Retail Store Employees Union, Local 880, Etc.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 255 (N.L.R.B. 1965)

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 Cleaning 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.
i This case was transferred to the Board by the Regional Director for Region 8.
153 NLRB No. 17.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case,2 the National Labor Relations
Board finds:3
1. The Employer is engaged in commerce within the meaning of
the Act .4
2. The petitioning labor organization claims to represent certain
employees of the Employer.5
3. The Petitioner seeks a unit of all appointed business agents and
organizers , excluding supervisors and all other employees. The
Employer maintains that the individuals involved are managerial
and/or supervisory employees who, under Board precedent, are not
accorded collective-bargaining representation either as part of a unit
comprising other employees or as separate units. For reasons stated
below, we find that the Employer's contentions are without merit.
The Employer employs approximately 10 business agents and 3
organizers.6 The chief functions of the business agents are to admin-
ister the numerous collective-bargaining agreements covering approxi-
mately 9,000 members employed by employers in retail fields such as
food, drug, bakery, department stores, and similar enterprises in the
Cleveland area, and to organize the unorganized in such fields. Pro-
spective business agents and organizers are generally interviewed and
hired by the Employer's president or secretary-treasurer subject to
final approval by the Local's executive board and membership. The
compensation of business agents and organizers is fixed by the execu-
tive board, subject to the approval of the membership. The executive
board meets approximately once a month, and between meetings the
Employer's work is administered by the president and secretary-treas-
urer. The business agents and organizers attend weekly business
agents' meetings and also the monthly meetings of the executive board.
The nature of their work does not permit close supervision and of
necessity business agents and organizers exercise considerable discre-
tion in performing their duties. They do not account for their time
and they schedule their own hours. However, they are required to call,
the Local Union office twice daily for messages and instructions. They
2 It was stipulated by the parties that all pertinent parts of the record in Retail Clerks
International Association, AFL-CIO, 153 NLRB 204, and Retail Store Employees Union,
Local 444, Retail Clerks International Association, AFL-CIO, 153 NLRB 252, also issued,
this day, be made part of the record
3Pursuant 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 Fanning, Brown,
and Jenkins].
I See Retail Clerks International Association , AFL-CIO, supra, Trial Examiner's
Decision See also Laundry, Dry Cleaning and Dye House Workers' International Union,
Local 26, et al , 129 NLRB 1446, footnote 2.
6 For reasons stated in Retail Clerks International Association, AFL-CIO, supra, Trial'
Examiner 's Decision, we find without merit the Employer' s contention that the Petitioner
is not a labor organization within the meaning of Section 2 (5) of the Act.
6 The Employer stipulates, and the record so indicates , that the work of the business
agents and organizers is interchangeable and may be considered a single job classification-
RETAIL STORE EMPLOYEES UNION, LOCAL 880, ETC . 257
make a weekly report of their daily work and attend weekly staff meet-
ings presided over by the Employer's president or secretary-treasurer.
Information received and discussed at these meetings plays a major
part in the formation of the Employer's policies.
Business agents primarily service local store units in their assigned
areas. They negotiate and enforce contracts, handle grievances, con-
duct strikes, supervise picket lines, and in strike situations confer with
police and provide information to news media as the need arises. They
conduct membership meetings, assist represented employees in obtain-
ing various benefits to which they may be entitled by law, such as work-
men's and unemployment compensation; they also file representation
petitions and unfair labor practices charges, and assist employees in
cases before the Board. Business agents do organizing on their own
initiative, or sometimes work with other organizers and business agents
in an organizing campaign. On such occasions they have the authority
to spend the Employer's money or pledge its credit as the need arises.
Since the business agents are unable to visit stores frequently, they
either appoint stewards or hold elections among the union members of
the store to select the steward who handles the day-to-day administra-
tion of the contract. A steward receives his training and on-the-job
instruction from the business agent. Stewards receive a dues refund,
a certain percentage of all dues collected, and certain other compensa-
tion for work performed for the Employer. Once chosen, if a steward
does not meet his responsibility, the business agent has authority to
remove him.
From the record, it appears that the business agents and organizers
have the authority, on certain occasions, to hire and discharge pickets
and to use their discretion as to when picketing should be employed.
When a picket line is conducted in the territory of a particular busi-
ness agent, that agent generally takes the responsibility for the picket
line, schedules the work time, and makes arrangements for the pay-
ment of the wages of pickets. The record does not show that this is
done on a frequent or regular basis.
Business agents also have some authority to discipline members for
a violation of a collective-bargaining agreement or the Employer's
constitution and bylaws, and can bring members before the local union
executive board for disciplinary measures. When this is done, the
business agent presents the case to the executive board. They also can
request that an employer discharge an employee for nonpayment of
dues when there is a union-shop clause in the contract.
