The Sperry and Hutchinson Co.

National Labor Relations Board - Board Decisions

May 24, 1957

117 N.L.R.B. 1762 (N.L.R.B. 1957)

1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the Regional Director properly found that the elec-
tioneering activities of the Petitioner's representatives on the day of
the election do not constitute a basis for setting aside the election.
Unions may circulate legitimate propaganda and engage in non-
coercive electioneering at any time prior to the election,4 which the
Petitioner did here. Moreover, the alleged electioneering activity for
the Petitioner by an employee, outside the polling area, during the
time of the election does not constitute a basis for setting aside the
election without an allegation and proof that such activity was
coercive.'
As for the Petitioner's circulars distributed to the employees prior
to the election, the Regional Director properly found that they do not
contain any representations which the employees could not evaluate.
They were permissible campaign propaganda which the Board will not
police or censor.6 Having, therefore, considered the Employer's ob-
jections, the Regional Director's report, the Employer's exceptions,
and the entire record in this case, we hereby adopt the findings, con-
clusions, and recommendations of the Regional Director and find no
basis for holding a hearing on the objections.
As the Petitioner received a majority of the valid votes cast in the
election, we shall certify it as the exclusive bargaining representative
of the employees in the appropriate unit.
[The Board certified the United Shoe Workers of America, AFL-
CIO, as the designated collective=bargaining representative of the
employees of the Wood & Smith Shoe Co., Auburn, Maine, in the unit
hereinabove found appropriate.]
4 Peerless Plywood Company, 107 NLRB 427, 430.
5 Emerson Electric Company, 106 NLRB 149,153.
6 Stewart-Warner Corporation , 102 NLRB 1153; Comfort Slipper Corporation, 112
NLRB 183 ; N. N. Hills Brass Co., 114 NLRB 164.
The Sperry and Hutchinson Company' and Retail Clerks Inter-
national Association, Local 201, AFL-CIO, Petitioner. Case No.
36-RC-1253. May 24,1957
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 Arthur J. Hedges,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
I The Employer's name appears as corrected at the hearing.
117 NLRB No. 220.
THE SPERRY AND HUTCHINSON COMPANY 1763
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 Murdock and
Jenkins].
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 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 Petitioner seeks a unit limited in scope to employees of the
Employer's leased department located in the department store owned
and operated by Russell's, Inc., the Intervenor. The Employer takes
no position with regard to the appropriateness of the proposed unit.
On the other hand, the Intervenor contends that a unit limited to the
employees in the leased department is inappropriate because the
leased department employees and the Intervenor's employees have
common interests and working conditions and because the Intervenor
controls the terms and conditions of employment of all the persons
employed in the store including those whom the Petitioner seeks to
represent.
The Employer is engaged in the trading-stamp business on a
nationwide basis and maintains the leased department involved here-
in for the purpose of redeeming green stamps given to customers by
various merchants including the Intervenor. The employees sought
are not engaged in selling, as are most of the other employees in the
store , but merely take trading stamps from customers, check them for
correctness of amount, and exchange them for whatever merchandise
of equivalent value the customer chooses. These employees also have
the additional duty, as do all store clerks, of maintaining shelf stocks
and displaying merchandise.
Overall supervisory authority for the leased department is vested
in the Employer's regional manager who visits the department 3 or
4 times a year. The day-to-day supervision is the responsibility of a
department manager hired by the regional manager and primarily
responsible to him. This department manager has the authority to
hire and discharge leased department employees, subject to the
approval of the regional manager and also of the Intervenor, although
the Intervenor need not be consulted before personnel action is taken.
On the other hand, the Intervenor has the authority to discharge
leased department employees for store-rule infractions and insubordi-
nation, but has exercised this right without consulting a supervisory
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the Employer upon only 2 occasions during the 1T
years the leased department has been in the store. In other respects,
the leased department manager must conduct the department in
accordance with store rules and regulations and the other employees
of the leased department are, of course, subject to the same rules 2
Although the leased department employees are paid on the same
salary scale as the Intervenor's employees who do sales work, their
salaries are paid by the Employer, who also maintains their payroll
and personnel records and deducts withholding taxes. In addition, the
Employer maintains a separate retirement plan for its own employees
and belongs to a hospitalization plan which the leased department
employees may join.3 All personnel in the Intervenor's store, in-
cluding the employees involved herein, use the same lunchroom and
other facilities, and also receive the same store discount and Christmas
presents. However, their work interests differ by reason of the varia-
tion in their duties. Moreover, any interchange of employees between
the leased department and the rest of the store that has occurred has
been isolated.4
We are convinced that the exercise of control by the Intervenor
over the Employer's employees is limited to the extent necessary for
efficient operation of the Intervenor's store, and is not so extensive as
to preclude a finding that a unit limited to the leased department is
appropriate. By reason thereof, and because the leased department
employees are primarily employees of the Employer, subject to the
Employer's control, are the only employees of the Employer at the
location involved, and have interests distinct from those of the other
store employees, we conclude that they may constitute a separate
appropriate unit.'
Accordingly, we find that all employees employed at the Employer's
leased department in Russell's, Inc., department store, Eugene, Ore-
gon, including office clerical and stockroom employees, but excluding
guards and supervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining.
[Text of Direction of Election omitted from publication.]
2 Although the lease agreement was not placed in the record , a telegram from the Em-
ployer 's home office was introduced and it stated that the lease provided that the depart-
ment employees were subject to the Intervenor's rules.
8In the alternative , the leased department employees may join the Intervenor 's hospital-
ization group.
* We do not consider significant the fact that the Employer and the Intervenor share
the services of a stockroom man who spends one-half, of his working time performing
duties for each . This is merely an arrangement of convenience because neither of the
two requires his services full time and does not indicate a policy of personnel interchange
5 The Board usually excludes leased department employees from storewide units. See
The Fair Department Store, 107 NLRB 1501, 1504 ; Erlanger Dry Goods Co ., 107 NLRB
23, 24-25; Atlantic Mills Servicing Corporation of Cleveland , Inc., 117 NLRB 65; ef-
Stack & Company, 97 NLRB 1492 , 1493-1494 ; Denton's, Inc., 83 NLRB 35, 37.