Retail Store Employees Union, Local 444, Etc.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 252 (N.L.R.B. 1965)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were hardly aware of the commotion described by Bradshaw. The demeanor of
each, in reporting the question asked by Lofton, the answer of Durgin , and the
"thank you" of Lofton, was. the same as that of any witness who takes a special side of
a case, and hears little and observes less of that part which supports the opposite side.
Notwithstanding Lofton's testimony that he had not been drinking on the day of
his arrest and had not had a drink since the preceding Fourth of July, I accept the
testimony and opinion of Dr. Childs to opposite effect . Dr. Watson, who examined
him at 5:30 or 6 p .m., would only say that he did not detect any evidence of "inges-
tion of alcoholic content at that time ." This was several hours after Dr. Childs had
examined Lofton.
On the basis of the foregoing findings of fact , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in and is not now engaging in unfair labor
practices as alleged in the complaint.
4. The complaint herein should be dismissed.
RECOMMENDED ORDER
It is recommended that an order be entered herein dismissing the complaint.
Retail Store Employees Union , Local 444, Retail Clerks Interna-
tional Association , AFL-CIO and Agents and Organizers Asso-
ciation , Petitioner. Case No. 30-RC-3 (formerly 13-RC-9123).
June 01,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Donald B. Milan. The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.' Thereafter,
the Employer involved herein filed a brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
Upon the entire record in this case,2 the Board finds :
1. The Employer is a voluntary, unincorporated association and is
one of the approximately 300 local labor unions chartered by the Retail
Clerks Association, AFL-CIO, herein called RCIA, affiliated there-
with. The Local's office and headquarters are in Milwaukee, Wisconsin,
with a membership of approximately 5,500 employees engaged in the
I This case was transferred to the Board by the Regional Director for Region 13.
' It was stipulated by the parties that all pertinent parts of the record in Retail Clerks
International Association, AFL-CIO, 153 NLRB 204, also issued this day, be made part
of the record.
153 NLRB No. 16.
RETAIL STORE EMPLOYEES UNION, LOCAL 444, ETC. 253
retail trades. The Employer contends that the Board should not assert
jurisdiction herein. On the basis of the uncontroverted facts detailed
below, we reject the contention of the Employer.
The RCIA's office and headquarters are in Washington, D.C., and
it maintains other offices in other cities in the United States, Puerto
Rico, and Canada, including seven regional division offices in the
United States. The membership of the RCIA is in excess of 400,000
employees engaged in the retail trades. Various employers that
employ employees represented by local unions chartered by and affili-
ated with the RCIA in the United States purchase and sell goods annu-
ally at a value in excess of $50,000 and cause such goods to be trans-
ported in interstate commerce from and/or to persons outside the
State or territory where they are located.
On an annual basis in a representative year the RCIA, in the course
of its operations, receives per capita dues and initiation fees valued in
excess of $1 million at its International offices from its local unions
located throughout the United States. The International employs
clerical and other employees at its various offices aforementioned.
Various employers of members of Local 444 are engaged in substan-
tial business operations and each annually purchases and/or sells
goods valued in excess of $50,000, and causes such goods to be trans-
ported in interstate commerce from and/or to persons outside the State
in which it is located. The Employer Local 444 remits to the RCIA at
the International's offices per capita dues and initiation fees.
From the foregoing, we find that the Employer is engaged in com-
merce within the meaning of the Act and that it will effectuate the
purposes of the Act to assert jurisdiction herein.3
2. The petitioning labor organization claims to represent certain
employees of the Employer.4
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.5
4. The Petitioner seeks to represent a unit of all appointed business
agents and appointed organizers, excluding all office clerical employ-
ees, all other employees, and supervisors as defined in the Act. The
S See Retail Store Employees Union, Local 880, Retail Clerks International Association,
AFL-CIO, 153 NLRB 255 , issued the same day as the instant case. See also Laun-
dry, Dry Cleaning and Dye House Workers ' International Union Local 26, et al., 129 NLRB
1446, footnote 2.
a For the reasons stated in Retail Clerks International Association , AFL-CIO, 153
supra. w find without merit the contentions of the Employer that the Petitioner is not
a labor organization within the meaning of Section 2(5) of the Act.
