Sears Roebuck & Co.

National Labor Relations Board - Board Decisions

Nov 11, 1942

45 N.L.R.B. 526 (N.L.R.B. 1942)

In the Matter of SEARS ROEBUCK & COMPANY and UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O.
In ' the Matter Of HENRY ROSE STORES, INC., and UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF TMERICA, C. I. O.
138, C. I. O.
In the Matter Of SEARS ROEBUCK AND COMPANY and SEARS DEPARTMENT
- STORE EMPLOYEES, LOCAL #1514, A. F. OF L.
Cases Nos. R-4300, 1-4301, R-4302, respectively.Decided November
11,1942
Jurisdiction : general merchandise mail order and retail industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to recognize any organization until certified by the Board; election
necessary.
Unit Appropriate for Collective Bargaining : separate unit at each retail "A"
store (handling all forms of merchandise) and warehouse within one geo-
graphical area of Company ; two warehouses included in single unit when
one was overflow building of other; "B" store (handling limited type of mer-
chandise) units found inappropriate in absence of showing of representation.
Mr. David A. Wolff, of Detroit, Mich., for the Company.
Mr. Tucker A. Smith, Mr. J. F.. Leigh, and Mr. Charles P. Dull,
of Detroit, Mich., for the C. I. O.
Mr. Harry Karsh, Mr. Reg. Clark, Mr. Arthur Moorhead, Mr. Phillip
F. Koerner, and Mr. George S. Fitzgerald, of Detroit, Mich., for the
A. F. of L.
Mr. Gerard J. Manack, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions and amended petitions duly filed by United
Retail, Wholesale and Department Store Employees of America,
C. I. 0., and Local 138 thereof, herein called the C. I. 0., and Sears
Department Store Employees, Local #1514, A. F. of L., each alleging
that a question affecting commerce had arisen concerning the repre-
45 N. L. R. B., No. 76.
526
SEARS ROEBUCK & COMPANY 527
sentation of employees of Sears Roebuck and Company, Detroit, Mich-
igan, and Henry Rose Stores, Inc., Detroit, Michigan, herein jointly
called the Company,' the National Labor Relations Board, herein
-called the Board, provided for an appropriate consolidated hearing
apon due notice before Frederick P. Mett, Trial Examiner. Said
hearing was held at Detroit, Michigan, on September 21, 22, and 23,
and October 1, 1942. The Company, the C. I. 0., Sears Department
Store Employees, Local #1514, and International Brotherhood of
Chauffeurs, Teamsters, Warehousemen and Helpers of America, A. F.
of L., herein referred to jointly as the A. F. L., appeared and par-
ticipated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. During the' course of the hearing, the Com-
pany moved to dismiss the petitions on the ground that neither the
C. I. O. nor the A. F. L. offered evidence of substantial representation
of employees. The Trial Examiner made no ruling but referred the
motion to the' Board. For reasons hereinafter stated, the motion is
denied. 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 :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Sears Roebuck and Company, herein called Sears, a New York core
poration with its principal office in Chicago, Illinois, ,is principally
engaged in the purchase and manufacture of general merchandise,
and the sale and distribution thereof through the medium of mail order
houses and retail stores. Throughout the United States, Sears owns
and operates more than 600 retail stores and warehouses, 10 mail
order houses, and more than 10 factories. This proceeding involves
Sears' stores and warehouses in the Detroit, Michigan, area, herein
designated as follows: Boulevard warehouse, at 2566 East Grand
Boulevard; Milwaukee warehouse, at 2450 East Milwaukee Avenue;
Lawton warehouse,, at 5242 Lawton Avenue; Grand River store, at
10750 Grand River, Avenue: Gratiot store, at 8000 Gratiot Avenue;
Woodward store, at 1.5001 Woodward Avenue; Jefferson store, at 13915
East Jefferson Avenue; Fort store, at 5860 West Fort Street; and
Wyandotte store, at 3063 Biddle Street, Wyandotte, Michigan. The
stores are further classified into "A" and "B" stores on the basis of
size and kind of merchandise handled.' The "B" stores are smaller
IIn accordance with a stipulation entered into by all parties at the hearing , we shall
consider the employees of Henry Rose Stores, Inc., to be employees of Sears, Roebuck and
Company for the purposes of this proceeding . We deny, however , the motion of the Com-
pany, ruling upon which was referred to us by the Trial Examiner , to strike the name of
Henry Rose Stores , Inc , from the title of this proceeding.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the "A" stores and handle limited types of merchandise. The
Gratiot, Grand River, and Woodward stores are in the "A" category;
the Jefferson, Fort, and Wyandotte stores are in the "B" category.
During 1941, at least 60 percent of the merchandise handled and sold
in the warehouses and stores above set forth, and valued in excess of
$1,000,000, was shipped from points outside the State of Michigan.
During this period, the total sales of each "A" store was in excess of
$1,000,000, the Wyandotte store in excess of $:00,000, and the other
two "B" stores in excess of $100,000 each.
