John W. Thomas & Co.

National Labor Relations Board - Board Decisions

May 8, 1953

104 N.L.R.B. 868 (N.L.R.B. 1953)

868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage concerted activities among you by discharges or by dis-
criminating in any other manner in regard to hire , or tenure of employment, or any
term or condition of employment.
WE WILL NOT in any like or similar manner interfere with, restrain , or coerce you
in the exercise of your right to self-organization , to form labor organizations , to bargain
collectively through representatives of your own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL make whole James McLachlan, George Ryan, and Joy Ann Henry for any
loss of pay sustained as a result of the discriminating against them and, if suitable
vacancies exist or occur , offer them employment.
CRESCENT WHARF AND WAREHOUSE COMPANY,
Employer.
Dated ................ By.......................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by other material.
JOHN W. THOMAS & CO. and LOCAL 1086, RETAIL CLERKS
INTERNATIONAL ASSOCIATION, A. F. of L., Petitioner
JOHN W. THOMAS & CO. andHOTEL AND RESTAURANT
EMPLOYEES UNION, LOCAL 458, A. F. of L., Petitioner.
Cases Nos. 18-RC-1879 and 18-RC-1902. May 8, 1953
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before
Erwin A. Peterson, 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 3 (b) of the Act, the
Board has delegated its powers in connection with these cases
to a three-member panel [Members Houston, Styles, and
Peterson].
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim 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 Section2 (6) and (7) of the Act.
4. The Petitioner in Case No. 18-RC-1879 seeks a unit of
all regular and regular part-time selling and nonselling em-
ployees at the Employer's department store in Minneapolis,
Minnesota, including employees in the leased departments,
cashier-wrappers, stock employees, receiving and marking
i Hotel and Restaurant Employees Union, Local 458, A. F. of L., intervened and thereafter
filed a petition which was duly consolidated with this proceeding.
104 NLRB No. 122.
JOHN W. THOMAS & Co. 869
employees, delivery department employees, office and clerical
employees, telephone operators, and alteration department
employees, but excluding employees in the coffeeshop, fur
factory, maintenance department, beauty and body molding
salons, confidential secretaries, guards, professional em-
ployees, buyers and assistant buyers, department managers
and assistant managers, and all other supervisors.2 The
Employer maintains that a unit confined to salespersons
including the leased departments is appropriate.' Accordingly,
the Employer does not oppose the Petitioner's request to
exclude certain occupational groups and would further exclude
while the Petitioner would include the following categories:4
Cashier-wrappers: Working behind a counter in full view
of customers and serving one or more departments on a
selling floor, the cashier-wrapper makes change and wraps
packages at the request of the salesperson. The package and
change are then handed back to the salesperson or the package
is sent by pickup man to the delivery department. If the sale
is a charge sale, the cashier-wrapper makes a proper
notation and calls the charge board in the credit department.
Cashier-wrappers work under the supervision of the store
superintendent's office and the Employer considers them part
of the selling department.
Stock employees: Assigned to the various sales departments
under the supervision of the buyers, the stock employees carry
merchandise from various locations in the store such as
receiving and marking department and alteration departments
to the selling floor cashiers' desks.
Receiving and marking department employees: All incoming
merchandise is unpacked, counted, examined, and then priced
by the buyer of the department concerned. The appropriate
sales ticket is put on the merchandise which is then taken
to the selling department. The employees in the receiving
and marking room consult the order files and compare quanti-
ties shipped with the order copy in the files of the main office.
The receiving and marking copy of completed orders is
forwarded to the main office and there processed to the book-
keepers for entry in the books and payment.
Delivery department employees: All packages sent out of the
store clear through this department andmerchandise requiring
2 The Petitioner ' s unit request appears as amended at the hearing.
8 The Employer adduced testimony purporting to show a history of bargaining in the major
retail store field in Minneapolis based on Board consent elections and voluntary recognition
for separate units of selling as well as various categories of nonselling employees. There
is no history of bargaining covering the employees of the Employer other than oral agree-
ments pertaining to building service and fur factory employees . Area bargaining practice
can have no compulsive significance in view of uniform Board policy to include department
store selling and nonselling employees in an optimum unit.
4Building Service Employees Union, Local 26 . A. F. of L., intervened to urge the exclusion
of building service employees from the unit ; Amalgamated Clothing Workers of America,
Local 224, C. I. 0., intervened to urge the exclusion of employees in the alteration depart-
ments; and International Fur and Leather Workers Union. Local 71, intervened to seek the
exclusion of fur factory employees . However, none of these labor organizations seeks a
place on the ballot.
283230 0 - 54 - 56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over the, normal packing is handled here. Employees in all the
foregoing departments enjoy the same working hours, over-
time, company benefits, vacations, and discount privileges as
do the salespersons. While they are paid on an hourly basis
in contrast with the salary and commission paid selling em-
ployees,5 all store employees except those in the coffeeshop
participate in a suggestive selling plan whereby commissions
are earned on referral sales.
