Sears Roebuck and Co.

National Labor Relations Board - Board Decisions

Aug 13, 1941

34 N.L.R.B. 244 (N.L.R.B. 1941)

In the Matter of SEARS ROEBUCK AND COMPANY ATWATER KENT MAIL
ORDER PLANT and UNITED RETAIL, WHOLESALE, AND DEPARTMENT
STORE EMPLOYEES OF AMERICA, LOCAL 18, C. I. O.
Case No. R-4617.-Decided August 13, 1941
Jurisdiction : general merchandising mail order industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition until certified by Board ; election necessary.
Unit Appropriate for Collective Bargaining : shade factory and warehouse em-
ployees with specific inclusions and exclusions.
Mr. Oscar Grossman, of Chicago, Ill., for the Company.
Mr. Louis F. McCabe, of Philadelphia, Pa., for the Union.
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 18 and April 22, 1941, respectively, United Retail,
Wholesale, and Department Store Employees of America, Local 18,
C. I. 0., herein called the Union, filed with the Regional Director
for the Fourth Region (Philadelphia, Pennsylvania) a petition and
an amended petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Sears Roebuck
and Company Atwater'Kent Mail Order Plant,' Philadelphia, Penn-
sylvania, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On May 13, 1941, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act, and Article
III, Section 3, of National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an appro-
priate hearing upon due notice.
I The Company was designated in the petition as "Sears Roebuck and Company Atwater
Kent Warehouse." A motion was made by the Company to amend the caption to accord
with the designation given to the plant by the Company. No objection was made by the
Union. The Trial Examiner referred the motion to the Board ; it is hereby granted.
34 N. L. R. B., No. 34.
244
SEARS ROEBUCK ET AL. 245
On May 15, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Union,
and Warehousemen's Union, Local 169, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.2 Pursuant to notice, a hearing was held on
May 26 and 28 and June,3, 4, and 5,1941, at Philadelphia, Pennsyl-
vania, before Jack Davis, the Trial Examiner duly designated by
the Chief Trial Examiner. The Company and the Union were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made rulings on motions and
cn objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Sears Roebuck and Company is a New York corporation which
operates 595 retail stores, 10 mail-order plants, and 20 factories in
47 States. The only plant involved in this case is the Atwater Kent
Mail Order Plant, located at Philadelphia, Pennsylvania. The prin-
cipal materials and merchandise received at the Atwater Kent plant
are drugs, heating and plumbing equipment, mill work, farm imple-
ments, tires, furniture, trunks and suit cases, stoves, and kindred
products. For the fiscal year ending January 31, 1941, approximate-
ly $9,367,000 worth of these products were transported to the Atwater
Kent plant from outside the Commonwealth of Pennsylvania; this
amount comprised 95 per cent of the total dollar volume of materials
and merchandise received at the plant. During the same period,
about $5,500,000 worth of said materials and merchandise, comprising
approximately 60 per cent of the total volume received in the plant,
were shipped to points outside of the Commonwealth of Pennsylvania.
The Company admits that it is engaged in interstate commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Retail, Wholesale, .and Department Store Employees of
America, Local 18, is a labor organization affiliated with the Congress
of Industrial Organizations which admits to membership employees
of the Company.
? The latter union neither appeared nor was represented at the hearing.
451269-42-vol. 34-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On March 17, 1941, the Union requested the Company to bargain
collectively with it as the exclusive representative of the employees
in the Atwater Kent plant of the Company, stating that it repre-
sented a majority of said employees. The Company refused so to
recognize the Union until the Board certified it as the statutory
representative of its employees. A statement of the Regional Direc-
tor introduced into evidence shows that the Union represents a sub-
stantial number of employees in the unit which it alleged to be ap-
propriate.3
We find that a question has arisen concerning the representation of
employees at the Atwater Kent Mail Order Plant of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I, above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union contends that the appropriate unit consists of certain
employees of the Atwater Kent plant of the Company. The Com-
pany claims that the appropriate unit should also include employees
at its Boulevard plant which is also located at Philadelphia. At the
hearing the parties agreed that employees in the following depart-
ments or classes should be included in the appropriate unit : merchan-
dise handlers, elevator men, porters, Department 170 (billing) at the
Atwater Kent plant, Department 178 (parcel-post weighing), and
Department 201 (restaurant). They agree to exclude from the unit
executives, managers and assistant managers, confidential secretaries,
mail-truck drivers, Departments 150 and 637 (record clerks), except
the warehouse files clerks and memo and short-racks employees, whom
the Union wishes to include and the Company to exclude, Depart-
ments 180 and 180-X (house inspection and service of supply), De-
partments 195 and 211 (plant protection, guards, fire inspectors),
Department 204 (medical), gun-repair department, motor-repair de-
8 The Regional Director 's statement shows that the Union submitted 289 membership
application cards, all of which appeared to bear genuine original signatures . It states
that the cards bear the names of a substantial number of employees on the Company's
April 16, 1941 , pay roll in the unit alleged to be appropriate . The pay roll lists 408
names in all.
