Charles Livingston & Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1949

86 N.L.R.B. 30 (N.L.R.B. 1949)

In the Matter of CHARLES LIVINGSTON & SONS, INC., EMPLOYER and
AMALGAMATED CLOTHING WORKERS OF AMERICA (CIO), PETITIONER
Case No. 8-RC-452.-Decided September 20, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held at Youngstown, Ohio
June 27, 1949, before Philip Fusco, hearing officer. The hearing offi-
cer's 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 [Members Reynolds, Murdock, and
Gray].
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 labor organizations involved claim to represent certain em-
ployees 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 of
women's and misses' wearing apparel at its two establishments in
Youngstown, Ohio. The Petitioner and the Retail Clerks Interna-
tional Association (AFL), hereinafter called the Intervenor, and the
Employer agreed that the appropriate unit should include all the
employees of both the Company's stores; including regular part-time
employees, who are scheduled to work 1 day or'more per week, but ex-
cluding employees of leased departments, employees in the alteration
department,1 professional employees, guards, and supervisors as de-
fined in the Act. The parties also agreed that certain executives and
buyers were clearly supervisors and should be excluded and that cer-
i The employees of this department are currently represented by the Petitioner under
contract.
86 N. L. R. B., No. 8.
30
CHARLES LIVINGSTON & SONS, INC. 31
tain other employees were not supervisors and should be included.2
The parties were in dispute as to the assistant buyer for sportswear,
the assistant coat buyer, the credit manager, and the office manager,
whom the Petitioner and Intervenor would exclude as supervisory em-
ployees, but whom the Employer would include. The Employer fur-
ther contended that if these categories of employees were excluded
from the unit, the assistant credit manager and the fashion coordi-
nator, both of whom the Petitioner and Intervenor would include,
should also be excluded.
Assistant Buyers in Sportswear and Coat Departments
The sportswear department employs nine regular and six extra
girls. The assistant buyer, Mrs. Grant, of the department is now
being trained to become the head buyer for sportswear. At present
she works under the direct supervision of the head buyer, Mrs. Alfred,
whom she accompanies on buying trips about once a month. Her
duties are to see that merchandise is brought up from the receiving
room and properly displayed. For this purpose she comes earlier
than the sales girls and leaves later, and she does not punch a time
clock. She sees to it that customers are properly served and occasion-
ally makes sales herself. However, she turns the sale over to one
of the girls for completion since she carries no sales book and she
receives no commission for such sales. She instructs. new girls, as-
signs them to wait on customers and also to do inventory work when
necessary. She approves advertising copy and talks to salesmen
in the absence of Mrs. Alfred. She approves customer refunds, which
the sales girls may not do. She is authorized to report to manage-
ment concerning the competence of the sales girls, and on one occasion,
at the request of management, she discharged an employee for in-
competence. Grant receives a salary of $300 a month as against $25
a week for the girls, she gets a 30 percent discount as do the head
buyers, as compared to 20 percent for the girls, she gets sick leave,
which the sales girls do not and she is not required to wear a black
dress, which the girls must do.3
P The following are to be included : person in charge of unit control and employee Mac-
Gregor, working in unit control ; person in charge of receiving and maintenance ; head
bookkeeper ; and watchman -cleaner.
3 The Employer contended in its brief that if Grant is excluded , then Phyllis MacGregor,
whom the parties stipulated was not a supervisor , should be excluded . MacGregor
is an employee in unit control in the suit department . Although the Employer stated
that she is the assistant buyer and "has a job of supervising the entire front of the floor"
the evidence does not support the contention that she occupies the same position in the
suit department as Grant does in the sports department . In enumerating the employees
stipulated to be nonsupervisory in the Employer's brief, Miss MacGregor is described as
"an employee in unit control."
