The Root Dry Goods Co., Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1960

126 N.L.R.B. 953 (N.L.R.B. 1960)

THE ROOT DRY GOODS CO., INC. 953
engaged in good-faith bargaining during the times above mentioned , and failed to
reach agreement ; that the Union lost an economic strike, and the Company did not
contravene any of the provisions of the Act in maintaining its position during and
after the inception of dispute.
Motions of the Respondent To Dismiss the Complaint
At the hearing , at the conclusion of the case-in -chief of the General Counsel, and
again at the conclusion of the Respondent 's case, counsel for the Respondent moved
to dismiss the complaint herein . Motion to dismiss is hereby granted.
CONCLUSIONS OF LAW
1. The Respondent , Lewin-Mathes Company, Division of Cerro de Pasco Cor-
poration , is, and at all times material hereto has been, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Independent Electrical Workers of America is, and during the times
material hereto has been , a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent above named has not been and is not now in violation of the
National Labor Relations Act, as amended , as alleged in the complaint.
[Recommendations omitted from publication.]
The Root Dry Goods Co ., Inc.' and Ruth Walker 3 and Associa-
tion of Root Store Employees, Petitioners. Cases Nos. 35-RD-
102 and 35-RC-1742. March 4, 1960
DECISION' AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relation's Act, a consolidated hearing 4 was held before George M.
Dick , hearing officer . The hearing officer 's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
1 The name of the Employer appears as amended at the hearing.
2 Retail Store Employees Union Local Number 550 , Retail Clerks International Associa-
tion, AFL-CIO, intervened in the instant cases on the basis of a 3-year contract covering
selling employees only. The contract, which expired prior to the filing of both petitions,
Is not urged as a bar to an election . Alleging that Ruth Walker, an employee of the
Employer who Is the Individual Petitioner in Case No. 35-RD-102, was absent from the
hearing on the instant petitions, the Intervenor moved to dismiss her petition. We deny
the motion . Walker was represented by counsel at the hearing . The Intervenor was free
to subpena her There is no requirement in the Act or the Board's Rules that she attend
such a hearing . Economy Furniture, 122 NLRB 1113, footnote 2
3 The Intervenor requests the Board to postpone processing of the instant petitions
pending determination of an appeal , which the Intervenor has taken from a refusal of the
Regional Director to Issue an unfair labor practice complaint against the Employer, and
which was pending at the time of the hearing. It is a long-established practice of the
Board not to hold representation proceedings in abeyance after unfair labor practice
charges have been found to be without merit by the Regional Director , notwithstanding
the fact that the Regional Director' s action is still under Investigation by the General
Counsel . Cuneo Press of Indiana , 114 NLRB 764. In any event , we have been ad-
ministratively advised that the appeal has been denied by the General-Counsel
'The Intervenor objected to consolidation of the RC and RD petitions and moved to
dismiss the petitions because they are signed by the same person and are "Inconsistent "
We find no merit in these contentions . Consolidation is a matter for administrative
determination . No party has shown that it has been prejudiced by consolidation of the
instant petitions . The fact that Walker filed the RD petition in her individual capacity
and signed the RC petition as an officer of the RC Petitioner does not, standing alone,
justify a finding of inconsistency in the petitions . Great Atlantic and Pacific Tea
Company, 116 NLRB 1463, at 1465.
126 NLRB No. 114.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
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 organizations 5 involved claim 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) (1) and Section 2(6) and (7) of the Act.
4. The Employer and the Petitioners in 35-RD-102 and 35-RC-
1742 agree that a unit limited to employees engaged in selling mer-
chandise to customers at the Employer's retail department store, ex-
cluding nonselling employees and other categories, discussed below,
is appropriate. The Intervenor urges dismissal of the RC petition on
the ground that only a unit encompassing both selling and nonselling
employees at the Employer's establishment is appropriate.' The In-
tervenor has continuously bargained for a unit of selling employees of
the Employer, excluding all nonselling employees, for over 10 years.
Except for the selling employees and the Employer's truckdrivers,
currently represented by the Teamsters, no employees have been repre-
sented in any bargaining unit.
The Employer is engaged in retail department store operations at
a "main store," which consists of three adjoining buildings and two
or three other properties, either nearby or connected by tunnel to the
"main store." At these locations, both selling and nonselling phases
of the Employer's operations are conducted by approximately 100
sales employees and about 45 nonselling employees.
The nonselling work force consists of general services employees,
receiving and marking employees, janitors, maids, advertising per-
sonnel, maintenance employees, and office clerical employees who
handle credit, prepare sales and billing records, do filing, and keep
accounts-receivable records. The nonselling employees work in gen-
6 The Intervenor contends that the RC petition should be dismissed because the Peti-
tioner had no officers at the time that the petition was filed and hence was not a labor
organization within the meaning of the Act. As it appears that the Petitioner was
formed prior to the filing of the RC petition , for the purpose of dealing with the Employer
on behalf of its employees on matters concerning wages, hours, and other working condi-
tions, we find that the Petitioner was a labor organization within the meaning of the Act
at the time it filed the petition , notwithstanding the fact that it had not yet completed all
steps toward formal organization prior to filing its petition . Burroughs Corporation,
116 NLRB 1118.
G The Intervenor also moved for dismissal of the RD petition on the same ground of
inappropriate unit . As it is well established that the Board will conduct it decertification'
election only in the recognized or certified bargaining unit-in this instance , the selling
employees-we deny the Intervenor ' s motion to dismiss as it relates to the RD petition
Gill Glass and Fixture Company, 116 NLRB 1540, at 1542
THE ROOT DRY GOODS CO., INC. 955
eral service departments and offices segregated from the merchandise
counters on the selling floors, work situs of the selling employees.
