Sears Roebuck & Co.

National Labor Relations Board - Board Decisions

Jun 19, 1942

41 N.L.R.B. 1147 (N.L.R.B. 1942)

In the Matter of SEARS ROEBUCK & COMPANY and WAREHOUSE
EMPLOYEES UNION, LoCAL No. 730, AFL
Case No. R-3883.-Decided June 19, 1942
Jurisdiction : general merchandising mail order industry.
Investigation and Certification of Representatives : existence of question : dispute
as to to appropriate unit; election necessary.
Unit Appropriate for Collective Bargaining : all regular and contingent employ-
ees at two of Company's warehouses, including all stackers and unloaders, order
pickers, furniture finishers and set-up employees, furniture pickers, receiving
and shipping employees, checkers, maintenance employees, the maintenance
engineer, and porters, but excluding all supervisory, clerical, and technical
employees, extra employees, draftsmen, plumbing and heating lay-out engineers
or inspectors, detectives, and central service department employees of one
warehouse.
Mr. Louis Jackson, of New York City, for the Company.
Mr. John J. Kane, of Hyattsville, Md., for the Union.
Mr. Frederic B. Parkes, 2nd, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Warehouse Employees Union, Local
No. 730, AFL, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Sears Roebuck & Company, Washington, D. C., herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Earle K. Shawe,
Trial Examiner. Said hearing was held at Washington, D. C., on
May 21, 1942. The Company and the Union appeared, participated,
and 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.
Upon the entire record in the case, the Board makes the following:
41 N. L. R. B, No 206.
1147
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Sears Roebuck & Company, a New York corporation, operates 595
retail stores, 10 mail order plants, and 20 factories located in 47
States of the United States. The only operations of the Company
involved in the instant proceeding are its Washington, D. C., ware-
houses Nos. 8764 and 8794. The principal materials and merchandise
received at these- warehouses are furniture, rugs, gymnasium equip-
ment, plumbing and heating equipment, stoves, refrigerators, radios,
and kindred products. For the fiscal year ending January 31, 1942,
approximately $1,000,000 worth of such products was transported to
the Company's warehouses from points outside the District of Co-
lumbia. During the same period, the Company's sales in the Dis-
trict of Columbia amounted- to more than $2,000,000. Substantially
all of the products sold by the Company's stores in the District of
Columbia area were distributed to those stores by the warehouses
herein involved. Approximately 25 percent of the above sales which
originated from the Company's Washington warehouses was made
to customers located outside the District of Columbia. The Company
employs approximately 151 employees at its Washington warehouses.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Warehouse Employees Union, Local No. 730, is a labor organization
affiliated with the American Federation of Labor, admitting em-
ployees of the Company to membership.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company and the Union stipulated at the hearing that on or
about March 27, 1942, the, Union informed the Company that it
represented a majority of the Company's employees in the unit urged
herein, and presented a proposed contract to the Company. The
Company questioned the Union's majority and a dispute arose as to
the appropriate unit.
A statement of the Trial Examiner made at the hearing indicates
that the Union represents a substantial number of employees in the
unit hereinafter found to be appropriate.'
'The Union submitted to the Trial Examiner 86 cards dated as follows . 49 between
March 119 and April 10, 1942; 8 between April 15 and 20, 1942; 11 between April 21 and
May 20, 1942 ; and 18 undated. The Trial Examiner stated that all signatures appear
to be original and genuine and that 42 signatures are the names of persons on the
Company ' s current pay roll. There are approximately 73 employees within the unit found
below to be appropriate
SEARS 'ROEBUCK & COMPANY 1149
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 Company and the Union stipulated at the-hearing that all
stackers and unloaders, order pickers, furniture finishers and set-up
employees, furniture pickers, receiving and shipping employees,
checkers and maintenance employees of the Company's Washington,
D. C., warehouses Nos. 8764 and 8794, including the maintenance
engineer, porters, Ernest Davis, Wilbur Ketchum, and Floris Fout,
but excluding all supervisory, clerical, and technical employees,
draftsmen, plumbing and heating lay-out engineers or inspectors,
detectives, central service department employees of Warehouse No.
8764, Fred Strickler, Basil Pitzen, Albert Barrett, Lloyd Kilgore,
and C. Christen, constitute a unit appropriate for the purposes of
collective bargaining.
The two warehouses occupy separate but adjacent buildings con-
nected by run-ways on the second and third floors. Warehouse No.
