The Fair

National Labor Relations Board - Board Decisions

May 16, 1946

68 N.L.R.B. 41 (N.L.R.B. 1946)

In the Matter of THE FAIR and DEPARTMENT STORE EMPLOYEES
UNION, LOCAL 291 OF THE BUILDING SERVICE EMPLOYEES ' INTER-
NATIONAL UNION, A. F. of L.
Case No. 13-R-3443.-Decided May 16, 1946
Wilson and Mcllvaine, by Messrs. W. P. Gilbert and George E. Hale,
of Chicago, Ill., for the Company.
Mr. Daniel D. Carmell, by Mr. Lester Asher, of Chicago, Ill., for the
A. F. of L.
Mr. Francis Heisler, of Chicago, Ill., for the C. I. O.
Mr. Lewis H. Ulman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Department Store Employees Union,
Local 291 of the Building Service Employees' International Union, A. F.
of L., herein called the A. F. of L., alleging that a question affecting com-
merce had arisen concerning the representation of employees of The Fair,
Chicago, Illinois, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice before
Robert F. Ackerberg, Trial Examiner. The hearing was held at Chicago,
Illinois, on April 25, 1946. At the hearing, the Trial Examiner granted a
motion to intervene made by Department Store Employees Union, Local
291 of the United Retail, Wholesale and Department Store Employees of
America, C. I. 0., herein called the C. I. O. The Company, the A. F.
of L., and the C. I. O. appeared and participated. All parties were af-
forded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues . The Company,
at an advanced stage in the hearing, moved in effect to strike from the
record any remarks of counsel for either union which might imply that
the Company is engaging in unfair labor practices. The Trial Examiner
reserved ruling thereon. Subsequent to the motion of the Company, coun-
sel for the C. I. O. stated that he did not mean to imply by his remarks
68 N. L. R. B., No. 10.
41
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company was in any way guilty of engaging in unfair labor
practices. We find no such implication in the remarks of counsel for the
A. F. of L. Accordingly, we hereby deny the motion as academic. 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
I. THE BUSINESS OF THE COMPANY
The Fair is an Illinois corporation with its principal office and place of
business in Chicago, Illinois, where it operates a retail department stare
on State Street. In addition to its Chicago store, it operates a warehouse in
Chicago and a retail department store in Oak Park, Illinois, a suburb of
Chicago.'
During the year ending February 2, 1946, the retail value of merchan-
dise received in the State Street store was in excess of $23,000,000, of
which approximately 87 percent was received from points outside the
State of Illinois. The State Street store's sales for the year ending Feb-
ruary 2, 1946, were valued in excess of $23,000,000, of which approxi-
mately 1 percent was shipped to points outside the State of Illinois.
In addition to cash sales the Company maintains open charge accounts.
There are approximately 35,000 charge accounts, of which approximately
1,300 are in the names of customers living outside the State of Illinois.
The Company's principal means of advertising has been in local news-
papers and on radio stations whose circulation and listening audience ex-
tend throughout the Middle West.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Department Store Employees Union, Local 291 of the Building Serv-
ice Employees' International Union, is a labor organization affiliated with
the American Federation of Labor, admitting to membership employees
of the Company.
Department Store Employees Union, Local 291, of the United Retail,
Wholesale and Department Store Employees of America, is a labor or-
ganization affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Company.
1 The Oak Park store is not involved in this proceeding.
THE FAIR
III. THE QUESTION CONCERNING REPRESENTATION
43
The Company has refused to grant recognition to the A. F. of L. as
the exclusive bargaining representative of certain of its employees until
the A. F. of L. has been certified by the Board in an appropriate unit.
On June 16, 1945, the Company entered into an exclusive collective
bargaining contract with the C. I. O. The contract provides that it shall
remain in effect until June 15, 1946, and from year to year thereafter
until notice of a desire to negotiate terms for a new, agreement is given by
either party sixty (60) days prior to any anniversary date. The A. F.
of L. demanded on December 28, 1945, that the Company accord it exclu-
sive recognition, and when the Company failed to acquiesce in this de-
mand the A. F. of L. filed the petition herein on January 18, 1946. On
April 12, 1946, the C. I. O. notified the Company by letter of its desire to
negotiate a new contract. One day later the Company informed the
C. I. O. that it accepted the C. I. O.'s letter as a cancellation of their con-
tract as of June 15, 1946, but that it could not negotiate with the C. I. O.
because of the A. F. of L.'s conflicting claim.
Neither the Company nor the C. I. O. contends that the existing con-
tract will be in force after June 15, 1946. As it is clear that this contract
will soon expire, we find that it does not bar a present determination of
representatives 2
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
All parties agree that the appropriate unit should be that so found by
the Board in the prior representation proceeding involving the Company
and the C. I. 0.8
Accordingly, and upon the entire record, we find that all selling and
non-selling employees at the Company's State Street store, including win-
dow trimmers, sign writers, audit, credit and accounts payable employees,
and stenographers and typists not engaged in a confidential capacity, and
all employees at the Company's warehouse and garages, but excluding
confidential employees, artists, copywriters, pay-roll department employ-
ees, employment office employees, special service employees, employees
of the statistical division of the comptroller's office, training department
2 See Matter of The Flintkote Company, 55 N. L. R B 1442. As we stated in that case, any
certification which may issue as the result of an election herein shall be for the purpose of
designating a representative to negotiate an agreement to succeed the contract expiring June
15, 1946 , now in effect.
3 Matter of The Fair, 33 N L. R B. 113, 116
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, demonstrators paid one-half or more by manufacturers, per-
sons in leased departments, truck drivers and truck drivers' helpers, and
such craft employees as have agreements with the Company, namely, car-
penters, painters, electricians, operating engineers, engine room employ-
ees, escalator and elevator maintenance mechanics, steamfitters, plumbers,
butchers, and executives, superintendents, floormen supervisors, buyers
and assistant buyers, 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. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among the employees in
the appropriate 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 4
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 Relations 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 representatives
for the purposes of collective bargaining with The Fair, Chicago, Illinois,
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 Thirteenth
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 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 exclu l-
4 The A. F. of L. requested at the hearing that it be placed on the ballot as "A. F of L.,
Local 291 , Department Store Employees Union, B. S. E I . U." The C. I. O. requested at th,
hearing that it be placed on the ballot as "Department Stare Employees Union, Local 291,
of the United Retail , Wholesale and Department Store Employees of America , C. I. n "
Both requests are hereby granted.
THE FAIR 45
ing 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 they desire to be represented by A. F. of L., Local
291, Department Store Employees Union, B. S. E. I. U., or by Depart-
ment Store Employees Union, Local 291 of the United Retail, Wholesale
and Department Store Employees of America, C. I. 0., for the purposes
of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.