Taylor's Oak Ridge Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1947

74 N.L.R.B. 930 (N.L.R.B. 1947)

In the Matter of TAILOR'S OAK RIDGE CORPORATION, EMPLOYER and-
RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. L., PETITIONER
Case No. 1O-R-P.451.-Decided July 31, 1947
Katz ce Wolcholc, by Mr. Sidney S. Wolchok, of New York City,
Mr. H. A. Levison, of Atlanta, Ga., and 111r. Emanuel Gottfried, of Oak
Ridge, Tenn., for the Employer.
Mr. Kenneth Scott, of Oak Ridge, Tenn., and 1llr. William E.
Harvey, of Memphis, Tenn., for the Petitioner.
Mr. Morton B. Spero, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Oak
Ridge, Tennessee, on May 23, 1947, before Albert P. Wheatley, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Taylor's Oak Ridge Corporation, a subsidiary of Darling Depart-
ment Stores Corporation of New York, operates a retail department
store at Oak Ridge, Tennessee. The Oak Ridge area is under the ex-
clusive jurisdiction of the United States Government, and the Em-
ployer leases its property from a corporate agent of the Government,
which administers the entire area. Over 50 percent of the nierchan-
dise received at the Oak Ridge store is shipped to it from sources
outside the State of Tennessee. From September 5, 1946,1 to December
315 1946, the Employer sold from this store over $610,000 worth of mer-
chandise, all of which was sold within the Oak Ridge area.
' The Employei commenced Operations at Aak Ridge on this date.
74 N. L. R. B., No. 147.
930
TAYLOR'S OAK RIDGE CORPORATION 931
We find, contrary to the contention of the Employer , that it is en-
gaged in commerce within the meaning of the National Labor Relations
Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of,the Employer until the
Petitioner has been'certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. TIIE APPROPRIATE UNIT
The Petitioner requests a unit composed of all sales employees, floor
cashiers, maids, janitors, and shipping department employees, at the
Employer's Oak Ridge, Tennessee, store, known as "Taylor's Depart-
ment Store," excluding part-time and casual employees, office and
clerical employees, auditors, pay-roll personnel, floor walkers, and
supervisory employees. The Employer contends that the requested
unit is inappropriate. It also objects to the unit on the ground that
it would encompass individuals who work in departments which are
leased by the Employer to outside concerns, and who are allegedly not
employees of the Employer within the meaning of the Act.2
The status of the workers in the leased departments
The record reveals that the Employer operates directly the ladies'
ready-to-wear and accessories department, but leases to concessionaires
the following departments: candy; beauty shop; photography; men's
wear; shoe ; drug; yarns ; jewelry ; "town and country"; and "mis-
cellaneous." Individual contracts executed with each concessionaire
give the Employer the right, inter alia, to hire and discharge the em-
ployees in these concessions and to fix their wages, to determine the
number of employees assigned to each concession, to control the form
and the release of the concession's advertisements, to conduct advertise-
ing campaigns in the main store's name and prorate the expense to
2 Although the Employer would not state what it deemed to be the appropriate unit, it
did agree that part -time and casual employees should be excluded from , and that shipping
department employees should be included in, any unit found appropriate herein.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each concession, to control the quality and type of merchandise carried'
by each concession, and to prevent any unfair competition between
concessionaires.
The Employer contends, however, that, in practice, the terms of
the contract are not enforced, and that the Employer exercises no
control over the individuals working in these concessions. Therefore,-
it maintains that these workers are, in fact, employed by the conces-
sionaires, and that, inasmuch as it has no effective control over their-
status, it is not in a position to bargain collectively for them. We
find no merit in this contention. That the Employer's power of con-
trol may not in fact have been exercised is immaterial, since the right-
to control, rather than the actual exercise of that right, is the touch--
stone of the employer-employee relationship.3
Furthermore, the record reveals that all workers in the store use
the same time clock, have identical vacation and sick leave benefits,.
and adhere to the general company rules promulgated by the Em-
ployer. It also appears that as recently as 1 week before the hearing,.
the Employer's store manager, at the request of a concession manager,
sent a salesgirl from its own department to replace a girl in the
candy department who was about to go on vacation.4 Moreover, the
Employer not only handles the social security reports of all the
individuals in the store, but the contracts executed between it and the
individual concessionaires contain the following clause :
All employees employed in [the concession] other than man-
agers and assistant managers, buyers and assistant buyers, shall
be the employees of [the Employer].
Accordingly, we find that the employees who work in the various
concessions are employees of the Employer within the meaning of-
the Act.,
The composition of the unit
As indicated above, the Employer questions the basic appropriate-
ness of the unit sought by the Petitioner in very general terms. In
the main, the Petitioner appears to request a unit of both selling and
non-selling employees, a grouping which we have frequently recog-
nized as proper for department stores., We note, however, that the
3 Matter of Bethlehem -Fairfield Shipyard , Incorporated, 53 N. L R. B 1428
4 The salesgirl who was interchanged testified that the shift did not interfere with her
working iules, and that she considered herself at all times to be an employee of the
Employer.
5 Matter of Hale Brothers Stores, Inc, 62 N. L R B 367 ; Matter of Louis Pi itz Drip
Goods Company, 71 N L. R B 579
6 Matter of Richman Brothers Co , 59 N. L R. B. 339 , Matter of Ser2,ice Stores Corpora-
tion, 62 N. L . R B. 1161 ; Matter of Sears, Roebuck, and Co., 66 N . L. R. B 285; and
Matter of Montgomery Ward d Co , Incorporated , 70 N L R B 1302.
TAYLOR'S OAK RIDGE CORPORATION 933
requested unit is somewhat lacking in uniformity. Thus, for ex-
ample, it would include selling employees and some, but not all, the
non-selling employees. In the latter connection, the Petitioner desires
to include such clerical employees as floor cashiers, while excluding
other office and clerical employees; it would embrace maids and jani-
tors, while excluding other maintenance personnel. We perceive no
basis for this distinction. We shall therefore not direct an election
in the Petitioner's unit, but shall instead direct an election in a con-
ventional unit for such an operation, excluding therefrom all confi-
dential, professional, and supervisory employees.' We shall also
exclude from the unit, in accordance with the agreement of the parties,
all part-time and casual employees.
We find, therefore, that all employees in the Employer's Oak Ridge,
Tennessee, store, known as "Taylor's Department Store," excluding
all part-time and casual employees, and all confidential, professional,
and supervisory employees, constitute a unit appropriate for, the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Taylor's Oak Ridge Corporation,
Oak Ridge, Tennessee, 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 supervision of the Regional
Director for the Tenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding 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, to determine whether or not they desire to be represented
by Retail Clerks International Association, A. F. L., for the purposes
of collective bargaining.
° The record does not disclose whether there are, among the auditors, pay-roll personnel,
and floor walkers, any confidential, professional, or supervisory employees