H.P. Wasson and Co.

National Labor Relations Board - Board Decisions

Apr 21, 1953

104 N.L.R.B. 249 (N.L.R.B. 1953)

H. P. WASSON AND COMPANY 249
H. P. WASSON AND COMPANY and RETAIL, WHOLESALE
& DEPARTMENT STORE UNION, CIO, Petitioner. Case
No. 35-RC-853. April 21, 1953
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 Harry Berns,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
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 [Members Houston, Styles, and
Peterson].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor, organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit: The Employer and the Petitioner
agree generally that the appropriate unit consists of all em-
ployees at the Employer's Indianapolis, Indiana, store, including
truckdrivers and warehouse employees,[ but excluding em-
ployees in the leased departments, carpenters, painters,:
guards, professional employees, buyers, and all other super-
visors as defined by the Act. The parties disagree , however,
as to whether the employees in the categories listed below
should be included in the unit.'
The "On Call" Employees
The Employer operates a department store. Its regular sales
personnel consists of full-time employees and part-time em-
ployees working from 8 to 36 regular scheduled hours every
week. During the busy seasons, for special sales, and some-
times during the absence of an unusual number of regular em-
ployees, the Employer supplements its personnel by calling
to work individuals on an "on call" list. This list consists of
individuals, many of them former employees of the Employer,
whose circumstances do not permit them to accept regular
1 The Pentioher originally excluded the truckdrivers and warehousemen . The Employer
wished to include them and at the hearing introduced evidence to substantiate its position.
Thereafter the Petitioner amended its petition to include the truckdrivers and warehousemen
!The carpenters and painters are presently represented by craft unions of their respective
trades.
5 The Employer moved to dismiss the petition on the ground that the unit requested by the
Petitioner is inappropriate As the Petitioner has indicated its willingness to proceed with
an election in whatever unit found appropriate by the Board and as its showing of interest is
sufficient to support a petition in the unit hereinafter found appropriate , the Employer's
motion to dismiss is denied.
104 NLRB No. 35.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, but who are willing to work occasionally . The parties
agree to include the regula r ' full-time and regular part-time
sales employees , but the Employer wishes to include and the
Petitioner to exclude the "on ' call" employees.
Individuals may have their names placed on the "on call"
list by requesting the Employer to put them there. Their names
will be kept on the list until they request their removal or they
are' removed by the Employer because they have refused
repeated offers of employment . The Employer rotates available
employment for the employees on the "on call " list by offer-
ing employment opportunities in alphabetical order. Of the 64
employees on the list, 21 did not work at all during the period
of January 1 to February 24, 1953, the date of the hearing, and,
an additional 27 averaged less than 1 day of work a week during
this period . The "on call" employees , when working , are sub-
ject to generally the same conditions of employment as the
full -time'-or regular part-time employees . However, unlike
regular `full - and part -time employees , " on call" employees
are not 'attached to any one department but work wherever
they are needed ; they do not participate is the vacation, in-
surance, and mutual benefit plans available to most other
employees of the Employer;4 and they may use their discount
privileges only on the day they actuallyworkfor the Employer.
The Board ' s unit findings are based upon functionally related
occupational categories irrespective of the number of hours
of employment .s As "on call" employees perform the same
functions as do regular full -time and part -time employees,
they must necessarily be included in the unit. In view of their
limited and irregular employment , however, we find that the
"on call" employees of the Employer are essentially casual,
rather than regular part -time employees . Therefore , although
the nature of their work warrants their inclusion in the unit,
we find them ineligible to vote.6
The Alleged Supervisors
The Petitioner contends , and the Employer denies, that the
individuals in the categories discussed below are supervisors
and should be excluded from the unit.
The assistant buyers : Each of the Employer ' s selling de-
partments is in the charge of a buyer , an admitted supervisor
who, in most instances , is assisted in his duties by an assistant
buyer . Depending on the department in which they work, as-
sistant buyers spend from 5 to 80 percent of their time selling
to customers . The rest of their time is spent on merchandising
work, such as maintaining inventories , inspecting merchandise,
and answering questions from sales personnel . Their method
of compensation varies from department to department, but
4Regular part- time employees who work less than 2 days a week are also not eligible for
vacation benefits and those who work less than 33 hours a week are not eligible for insurance
or mutual aid benefits.
s J. C. Penney Company, 86 NLRB 920.
6Cf. S & L Co. of Pipestone , 96 NLRB 1418; Silverwood 's, 92 NLRB 1114.
H. P. WASSON AND COMPANY 251
their total earnings are generally somewhat higher than those
of the sales personnel and considerably belowthat of the buyers.
Like the buyers they receive sick leave but no overtime.
