The J. L. Hudson Co.

National Labor Relations Board - Board Decisions

May 9, 1944

56 N.L.R.B. 406 (N.L.R.B. 1944)

In the Matter Of THE J. L. HUDSON COMPANY and UNITED RETAIL,
' WHOLESALE & DEPARTMENT, STORE EMPLOYEES OF AMERICA, C. I. O.
Case No. 7-R-1639.Decided May 9, 1941E
Beaumont , Smith and Harris , by Mr . Albert E. Meder, of Detroit,
Mich., for the Company. .
Messrs. Tucker P. Smith and-Frank Achterkirch , of Detroit , Mich.,
for the Union. - -
Mr. Seymour J. Spelman , of counsel to,the Board. -
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Retail, Wholesale
& Department Store Employees of America, C. I. 0., herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The J. L. Hudson Com-
pany, Detroit, Michigan, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Robert J. Wiener, Trial Examiner. Said hearing was
held at Detroit, Michigan, on March 24, 1944. The Company and the
Union appeared and participated. All parties were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Company filed a motion
to dismiss the petition on the ground that the proposed bargaining
unit` is'inappropriate. For reasons hereinafter set forth, said motion
is hereby denied. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. All parties
were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The J. L. Hudson Company, a Michigan corporation having its
principal offices and place of business in Detroit, Michigan, is engaged
56 N. L. R. B., No. 80.
406 -
THE J. L. HUDSON COMPANY ^ 407
in the purchase and resale of various types of goods and commodities
,at a retail department store in'Detroit, Michigan. During the fiscal
year ending January 31, 1942, the Company purchased goods` at a
cost of approximately $43,000,000, more than 80 percent in value of,
such goods being shipped- to Michigan from points outside the State.
During the same period, the total sales of the Company were in excess
of.$71,000,000, 1.6 percent in value being.shipped to customers outside
the State of Michigan. During the same period, the 'Company' s sales
through its Mail Order Department were in excess of $500,000, ap-
proximately 15 percent in value being made to customers outside the
State of Michigan. The Company uses several interstate commerce
cariiers to import and export goods from and- to points outside the
State of Michigan. During the same fiscal period, the Company ad-
vertised its business and merchandise' through newspapers,' periodi-
cals, radio, and direct'mail, at a cost in excess of $1,500,000. Several
of said newspapers and periodicals are published outside the State of
Michigan, and'each of said radio stations has a coverage of and car-
ries advertising to several States other than the State of Michigan.
The business operations of the\Company are approximately the same
today as for the aforesaid fiscal period.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Retail , Wholesale & Department Store Employees of Amer-
ica, affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to,the Union as the
exclusive bargaining representative,of employees in the alleged ap-
propriate unit. -
A statement of a Field Examiner of the Board, introduced into
evidence at. the hearing, indicates that the Union represents, a
substantial,, number of employees in the unit hereinafter found
appropriate? -
We find that a question affecting commerce has arisen concerning
the representation of employees of,the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
'The Field Examiner reported that the Union submitted 192 membership cards ; that
the names of 84 persons appearing on the cards were listed on the Company 's pay roll of
December 15, 1943, «hich contained the names of 150 employees in the appropriate unit;
and that, except for 11 undated , the cards were dated from March 1, 1943, through January
11, 1944'.
408, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Union contends that all passenger elevator operators and
starters at the Company's retail department store, excluding freight
elevator operators, constitute an appropriate bargaining unit. The
Company maintains that only a store-wide unit is appropriate. With-
out waiving this position, the Company further contends that all
starters are supervisory employees and should not be included in any
bargaining unit.
In a recent representation case involving the parties herein, the
Board considered and rejected the Company's contention that ,only
a store-wide unit is appropriate.2 In that case the Board stated:
"It appears from the(se) facts that the Union desires eventually to
organize and represent the Company's employees on a store-wide basis,
-but that currently, as in this case, it is seeking certification as the
representative of sundry 'smaller groups of employees because of the
limited scope of its effective organizational efforts. Since no other
labor organization is attempting to bargain for the employees in a
broader unit, we, conclude that the Uni'on's failure to propose the
optimum store-wide unit is not, in and of itself, fatal to its present
petition. In order to inake collective bargaining a present possibility
for employees who have evinced a desire for representation, we have
frequently found appropriate -units more restricted in scope than
those which would -be -deemed, appropriate at a more advanced 'stage
of organization." There has been no material change in circumstance
since our decision in the aforesaid•case, and we therefore -find no merit
in the Company's contention.;
The Company employs between 95 and 100 passenger elevator op-
erators and approximately 19. passenger elevator starters. A training
period of from 5 to 7 days is required to acquaint new operators with
'their duties. 'The testimony is clear that employees other than pas-
senger elevator 'operators are forbidden to operate the elevators and,
do not do so. On rare occasions passenger elevator operators are
