, AFL, herein called the
Retail Clerks, agrees with the unit contentions of the Employer, C. I.
0., and Independent, except that it recognizes the claims of the Team-
sters and Local 32-B.
Warehouse employees: As indicated above, the Teamsters seeks a
unit of all employees at the warehouse including the messenger who
operates between the warehouse and the store and the two furniture
finishers who work at the store.
Since July 22, 1942, collective bargaining for warehouse employees
has been on an over-all basis of selling and non-selling employees.
Following a certification by the New York State Labor Board, the Em-
ployer entered into a contract with the C. I. 0. on December 10, 1940,
for a unit of non-selling employees in both the store and the warehouse.
Subsequently, the same union was certified by the State Labor Board
for a unit of selling employees, and on July 22, 1942, a contract was
executed for a unit including both selling and non-selling employees.
't'his contract was extended, with some changes, in 1944, and on Febru-
ary 1, 1946, and August 21, 1947, to February 1, 1949, when it expired.
All items of merchandise stored at the warehouse are also stocked
at the store. Whether delivery to customers is made from the ware-
house or from the store, substantially the same procedure is followed
and the same functions performed. Most of the employees at the ware-
house have counterparts at the store. Thus, at the warehouse there
are 1 receiving clerk, 12 stockmen, 10 furniture finishers, 1 office cleri-
cal, 1 returned goods clerk, and 1 inspection clerk; at the store there
are 2 receiving clerks, 90 stockmen, 2 furniture finishers, 30 office
clericals (performing essentially the same functions as the warehouse
clerical), 10 returned goods clerks, and from 70 to 80 inspection clerks.
The warehouse manager is on the same supervisory level as the super-
visors at the store who are in charge of the inspection function, the
receiving room, and the stock employees. The four supervisors report
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the same official, the operating superintendent, who in turn reports
to the store manager.
Employees at the warehouse are hired and fired by the store's director
of personnel who formulates and administers personnel policy for the
Employer. The warehouse workers have the same workweek, holi-
days, vacation, insurance, and other benefits as the store employees.
Time records for all employees at the warehouse are maintained at the
store where the salary envelopes for the warehouse workers are made
up and sent to the warehouse for distribution. There is transfer of
employees between the warehouse and the store and occasionally tempo-
rary interchange.
In view of the integration of the functions of the warehouse and the
store, the fact that some of the employees at the store perform the same
duties as the warehouse employees, and the course of dealing for several
years on an over-all basis, we are of the opinion that a group composed
of warehouse employees does not constitute an appropriate unit.' Ac-
cordingly, we shall include the warehouse employees in a more compre-
hensive voting group, and shall dismiss the Teamsters' petition in Case
No. 2-RC-909.
Elevator operators: As indicated above, Local 32-B seeks a unit of
all passenger elevator operators and starters at the Employer's store.
Local 32-B was certified by the New York State Labor Board on
March 21, 1939, as collective bargaining representative for a unit of
employees "employed in the operation, maintenance, and service de-
partments and known as elevator starters, elevator operators, porters,
footmen, watchmen." However, the contracts between the Employer
and Local 32-B did not fix wage rates for passenger elevator operators,
as they did for freight elevator operators and the other employees
covered by the contracts. In 1944 the Employer's freight elevator
operators, porters, and watchmen became employees of an independent
contractor, who undertook to supply the Employer with the services
performed by these employees and who thereafter contracted with
Local 32-B as their bargaining representative. By a supplemental
agreement dated May 24,1946, between the C. I. 0. and the Employer,
the store-wide contract was extended to cover the passenger elevator
operators. By that contract, however, the C. I. 0. agreed that, if
any other labor organization claimed jurisdiction over the passenger
elevator operators, the controversy should be submitted to the New
York State Labor Board for determination.
