Wise, Smith & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1949

83 N.L.R.B. 1019 (N.L.R.B. 1949)

In the Matter of WISE, SMITH & COMPANY, INC., EMPLOYER and
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER
Case No. 1RC-897.Decided June 0, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Robert E.
Greene, hearing officer of the National Labor Relations Board. The
hearing officer's ruling rejecting evidence relating to the volume of
purchases made for the Employer by one Harry Gold, whose status
was in issue, is reversed. The hearing officer's other rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
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
Houston and Reynolds].
Upon the entire record in this case, the Board 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
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 is engaged in department-store merchandising
in Hartford, Connecticut, with a total of 560 employees. Its facilities,
-located in separate buildings, include a retail store with 75 depart-
ments, a warehouse, and offices. , Certain retail store departments,
such as the fur department, the book department, and the luncheon-
ette, are leased to concessionaires. Others are operated wholly by the
Employer. Labor relations for all departments, however, are handled
by the Employer's personnel office, and the parties agree, and we find,
83 N. L. R. B., No. 147.
10 19-
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that leased department employees may properly be included in a unit
with other employees of the Employer.,
The Employer and the Petitioner generally agree that employees
at the Employer's offices, warehouse, and retail store constitute a
single appropriate unit. The parties further agree that office and
clerical employees, demonstrators, matrons, linoleum department
employees, and restaurant employees should be included in the unit;
and that nurses, pharmacists,' employees hired for periods of less
than 30 days or working less than 20 hours a week, confidential employ-
ees,2 executives, assistant executives, buyers, department managers,
guards, the chief telephone operator,3 the chief cashier in the tube
room, and other supervisors should be excluded from the unit. The
parties disagree as to the unit placement of luncheonette employees
.and as to the status of certain individual persons, who are discussed
seriatim below.
Luncheonette employees. In its retail store the Employer operates
a restaurant which provides noontime meals and, through a con-
cessionaire, a luncheonette which serves food at all times during reg-
ular store hours. The 25 employees in the restaurant are regular
store employees. They spend 20 or more hours per week working
in the restaurant, and their remaining working hours in various store
departments. The 23 luncheonette-employees have full-time employ-
ment in the luncheonette. The parties agree to include the restau-
rant employees in the unit; however, the Employer would include, and
the Petitioner would exclude, the luncheonette employees.-
The luncheonette and restaurant employees perform the same kind
of work with respect to the service of food. Luncheonette, restau-
rant, and retail store employees receive the same rates of pay, have
the same general conditions of employment, and are subject to the
jurisdiction of the Employer's personnel office in matters of hiring
and discharge, wages, and grievances. We find no basis for the Peti-
-tioner's contention that the interests of luncheonette employees are
too remote from those of other store employees to justify their
inclusion in the store unit. , In the absence of special factors war-
ranting their separate placement, we shall include luncheonette
employees in the unit."
3 Denton's Inc., t/a The Robinson -Schwenn Store, 83 N. L . R. B. 35.
2 The parties agree that Irene Dolin , the secretary to the Employer 's president ; Helen
Reduger, a personnel clerk ; and Helen Eingsland , Margaret Le Page, and Eva Sylvester,
pay-roll clerks, are confidential employees.
3 At the hearing the Employer sought to include the chief telephone operator in the unit.
The Employer's change of position with regard to-this employee is expressed in its brief.
4 Matter of Standard Romper Company, 77 N. L. R. B. 421 , and cases cited ; Matter of
S. S. Pierce Co., 82 N. L. R. B. 1260.
WISE, SMITH '& COMPANY, INC. 1021
The restaurant chief che f. The Employer would include, and the
Petitioner would exclude, the restaurant chief chef.
The restaurant chief chef is charged with preparing food items
listed on the menus provided by the restaurant manager , other than
salads and sandwiches . He has from one to three assistant chefs,
whose work he directs and whose unsatisfactory work he reports
to the restaurant manager . We shall therefore exclude him from
the unit as a supervisor.
Assistant buyers . The Petitioner would include, and the Employer
would excludg , assistant buyers.
There are 2115 buyers , each in charge of one or more of the Employer's
department Buyers leave their departments on trips of approxi-
mately . 3^days' duration , in the course of which they purchase
merchandise for the Employer . They are also absent for brief inter-
vals during the course of a day on local purchasing errands. They are
salaried employees and are listed on the Employer's executive pay roll.
The parties are agreed that buyers are excluded from the unit .6
Approximately 20 assistant buyers assist the buyers in the operation
of their respective departments . Assistant buyers spend most of their
time marking, displaying , and selling merchandise , and keeping rec-
ords. While they sometimes accompany the buyers on local trips, they
do no purchasing in the usual course of their employment . Assistant
buyers approve employee discounts and refunds ; the record indicates
that they do not, however , approve customer refunds, as do the buyers.