SEARS ROEIBUCK ET AL. 247
partment, general-auditing and franking department, all invoice
passers, and the following office and clerical departments : Department
101 (general executive) ; Department 107 (employment and person-
nel) ; Department 131 (general operating) ; Department 133 (general
merchandising office) ; Department 139 (catalog addressing) ; De-
partment 141 (catalog mailing) ; Department 142 (advertising) ; De-
partment 146 (mail opening) ; Department 147 (entry) ; Department
148 (distribution and sales listing) ; Department 153 (credit and col-
lections) ; Department 154 (traffic) ; Department 156 (central buy-
ing) ; Department 157 (correspondence) ; Department 160 (collec-
tions) ; Department 162 (index) ; Department 164 (timekeeping) ;
Department 167 (bookkeeping) ; Department 168 (auditing) ; De-
partment 168-A, 168-B, and 168-R (accounting) ; Department 169
(cashier) ; Department 170 (billing) at Boulevard plant; Department"
171 (refund and mailing) ; Department 189 (customer's letter infor-
mation); Department 203 (telephone communications) ; Department
205 (tabulating) ; Department 206 (budgeting or purchasing) ; De-
partment 299 (foreign shipping) ; Department 414 (order offices) ;
Department 415 (telephone-order takers) 4
Apart from the foregoing, the Union seeks to include, and the
Company to exclude, all shade-factory employees, work heads, and
division heads having less than 10 men under their direction,5 extra
employees, maintenance and powerhouse employees," all office and
clerical employees within departments which are composed essentially
of employees handling merchandise,' including Department 134
(pricing)," ticket-office clerks, warehouse files clerks, and memo and
short-racks employees .9
The Atwater Kent and Boulevard plants. The Union contends that
the Atwater Kent plant alone provides a basis for an appropriate unit
on the grounds, inter alia, that work is substantially different from that
at the Boulevard plant, that the employees of both plants consider
themselves separate bargaining entities, and that organization of the
employees of the Atwater Kent plant has so far exceeded organization
at the Boulevard plant that to include both plants within the same unit
* The record is not entirely clear as to whether all the above departments are at the
Atwater Kent plant , the Boulevard plant, or at both plants . It appears that a single
department in all Sears Roebuck plants carries the same number
5 The Company contends that all work heads and division heads should be excluded.
6 The Union wants these employees included only if an appropriate unit is found cover-
ing the Boulevard and Atwater Kent plants ; the Company asks that they be excluded in
any event.
4 The Company seeks to exclude all office and clerical employees , regardless of the
departments with which they are connected
8 The Company wishes to exclude these employees in the event that the Atwater Kent
plant alone is designated.
9 The warehouse files clerks and memo and short -racks employees are record clerks
within Departments 150 and 637 , which both parties agreed to exclude The Union claims
that they should be included in the unit as employees who work closely with merchandise
handlers
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would submerge the unionization which has occurred and deprive em-
ployees of the Atwater Kent plant of the benefits of the Act. It is the
Company's contention that both plants together constitute a single
mail-order unit, that no substantial difference exists between operations
at the Atwater Kent and the Boulevard plants and that therefore
there is no real basis for setting up a separate unit at the Atwater
Kent plant.
The Atwater Kent and Boulevard plants are 4.4 miles apart. Mail
orders are delivered first to the Boulevard plant. The order is then in-
voiced and recorded, and if the purchased goods are stored at the At-
water Kent plant, it is sent there to be filled. Both plants store mer-
chandise, but the Atwater Kent plant apparently handles larger,
heavier items and carload items. There is some evidence that bigger
men are employed at the Atwater Kent plant to handle the heavier mer-
chandise. While there is one personnel office for both plants, separate
personnel files are kept at each place.