1 See Matter of Bloomingdale Brothers, Inc., 81 N. L. R. B. 1252 and Matter of Namm's,
Inc, 81 N. L R. B. 1019. See also Matter of Louis Pizitz Dry Cood8 Company, 80
N. L. R. B. 1442; Matter of Schenley Distillers Corp., 80 N. L. R. B. 124; and Matter
of Montgomery Ward & Co., Incorporated, 77 N L R. B. 1363
STERN BROTHERS 1389
The elevator starter, who receives 25 percent more pay than the
average passenger elevator operator, is in charge of the operators and
directs them in their work. She has been considered by the Employer
as a department head and reports directly to the service superintendent
of the store. She arranges work schedules, days off, and relief and
may effectively recommend the hiring and firing of the operators. We
find that she is a supervisor as defined in the amended Act 2
There are approximately 14 passenger elevator operators, all of
whom are located at the store. They are hired without previous eleva-
tor experience. Four were transferred to these positions from other
jobs in the store, but there is no evidence of temporary transfer or inter-
change between the operators and any other classification. These
employees, in our opinion, are a homogeneous and distinct group, such
as the Board has frequently found appropriate for collective bar-
gaining purposes.3 The passenger elevator operators in this store
remained unrepresented for about 6 years, while Local 32-B bargained
for the freight elevator operators and other building service employees,
on the one hand, and the C. I. O. negotiated for the non-selling em-
ployees in the store-wide unit, on the other. The passenger elevator
operators apparently have interests in common with both of these other
groups,' and they might appropriately have been added to either of the
long-standing units if it were not for the fact that the building service
group is now on the pay roll of another employer not involved in
this case. The addition of these passenger elevator operators to the
C. I. O.'s contract unit in 1946 was dependent upon the failure of any
other labor organization to claim jurisdiction over them. In the cir-
cumstances, we shall permit them to indicate, by separate ballot,
whether or not they desire to be a part of that store-wide unit. If
they select Local 32-B in the election hereinafter directed, they will be
deemed to have indicated a desire to constitute a separate unit.
Pharmacists: The Employer has one licensed pharmacist and is in
the process of hiring another. The pharmacists, who receive more pay
than the other sales personnel in the drug department, do not com-
pound prescriptions but sell prepared drugs only. According to
testimony at the hearing they perform the same work as the drug de-
partment sales clerks and are hired only to comply with the State
2 Cf Matter of The May Department Stores Company , 72 N. L R. B. 1252; Matter of
'J. L. Hudson Company, 56 N L R. B 406
a See Matter of The May Department Stores Company , supra; Matter of J. L. Hudson
Company, supra; and Matter of Meier & Frank Company, Inc, 55 N L. R B. 101.
* Although the record contains testimony that in a number of the department stores in
New York City the elevator operators are included in a store -wide unit, there is, on the
other hand , testimony that in many other department and large specialty stores freight
and passenger elevator operators , together with certain maintenance employees , are bar-
gained for separately . In one department store, the evidence indicates , elevator operators
are in a separate bargaining unit which contains no other classifications.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legal requirement that a pharmacist be on the premises in establish-
ments selling drugs. They have been included in the existing unit.
Despite evidence that the pharmacists do not perform professional
duties, we are persuaded by the decision of State authority that their
professional knowledge is essential to the operation of the drug de-
partment and find that they are professional employees within the
meaning of Section 2 (12) of the Act .5 Accordingly, we shall permit
them to vote separately. If they select a union, they will be taken
to have indicated their desire to be included in the existing unit of non-
professional employees.
Inasmuch as we shall conduct separate elections for the elevator
operators and the pharmacists, we shall make no finding with respect
to the appropriate unit pending the outcome of the elections.
We shall direct that the questions concerning representation which
have arisen be resolved by separate elections by secret ballot among
employees in the separate voting groups described below :
1. All regular employees, as defined in "Appendix A," sin the selling
and non-selling deaprtments of the Employer at its New York City
store and in its warehouse operated in connection therewith, excluding
watchmen, the employees in voting groups 2 and 3 below, the exclusions
set forth in Appendix A, and all supervisors.
2. All passenger elevator operators, excluding starters and
supervisors.
