National Labor Relations Board v. May Dept. Stores Co., 12840.

• Decision Date: 11 January 1945
• Docket Number: No. 12840.,12840.
• Citation: 146 F.2d 66
• Parties: NATIONAL LABOR RELATIONS BOARD v. MAY DEPARTMENT STORES CO.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F.2d 66 (1944)

NATIONAL LABOR RELATIONS BOARD v. MAY DEPARTMENT STORES CO.

No. 12840.

Circuit Court of Appeals, Eighth Circuit.

December 20, 1944.

As Modified on Denial of Rehearing January 11, 1945.

Eugene R. Thorrens, Principal Atty., National Labor Relations Board, of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, and Frank Donner, Atty., all of Washington, D. C., and James R. Hemingway, Atty., of Chicago, Ill., all of National Labor Relations Board, on the brief), for petitioner.

Robert T. Burch, of St. Louis, Mo. (Lewis, Rice, Tucker, Allen & Chubb and Milton H. Tucker, all of St. Louis, Mo., on the brief), for respondent.

Before SANBORN, THOMAS, and RIDDICK, Circuit Judges.

THOMAS, Circuit Judge.

The National Labor Relations Board has petitioned the court to enforce its order entered December 17, 1943, requiring the respondent to cease and desist from refusing to bargain collectively with St. Louis Joint Council, United Retail & Department Store Employees of America, affiliated with the C.I.O., as the exclusive representative of all its employees at its St. Louis store engaged in the busheling room, second floor, department 280, and in the busheling room, basement, department 281, including regular and extra employees in these departments, but excluding the two foremen and all other employees of the respondent; and in any other manner interfering with its employees in the exercise of the right to self-organization.

The respondent is a New York corporation owning and operating stores in several states. In St. Louis it does business under the trade name of Famous-Barr Company. Approximately 5,000 employees are engaged in operating the St. Louis store, including about 43 employees in the unit involved in this proceeding.

On June 16, 1943, in a representation proceeding under § 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the Board issued its decision and direction of election in which it found that the employees in the busheling departments, supra, constituted a unit appropriate for the purpose of collective bargaining. The decision provided that the names of the C.I.O. and of the A. F. of L. should be placed upon the ballot, but at the request of the A. F. of L. its name did not appear. The election was held on June 29, 1943, and of the 43 eligible voters in the busheling departments 36 votes were cast for the C.I.O. union, 1 against, and 6 did not vote.

The unfair labor practices alleged in the complaint, based upon charges of the Union, are (1) that although requested to do so the respondent has refused to bargain collectively with the Union, and (2) that in August, 1943, and subsequently, respondent took steps unilaterally to secure the necessary approval by the National War Labor Board of an adjustment of the wages of its employees at the St. Louis store. After a hearing these charges were sustained, and the order now sought to be enforced was entered.

The respondent answered the petition, (1) denying the jurisdiction of the Board and (2) alleging that the order is invalid for two additional reasons, namely, (a) because the union does not represent the employees in the busheling departments and (b) because the Board acted arbitrarily in determining the unit.

The jurisdiction of the Board is assailed for the reason, in substance, that the Famous-Barr store is not engaged in business affecting commerce within the meaning of the Act. The respondent admitted that in the operations of the Famous-Barr store it continuously causes large quantities of merchandise to be purchased and transported in interstate commerce from other states to the store in Missouri; that during the year 1942 it purchased and transported approximately $27,000,000 worth of such merchandise, approximately 70 per cent. of which was purchased and transported to the store from points outside of Missouri; and that during the same period it sold merchandise in excess of $27,000,000 worth, of which approximately 12 per cent. was transported from the store to points outside of Missouri. These facts, together with respondent's method of carrying on business as shown by the record, establish the jurisdiction of the Board. See J. L. Brandeis & Sons v. National Labor Relations Board, 8 Cir., 142 F.2d 977, certiorari denied 65 S.Ct. 85; National Labor Relations Board v. J. L. Hudson Co., 6 Cir., 135 F.2d 380, certiorari denied 320 U.S. 740, 64 S.Ct. 40.

