Sears, Roebuck and Co.

National Labor Relations Board - Board Decisions

Mar 5, 1946

66 N.L.R.B. 285 (N.L.R.B. 1946)

In the Matter of SEARS, ROEBUCK AND Co. and RETAIL CLERKS INTER-
NATIONAL PROTECTIVE ASSOCIATION, A. F. of L.
Case No. 10-R-1614.-Decided March 5, 1946
Mr. Harry H. Kahn, of Chicago, Ill., for the Company.
Mr. Albert W. Gossett, of Atlanta, Ga., for the Union.
Mr. James Zett, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Retail Clerks International Protective
Association, A. F. of L., herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Sears, Roebuck and Co., Atlanta, Georgia, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Dan M. Byrd,
Jr., Trial Examiner. The hearing was held at Atlanta, Georgia, on
November 19, 1945. The Company and the Union appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Sears, Roebuck and Co. is a New York corporation licensed to do
business in the State of Georgia. It operates two retail stores and
a mail order house in the city of Atlanta, but we are here concerned
only with its retail store located on 675 Glen Iris Drive in Atlanta.
During the past year the Company purchased in excess of $500,000
worth of merchandise, over 50 percent of which was purchased
(56 N. L. R. B., No. 32.
285
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the State of Georgia. During the same period of time, the
sales of the Company were in excess of $1,000,000, practically all
of which were made within the State of Georgia.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED
Retail Clerks International Protective Association is a labor
organization, affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to September 7, 1945, Albert W. Gossett, representative of
the Union, telephoned H. W. Buckley, general manager of the retail
store, requested recognition of the Union, and was told that the
question would have to be handled by the Company's Chicago office.
Since that time the Company has not recognized the Union.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks an over-all unit of sales clerks and non-confidential
office employees along with certain miscellaneous categories of em-
ployees, excluding the warehouse and all supervisory personnel. The
Company, on the other hand, would limit the unit to sales clerks
and certain miscellaneous groups, apparently contending that a joint
unit of sales clerks and office employees is inappropriate, and
specifically contending that all its office employees, whether they
have access to the records dealing with its business operations or
with its labor relations, are confidential employees.
The Company's contention that the proposed unit is an improper
'The Field Examiner reported that the Union submitted 110 cards
There are approximately 300 employees in the appropriate unit.
The Company objected to the admission into evidence of the Report on Investigation
of Contending Labor Organizations on the ground , among others , of incompetency. The
Trial Examiner overruled this objection and his ruling is hereby upheld . See Matter
of Buffalo Arms Corporation , 57 N. L. R. B. 1560; Matter of Champion Sheet Metal
Company, Inc., 61 N. L. R. B. 511, and cases cited therein.
SEARS, ROEBUCK AND CO. 287
grouping cannot be upheld. Both the retail clerks and office em-
ployees are on the same pay roll, receive comparable hourly rates
of pay, and participate in the same company benefit plans of group
insurance, cash discounts, profit sharing, sick leave, and vacations.
All utilize the same employee facilities with a consequent and constant
intermingling. Instead of a divergence, there is here a strong mutual-
ity of interest in working conditions .2 We have on numerous
occasions, where as here only one labor organization was involved,
approved a unit, similar to that presently proposed, in other depart-
ment stores of the same company 3 and of other large department
stores similarly engaged.4
Nor can we uphold the Company's contention that its clerical
employees' access to important business information is tantamount to
a confidential relation. The clearly established policy of this Board
is that only those employees are confidential who have access to
confidential records concerning employer-employee relations.5 Office
clericals are not ipso facto confidential.
In spite of the disagreement between the parties as to the general
composition of the unit, they did agree on specific inclusions and
exclusions. In addition to the sales clerks (except in the Service
Station), both parties would include porters and maids (except in
the warehouse), markers and checkers in the Marking Department,
five assistants and one clerical in the Display Department, a
seamstress and a presser in the Tailor Shop, a receiver in the Re-
ceiving Room, and a linoleum and carpet cutter. Both parties
would exclude the categories listed in Appendix A, among which
are the warehouse, both shipping departments, truck drivers, head
receivers, and all supervisory personnel.