In addition to the primary work of the business agents and organiz-
ers, they also have extra duties such as representing the Employer as
an official delegate to various labor organizations or community service
groups. The Employer's president, with the approval of the executive
796-027-66-vol . 153-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
board, appoints business agents to various local positions such as the
Cleveland, AFL-CIO, Medina County Federation of Labor, Ohio
State Council of Retail Clerks, Ohio Federation of Labor, and Union
Labor Services Trades Council. When serving as such representatives,
they have the authority to vote on behalf of the Employer. However,
they are required to keep the Employer informed of the decisions made
and policies formulated.
We believe it is clear from the foregoing that the business agents and
organizers, except for the fact that they work directly for the Local
rather than the International, perform duties and have responsibilities
not markedly different from the organizers and negotiators in Air Line
Pilots Association, International, 97 NLRB 929, and in American
Federation of Labor and Congress of Industrial Organizations, 120
NLRB 969, or the business agents and managers in International
Ladies' Garment Workers' Union, 131 NLRB 111, and Textile Work-
ers Union of America, 138 NLRB 269, who, the Board found, do not
formulate, determine, or effectuate employer policies within the mean-
ing of the Board's decision sufficiently to give them managerial status.7
Accordingly, contrary to the Employer, we find that the business
agents and organizers are nonmanagerial employees.
Nor do we find any merit in the Employer's contention that its busi-
ness agents and organizers acquire a supervisory status because in a
certain few instances they appear to have the power of hiring, direct-
ing, and discharging pickets. The pickets, when needed, are hired on
a sporadic, temporary ad hoc basis and are not attached to the Employ-
er's normal work force. Such work is only a minor part of and inci-
dental to their regular duties, and the amount of picketing varies
greatly from year to year. Under these circumstances, we find that the
business agents and organizers are not supervisors within the meaning
of the Act.8
As for the alleged supervisory relationship of the business agents
to stewards, both the Board and the court have rejected similar con-
tentions in regard to the business agents' control over chairladies and
other rank-and-file union members and employees in the International
Ladies' Garment Workers' Union, supra, where it was found that this
was not the type of work relationship envisioned in Section 2 (11) of
the Act to remove employees from an appropriate bargaining unit.
Accordingly, we find that the business agents and organizers are
neither managerial nor supervisory employees and that there exists
a question concerning a representation of employees within the mean-
ing of Section 9(c) (1) and Section 2(6) and (7) of the Act.
7 See also, e g., Eastman Camera and Photo Corp., 140 NLRB 569, 571.
8 See International Ladies' Garment Workers' Union, AFL-CIO V. N.L.R.B., 339 F. 2d
116 (C.A. 2).
AMERICAN BROADCASTING COMPANY, ETC. 259
4. In view of the foregoing, we find that the following employees of
the Employer constitute a homogeneous and cohesive unit appropriate
for purposes of collective bargaining within the meaning of Section
9 (b) of the Act :
All appointed business agents and organizers employed by the
Retail Store Employees Union, Local 880, with headquarters in
Cleveland, Ohio, excluding all other employees and supervisors
as defined in the Act .9
[Text of Direction of Election omitted from publication.]
e As the record shows that Dunlap, President of Local 880 , and McDonald , secretary-
treasurer, have authority to effectively recommend the hiring and discharge of business
agents and organizers , we shall exclude them from the unit because of their supervisory
status. As Krzys, an organizer , is also first vice president and a member of the Local
Executive Council which passes upon hiring and discharges of business agents and orga-
nizers, and formulates labor relations policies , we shall also exclude him from the unit.
See Laundry, Dry Cleaning and Dye House Workers' International Union, Local 26, 129
NLRB 1446, 1447, footnote 4. Moreover , as Walter Davis, a part -time employee education
director and editor of the Local 880 newspaper , Sam Hope, in charge of maintenance of
the Employer 's building, and Gizella Nekich, part-time cleaning employee , have different
duties, interests , and working conditions from organizers and business agents, we shall
,exclude them from the unit.
Neither the Employer nor Petitioner has taken a position with respect to the exclusion
or inclusion of stewards or inside organizers , since the parties have stipulated that the
record in Retail Store Employees Union, Local 444, Retail Clerks International Associa-
tion, AFL-CIO, supra, issued this day, be a part of the record in the instant case, we
shall exclude stewards and inside organizers if herein employed for the same reasons
we have excluded them in that case.
As the record shows that there are no part-time organizers presently employed and the
record contains little information as to the duties and duration of employment of such
employees , we find it unnecessary to, and do not , pass 'upon their status.
American Broadcasting Company, a Division of American Broad-
casting-Paramount Theatres, Inc.' and American Federation of
Television & Radio Artists , AFL-CIO, New York Local, Peti-
tioner. Case No. 2-RC-13475. June 21, 1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
William G. Haemmel. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed .2 Briefs
have been filed by the Employer and Petitioner.
1 The name of the Employer appears, as amended , at the hearing.
2 After the hearing and pursuant to Section 102.67 of the National Labor Relations Board
Rules and Regulations Series 8, as amended, the Regional Director issued an order trans-
ferring the case to the Board for decision.
.
153 NLRB No. 20.