The Fair Department Store

National Labor Relations Board - Board Decisions

Mar 9, 1954

107 N.L.R.B. 1501 (N.L.R.B. 1954)

THE FAIR DEPARTMENT STORE 1501
effectively disavowed responsibility for Supervisor Ferreri's
participation' in the preelection campaign. The Employer con-
tends, however, that notwithstanding such disavowal, the election
should be set aside because of Ferreri's conduct. However, we
find that by its disavowal the Employer neutralized any influ-
ence that Ferreri may have exerted on the employees, and that
the employees' freedom of choice was therefore not impaired
by Ferreri's conduct.' Accordingly, we find no basis in the
Employer's first objection for setting aside the election.
In agreement with the Regional Director, we likewise find no
merit in objections (2) and (3).4
Under all these circumstances, we find that the Employer's
exceptions to the Regional Director's Report do not raise sub-
stantial or material issues respecting the conduct of the elec-
tion. We will therefore overrule the objections.
As it appears from the tally of ballots that the Petitioner has
secured a majority of the valid votes cast in the election, we
shall certify the Petitioner as the certified bargaining repre-
sentative of the employees in the appropriate'unit.
[The Board certified Lodge 1898 of District 38, International
Association of Machinists, AFL, and Local 841, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, as the designated collective-bar-
gaining representatives of the employees of the Employer in the
unit found appropriate.]
Chairman Farmer and Member Beeson took no part in the
consideration of the above Supplemental Decision and Certi-
fication of Representatives.
3See Beatrice Foods Company, 84 NLRB 493; Houston Shipbuilding Corporation, 56 NLRB
1684.
4The second objection relates to alleged threats by one not shown to be an agent of the
Petitioner. The third objection was supported in the Employer's exceptions by an affidavit
relating to alleged solicitation by Ferreri. However, as already stated in connection with the
first objection, such conduct, having been disavowed by the Employer, does not warrant setting
aside the election.
THE FAIR DEPARTMENT STORE, Petitioner and RETAIL,
WHOLESALE AND DEPARTMENT STORE UNION, CIO.
Case No. 35-RM-61. March 9, 1954
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
Hendrickson, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.
107 NLRB No. 309.
337593 0 - 55 - 96
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.'
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists 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 Union seeks to represent a unit of selling and non-
selling employees , including " regular extra" employees, at the
Employer' s retail department store. The Employer agrees that
this is an appropriate unit. The parties disagree , however, as
to the unit placement of certain categories.
Department heads : The Union contends that eight individuals
classified as department heads should be excluded as super-
visors , while the Employer would include them.'
The head of the alteration department has authority effectively
to recommend the hiring and discharge of employees . We find
that she is a supervisor within the meaning of the Act and shall
exclude her.
The other 7 department heads ' are in charge of 1 to 7 selling
employees , but their direction is of a routine nature. They do
not have authority to hire, discharge , promote , or transfer
employees , nor authority effectively to recommend such action.
While most of their time is spent on the sales floor, they also
are buyers for their respective departments , and occa-
sionally go on buying trips out of town. While we find that these
employees are not supervisors , we shall exclude them, in
accordance with the Board ' s usual policy , because of their
buying function.4
Advertising and display department head: The Union would
exclude as a professional employee the individual classified
as head of the advertising and display department , while the
Employer would include him . He is the only person in that
department and has no authority over any employee . His duties
are to trim windows, lay out newspaper advertisements, and
make showcards . He was hired on the basis of his skill gained
from previous experience and has had no formal training or
schooling in his work. We find that he is not a professional
1 The Union contends that the Employer is not engaged in commerce within the meaning of
the Act, while the Employer concedes that the Board has jurisdiction over this case The
Employer is engaged in the operation of a retail department store in Anderson, Indiana.
During the past year , the Employer received supplies valued at approximately $590,000
directly from out of State . We find that the Employer is engaged in commerce and that it
would effectuate the policies of the Act to assert jurisdiction over this case. Federal Dairy,
Inc., 91 NLRB 638.
Chairman Farmer and Member Rodgers concur in this finding but do not thereby adopt the
Board 's past jurisdictional plan as a permanent policy.
2 The parties stipulated that 3 other heads ofdepartments--shipping and receiving , drapery,
and men's department- -should be excluded as supervisors.
SAccessories ; children's; piece goods , linens and notions ; corsets ; lingeries ; hosiery,
gloves , and cosmetics ; and ladies ' ready-to-wear.
4Denton's , Inc., 83 NLRB 35.
THE FAIR DEPARTMENT STORE 1503
