The Bailey Department Stores Co.

National Labor Relations Board - Board Decisions

Jul 21, 1949

85 N.L.R.B. 312 (N.L.R.B. 1949)

In the Matter of THE BAILEY DEPARTMENT STORES COMPANY, EM-
PLOYER and LOCAL No. 47, BUILDING SERVICE EMPLOYEES INTER-
NATIONAL UNION (AFL), PETITIONER
Case No. 8-RC-J36.-Decided July 01, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed, a hearing was held before
Bernard Ness, hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from pre-
judicial error and are hereby affirmed. The Employer's motion to
dismiss the petition upon the ground that the unit sought is inappro-
priate, is denied for the reasons given below.
Upon the entire record in this case, the Board 1 finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent
certain employees 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) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks to represent a unit of all public passenger
elevator operators in the Employer's Downtown store, or in the alterna-
tive, a unit of custodial or service employees in the Employer's Down-
town store, including all elevator operators, porters, maids,z and clean-
ing women, but excluding utility men. The Employer asserts that
the appropriate unit would be either an employer-wide unit of all
selling and nonselling employees in its three stores in the Cleveland
area, or a store-wide unit of selling and nonselling employees limited
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Reynolds and Gray].
' The petitioner is presently recognized by the Employer as the bargaining representative
of the porters and maids in the Downtown store
85 N. L. R. B., No. 61.
312
THE BAILEY DEPARTMENT STORES COMPANY 313
to the Downtown store. The Employer further contends that both
units sought by the Petitioner are inappropriate because (1) the first
unit described above does not include all elevator operators in the
Downtown store, and (2) the second unit excludes the general utility
men who are also custodial employees.3 The Employer and the Peti-
tioner agree, however, that the carpenters and painters, who are also
custodial employees, but who are represented by other labor organiza-
tions under separate bargaining contracts with the Employer, should
be excluded.
The Employer owns and operates 3 retail department stores in
Cleveland, Ohio : the main or Downtown, store, which has 800 em-
ployees, the East Side store which has 90 employees, and the Lake-
wood store which has 135 employees. The East Side store is 4 miles
east, and the Lakewood store 6 miles west, of the Downtown store.
The main office of the Employer is in the Downtown store.
The Employer's business is highly integrated, with completely cen-
tralized management and uniform policies for all three stores. All
purchasing is done through the main office, practically all merchandise
is received, checked, and marked in the Downtown store, and the
selling price of merchandise in all three stores is determined there.
Advertising and window displays for the three stores are planned in
the main office. All employee training is under the supervision of
the training director whose office is in the Downtown store, and all
employees have the same vacation, sick leave, and discount privileges.
Basic wage rates are also the same. Although there is in general little
interchange of employees among the stores, the Employer has only
one maintenance or utility crew whose headquarters is in the Down-
town store, but who work in all three stores. Porters from the Down-
town store are also sent to the other stores when emergencies require
extra help there.
In view of the high degree of integration of the Employer's opera-
tions, we find that a unit confined to employees in only one of the
Employer's stores is inadequate in scope, and therefore inappropriate
for collective bargaining .4 It follows that both units as requested by
8 At the hearing the Employer moved to strike the second unit from the petition
upon the ground that no showing of its interest in this unit was made by the Petitioner
before issuance of notice of hearing . As the showing of interest is a matter for admin-
istrative determination by the Board , and is therefore not subject to attack , the motion
is hereby denied . Matter of 0. D. Jennings and Company , 68 N. L . R. B. 516.
'Matter of Bonwit Teller, Ine., 84 N. L. It. B. 414, and cases cited therein: In
Matter of Bailey Department Stores Company , 66 N. L . It. B. 899 ( 1946 ), the Board
found appropriate a single-store unit of all employees in the Employer ' s East Side-
store , That finding was based primarily upon the extent of organization then achieved by
the Petitioner in that case . Extent of organization is a factor which may no longer be
considered controlling under Section 9 (c) (5) of the amended Act.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Petitioner are inappropriate. As however, the Petitioner has
made a sufficient showing in interest, we shall treat the petition as one
requesting alternative employer-wide units.
The Petitioner seeks first a unit of public passenger elevator opera-
tors, excluding freight elevator operators. The Board has recently
held that a unit of all elevator operators consists only of a segment of
a broader custodial unit, and is therefore inappropriate .5 Accord-
ingly, we find that the unit of public passenger elevator operators
sought by the Petitioner is inappropriate.
In the alternative, the Petitioner proposes a service, or custodial,
unit of all elevator operators, porters, maids, and cleaning women,
excluding the utility men. The Board has previously found that^cus-
todial employees in a department store constitute a group sufficiently
homogeneous and identifiable to be established as a separate unit.'
The Petitioner contends that the interests and duties of the utility
men separate them from the other service employees, and so would
exclude them from the unit. We do not agree. The utility men do
the maintenance work usually required in a department store, such as
electrical and plumbing repair. They are part of the maintenance or
service department of the store. No other labor organization is pres-
ently seeking to represent them. For the foregoing reasons, we shall
include the utility men in the unit.
Accordingly, we find that all building service or custodial employees.
in the Employer's three stores in Cleveland, Ohio, including all eleva-
tor operators, porters, maids, cleaning women, and utility men, but ex-
cluding carpenters, painters, guards, and supervisors as defined in the
Act, constitute a unit 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 the Employer, an election 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 super-
vision of the Regional Director for the Region in which this case was
5 Matter of May Department Stores Company , d/b/a Famous -Barr Company , 82 N. L. R. B.
731. In Matter of Stern Brothers , 81 N. L . R. B. 1386 , the Board found that a unit
of all elevator operators was appropriate because the elevator operators were the only
component part of a custodial unit in the employ of the Employer , other custodial
duties being performed by employees of an independent contractor.
6 Matter of Thalhimer Brothers, Incorporated, 83 N. L. R. B. 664 ; Matter of Marshall
Field & Company , 36 N. L. R. B. 748 , 57 N. L. R. B. 1244; and cf. Matter of May Depart-
ment Stores Company, d /b/a Famous-Barr Company, 82 N. L. R . B. 731.
7 If the Petitioner does not wish to participate in the election herein directed, it may
withdraw its petition filed in this proceeding upon notice to that effect given to the Regional
Director in writing within ten ( 10) days from the date of the Direction of Election herein.
See Matter of Eisner Grocery Company, 72 N. L. R. B. 721.
THE BAILEY DEPARTMENT STORES COMPANY 315
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations , among the employees de-
scribed in paragraph numbered 4, above, who were employed during
the pay-roll period immediately preceding the date of this Direction
of Election, 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 been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, and also excluding employees on strike who are
not entitled to reinstatement , to determine whether or not they desire
to be represented , for purposes of collective bargaining , by Local No.
47, Building Service Employees International Union (AFL).