loaned to other departments -for brief tours of duty at other work.'
With these rare exceptions involving few of the operators, the duties
-of these employees are confined to 'the operation of the elevators.
While their hours, working conditions, and employee benefits are :the
same •as -those of the majority of other employees, there` is undenied
testimony -that these employees do not come into contact with other
employees of the Company either in (their work or outside of working ,
hours. It is evident, and we find, that the passenger elevator opera-
2 Matter of The J. L. Hudson Company, 54 N. L. R. B. 695.
See'also Matter of The J. L. Hudson Company, 46 N. L R; B.'225; Mattel of The J L.
Hudson Company, 49 N. L. R B. 275.
THE J. L. HUDSON COMPANY 409
this constitute a sufficiently homogeneous and functionally distinct
group to constitute a separate unit for the purposes' of collective bar-
gaining. The duties of the passenger elevator operators are distinct
from those of freight elevator operators. There is no interchange of
employees between these two groups, and the Company did not oppose
• the Union's position that freight elevator operators should be excluded,
from the unit. In light of these facts, we shall exclude them from
the unit.
The Company is opposed to the inclusion of starters in the unit on
the ground that they are supervisory employees. The Company em-
ploys approximately 19 passenger elevator -starters, including both
iegular and relief starters. Neither the Company nor the Union makes
'any distinction between the so-called regular aiid relief starters, and.
there does not appear to be any difference between their regular duties,
except for the fact that the regular starters have fixed stations. All
starters, as well as operators, are under the supervision of a. Mr. Hall,
who is. assisted by a Mrs. Morris. These two supervisors are in turn
under the general supervision of the assistant general superintendent of
the store. Starters are paid $5 a week more than operators, but in all
other respects their working conditions are alike. Two starters are
assigned to a fixed station in each of the 8 "banks" of passenger "ele-
vators. Their normal station is Qn the main floor of the store and it is
their principal duty. to direct elevator traffic and to stagger the de-
partures of elevators according to a predetermined schedule. In ad-'
dition, they have the specific function of counseling the operators with •
respect to schedules, appearance, and contacts with the public, and the
duty of reporting to the departmental supervisors any incidents in
which operators deviate from the prescribed routine. Three starters
testified categorically that they did not accompany their reports to-
the aforesaid supervisors with disciplinary recommendations and that
they had no duty to do so. They further stated that neither Mr. Hall
nor Mrs. Morris lad ever asked them to make a recommendation nor
consulted them before promoting or disciplining an operator. The
Company's assistant general superintendent, William Murphy, tes
tified, in general terms, that starters do have a right to recommend the
discharge ^ and disciplining of operators. These recommendations,
Murphy stated, are made to Hall and Morris', the departmental super-
visors, who have no power to act, but who in turn make disciplinary
recommendations to the central employment office. He conceded that
the recommendations of starters "would not be,final" in that neither
Hall nor Morris would make a recommendation to the employment
office solely on-the basis of the starter's report and without a personal
investigation of the facts. He conceded further that he did not know'
i
410 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
of any instance in which any operator was discharged on an initial'
recommendation to that effect by a starter. , From time to time, an
operator will be transferred from one "bank" of elevators to another
on the advice of a starter, but this does not constitute disciplinary
action. We are satisfied, by all the evidence, that the starters do not
make effective recommendations regarding changes in the status of
operators, and are not therefore, supervisory employees within the
meaning of our definition., Since they work in close association with
the operators, under the same supervision and working conditions, we
shall include them in the unit.
Accordingly, we find that all passenger elevator operators and start-
ers at the Company's retail department store on Woodward Avenue,.
Detroit, Michigan, excluding freight elevator operators, and all su-
pervisory employees with authority to hire, promote; discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) -
of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em- -
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of, EleC-
•tion herein, subject to the limitations and additions set forth in the',
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9'(c) of, the National Labor Relations
Act, and pursuant to Article III, Section 9, of, National Labor Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ' ascertain repre-
sentatives for the purposes of collective bargaining with The J. L:
Hudson Company, Detroit, Michigan, 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 super-
vision of the Regional Director for the Seventh Region, acting in
this matter as agent for the ,National Labor Relations Board, and
subject to-Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV,' above, who were employed during the pay-roll period immedi-
ately preceding the date of this Direction, including employees who
THE J. L. HUDSON,COMPANY 411
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 hot been rehired or, reinstated
prior to the date of. the election, to determine whether or not they de-
sire to'be represented by United Retail, Wholesale & Department Store
Employees of America, C. I. 0., for the purposes of collective
bargaining.
I
J