8794 receives all plumbing and heating merchandise and Warehouse
No. 8764 handles all other merchandise sold by the Company's stores
in the Washington area. We find that the employees of the two ware-
houses may be merged in a single unit appropriate for the purposes of
collective bargaining.
The Company would exclude from the unit all employees who have
been employed within the past 6 months. The Union would exclude
only those who have been hired within 3 days preceding the election.
The Company classifies its employees into three categories, namely,
regular, contingents, and extra, each of whom has a specific type of
time card. Contingent employees are those whom the Company hopes
to keep permanently in its employ, but who are required to fulfill a
trial period of 6 'months, during which time their abilities and limita-
tions are discovered. If, at the end of the 6 months' period, such
contingent employees are found to be efficient and capable; they auto-
matically become regular employees. In the past, an average of
approximately 90 percent of the contingent employees have become
regular employees. It appears that contingent employees have some,
but not all; of the benefits accorded regular employees. In some
departments, contingent employees receive the same-amount of wages
as regular employees; in others there is a' slight difference. Both, how-
ever, perform the same type of -work. • In'view of these circumstances,..
we shall include contingent employees in the unit.2
2 See Matter of Sears Roebuck and Company, Atwater Kent Mast Order Plant and
United Retail, Wholesale and Department Store Employees of America, Local 18, C I. 0 ,
1150 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD
The Company defines extra employees as those who are hired 'in
emergencies for a temporary period of 2 or 3 days. The Union and
the Company are in substantial agreement that extra employees who
are employed for periods of less than 3 days should be excluded from
the unit. If an extra employee appears to be efficient, the Company
frequently continues his employment and classifies him as a con-
tingent employee. In'the' past, an average of approximately 10 per-
cent of the extra employees have become contingent employees. Extra.
employees are paid on the same rate as contingent employees and,
perform the same type of work. At the present time it appears that
the Company does not maintain a list of regular-extra employees
whom it commonly hires in periods of emergency. We shall exclude,
all extra employees from the unit.3
We find that all regular and contingent employees of the Company's
Washington, D. C., warehouses Nos. 8764 and 8794, including all
stackers and unloaders, order pickers, furniture finishers and set-up
employees, furniture pickers, receiving and shipping employees,
checkers, and maintenance employees, the maintenance. engineer,
porters, Ernest Davis, Wilbur Ketchum, and Floris Fout, but exclud-
ing all supervisory, clerical, and technical employees, extra employees,
draftsmen, plumbing and heating lay-out engineers or inspectors,
detectives, central service department employees of Warehouse No.
8764, Fred Strickler, Basil Pitzen, Albert Barrett, Lloyd Kilgore,
and C. Christen, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the
Act.
Y. THE DETERMINATION OF REPRESENTATIVES
We 'find that the question concerning representation which has.
arisen can best be resolved by an election by secret ballot. To, deter
mine eligibility to vote, the Union urges the use of the pay roll current
at the date of hearing and the Company suggests the use of the pay
roll current at the date of the filing of the original petition. We find
no reason to depart from our customary practice and shall direct that
the employees eligible to vote in the election shall be those in the ap-
propriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
34 N L R B . 244; Matter of The May Department Stores Company , doing business as The
May Company and Retail Clerks International Protective Association, Retail Shoe Sales-
men, Local Union No . 420, A F of L , 39 N. L. R. B 471 , and cases cited therein
8 See Matter of The May Department Stores Company, doing business as The May Coin--
pany and Retail Clerks International Protective Association , Retail Shoe Salesmen, Local
Union No. 420, A. F. of L., 39 N . L. R. B. 471.
SEARS ROEBUCK & COMPANY 1151
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
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Sears Roebuck
& Company, Washington, D. C., 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 Fifth 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 the em-
ployees 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 any such employees who did not work
during that 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 excluding any who have since quite or been-
discharged for cause, to determine whether or not they desire to be
represented by Warehouse Employees Union, Local No. 730, AFL,
for the purposes of collective bargaining.