3. All pharmacists, excluding supervisors.
Inasmuch as the Teamsters sought to represent only the warehouse
employees plus three employees in the store, it will not be desig-
nated on the ballots to be used by any of the voting groups. As Local
32-B sought to represent the elevator operators only, it will not be
designated on the ballots to be used by voting groups 1 and 3 above.
However, if one or both organizations notify the Regional Director
promptly of a desire to appear on the ballots, the request will be
granted.
DIRECTION OF ELECTIONS
As part of the investigation as ascertain representatives for the
purposes of collective bargaining with the Employer, separate elec-
tions by secret ballot shall be conducted as early as possible, but not
later than 30 days from the date of this Direction , under the direction
and supervision of the Regional Director for the Second Region, and
5 See Matter of Sam's, Inc, Randolph Drug Company and Sam's Drug Department, Inc.,
78 N. L R B 826
6 Appendix A sets forth the unit described in the contract which expired February 1,
1949 The parties agreed to the inclusions and exclusions contained therein except as
otherwise noted in this decision.
STERN BROTHERS 1391
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the voting groups described in Section 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Elections, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or Teen 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 (1) for
the employees in group 1 described in Section 4, above, whether they
desire to be represented by Department Store Employees' Union, Local
5 (Independent), or by Local 5, Retail, Wholesale & Department
Store Union, CIO, or by Retail Clerks International Association,
AFL, for the purposes of collective bargaining, or by none; (2) for
the employees in group 2 described in Section 4, above, whether they
desire to be represented by Department Store Employees' Union, Local
5 (Independent), or by Local 5, Retail, Wholesale & Department Store
Union, CIO, or by Local 32-B, Building Service Employees' Union,
AFL, for the purposes of collective bargaining, or by none; (3) for
the employees in group 3 described in Section 4, above, whether they
desire to be represented by one of the labor organizations named in
(1) immediately above in this Direction, for the purposes of collective
bargaining, or by none.
ORDER
IT IS HEREBY ORDERED that the petition filed in Case No. 2-RC-909
by Local 804, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, be, and it hereby is,
dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision, Direction of Elections, and Order.
APPENDIX A
Included : All regular employees 1 in selling and non-selling depart-
ments in the employ of Stern Brothers in its department store located
at 41 West 42nd Street, New York, New York, and in its warehouse
or warehouses operated in connection therewith.
1 The term "regular employee" means a person employed for an indeterminate period of
time intended to be permanent rather than for a specified limited period of time, whether
for full -time or a part-time basis who has completed a probationary period not to exceed
sixty ( 60) days continuous service.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Excluded : (1) Employees already under contract with other labor
organizations, namely, porters, freight elevator operators, electricians,
boiler operators, oilers, carpenters, plumbers, and certain mechanics;
(2) Employees employed as demonstrators whose salaries are paid
either in whole or in part by persons or corporations other than the
Employer ;
(3) Employees who are employed as contingent, casual or per diem
employees, or "on call" basis for some special purpose, seasonal em-
ployees or employees employed for a limited period of time; and em-
ployees (exclusive of Food Department employees) having a normal
workweek of less than eighteen (18) hours ;
(4) Executives, supervisory and confidential employees; superin-
tendents, department managers; buyers; assistant buyers; section
managers; supervisors and assistant supervisors with executive status;
protection department employees; main telephone operators; employ-
ment or personnel department employees; training department em-
ployees; employees in a promotional training group; salary office em-
ployees; welfare department employees; time recording employees;
general ledger employees; and secretaries to executives and to buyers.
2 The hiring of employees under this provision is limited to the departments and periods
set forth as follows : drapery and upholstery workroom, 4 months ; corset workroom,
3 months, fur storeroom , 3 months, men's and women ' s alterations , 3 months ; mono-
giamming workroom 3 months ; basement workroom , 3 months ; jewelry repair room, 3
months ; jewelry engraving room, 3 months ; repair desk , 3 months ; accounts receivable,
adjustments departments , and sales auditing department may employ seasonal employees
for not more than 3 months during the period from November 1st through March 31st only.