Henry Rose Stores, Inc., herein called Henry Rose, a Delaware cor-
poration with its principal office in New York City, is engaged in the
business of selling at retail women's and children's outer wearing
apparel and millinery. tIIenry Rose owns and operates 193 units
throughout the United States, all of which consist of departments
located in the various Sears stores. Sears owns a substantial minority
of Henry Rose stock, and, in addition to stock dividends, shares in
Henry Rose profits through license fees and rentals. A Henry Rose
department is located in each of the Sears "A" stores in Detroit. At
these places, Sears hires and discharges all employees, makes all de-
liveries, and does all advertising for the Henry Rose departments.
The employees in the Henry Rose departments are` paid their wages
at the same time and place as the Sears employees. During 1941, the
value of the merchandise shipped from points outside the State of
Michigan to each of the Henry Rose units in Detroit was in excess of
$100,000,' approximately 66 percent of the value of all merchandise
handled in each unit.
"Counsel for the Company conceded that both Sears and Henry
Rose are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale and Department Store Employees of
America, and Local 138 thereof, are labor organizations affiliated with
the Congress of Industrial Organizations, ad mitting.to membership
employees of the Company.
Sears Department Store Employees, Local $1514, affiliated with
Retail Clerks International Protective Association, and International
Brotherhood of Chauffeurs, Teamsters, Warehousemen and Helpers
of America are labor organizations affiliated with the American Fed-
eration of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION,
Although the Company has bargained with both the C. I. O. and
the A. F. L.,2 it has refused repeated requests of both 'organizations,
fl At the request of the A F. of L unions who are parties to this proceeding, we are con-
sidering their interests jointly under the designation A. F. L.
SEARS ROEBUCK & COMPANY 529
for exclusive bargaining rights, unless either is certified by the Board
as the exclusive bargaining agent of the Company's employees.
A statement prepared by the Regional Director and other evidence
introduced at the hearing indicate that the C. I. 0. and the A. F. L.
represent a substantial number of employees in the units hereinafter
found appropriate.3
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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The C. I. 0. and the Company generally agree that separate units
for the employees of each "A" store and warehouse are appropriate.
The C. I. 0., however, contends that the Boulevard and Milwaukee
warehouses are a single unit; the Company contends that they are
separate units. The Company contends further that the "B" stores
should not be designated as units or parts of units for the employees
therein ; the unions contend that they should. The A. F. L. contends
that one unit is appropriate for the employees of all stores and ware-
houses in the Detroit area.
As stated above, the Company has engaged in collective bargaining
with both.the C. 1. 0. and the A. F. L. The Company and the C. 1. 0.
agree that their negotiations since 1937 have been on the basis of
separate units, except as hereinafter noted, and that by 1941 they were
handling individual grievances by,conferences between the manage-
3 The C I O . submitted to the Regional Director 909 membership or authorization cards,
of which 319 , according to the Regional Director , appeal to bear genuine written or printed
signatures of persons whose names were on the June 1942 pay rolls of the Company,
listing 929 employees in the alleged appropriate unit or units The A F. L submitted to
the Regional Director 335 application or authorization cards, of which 218 , according to
the Regional Director , appear to bear genuine written or printed signatures of persons
whose names were on the said pay rolls . At the heaiing ,, the, A F L . submitted 40
Teamsters ' 'Union application cards;-'of which 31, accordmg .to the Trial Examiner , appear
to bear genuine original signatures of persons whose names were on the said pay rolls
The evidence indicates the claims of representation among the Company's employees in the
various stores and warehouses are as follows
Store or warehouse
Employees
involved
C I O.
cards
A. F L.
cards
Grand River---------------------------------------------------- 303 113 61
Gratiot----------------------------------------------------------- 217 71 93
Woodward-------------------------------------------------- 227 47 54
Boulevard------------------------------------------------- 102 65 33
Milwaukee ------------------------------------------ -------------- 12 8 ----------
Lawton------------------- ---------------------------------- 21 15 8
Wyandotte------------------------------------------------------- 42 ---------- ----------
Jefferson ---------------------------------------------------------- 3 ----------
Fort--- ----------------------------------------------------------- 2 ---------- ----------
493508-43-vol 45--34
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meat and a C. I. 0. committee from each store and warehouse. The
A. F. L. has been negotiating with the Company only since May 1942,
but the question of dealing under any special unit system was not
raised until the hearing, ^altllough at one of the last conferenees;_the
Company stated that individual grievances were to be taken up with
the various store and warehouse managers. The A. F. L. admits that
the Company never agreed to a single appropriate unit for all Detroit
employees. It appears that all negotiations between the Company
and the two organizations concerned only the "A" stores and ware-
houses. All matters other than individual grievances, were handled
by higher officials of the Company from Detroit or Chicago, and labor
relations generally were controlled through the Chicago offices of the
Company.
All stores are at least 5 miles apart from one another or the ware-
houses. Each store has a manager and is a separate autonomous unit
to the following extent : employees in each store deal with the store
management on all problems ; hiring, discharging,' promotions, and
the number of employees are controlled by the store management ;
store policy and internal affairs, although subject to certain national
regulations, are established and controlled by the store management;
each store determines the amount and kind of merchandise it needs;
each store determines its own budget; and each store, witlrinscertain
limits, regulates wages.-' No employees or merchandise are transferred
among the stores. Each "A" store has a personnel department, but
the "B" stores do not. The connecting link between the stores is the
Detroit group manager, to whore all store managers are responsible
for the general profit and conduct of their stores.