S The record shows that the organizers and business agents herein sought by the Peti-
tioner perform duties and have responsibilities similar to those described in Retail Store
Employees Union, Local 880, Retail Clerks International Association , supra. For the
reasons stated in that decision, we find without merit the contentions of the Employer,
Local 444, that such employees are managerial and/or supervisory employees.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer contends that the unit is inappropriate o because it fails to
include stewards and inside organizers.
The duties and the responsibilities of the business agents and orga-
nizers of the above Employer are similar to those described in Retail
Store Employees Union, Local 880, Retail Clerks International Associ-
ation, AFL-CIO, 153 NLRB 255. Essentially their work consists of
administering and enforcing the collective-bargaining contracts which
the Employer has with various stores, and organizing employees in
stores with which the Employer does not have contracts. They work
under the direct supervision of the secretary-treasurer and they recieve
fixed salaries, expense allowances, and fringe benefits. Although their
hours are not fixed, they report each day to the main office, call each
afternoon for messages, and are requir.,d to attend weekly business
agents' meetings and monthly executive board meetings. In addition,
they attend special membership meetings and represent the members
in various community and labor groups. The business agents and
organizers consult concerning their problems and receive suggestions
from each other.
The stewards are full-time employees in stores in which the
Employer, Local 444, has contracts. There are approximately 125 to
150 stewards in the various stores. Each store with less than 10 employ-
ees has a steward, and larger stores may have 2 or more. The chief
duties of the stewards are to: (1) Report contract violations; (2) rep-
resent employees who have not yet joined the Union but are required
to do so under the contract; (3) handle minor grievances; and (4) gen-
erally conduct the day-to-day business of the Union in their particular
store. Stewards may on occasion perform duties away from the store,
such as assisting in organizing and serving as delegate to State and
central labor union conventions. This work is performed on their own
time. All stewards are compensated from the membership dues col-
lected, and receive compensation for written reports filed, and either a
salary or commission for any membership applications obtained. They
are paid every 3 months and may receive compensation during this
period in amounts ranging from $75 to $125.
Inside organizers, as the name implies, are union representatives
working as employees in an unorganized store in an effort to bring
about the organization of the store. At the time the petition was filed,
there were approximately 15 inside organizers. They are selected by
6 We find without merit the contention of the Employer that the petition must be dis-
missed since business agents and organizers are elected rather than appointed and the
job classifications sought are therefore nonexistent The record shows that the employees
in question are effectively appointed by the chief officer of the Local , the secretary-
treasuier , with the executive board and the membership having the power of ratification.
No contention is made that employees appointed by the secretary -treasurer have ever been
rejected by the executive board or the membership.
RETAIL STORE EMPLOYEES UNION, LOCAL 880, ETC . 255
and report to business agents from whom they receive directions, and
fix their compensation. Like the stewards, the work . of the inside
organizers for the Employer, Local 444, is only part time, and occupies
only a minor part of their workweek.
In view of the part-time nature of their duties and responsibilities
for the Employer, Local 444, their minimal contact with business
agents and organizers, their attachment to the work force of the store
in which they are full-time employees, and their lack of direct super-
vision from the chief officer of Employer, Local 444, we find that the
stewards and inside organizers have interests which differ substantially
from those of business agents and organizers. Accordingly, we find
they are not properly a part of the unit sought by the Petitioner because
of their diverse community of interests and we shall exclude them from
the unit.
We find, therefore, that the following employees of the Employer
constitute a cohesive homogeneous group appropriate for the purpose
of collective bargaining within the meaning of the Act :
All appointed business agents and organizers employed by the
Retail Store Employees Union, Local 444, with headquarters in
Milwaukee, Wisconsin, excluding all other employees and super-
visors as defined in the Act.7
[Text of Direction of Election omitted from publication.]
7 As the chief officer of the Local , the secretary -treasurer has the power to effectively
appoint business agents and organizers ; we shall exclude him from the unit as a supervisor.
As the president , first vice president , guide, trustee , and business agents who also serve
on the executive board pass upon appointments and discharges of business agents and
organizers and formulate labor relations policies , we shall exclude them from the unit.
See Laundry, Dry Gleaning and Dye House Workers' International Union Local 26, supra.
Retail Store Employees Union , Local 880, Retail Clerks Interna-
tional Association, AFL-CIO and Agents and Organizers Asso-
ciation , Petitioner. Case No. 8-RC-5006. June 21, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Nora S. Friel. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.- Thereafter, the
Employer involved herein filed a brief.
1 This case was transferred to the Board by the Regional Director for Region 8.
153 NLRB No. 17.