With the exception of the assistant buyer in the shoe depart-
ment, who is separately considered below, assistant buyers
have no authority to hire, discharge, or transfer employees,
or effectively to recommend such action. They do not partici-
pate in the merit rating of sales personnel. Their authority
over the sales personnel is limited to assigning a salesperson
to a customer if the salesperson has not become aware of the
customer. They may approve the return of merchandise on
routine returns, but have to get the approval of either the buyer
or section manager if anything but a routine return is involved.
During the absence of the buyer, the assistant buyer is re-
sponsible for the routine operations of the department in accord-
ance with prescribed rules of operation. If matters arise
necessitating the exercise of independent judgment, he must
consult the merchandise manager for his department. On the
basis of this record, we believe that assistant buyers are
essentially administrative assistants with routine and inter-
mittent powers of direction.T Accordingly, we find that as-
sistant buyers, other than the assistant buyer in the shoe
department, are not supervisors and shall include them in the
unit. ,
The assistant buyer in the shoe department is in charge of
the children's shoe section, where he divides his time between
selling and merchandising functions. There are two other
salespersons in the children's shoe section. The assistant
buyer in that section may reprimand these individuals and
recommend their hire and discharge and,is consulted on their
merit ratings. Under these circumstances, we find that the
assistant buyer,,in the shop department is a supervisor and
shall exclude him from, the unit.8 ,
The section managers : Individuals in this category are as-
signed to areas on the selling floors generally comprising
more than one selling department. They answer questions from
customers, approve returns, watch for, and report fires and
injuries, and, approve employee discounts„ They also check
on the number of salespersons in each department and, if
they consider it necessary, they may, with the approval of
the buyers involved, transfer employees-from one department
to another., They report infractions of the rules by sales-
persons to their, supervisors, although without recommenda-
tions; report the progress of new employees to the personnel
department and to the employee training department; and
assign employees their work stations and relief and lunch
periods. They arrive at work earlier and leave later than
the sales personnel; in most cases their salary exceeds
the earnings of the sales personnel; and they attend super-
visory meetings. Under all the circumstances, we find that
TMaas Brothers, Inc., 88 NLRB 129.
8 Bonwit Teller, Inc., 84 NLRB 414.
9 Buyers cannot transfer salespersons from one department to another.
2 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the section managers are supervisors within the meaning
of the Act . Accordingly , we shall exclude them from the unit.
Assistant in the alteration department: This individual works
as a fitter in the alteration department . Her authority over
the employees in that department is limited to seeing that,
in the absence of her supervisor , the work is evenly distributed
among the other fitters. As her powers of direction are
routine and intermittent , we find that she is not a supervisor
within the meaning of the Act and shall include her in the unit.
Assistant in the fur workroom : This individual works as a
cutter in the fur workroom. In the absence of the head of the
fur workroom , he gives customers estimates on the cost of
fur alterations and repairs . On occasion , other cutters also
give customers estimates . He has no supervisory authority
of any kind over the employees in the fur workroom. Under
these circumstances , we find that he is not a supervisor with-
in the meaning of the Act and shall include him in the unit.
The assistants in the receiving and display departments':
These individuals assist the managers of their respective
departments by transmitting their instructions to the other
employees in the department . They have no supervisory au-
thority over these employees . Under these circumstances, we
find that they are not supervisors within the meaning of the
Act and shall include them in the unit.
The assistant to the superintendent of the delivery depart-
ment: This individual assists the superintendent of the delivery
department by performing office work in connection with the
Employer's deliveries. He has no supervisory authority over
the truckdrivers or other employees in the delivery depart-
ment. We find that he is not a supervisor within the meaning
of the Act and shall include him in the unit.
The supervisor of warehouse employees : This individual
is the only person in immediate charge of the 4 stockmen at
the warehouse . He works directly under the purchasing agent
whose office is at the main store , 1 mile distant from the
warehouse . He assigns the stockmen to certain loading and
unloading jobs and is responsible for seeing that merchandise
is properly distributed on the various floors of the warehouse.
He is consulted in regard to the giving of merit ratings. We
find that he a supervisor and shall exclude him from the unit.
Group leader of the appliance repairmen : The Employer
employs four service repairmen in its service division who
see that appliances sold by the Employer are in proper work-
ing condition before they leave the warehouse and who make
repairs on appliances sold by the Employer, at the customers'
homes . Ford, the most experienced of these repairmen, is
designated as the group leader and receives about $10 a
week more than the others . He is apparently responsible for
the operation of the service division , which is headquartered
in the warehouse ; he works directly under the purchasing
agent who, as pointed out above , has his office at the main
store; and he reports on the work done by the other service
repairmen to the purchasing agent. We find that Ford, the
group leader of the appliance repairmen , responsibly directs
H. P. WASSON AND COMPANY 253
the work of the other repairmen. Accordingly, we find that he
is a supervisor within the meaning of the Act and shall exclude
him from the unit.