The evidence discloses that organizational activities commenced at
the Atwater Kent plant in the summer of 1939. In the spring of 1941,
employees there went on strike. No strike was called at the Boulevard
plant nor was there any attempt to induce those employees to join the
strike. Organization has proceeded separately, the Atwater Kent plant
being more strongly organized than the Boulevard. There is no formal
organization at the Boulevard plant, where only a committee is in
charge of organizational activities. There are approximately 4,456 em-
ployees at the Boulevard plant and 488 at the Atwater Kent plant.
While general membership meetings of the Union include employees of
Atwater Kent, Boulevard, and other plants within the jurisdiction of
Local 18, no joint organizational meetings were ever held between
Atwater Kent and Boulevard employees.
In view of the extent of the Union's organization and other circum-
stances, we find that the employees of the Atwater Kent plant alone
constitute an appropriate unit.
The shade factory. The Company contends that this is a separate
entity and constitutes a separate unit, while the Union claims that it is
properly within the unit which it claims to be appropriate. The shade
factory is located in the Atwater Kent building. It is separated from
the rest of the plant by an aisle. It is owned by the Company, has a
separate manager and division head, and manufactures window shades
under the name "Mastercraft Window Shade Company." 'Orders for
shades are received at the Boulevard plant and sent to the factory, to-
gether with shipping labels addressed to the customers. After the order
is filled it is sent to the shipping department of the Atwater Kent plant.
Employees of the shade factory are hired at the Boulevard plant per-
sonnel office. They are paid by the same paymaster as the other em-
ployees at the Atwater Kent plant and have the same sick benefits and
SEARS ROEBUCK ET AL. 249
profit-sharing plan; their time cards are kept in the same racks. While
the Company's operating superintendent testified that the shade fac-
tory paid rent for the floor space which it occupied, a landlord-tenant
relationship did not exist, but rent was charged merely as a bookkeep-
ing transaction, in order to determine the profit and loss of the factory.
The Union has attempted to organize the shade factory, and some of its
employees are members.
We find that shade factory employees shall be included within the
appropriate unit.
Division and work heads. A work head is responsible for produc-
tion and assigns work to the men under his direction. He works along
with his men from 50 to 75 per cent of the time. He has power to
recommend the disciplining of his men and when a lay-off is necessary,
he may suggest who should be dismissed. The work of a division
head is substantially the same as that of a work head but involves
greater responsibilities. A division head generally spends less than
half of his time working with the men. Some division and work heads
are members of the Union. The Union seeks to include within the
unit all division and work heads having less than 10 men under their
direction. The Company wishes to exclude all of them. We find that
the criterion proposed by the Union for the inclusion of division and
work heads within the unit does not reflect with sufficient accuracy
the relationship of their work to that of other employees within the
unit or the extent of the management functions performed by them.
A more reliable guide to the determination of such questions is, in our
opinion, the amount of,time which they spend in production work.
Accordingly, we find that all division and work heads who spend 50
per cent or more of their time in non-supervisory work shall be in-
cluded in the appropriate unit, while those spending a majority of
their time performing supervisory duties shall be excluded from the
unit.
Extra employees. One who is employed less than 24 consecutive
weeks by the Company is considered an extra employee. Should he
be laid off at any time before he has worked 24 consecutive weeks and
then be rehired, it would be necessary to recommence- the 24-consecu-
tive-week period in order to obtain the status of a regular employee.
Extra employees receive lower wages than regular employees and do
not receive vacations, hospitalization, or other benefits. Most of them
are employed on a full-time basis although some do part-time work.
At the Atwater-Kent plant, there were 252 regular employees and 236
extra employees as of June 5, 1941. Most of the extra employees are
engaged in merchandise handling rather than in office or clerical work.
The Union wishes to include and the Company to exclude, all extra
employees. We find that all extra employees should be included with=
in the appropriate unit.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0 f lee and clerical employees
While agreeing to exclude office and clerical workers employed in
departments which are exclusively office or clerical, the Union seeks to
include such employees within departments which are composed essen-
tially of employees handling merchandise, including Department 134
(pricing), ticket-office clerks, warehouse files clerks, and memo and
short-racks employees. The Company seeks to exclude all office and
clerical employees from the, unit.