They perform no selling duties. There is no interchange between the
selling and nonselling employees. The two groups work different
hours and under separate immediate supervision 7 The selling em-
ployees, unlike the nonselling who are paid a straight 'salary, receive
a commission in addition to salary.
A combined unit of selling and nonselling employees in retail de-
partment stores is basically appropriate in this industry.8 However,
as the Intervenor, the only union claiming that an overall unit is
appropriate, has made no showing of interest among the nonselling
employees, no basis exists for directing elections in that group to
determine whether the employees affected wish to be represented in a
single comprehensive unit.' Contrary to the Intervenor's contention,
such unit is not the only appropriate unit in such retail establishments.
Here, the selling employees alone may constitute an appropriate unit
on the basis of both the history of bargaining limited to such employ-
ees and the existence of a community of interests among the selling
employees. Accordingly, we shall direct an election among the sell-
ing employees only, who, we find, constitute an appropriate unit for
collective bargaining. The Intervenor's motion to dismiss as it re-
lates to the RC petition is therefore denied.
We find that the following employees of the Employer constitute a
unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees engaged in selling merchandise direct to customers
at the Employer's locations in Terre Haute, Indiana, including regular
part-time employees and regular extra employees, but excluding
casual extra employees,10 all nonselling employees, management
7 The Employer and the Petitioner agree that the Employer's "buyers," who are in
charge of merchandise display, pricing, and personnel in their departments, should be
excluded as supervisors The Intervenor contends that only such "buyers" who have
employees in their charge should be found to be supervisors and that those who occa-
sionally have no employees in their charge should not be found to be supervisors All
the "buyers," about 38 in number, have authority effectively to recommend the discharge
or transfer of all employees under them, regardless of the size or composition of their
departments. In connection with their buying duties, they are authorized to pledge the
Employer's credit We find that all the "buyers" are both supervisory and managerial
employees. Accordingly, we exclude them The Bailey Department Stores Co , 120 NLRB
1239; The Fair Department Store, 107 NLRB 1501.
BBallock's Incorporated, d/b/a I Magnin & Company, etc, 119 NLRB 642, and cases
cited therein
9 Cf Bond Stores, Incorporated, 99 NLRB 1029.
70 The parties agree that regular part-time employees, defined as employees who are
regularly employed less than 30 hours each week by the Employer, and regular extra
employees, who are subject to call for work at any time at the request of the Employer,
should be included in the unit Accordingly, we include them in the unit. They disagree
as to Christmas and Easter "extras" hired for those holiday seasons. As these holiday
"extras," who do not, generally, return each year, have no expectation of continued
employment with the Employer at the end of the holiday season, we find that they are
casual, rather than regular, extra employees. Accordingly, we exclude them. F. W. Wool-
worth Company, 119 NLRB 480.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trainees, office clerical employees , guards, professional employees,
buyers; department managers , and supervisors 1' as defined in the Act.
[Text of Direction of Election omitted from publication.]
11 'the parties agree that various nonselling department managers are supervisors within
the meaning of the Act , and disagrees as to the status of alteration workroom heads.
As we are, in any event , excluding all nonselling employees from the unit found appro-
priate, we find it unnecessary to determine the unit placement of these nonselling
employees.
Pioneer Holding Company d/b/a Blue and White Cab Co. and
Chauffeurs and Associated Workers Union , Petitioner. Cass
No. 18-RC-896. March 4, 1960
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 Clarence A. Meter, hearing
officer. The hearing officer 's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 8 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
Upon the entire record in this case, the Board.finds
1. ' The Employer is engaged in the taxicab business in Minneapolis,
Minnesota. Its gross volume of business, for the calendar year 1959,
was $1,260,000. During fiscal 1959, the Employer purchased more
than $85,000.worth of gas and tires from sources which obtained them
from out of State. As the Employer's gross volume of business ex-
ceeds the $500,000 minimum prescribed for retail enterprises, includ-
ing taxicab companies, we find that it will effectuate the policies of
the Act to assert jurisdiction herein.'
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The Employer and Local 958 contend that their 1958 contract
bars the petition herein. As the contract contains a union-security
clause .identical to one which the Board has already found to be il-
legal,' we find that this contract cannot serve as a bar.4 Accordingly,
i oaroiina Supplies and Cement Co., 122 NLRB 68, footnote 5; Cab Services, Inc. d/b/a
Red and 'White Airway Cab Company, 123 NLRB 88.
9 Local 958, International Brotherhood of Teamsters , Chauffeurs, Warehousemen &
helpers df America, intervened on the basis of its contract with the Employer . Local 12,
Office Employees International Union, also intervened but for the limited purpose of
stating its position with regard to certain employees , already covered by its contract. with
the Employer, who are included in the Petitioner's alleged appropriate unit.
s Cab Services, Inc., supra.
During the pendency of this proceeding, the Employer and Local 958 entered into a
supplemental agreement which purported to eliminate the invalid union -security clause.
This current contract is not urged , nor can it serve , as a bar.
126 NLRB No. 413.