During the absence of buyers, assistant buyers are in charge of their
respective departments and direct the work of the other employees
therein, numbering 1 to 15 persons . Assistant buyers are hourly paid,
receiving wages the same as , or up to 50 percent more than, those paid
to other department employees. The average wage differential is 15
to 20 percent . The record indicates that assistant buyers perform the
functions of administrative assistants with routine ' and intermittent
powers of direction . We find that assistant buyers are neither man-
agerial nor supervisory employees , and shall include them in the unit?
The fum factory manager. The Petitioner would include , and the
Employer would exclude, the fur factory manager.
Cf. Matter of Todd Shipyards Corporation, 80 N. L. It. B. 382.
The parties agree to the exclusion of buyers on the ground that they are managerial
employees . We find it unnecessary to discuss the merits of the Petitioner 's contention
that as Harry Gold, listed on the Employers ' executive pay roll as a buyer , is not a super-
visor, he should be included in the unit . The record discloses that this employee makes
substantial purchases for the Employer . We therefore exclude him as a managerial
employee, along with the other buyers.
7 Matter of Providence Public Market Company, 79 N. L . It. B., No. 206.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer's fur department includes a fur factory and a fur
salesroom , both under the management of one Larkin, who the parties
agree should be excluded from the unit. The fur department manager
interviews customers bringing fur garments for repairs and altera-
tions, and whenever necessary, performs some of the fur repair work
himself. He receives a salary 150 percent higher than the compensa-
tion of his assistants, who are hourly paid employees, and whose hire
and discharge he effectively recommends. We find that the manager of
the fur factory is a supervisor, and shall exclude him as such from
the unit.
The book department manager. The Petitioner would include, and
the Employer would exclude, the book department manager.
The book department employs from 2 to 6 persons, of whom only the
manager is a full-time employee. Her duties include the operation of
the rental library; sales work; and the arranging, marking, and dis-
playing of books. She also keeps records of sales and buyer demand,
for the use of the book department concessionaire. She instructs new
employees. She is paid at an hourly rate almost identical with that
paid to her assistants. While the Employer contends that she has the
power effectively to recommend hiring and discharge, the record indi-
cates that such recommendations are made only during the Christmas
rush season respecting temporary employees. We find that the man-
ager of the book department is not a supervisor within the meaning
of the Act, and we shall include her in the unit.
Confidential employees. The Petitioner would include in the unit
the personal secretaries to the Employer 's assistant treasurer and con-
troller and to its credit manager and the executive pay-roll clerks. The
Employer would exclude them as confidential employees.
At the time of the hearing in this proceeding, one Sullivan was the
Employer's assistant treasurer and controller, while one Wharton was
credit manager. The Employer informs us in its brief that since the
hearing, both Sullivan and his personal secretary have left the Em-
ployer's employ, and that their respective positions have been con-
solidated under Wharton and his personal secretary. While the rec-
ord. shows that Sullivan handled grievances arising within his staff
and that both he and Wharton conducted intradepartmental employ-
ment interviews, it nowhere appears that either of them were em-
powered to determine the Employer's labor policies, nor does it appear
that their personal secretaries had access to confidential information°
pertaining thereto.
Two executive pay-roll clerks, responsible for the preparation of the
Employer's executive pay roll and cash book, also maintain "store
shopping records" dealing with the efficiency of sales personnel, based
WISE, SMITH & COMPANY, INC. 1023
on reports by the Employer's own shoppers. Neither of them has
access to information relating to the Employer's labor policies.
We find that the personal secretary to the assistant treasurer and
controller, personal secretary to the credit manager, and the execu-
tive pay-roll clerks are not confidential employees, and shall include
them in the unit.8
We find that all employees at the Employer's offices, warehouse, and
retail store in Hartford, Connecticut, including office and clerical em-
ployees, demonstrators, matrons, linoleum department employees,
luncheonette and restaurant employees, assistant buyers, the book de-
partment manager, the personal secretaries to the assistant treasurer
and controller and the credit manager, and executive pay-roll clerks,
but excluding the restaurant chief chef, nurses, pharmacists, employees
hired for periods of less than 30 days or working less than 20 hours a
week, confidential employees, executives, assistant executives, buyers,
department managers, guards, the chief telephone operator, the chief
cashier in the tube room, the fur factory manager, and other super-
visors, constitute a unit appropriate 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
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate 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 discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also ex-
cluding 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 Amalgamated Clothing Workers of Amer-
ica, CIO.
8 Matter of Inter-Mountain Telephone Company, 79 N.•L R. B 715, and cases cited.