Head of the shopping service: This individual takes telephone
and mail orders and assigns other employees in her depart-
ment to fill these orders. These assignments are routine and
do not require the exercise of independent judgment. She is
neither vested with, nor exercises, supervisory authority.
Under these circumstances, we find that the head of the shop-
ping service is not a supervisor within the meaning of the Act
and shall include her in the unit.
The Alleged Confidential Employees
The Petitioner contends and the Employer denies that the
employees in the categories discussed below are confidential
employees and should be excluded from the unit.
The assistant in the personnel department and the secre-
taries to executives: Labor relations policies of the Employer
are formulated by its top executives andthe personnel director.
In connection with the formulation of such policies, these
executives and the personnel director dictate letters and
require the typing of materials by the two secretaries serving
the executives and by the assistant in the personnel depart-
ment. In addition to these duties, the assistant in the personnel
department keeps records on merit ratings. She also interviews
applicants for jobs, eliminates the most obviously unfit, and,
in the absence of the personnel director, rates the aptitude
tests submitted in connection with the applications. We find
that the secretaries to the executives and the assistant in the
personnel department are confidential employees and shall
exclude them from the unit.1o
The assistant traffic manager, the assistant manager in the
credit department, the secretary to the credit mans er, the
accountant, and the head of a-i[justments: The record does not
indicate that any of these employees is in any way connected
with the formulating of labor relations policies or serving in
a confidential capacity to individuals formulating such policies.
We find that they are not confidential employees and shall
include them in the unit.li
The employee counselor : This individual reports directly to
the store manager. She is available to employees for counsel-
ing on personal as well as work problems. Although she does
not adjust grievances , she discusses them with management.
She also checks the Employer's cafeterias and restrooms to
ascertain whether they are operating according to the Em-
ployer's standards. She attends funerals in employees' families
and visits ill employees. We believe that her duties are
10 Copperweld Steel Company , 102 NLRB 1229; Ohio Steel Foundry Company, 92 NLRB
683. It is not clear whether the Petitioner wishes to include or exclude the clerk in the
personnel department . As the record does not indicate that she is either a confidential em-
ployee or a supervisor , we shall include her in the unit.
11 Siverwood 's, 92 NLRB 1114. It is also clear that these individuals are not supervisors.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diverse from those of the other employees and shall exclude
her from the unit.12
The head of accounts receivable and the audit manager: It
is clear from the record that these individuals are not con-
nected with the formation of labor policies of the Employer or
serving in a confidential capacity to individuals formulating such
policies. Accordingly, we find that the head of accounts receiv-
able and the audit manager are not confidential employees of
the Employer. The record indicates, however, that they may
be supervisors, although the evidence is not sufficient to make
a finding in this regard. We shall permit the head of accounts
receivable and the audit manager to vote subject to challenge.
In the event that the counting of their ballots will affect the
outcome of the election, a further investigation will be conducted
to determine their supervisory status.
The comparison shoppers: The Petitioner contends and the
Employer denies that these employees should be excluded from
the unit on the ground that their interests are separate from
those of the other employees. The Employer's four comparison
shoppers check prices and availability of merchandise at other
stores. They are subject to the same personnel policies and
receive the same benefits as do other employees of the Em-
ployer. We find that they have the same interests as the em-
ployees whom the Petitioner seeks to represent and we shall,
therefore, include them.
Accordingly, we find that all regular full-time and part-time
employees at the Employer's Indianapolis, Indiana, store, in-
cluding truckdrivers and warehouse employees, assistant
buyers other than the assistant buyer in the shoe department,
the assistants in the display, receiving, and alteration depart-
ment and in the fur workroom, the assistant managers in the
traffic and credit departments, the assistant to the superin-
tendent in the delivery department, the head of the shopping
service, the clerk in the personnel department, the secretary
to the credit manager, the accountant, the head of adjustments,
the head of accounts receivable, the audit manager,ls and
the comparison shoppers, but excluding employees in the
leased departments, carpenters, painters, guards, professional
employee,s, the assistant in the personnel department, the
secretaries to the executives, the' employee counselor, the
section managers, the assistant buyer in the shoe department,
the supervisor of the warehouse employees, the group leader
of the appliance repairmen, and all other supervisors as
defined by the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act. 14
[Text of Direction of Election omitted from publication-]
"Cf. The Firestone Tire and Rubber Company, 73 NLRB 691.
is For the reasons set forth above, the inclusion of the head of accounts receivable and the
audit manager is solely for the purpose of permitting them to vote subject to challenge and is
not to be taken as a final determination of their supervisory status.
t4As found hereinbefore, although the "on call" employees are included in.the unit, they
are ineligible to vote.