employee and that he has a sufficient community of interests
with the other employees to warrant his inclusion in the unit. S
Leased departments : The Union would exclude the em-
ployees employed in the leased departments , while the Em-
ployer takes no position . Two of the selling departments--shoe
and millinery --are leased to concessionaire companies . Rental
charged for space is based on apercentogeof total sales of the
leased departments . The manager of each leased department
does his own hiring, subject only to approval by the Employer.
The managers also do their own discharging , although the
Employer may request the discharge of employees in the
leased departments , and some employees have in fact been
discharged pursuant to such a request . The employees must
conform to general company rules of the Employer, but do not
participate in company benefits . Normally, there is no inter-
change between the employees of leased departments and the
employees in the rest of the store.
These employees are paid by the Employer , who, in turn, is
reimbursed by the lessees . The lessees set the wages, keep
their own payroll records , pay unemployment compensation,
and deduct withholding taxes of the employees in the leased
departments.
Under these circumstances , we find that the employees in
the leased departments do not have sufficient community of
interests with the other employees sought to warrant their
inclusion in the unit , and we shall therefore exclude them.6
Office clerical employees : The Union would -exclude the
office clerical employees , while the Employer takes no
position . The record shows that these employees have sub-
stantially the same working conditions as other store em-
ployees. The Board has held that the interests of office em-
ployees are closely allied with those of other department
store employees , and that where no other union seeks to
represent them separately , office employees shouldbe included
in a storewide unit. 7 We shall therefore include them in the
unit.
We find that the following employees constitute a unit
appropriate for collective bargaining within the meaning of
Section 9 ( b) of the Act: All selling and nonselling employees
of the Employer, including " regular extra" employees, 8 the
office clerical employees , and the head of the advertising and
display department , but excluding all other department heads,
the leased department employees , professional employees,
guards, and supervisors as defined in the Act.
5 C. C. Anderson Stores Company, 100 NLRB 986.
6Stark 's Boston Store , 107 NLRB 23.
7C. C. Anderson Stores Company , supra.
sin accord with our usual practice , we shall include in the unit the "rush season extra"
employees , but find that they do not have sufficient interest in the terms and conditions of
employment to be eligible to vote in the election directed herein. H. P. Wasson and Company.
105 NLRB 373.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Text of Direction of Election omitted from publication.]
Member Beeson took no part in the consideration of the
above Decision and Direction of Election.
E. I. DUPONT DE NEMOURS AND COMPANY (DANA PLANT)
and LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN
OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL, Petitioner' and OIL
WORKERS INTERNATIONAL UNION, CIO 2
E. I. DUPONT DE NEMOURS AND COMPANY (DANA PLANT)
and OIL WORKERS INTERNATIONAL UNION, CIO, Petitioner
and AMERICAN FEDERATION OF LABOR.' Cases Nos. 35-
RC-959 and 35-RC-971. March 9, 1954
DECISION, ORDER$ AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, in Case No. 35-RC-959, a
hearing was begun before Harry Berns , hearing officer. During
a recess in that hearing, a petition was duly filed in Case No.
35-RC-971. The cases were thereupon consolidated by order of
the Regional Director for the Ninth Region. A hearing on the
consolidated cases was held before Harry Berns, hearing
officer. The hearing officer's rulings made at the hearings are
free from prejudicial error and are hereby affirmed.4 The
Pipefitters moved that the order of consolidation be rescinded.
The hearing officer referred this motion to the Board. As the
contentions of each Petitioner are separately consideredbythe
Board, we find that the interests of the Pipefitters can in no
way be prejudiced by the consolidation. Accordingly we deny
the motions
Upon the entire record in these cases, the Board finds:
1. The Employer has various plants located throughout the
United States, including two plants constructed and operated
for the Atomic Energy Commission upon a cost -plus basis:
the Savannah River project, a fissionable materials production
plant, over which the Board has recently asserted jurisdic-
tion,, and the Dana Plant, involved herein. The Dana Plant
1 Herein called the Pipefitters.
' Herein called the Oil Workers.
'Herein called the AFL.
4The Employer objected to the intervention of the Oil Workers in Case No. 34-RC-959, on
the ground that the union is not an appropriate union for craft representation and to the in-
tervention on behalf of the AFL by a representative of the Wabash River Production Council,
on the ground that the AFL was not a proper designation of the party in interest. The hearing
officer properly overruled both objections.
5 E. I. DuPont De Nemours and Company, Inc., 107 NLRB 734; Standard Coil Company,
98 NLRB 1296.
6E. I. DuPont De Nemours and Company, Inc., ibid.
107 NLRB No. 308.