The Bailey Co.

National Labor Relations Board - Board Decisions

Mar 18, 1946

66 N.L.R.B. 899 (N.L.R.B. 1946)

In the Matter of THE BAILEY COMPANY and DEPARTMENT STORE
EMPLOYEES ORGANIZING COMMITTEE (AFL)
Case No. 8-R-2011.-Decided March 18,1946
Stanley d Smoyer, by Messrs. W. K. Stanley and Eugene B.
Schwartz, of Cleveland, Ohio, and Mr. H. L. Boynton, of Cleveland,
Ohio, for the Company.
Mrs. Marie Duke and Mr. 8. Duke, of Cleveland, Ohio, for the
Union.
Mr. John H. Wood, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Department Store Employees Organ-
izing Committee (AFL), herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of The Bailey Company, Cleveland, Ohio, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Thomas E. Shroyer,
Trial Examiner. The hearing was held at Cleveland, Ohio, on No-
vember 9 and 14, 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 TIIE COMPANY
The Bailey Company is a corporation organized under the laws of
the State of Ohio, and engaged in the department store business with
66 N. L. R. B., No. 109.
899
900 DECISIONS O1 NATIONAL LABOR RELATIONS BOARD
its principal office and places of business located in Cleveland, Ohio.
During the last fiscal year, it purchased merchandise of a value in
excess of $10,000,000, about 95 percent of which was shipped to it
from outside the State of Ohio. Of its total sales during the same
period, not more than one-tenth of 1 percent was shipped outside the
State of Ohio. The bargaining unit requested in this proceeding in-
cludes only the Company's East Side store where the merchandise
sold during the last fiscal year was of an approximate value of
$950,000.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Department Store Employees Organizing Committee is a labor
organization , affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of certain of its employees
until the Union has been certified by the Board in an appropriate
unit.
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 a unit composed of all the employees at the Com-
pany's East Side store, but excluding bushelmen represented by the
Amalgamated Clothing Workers (CIO), seasonal extras, the store
superintendent, and the store manager. Although the Company has
no disagreement with the specific composition of the foregoing unit,
it takes the position that due to the integration of operation and the
similarity of working conditions in its Cleveland stores, the only
appropriate unit is one composed of the employees of all three stores.
The Company's 3 stores include the large "Downtown" store em-
1 The Field Examiner reported that the Union submitted 46 authorization cards, bear-
ing the names of 24 employees , listed on the Company 's pay-roll of October 24, 1945
There are approximately 72 employees in the unit alleged to be appropriate.
THE BAILEY COMPANY 901
ploying 600 employees, the Lakewood store employing 115, and the
East Side store where 75 persons are employed. The Lakewood store
is located 6 miles west, and the East Side store 4 miles east, of the
"Downtown" store. The main office of the Company is located in the
"Downtown" store, from which the general operations of the 3 stores
are directed, including the determination of advertising and general
employment policies and 90 percent of the buying and pricing of
merchandise sold in all 3 stores. Employees of the 3 stores have the
same vacations, sick leave, and discount privileges. Their hours of
work vary in that the East Side and Lakewood stores are open Tues-
day and Saturday evenings in accordance with neighborhood prac-
tice. Hourly wage rates are generally the same, but commissions for
sales personnel are one-half of 1 percent higher in the 2 smaller
stores. A small number of promotions of personnel from store to
store has occurred to fill supervisory and other top positions, but these
constitute exceptions to the general practice of employing persons
from the neighborhood in each of 3 stores and with no transfers to
and from the other stores.
The record further shows that the East Side and Lakewood stores
exercise a considerable degree of independence in their operations.
The superintendent of the East Side store grants wage increases and
hires and fires employees; approval of the "Downtown" store officials
on wage increases is required only as a formal matter. The settle-
ment of grievances is the function of the manager of the local store,
resort being made to the officials of the "Downtown" store only in
the event of the inability of the local management to handle the
matter. Although the record reveals that the Union undertook simi-
lar organizing campaigns in each of the three stores at approximately
the same time early in 1945, the evidence indicates that the organizing
efforts have not been successful at either the "Downtown" or Lake-
wood stores. In view of the operating and geographical separation
of the stores, the general absence of interchange of employees, and
the present state of union organization, it is our opinion that the
employees of the East Side store may constitute a separate appro-
priate unit .2
We find that all the employees of the Company's East Side store,
excluding bushelmen represented by the Amalgamated Clothing
Workers (CIO), seasonal extras, the store superintendent, and the
store manager and any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
s See Matter of Norfolk Southern Bus Corporation , 60 N. L. R B 630 ; Matter of Gay-
lord Bros Inc., 64 N. L. R. B. 1350, and cases cited therein.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
The Company contends that no part-time extras should be eligible
to vote unless they work 2 or more days each week and have been on
the pay-roll at least 60 days. The Union, however, contends that
regular part-time employees should be eligible regardless of how
many hours or days are worked weekly or for how long each has been
employed. We perceive no valid reason for predicating a part-time
employee 's right to vote upon the length of time he has been with
the Company or the amount of time worked weekly,3 so long as such
employee works regularly each week. The request of the Company,
therefore, is denied, and we find that all regular part-time employees
are eligible to vote.
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 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 The Bailey Com-
pany, Cleveland, Ohio, 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 Eighth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among 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 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 elec-
tion, to determine whether or not they desire to be represented by
f See Matter of Great Lakes Pipe Line Company, 64 N. L, R. B. 1296 ; Matter of Vul-
can Mold and Iron Company, 62 N. L. R. B. 1219.
THE BAILEY COMPANY 903
Department Store Employees Organizing Committee,4 affiliated with
the American Federation of Labor, for the purposes of collective
bargaining.
CHAIRMAN HExzoa took no part in the consideration of the above
Decision and Direction of Election.
' The request of the Union that it be designated on the ballot otherwise than as herein
set forth is hereby referred to the Regional Director, to whom the Board has delegated
discretionary authority in matters relating to the conduct of elections.