In view of the close proximity of the foregoing nonselling
employees to the selling areas, the common conditions of
employment prevalent throughout the store, and the integration
of their work tasks with the functions of the selling force,
we shall, pursuant to the Board's usual practice, include
these employees in the same unit with the sales employees.6
Office and clerical employees: The Employer's office is
located on the fourth floor of the store building and contains
the credit, accounts receivable, and accounts payable employee
groups under the supervision of the controller. The credit
department consists of "pullers" and "stuffers," reception
clerk, credit rating clerk, contract clerk, and charge board
operator. Saleschecks, which have cleared the audit depart-
ment, are sent to the credit department to be placed in the
charge account folder. At the end of a billing period, all
saleschecks are pulled, placed in the statement billhead, and
passed on to the stuffers who put them in envelopes to be
routed to the addressograph department for mailing. Adjacent
to the office are the receiving cashiers who receive payments
on account and the mail clerk who takes care of all incoming
mail. In accounts payable and receivable are the bookkeepers
and statistical clerk. The office also includes a paymaster,
payroll clerk, adjustment clerk, and stenographers.
Working in the selling area and considered by the Employer
as part of the selling force under the buyers are the mer-
chandise clericals who maintain records of the merchandise
in the selling departments. These unit control reports are
first submitted to the buyers and the totals are then incorpo-
rated in the office records by the statistical clerk. In rush
periods individual merchandise clericals go on the selling
floor and assist in selling. Tied in with the credit department
is the addressograph department which handles all outgoing
mail. Closely connected with both the office and the selling
floor is the mail-order department which processes communi-
cations regarding requests for merchandise. Mail orders are
written up and distributed by an employee in the department
to a salesperson who fills the order and returns the form to
the mail-order department. A utility clerk alternately per-
forms receiving and marking, personnel, and office duties.
Reception and appointment clerks in the fur factory, alteration
5 The record is not clear as to whether the selling employees are considered salaried or
hourly rated employees
6Robertson Brothers Department Store. Inc ., 95 NLRB 271; Maas Brothers , Inc , 88
NLRB 129; Spiegel Fashion Shops, 85 NLRB 437. At the hearing the Employer agreed to
the inclusion in the selling unit of cashier - wrappers and stock employees. However, in
its brief the Employer limits its unit position to salespersons.
JOHN W. THOMAS & CO. 871
departments, and beauty salons perform the essentially clerical
tasks of recording incoming and outgoing garments and
arranging appointments. All office and clerical employees
receive the same benefits, discounts, and vacations as do the
salespersonnel. They punch the same time clock, are hired
by the personnel department, and work the same hours as sales
employees except that only credit clericals work evenings.
The direct integration of much of the work of the office and
clerical employees with that of other employees in the store,
and the community of interest generally of selling and non-
selling employees, in our view, warrants their inclusion in
the unit. Moreover, no union seeks to represent them in a
separate unit. We shall, therefore, include the office and
clerical employees in the unit.t
Alteration departments: The main alteration department on
the fourth floor of the store building is devoted to the repair
and alteration of women's apparel. Coat alterations are per-
formed on the third'floor, corsets onthe first floor, and dress,
coat, and sportswear in the basement. All alteration depart-
ments are physically separated from the departments they
serve. The work of the alteration departments is performed
by fitters and sewers, pressers, and tailors. Alteration de-
partments are under the store superintendent except that the
manager of the fourth floor alteration department also hires
alteration personnel . The employees involved perform the
usual functions associated with their occupations and do hand
as well as machine pressing and sewing. After a dress is
sold it is fitted on the floor. Either the fitter or the sales
employee makes out the alteration memo and attaches it to
the garment, whereupon a stock girl from the sales department
removes the garment to the fourth floor. If a refitting is
required, the customer goeq to the fourth floor and the recep-
tion clerk calls in the fitter and perhaps the sewer. The
customer picks up the finished garment at the alteration desk
and pays the alteration department cashier. Fitters spend
about 50 percent of their time on the selling floor and the
remainder in the alteration department. Employees in the
alteration department participate in the company benefit,
suggestive selling, and discount programs and, withthe excep-
tion of evening work, maintain the same working hours as do
sale spersonnel?
We believe the similarity in working conditions, the common
supervision under the superintendent, and the close dependence
of their functions to selling, justify the inclusion of alteration
employees in the unit. Further, we note that no union is seeking
to represent these employees in a separate unit. Accordingly,
we shall include the alteration employees in the overall unit. 10
7Silverwood's, 92 NLRB 1114; S. H. Kress, 92 NLRB 1114.
As the three telephone operators are under the supervision of the store superintendent
and enjoy the same benefits and working conditions as other store personnel , we shall
include them in the overall unit.
sFitters receive a 25 percent discount on store merchandise in common with salesper-
sonnel. Employees who do not come in contact with the public receive a 15 percent discount.