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The assistant buyer (Jo Taylor) works in the coat department on
the third floor which is under the supervision of the president of the
company, and Taylor is directly responsible to him. Taylor's duties,
privileges and responsibilities appear generally to be the same as those
of Grant, described above, with the following differences. Taylor
carries a sales book and completes her own sales. However, she re-
ceives no commission on such sales, but instead, receives a very sub-
stantial bonus, once or twice a year. Her bonus last year was $2,300
and her Christmas bonus $500 in addition to her monthly salary of
$300 a month. Her total salary for that year was therefore $6,400.
The sales girls receive $30 a week and a Christmas bonus of $5.
Like the head buyers in other departments, she gets a discount of 30
percent. Taylor accompanies the president on buying trips once or
twice a year and does buying, herself, for special customers. Un-
like Grant, she wears a dark dress, as do other sales girls. She does
not have the right to hire and fire or make recommendations for such
actions but she does assign girls to various tasks, such as taking of
inventory. The Petitioner and Intervenor would exclude and the
Employer would include Taylor in the unit.
It is apparent that Taylor and Grant occupy virtually the same
positions in their respective departments. On the basis of all the
evidence, we are of the opinion that although Grant and Taylor do
not exercise supervisory authority, their interests are more clearly
identified with management than with the rank and file 4 employees.
We shall exclude them from the unit.
Office Manager (Mrs. Aeh)
Mrs. Aeh is the office manager in charge of the office employing
some 10 or 11 girls. Her main job is responsibility for keeping cus-
tomer accounts, for posting and billing operations and for sending out
bills. She has the duty of teaching new girls and correcting any errors
they may make. The girls report to her, and she reports to the presi-
dent. She also reports to the president on the competency of any of
the girls. She gets a salary of $200 a month, as against $125 to $160
for the girls, a.$600 annual bonus and a 30 percent discount, as do the
buyers discussed above, as against a $5 bonus and a 20 percent dis-
count for the girls. She does not punch a clock, which the other girls
do, and she receives sick leave, to which the girls are not entitled.6
The Employer contends Aeh is not a supervisor since she has no power
4 Matter of Denver Dry Goods Company, 74 N. L. R. B . 1167 ; Matter of Cash Wholesale
Company, Inc., 73 N. L. R. B. 699, 702.
The evidence shows that some of the older sales girls employed by the company might
be paid for sick leave but there was no specific evidence identifying those employees.
CHARLES LIVINGSTON & SONS, INC. 33
to hire or fire and that she works With and not over the girls. Fur-
thermore, the Company contends that her bonus is in fact payment for
a very considerable amount of overtime that she puts in.
We are of the opinion that Aeh is a supervisor within the meaning
of the Act, since the evidence shows that she has the authority to re-
sponsibly direct the work of the girls in the offices We agree with
the Company, however, that if she is excluded, then Mr. Witkay, the
person in charge of the receiving and maintenance department, should
also be excluded. The parties had stipulated that Witkay was not a
supervisor and should be included. The evidence shows, however, that
Witkay is in charge of the receiving room, is responsible for the main-
tenance of the building and also buys supplies for the Company. He
has some 10 employees working directly under his supervision. It was
conceded that he may recommend hiring. We find that Witkay and
Aeh are supervisors, within the meaning of the Act, and we shall
exclude them from the unit.
Credit Manager and Assistant Credit Manager
The credit manager, Mrs. Grimm , and the assistant credit manager,
Mrs. Schoenfelt , constitute the credit department. Their duties are to
approve or deny applications for credit . They interview applicants,
check with the credit bureau concerning such credit applications and
follow up the rates of repayment of credit accounts . Schoenfelt dis-
cusses doubtful cases with Grimm, who makes the necessary decisions
thereon except in cases which Grimm considers doubtful and are taken
up with top management . Both report directly to the president or vice
president. Both get sick leave and neither of them punches a clock.
Grimm receives a salary of $7,500 a year,7 Schoenfelt gets $2,400, plus
an annual bonus of $150 to $200 . It was stated that their duties and
responsibilities are the same and the only reason for the high salary of
Grimm is because of her long years of experience . The Employer
would include Grimm on the ground that she exercises no supervisory
authority either over the assistant or any other employee. Petitioner
would exclude Grimm on the ground that her supervisory status is
obvious from her position as credit head and her comparatively high
salary . Petitioner would include the assistant to which the Employer
would agree , if all the other disputed employees are also included in
the unit. We are of the opinion , on the basis of the record , that both
6The Ohio Power Co., 80 N. L. R. B. 1334 ; Farmville Mfg. Co., 76 N. L. R. B. 237.