Each warehouse is in direct charge of an assistant manager, who
is responsible to a general manager having overall charge of the
Detroit warehouses.
Boulevard warehouse is used principally for the storage and serv-
icing of furniture for the Detroit stores and formerly was also used
for the storage and servicing of mechanical merchandise.s The•busi-,
ness in mechanical merchandise, however, grew to such an extent that
the facilities at the Boulevard warehouse became inadequate to handle
it. The Company, therefore, acquired the, Milwaukee warehouse, lo-
cated 1 block from the Boulevard warehouse, to be used solely for
mechanical merchandise. The C. I. 0. contends that the Milwaukee
warehouse is merely an overflow building for the Boulevard ware-
house. The Company admits that the war-created shortage of me-
4 No employee of 5 years' or more service may be discharged without the approval of the
Chicago office.
General wage scales are established in the Chicago offices.
e Mechanical merchandise includes refrigerators , radios, washers , stoves, and similar
items.
SEARS ROEBUCK & COMPAN'Y' 531'
chanical merchandise has rendered the Milwaukee warehouse avail-
able for other purposes for the duration of the war. Furthermore,
the service department for mechanical merchandise is still operated
exclusively out of the Boulevard warehouse; employees are trans-
ferred back and forth between the two warehouses; the ,Company
designates both warehouses by one unit number ; ' and employees of
both are on the same pay roll. Moreover, ever since the individual
grievances of the Milwaukee employees have been considered at the
conferences between the C. I. 0. and the Company, the same com-
mittee represented both the Milwaukee and the Boulevard warehouse
employees, and all such conferences were held at the Boulevard ware-
house offices.
The principal function of the Lawton warehouse is to handle and
deliver plumbing and heating equipment throughout the entire State
of Michigan. It is located about 4 miles from the Boulevard and
Milwaukee warehouses, and has a separate pay roll. In all con-
ferences between the C. I. Q. and the Company concerning the griev-
ances of Lawton employees, a committee composed only of Lawton
employees dealt with the Company.
Under all the circumstances above described, we find that separate
units for the employees of each "A" store and the Lawton warehouse
are appropriate, and that. a single unit for the employees of both the
Boulevard and Milwaukee warehouses 'is appropriate. In the absence
of any showing of representation in the "B" stores by either organ-
ization, we shall not direct any elections among the' employees of
such stores. The Unions and the Company agree, irrespective of the
unit or units found by the Board to be appropriate, to the' exclusion
of the employees in the specific categories set forth below." - We find
that all employees at the Grand River, Gratiot, and Woodward stores
of the Company in Detroit, excluding from each the administration
group office employees, managers, assistant managers, superintend-
ents, floor managers, merchandising department employees (also
known as unit control), division heads; (also known as department
heads), assistant division heads who do not sell or work, auditing
department employees, personnel department employees, credit and
collection department employees, secretaries, office cashiers,9 trainees,
store detectives, extra employees, and contingent employees, consti-
tute three separate units for the purposes of collective bargaining,
within the meaning of Section 9 (b) ,of the Act. We further find that
'The Company designates each store and warehouse by a unit number This appears
to be the only instance where two alleged separate units are designated by the same number.
All parties further agree, and we find, that employees of the concessions in the various
stores, consisting of locksmith, watch repairing, optical, soda fountain, tobacco, and shoe
repair departments, should be excluded They are independently owned, hire their own
employees, and only rent space from the Company
U Office cashiers work behind windows and are distinguished from floor cashiers , who, all
agree, and we find, should be included in the appropriate u n its.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all employees at the Lawton warehouse and at the Boulevard and
Milwaukee warehouses, excluding the general manager, assistant
managers, department heads who do not work, private secretaries,
stock record department employees, telephone operators, and all of-
fice employees, constitute two separate units appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of the Act.
V. THE DETERMLNATION OF REPRESENTATIVES, '
We shall direct that the question concerning representation which
has arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth in
the Direction. The A. F. L. unions request that they be designated
jointly on the ballots as "A. F. L."; the C. I. O. requests that it be
designated thereon as "C. I. 0." We shall grant these requests.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lation Act, and pursuant to Article, III, Section 9,,of National Labor
Relations Board Rules and Regulations-Series '2, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Sears Roebuck
and Company, Detroit, Michigan, separate elections 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 super-
vision of the Regional Director for the Seventh Region„acting in
this platter as agent for the National Labor Relations Board, and
subject to Article, III, Section 10, of said Rulesi. and Regulations,
among the employees in the several units found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period hn-
mediately preceding the date of this Direction, including any such
employees who did not work during said pay-roll period because
they were ill or on vacation or in the active military service or train-
ing of the United States, or temporarily laid off, but excluding any
who have since quit or been discharged for cause, to determine
whether they desire to be represented by the C. I. O. or by the
A. F. L., for the purposes of collective bargaining, or by neither.