The contention that the St. Louis Joint Council, United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, does not represent the employees in the unit found to be appropriate is without merit. The Board found that it does so represent them and the vote of the employees themselves in favor of this union as their representative for the purpose of collective bargaining was almost unanimous. The contention is based upon the assertion that none of such employees are members of the Joint Council. The Board found that "The Joint Council represents various locals of United Retail, Wholesale & Department Store Employees of America in St. Louis which admit to membership employees of the Company." The evidence shows that the employees in the unit certified in the representation proceeding are members of such a local, to-wit, Local 372; that this local is a part of the Joint Council; and that the Council is composed of the various locals in St. Louis.

Section 6 of the Act authorizes the Board to make rules and regulations necessary to carry out the provisions of the Act. Pursuant to such authority the Board on July 11, 1939, promulgated a rule reading: "A petition to investigate and certify under section 9 (c) of the Act the name or names of representatives designated or selected for the purpose of collective bargaining may be filed by an employee or any person or labor organization acting on behalf of the employees, or by an employer." 6 Cum. Supp. C.F.R., 8521. This rule was in effect when the petition for investigation was filed and when the election was held. At that time the evidence tends to show that the employees understood that the Joint Council represented them. But the respondent argues that they signed cards designating Local 372 as their representative. Frank Verderber, a member of the master committee of Local 372, testified that at the time he signed the card he knew that Local 372 was a part of the Joint Council. When asked on cross examination the question, "Have you ever authorized the St. Louis Local Joint Council to represent you?" he answered, "I think that takes care of it automatically, when I signed that first card." His testimony on this point is corroborated by other testimony and there is no contradictory testimony in the record. Further, in proceedings under § 9(c) of the Act, the petition serves no purpose other than to initiate an investigation. When the investigation results in an election the election determines the right of representation. Section 9(a) of the Act provides that "Representatives" are to be "designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes"; and an election is a proper method of "selection" under the Act.

The respondent earnestly contends that the action of the Board in determining that the busheling departments in the St. Louis store constitute an appropriate unit for collective bargaining was arbitrary and unreasonable. It is admitted that in deciding upon an appropriate unit the action of the Board under § 9(b) is discretionary, when and so long as such action is within the powers conferred by the Act. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701, affirmed 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251.

The respondent argues that the Board in the exercise of its discretion has laid down certain factors for its own guidance and that its arbitrary conduct is shown in that it has disregarded its own criteria for determining an appropriate unit and has not affirmatively found any facts to justify such disregard. These factors which the Board should observe are stated to be: (1) Community of interest; (2) similarity of wages, hours and working conditions; (3) functional coherence; (4) history of collective bargaining; (5) interchangeability of employees; (6) interdependence of operations; (7) eligibility to membership in the union or unions; and (8) special skills. The Board has not, of course, held these to be inclusive and indispensable criteria. Each case must be ruled by the sufficiency or insufficiency of its own facts.

After a full hearing in the representation proceeding the Board found that the employees in the two busheling departments are engaged in fitting and altering men's clothing purchased in the store, and that they are designated as fitters, markers, tailors, pressers, and finishers; that their work traditionally has been regarded as a skilled trade; that prior to 1920 these employees were members of a craft union which was a party to a collective bargaining contract with an employers' association of which respondent was a member. Since 1920 the respondent has recognized no union as the representative of these employees, although for many years it has recognized craft unions as the representatives of teamsters, electricians, carpenters, painters, and upholsterers.

The Board found, also, that the parties all agree that the optimum unit for collective bargaining would include substantially all non-supervisory employees of the store, and concluded:

"Assuming, without deciding, that a store-wide, industrial unit will best effectuate the purposes of the Act, we note that no labor organization claims to represent the employees in such a unit. We believe that collective bargaining should be made an immediate possibility for the employees in the busheling rooms...