The following classifications, on the other hand, are in dispute,
all of which the Union would include 6 and the Company exclude.
All departments considered are directed and controlled by one or
more supervisory officials, whom both parties agreed to exclude.
2 Louis Weinberg Associates, Incorporated, 13 N. L. R. B. 66; Sloss-Sheffield Steel and
Iron Co., 32 N. L. R. B. 710.
8 Sears, Roebuck and Company , 53 N. L. R. B. 5
'See the following cases dealing with Montgomery Ward and Co , Incorporated, 36
N. L. R. B. 69 ; 38 N. L. R. B 297 ; 41 N. L. R. B. 122 ; and 53 N. L. R B. 1300.
6 Matter of Creamery Package Manufacturing Company, 34 N L. R B. 108; Matter
of Chrysler Corporation, 58 N L . It. B. 239, Matter of U S. Automatic Corporation,
58 N. L R. B. 662; Matter of Bethlehem Steel Company, 61 N. L R. B. 854.
e The Union , in spite of its repeated objection , seemed in effect to accept the Com-
pany 's contention , and consequently seemed to agree to the exclusion of practically
all the office clericals employed by the Company . From a careful analysis of the record,
however, we conclude that the Union agreed "to go along" in many disputed cases of
office employees , if such employees were in fact confidential . In regard to other clericals
the Union entered an unqualified and unconditional agreement of exclusion. These
categories are listed in Appendix A, and excluded from the unit herein found appro-
priate. The former class of conditional exclusions shall be considered as disputed.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auditing Department. Three clericals in this department devote
full time to making up and computing the pay roll, picking up
the daily time cards of all employees, and crediting employees with
such time and with any sales commissions they might have earned.'
Three others read the cash registers in the mornings and help on
the pay roll. All six employees apparently have access to personnel
records, but since this is only for purposes of computing earnings,
they will be included in the unit."
Credit Department. Among others, this department employs two
cashiers, one collection correspondent, and two credit interviewers.
They have access to the complete credit history of customers, which
is insufficient to evoke a confidential relation. They will, accordingly,
be included.
Customer Service and Repairs. Approximately 10 clerks in this
department handle customer complaints, follow up repairs from the
factory, and handle cash on "will call," lay away, plan. Since they
have no access to labor relations records, they will be included in
the appropriate unit.
Cashier's Office. Five cashiers in this department take the pay
roll as computed in the Auditing Department, and place the correct
amount of wages in the pay envelopes. Since there is nothing confi-
dential about pay-roll records, these cashiers will be included in
the unit.
Receiving Room. Two clerks have access to source records and
check the various mark-ups throughout all departments in the store.
They have no access to personnel records, and will, therefore, be
included.
Flying Squad Messenger. This employee is stationed in the offices
of the General Manager and Operating Superintendent. She delivers
mail and open teletype messages to the various supervisory officials
throughout the store. When the General Manager's Secretary is
absent or ill, she answers the phone, does some typing, but cannot
take shorthand. She has also substituted in the personnel office. It
was estimated that 40 percent of her time is expended in running
errands. She has access to personnel records and will, therefore,
be excluded.
Service Station. The Company's service station is located im-
mediately adjacent to its retail store and is under the supervision, as
is the retail store, of the general manager. The service station is
4 Towards the close of the hearing , the parties erroneously agreed to exclude the
Commission Clerk. This clerk is a completely non-confidential employee , apparently
is one of the pay-roll clerks, and will therefore be included.
aMatter of South Bend Lathe Works , 59 N. L . R. B. 562; Matter of Bethlehem Steel
Company, 63 N. L . R. B. 1230.
SEARS, ROEBUCK AND CO. 289
under the immediate supervision of a manager and two division
managers. The Union would include, and the Company exclude,
the service station foremen. While the testimony is scant, it does
appear that the foreman can effectively recommend the hiring,
disciplining, and discharging of employees, and will, therefore, be
excluded as a supervisor.
The service station utilizes the employment office, display office,
customer service department, and other services of the retail store.
No distinction is made as to wages, hours, working conditions, and
benefits between these employees and those in the retail store proper.