7 There are only four executives in the store who are more highly paid.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the credit manager and the assistant are managerial employees. We
shall therefore exclude them from the unit."
Model and Fashion Coordinator
Alexander is a model in the store. In addition, she arranges for
the staging of about 40 fashion shows a yea: , dicks out the clothes
to be worn and hires the models for these occasions. Models are hired
for the individual shows and are not considered regular employees.
Alexander receives a salary of $30 a week for 5 days of work and $35
if she works 6 days. She is required to punch a clock and gets a 20
percent bonus like the other girls. She reports directly to the presi-
dent or vice president. The Petitioner and Intervenor would include
Alexander. The Employer agreed to include her only if the above
disputed employees were also included.
On the basis of the facts set forth above, we conclude and find that
Alexander is a supervisory employee within the meaning of the Act.
Her exercise of the prime supervisory function of hiring is not sporadic
or casual 9 but is exercised regularly and with considerable frequency.
The fact that the individuals she hires are not considered regular em-
ployees is not, in our opinion, the determinative factor in view of the
frequency and regularity with which Alexander exercises this power.
She will therefore be excluded from the unit.10
We find that all employees of the Employer at its Youngstown, Ohio,
department store, including regular part-time employees who are
scheduled to work one day or more per week but excluding the assistant
buyer in the sportswear department, the assistant buyer in the coat
department, the office manager, the person in charge of the receiving
$Matter of Palace Laundry Dry Cleaning Corporation, 75 N. L. R. B. 320, footnote 4,
where the Board declared "the determination of 'managerial' like the determination of
'supervisory ' is to some extent necessarily a matter of degree of authority exercised. We
have in the past, and before the passage of the recent amendments to the Act, recognized
and defined as 'managerial ' employees , executives who formulate and effectuate manage-
ment policies by expressing and making operative the decisions of their employer, and have
excluded such managerial employees from bargaining units. Matter of Ford Motor Com-
pany, Chicago Branch, 66 N. L. R. B. 1317; Matter of Continental Can Company, Inc.,
Mono Container Division, 74 N. L. it. B. 351. We believe that the Act, as amended,
contemplates the continuance of this practice." See also Matter of Sheffield Farms Com-
pany Inc., 73 N. L. it. B. 572, where the Board excluded the collector from a unit of clerical
employees on the ground that he develops general policy with regard to collections in all
branches, and he checks on the manner in which such policy is effected. The Board held
his functions are essentially managerial , distinguishable in character from the duties of
office and clerical employees . Matter of Louis Pizitz Dry Goods Company, 71 N. L. it. B.
579 where the Board excluded the assistant credit manager and the installment collection
manager from a unit of sales employees because of their functions and position in the
store hierarchy,
9 Cf. Matter of Del Rio & Winter Garden Telephone Company, 85 N. L. it. B. 199,
where we included employees in the plant department who had the authority to hire
additional laborers for the duration of special installation jobs because their authority
was exercised only sporadically and not regularly.
10 Matter of E. I. Dupont De Nemours Co. Rayon Division, 85 N. L. R. B. 1516.
CHARLES LIVINGSTON & SONS, INC. 35
and maintenance department, the credit manager and the assistant
credit manager, the model and fashion coordinator, the employees of
the leased department, the employees in the alteration department,
professional employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION u
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, at such time as the Board
shall in the future direct, upon advice from the Regional Director that
an election may appropriately be held, 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, 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 rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by Amalgamated Clothing Workers of America (CIO) or Retail
Clerks International Association (AFL) or neither.
11 Any participant in the election ordered herein , may upon its prompt application to,
and approval hereof by the Regional Director have its name removed from the ballot.