Department 134 (pricing). The evidence shows that -the employees
within this department are engaged in checking prices on order tickets.
They work in a segregated area of the merchandising department.
We shall include them within the unit hereinafter found to be
appropriate.
Ticket-office clerks. The duties of these clerks consist of comparing
invoice prices with prices set forth in the Company's catalog. - They
work in departments comprised essentially of merchandise handlers,
under the direction of the same manager who has control over the
merchandise employees. We shall include them within the appro-
priate unit.
Warehouse files clerks. These employees check and file the ware-
house index cards. We shall include them within the appropriate
unit.
Memo and short-racks employees. These employees are in charge
of future orders, and we shall include them within the unit.
We find that all shade-factory employees and all warehouse em-
ployees at the Atwater Kent plant of the Company, including mer-
chandise handlers, division and work heads who spend 50 per cent
or more of their time in non-supervisory work, extra employees, ele-
vator men and porters, office and clerical employees within depart-
ments which are composed essentially of employees handling mer-
chandise, including Department 134 (pricing), ticket-office clerks,
warehouse files clerks, memo and short-racks employees, and em-
ployees in Department 170 (billing), Department 178 (parcel-post
weighing), and Department 201 (restaurant), but excluding execu-
tives, managers and assistant managers, division and work heads who
spend a majority of their time performing supervisory duties, con-
fidential secretaries, maintenance and powerhouse employees, mail-
truck drivers, Departments 150 and 637 (record clerks) except the
warehouse files clerks and memo and short-racks employees, Depart-
ments 180 and 180-X (house inspection and service of supply),
Departments 195 and 211 (plant protection, guards, fire inspection),
Department 204 (medical), gun-repair department, motor-repair de-
partment, general-auditing and frank department, all invoice passers,
and the following office and clerical departments : Department 101
SEARS ROEBUCK ET AL. 251
(general executive) ; Department 107 (employment and personnel)
Department 131 (general operating) ; Department 133 (general
merchandising office) ; Department 139 (catalog addressing) ; De-
partment 141 (catalog mailing) ; Department 142 (advertising)
Department 146 (mail opening) ; Department 147 (entry) ; Depart-
ment 148 (distribution and sales listing) ; Department 153 (credit
and collections) ; Department 154 (traffic) ; Department 156 (central
buying) ; Department 157 (correspondence) ; Department 160 (col-
lections) ; Department 162 (index) ; Department 164 (timekeeping)
Department 167 (bookkeeping) ; Department 168 (auditing) ; De-
partments 168-A, 168-B, and 168-R (accounting) ; Department 169
(cashier) ; Department 171 (refund and mailing) ; Department 189
(customer's letter information) ; Department 203 (telephone com-
munications) ; Department 205 (tabulating) ; Department 206 (budg-'
eting or purchasing) ; Department 299 (foreign shipping) ; Depart-
ment 414 (order offices); and Department 415 (telephone-order
takers), constitute a unit appropriate for the purposes of collective
bargaining, and that said unit will insure to employees of the Com-
pany the full benefit of their right to self-organization and to collec-
tive bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representation
of the employees of the Atwater Kent plant of the Company can best
be resolved by an election by secret ballot. Neither party made any
suggestion as to the date to be used to determine eligibility to vote.
In accordance with our usual practice, we shall direct that those eligible
to vote in the election shall be the employees within the appropriate
unit who were employed by the Company at its Atwater Kent plant
during the pay-roll period immediately preceding the date of the
Direction of Election, subject to such limitations and additions as are
set forth in the Direction hereinafter.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of Sears Roebuck and Company Atwater
Kent Mail Order Plant, Philadelphia, Pennsylvania, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the National
Labor Relations Act.