The fact that the service station maintains a separate profit and loss
statement does not outweigh the other enumerated factors. We shall,
therefore, include all sales clerks, service attendants, and all other
non-supervisory employees of the service station in the unit.
Mechanical Service. The servicemen "M. S." repair electrical ap-
pliances sold by the store. Sometimes these repairs are made in the
store, but the larger portion of them are made in homes of the
customers. The wages, hours, and working conditions of these em-
ployees are substantially the same as those of other employees and
like the sales clerks, they come in contact with customers of the
Company. They will be included in the unit.
We find that all employees of the Company's Glen Iris Drive
retail store, including the service station and mechanical service em-
ployees, porters, and maids, markers and checkers, the five assistants
and one clerical in the Display Department, the seamstress, presser,
receiver, linoleum and carpet cutter, and all office employees except
those listed in Appendix "A"; but excluding the flying squad mes-
senger, employees listed in Appendix "A", the service station foreman,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
The Company maintains different classifications of employees,
namely, regular, extra, and contingent. In accordance with the
agreement of the parties, we find contingent employees 9 ineligible,
and regular employees eligible, to vote.
The Union would allow, and the Company would hold ineligible,
Y Contingent employees are mainly school children and housewives who work at their
pleasure on Saturdays.
686572-46-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extra employees to participate in the election 10 An extra is a
probationer who must work 24 weeks to become a regular employee,
if otherwise satisfactory. Though probationers are disqualified from
the various plans of the Company, cash discount plan excepted, they
are generally subject to the same working conditions of regular
employees ; a probationer's rate of pay is based upon previous ex-
perience, and not upon his classification as a probationer. On other
occasions we have declared similar probationers of the same Company
eligible to vote.l1 We find they have the same interest in terms
and conditions of employment as the regular employees, and accord-
ingly shall permit them to vote, if they are otherwise eligible.12
We shall direct that the question concerning representation which
has arisen, be resolved by an election by secret ballot among em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceeding the date of this Direction of
Election herein, subject to the limitations and additions set forth
in the Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Sears, Roebuck
and Co., Glen Iris Drive Retail Store, Atlanta, Georgia, an election
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the
direction and supervision of the Regional Director for the Tenth
Region, acting in this matter as agent for the National Labor Re-
lations Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, and the determination in Section V, above,
10 The Company contends that the turn -over in this class of employees has been 100
percent in 6 months ; the Union seriously contests this contention. The Company
further claims that they are mainly the wives of servicemen and ball players, and
total approximately 100 employees . All regular employees of the Company are ex-
probationers , and the Company offered no criteria to determine which present pro-
bationers have a reasonable expectancy of becoming regular employees except its contra-
dictory claims of a 100 -percent turn -over, and its statement that all regular employees
had served a probationary period, and that no new employee was hired except as an
extra. Further , upon becoming a regular employee , time spent as a probationer becomes
retroactive as regards the length of service and eligibility for participation in the benefit
plans of the Company.
ss Matter of Sears, Roebuck and Company , 44 N. L R B . 507, 53 N . L. R. B. 5.
12 Matter of Ideal Roller 1 Manufacturing Company, Inc . 60 N L. R. B 1105 ; Matter of
Central Barge Company, 61 N L. R B. 784; Matter of Clarksville Manufacturing Com-
pany, 52 N L R. B. 1502.
SEARS, ROEBUCK AND CO. 291
among employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine whether or not they desire to be repre-
sented by Retail Clerks International Protective Association, affiliated
with the A. F. of L., for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.
APPENDIX A
A.-AGREED EXCLUSIONS
All Managers, Supervisors, Superintendents, and Division Managers.
Auditor.
Head Cashier.
Assistant Advertising Manager, Assistant Auditing Supervisor,
Assistant Head Cashier, Assistant Customer Service Manager.
Head Receiver.
Head Porter.
Mechanical Service Shop Foreman.
Private Secretaries to-General Manager, Operating Superintendent,
Auditor, Credit Manager, Customer Service Manager, Repair
Parts Manager, Receiving Room Manager, Display Manager,
Service Station Manager.
All employees in the offices of Personnel, Merchandising, and Ad-
vertising.
Warehouse, Shipping Departments, and Truck Drivers.