9 Fitters work the evenings the store remains open.
10J. C. Pendey Company, 86 NLRB 920. Cf Foreman & Clark, Inc., 97 NLRB 1080
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner in Case No . 18-RC-1902 seeks a unit of all
regular and regular part-time employees in the coffeeshop
of the Employer's department store excluding the manager and
all other employees . The Employer does not oppose the exclu-
sion.
The coffeeshop is located in the downstairs store and is
physically separated from the sales area. The shop caters to
the general public but store employees also use its facilities.
Complete meals as well as sandwiches are served. Most of the
jobs are filled by employees with experience in the restaurant
field who are hired by the shop manager . Cooks, food service
girls, waitresses , dishwashers , bus boy, and cashier are
employed on4 an hourly basis, and enjoy some of the benefits
accorded other store employees . However, they do not partici-
pate in suggestive selling, are paid straight time for overtime
work, receive free meals and uniform, and are entitled to a
bonus after each year of service . The hours of work of coffee-
shop employees involve reporting earlier and leaving earlier
than the other store employees . There is no interchange
between the coffeeshop and other departments in the store.
The coffeeshop employees involved herein possess a dis-
tinctiveness of employment interests not shared by the selling
and nonselling employees which the Board recognizes, espe-
cially in the absence of a history of bargaining on a storewide
basis, as sufficient reason for granting separate representa-
tion. We find, therefore , that the coffeeshop employees appro-
priately constitute a separate unit."
Accordingly , we find that the following constitute units
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
(1) All regular and regular part -time selling and nonselling
employees at the Employer's Minneapolis , Minnesota, depart-
ment store , including employees in the leased departments,
cashier-wrappers, head cashier,12 stock employees , marking
and receiving department employees , delivery department
employees , office and clerical employees , telephone operators,
appointment and reception clerks, employees in the alteration
departments , and second floor and downstairs floor managers, 1s
but excluding employees in the fur factory, coffeeshop , adver-
tising and display departments , beauty and body molding
salons, maintenance department , carpenters and painter, con-
fidential secretaries , 14 guards , professional employees,
buyers, first floor floor manager, assistant buyers, leasedde-
partment managers , millinery department assistant manager,
shoe department and downstairs shoe department assistant man-
agers, delivery department manager, controller , credit and
11 A. Polsky Company, 90 NLRB 1868.
12 The head cashier transfers cashiers from slow to busy desks. In view of the routine
nature of the transfer , we include the head cashier in the unit as an employee.
1SFloor managers are responsible for directing traffic . Only the first floor floor manager
makes effective recommendation as to discharge and transfer and we therefore exclude
him from the unit as a supervisor.
14 The two confidential secretaries who assist store executives in matters involving labor
relations policy are excluded.
KAISER ALUMINUM AND CHEMICAL CORPORATION
873
assistant credit managers, and all other supervisors as defined
in the Act. is
(2) All regular and regular part-time employees in the
coffeeshop of the Employer's Minneapolis, Minnesota, depart-
ment store, including cooks, food preparation, food service,
sandwich and salad employees, waitresses, dishwashers, bus
boy, cashiers, and assistant manager, but excluding all other
store employees, the manager, and all other supervisors as
defined in the Act.'6
[ Text of Direction of Elections omitted from publication in
this volume, ]
is in accordance with Board policy , extra and "on call" employees though not eligible to
vote are included in the unit . J. P. Wasson and Company , 104 NLRB 249.
t6 See footnote 15, supra..
KAISER ALUMINUM AND CHEMICAL CORPORATION and
NEAL D. SULLIVAN, WENDELL OLSON, D. G. MORRISON,
KENNETH DOTSON, FORREST PATTEN, KENNETH
STRAYER, HAROLD E. MORFORD, CHARLES PETTIT, and
CLARENCE HALE. Cases Nos. 19-CA-409, 19-CA-484,
19-CA-485, 19-CA-486, 19-CA-487, 19-CA-488, 19-CA-518,
19-CA-521, and 19-CA-522. May 11, 1953
DECISION AND ORDER
On August 12, 1952, Trial Examiner Wallace E. Royster
issued his Intermediate Report in this consolidated proceeding,
finding that the Respondent had not violated Section. 8 (a) (3)
and (1) as alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel and the Respondent filed exceptions to
the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire
record in the case,' and hereby adopts the findings,2 conclu-
sions, and recommendations of the Trial Examiner only to the
extent consistent with the following exceptions, modifications,
and additions :
1. The Trial Examiner found, and we agree, that the Re-
spondent did not violate the Act by discharging certain em-
I These adequately present the positions of the parties ; therefore the General Counsel's
request for oral argument is hereby denied.
2 The General Counsel excepts , with some merit, to certain fact findings the Trial Ex-
aminer either made or failed to make . As the decision states those facts which the Board
finds material, including a resolution of the credibility of certain witnesses , the Board
need not, and does not, state those particular instances in which the General Counsel's
exceptions have merit.
104 NLRB No. 102.