2. All shade-factory employees and all warehouse employees at
the Atwater Kent plant of the Company, including merchandise
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handlers, division and work heads who spend 50 per cent or more of
their time in non-supervisory work, extra employees, elevator men
and porters, office and clerical employees within departments which
are composed essentially of employees handling 'merchandise, in-
cluding Department 134 (pricing), ticket-office clerks, warehouse
files clerks, memo and short-racks employees, and employees in De-
partment 170 (billing), Department 178 (parcel-post weighing), and
Department 201 (restaurant), but excluding executives, managers
and assistant managers, division and work heads who spend a majority
of their time performing supervisory duties, confidential secretaries,
maintenance and powerhouse employees, mail-truck drivers, Depart-
ments 150 and 637 (record clerks) except the warehouse files clerks
and memo and short-racks employees, Departments 180 and 180-X
(house inspection and service of supply), Departments 195 and 211
(plant protection, guards, fire inspectors), Department 204 (medical),
gun-repair department, motor-repair department, general- auditing
and frank department, all invoice passers, and the following office and
clerical departments: Department 101 (general executive) ; Depart-
ment 107 (employment and personnel) ; Department 131 (general
operating) ; Department 133 (general merchandising office) ; De-
partment 139 (catalog addressing) ; Department 141 (catalog mail-
ing) ; Department 142 (advertising) ; Department 146 (mail opening) ;
Department 147 (entry) ; Department 148 (distribution and sales
listing) ; Department 153 (credit and collections) ; Department 154
(traffic) ; Department 156 (central buying) ; Department 157 (cor-
respondence) ; Department 160 (collections) ; Department 162
(index) ; Department 164 (timekeeping) ; Department 167 (book-
keeping) ; Department 168 (auditing) ; Departments 168-A, 168-B,
and 168-R (accounting) ; Department 169 (cashier) ;-Department 171
(refund and mailing) ; Department 189 (customer's letter informa-
tion) ; Department 203 (telephone communications) ; Department 205
(tabulating) ; Department 206 (budgeting or purchasing) ; Depart-
ment 299 (foreign shipping) ; Department 414 (order offices) ; and
Department 415 (telephone-order takers), constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
SEARS ROEBUCK ET AL. 253
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Sears Roebuck and Company Atwater Kent Mail Order Plant,
Philadelphia, Pennsylvania, an election by secret ballot should be
conducted as early as possible, but not later than thirty (30) days
from the date of the Direction of Election, under the direction and
supervision of the Regional Director for the Fourth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
among all shade-factory employees and all warehouse employees at
the Atwater Kent plant of the Company who were employed by
the Company during the pay-roll period immediately preceding the
date of this Direction of Election, including merchandise handlers,
division and work heads who spend 50 per cent or more of their time
in non-supervisory work, extra employees, elevator men and porters,
office and clerical employees within departments which are composed
essentially of employees handling merchandise, including Department
134 (pricing), ticket-office clerks, warehouse files clerks, memo and
short-racks employees, and employees in Department 170 (billing),
Department 178 (parcel-post weighing), and Department 201 (res-
taurant), employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing executives, managers and assistant managers, division and work
heads who spend a majority of their time performing supervisory
duties, confidential' secretaries, maintenance and powerhouse em-
ployees, mail-truck drivers, Departments 150 and 637 (record clerks)
except the warehouse files clerks and memo and short-racks employees,
Departments 180 and 180-X (house inspection and service of supply),
Departments 195 and 211 (plant protection, guards, fire inspectors),
Department 204 (medical), gun-repair department, motor-repair
department, general-auditing and frank department, all invoice
passers, and the following office and clerical departments : Depart-
ment 101 (general executive) ; Department 107 (employment and
personnel) ; Department 131 (general operating) ; Department 133
(general merchandising office) ; Department 139 (catalog address-
ing) ; Department 141 (catalog mailing) ; Department 142 (adver-
tising) ; Department 146 (mail opening) ; Department 147 (entry) ;
Department 148 (distribution and sales listing) ; Department 153
(credit and collections) ; Department 154 (traffic) ; Department 156
(central buying) ; Department 157 (correspondence) ; Department
160 (collections) ; Department 162 (index) ; Department 164 (time-
keeping) ; Department 167 (bookkeeping) ; Department 168 (audit-
ing) ; Departments 168-A, 168-B. and 168-R (accounting) ; Depart-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment 169 (cashier) ; Department 171 (refund and mailing) ; Depart-
ment 189 (customer's letter information) ; Department 203 (telephone
communications) ; Department 205 (tabulating) ; Department 206
(budgeting or purchasing) ; Department 299 (foreign shipping) ;
Department 414 (order offices) ; and Department 415 (telephone-order
takers), and employees who have since quit or been discharged for
cause, to determine whether or not they desire to be represented by
United Retail, Wholesale and Department Store Employees of
America, Local 18, C. I. 0., for the purposes of collective bargaining.