May Department Stores Co.

MAY DEPARTMENT STORES CO. (KAUFMANN DIVISION) 21 May Department Stores Company ' (Kaufmann Division) and Carpenters' District Council of Pittsburgh and Vicinity affili- ated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner Joseph Horne Company 2 and Carpenters' District Council of Pittsburgh and Vicinity affiliated with the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, Peti- tioner. Cases Nos. 6-RC-2459 and 6-RC-2460. September 9,1960 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before Edward A. Grupp, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record 2 in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employers. 3. The Employers contend that the employees sought by the Pe- titioner are covered by existing collective-bargaining agreements with certain labor organizations and that these contracts are a bar to the present petitions. It was disclosed at the hearing that both Employers are represented in their collective-bargaining negotiations by Labor Standards Association,4 an employer association composed of the large department stores in the Pittsburgh, Pennsylvania, area. On July 25, 1958, the Association on behalf of the May Company entered into a collective-bargaining agreement with Local 101,5 which by its terms is effective from February 17, 1958, to February 15, 1963. On May 9, 1958, the Association entered into a collective- bargaining agree- ment with Local 636,6 on behalf of the Horne Company, which by its terms is also effective from February 17, 1958, to February 15, 1963. The instant petitions were filed on November 4,1959. The Board has held in the Pacific Coast case' that contracts of more than 2 years' duration will constitute a bar to a petition only I Herein called the May Company. 0 Herein called the Horne Company. 3 The Employers ' request for oral argument is denied as the record, including the briefs, adequately presents the issues and the positions of the parties. Labor Standards Association was granted leave to intervene in the proceeding United Department Store Employees Union, Local 101, AFL-CIO, herein called Local 101, intervened on the basis of a contractual interest in Case No . 6-RC-2459. 9 International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Warehousemen Local 636 , herein called Local 636 , intervened on the basis of a contractual interest in Case No . 6-RC-2460. 7 Pactifiic Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990. 129 NLRB No. 1. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the first 2 years of the contract's term. The Employers con- tend, however, that the Board's present contract-bar rules should not apply in this instance in view of the fact that their collective- bargaining agreements were in existence before the present Board rules were put into effect. We find no merit in this contention, as the Board is not precluded from applying its contract-bar principles to agreements executed prior to the adoption of its present rules.8 We also reject the Employers' contention that, as the contracts were executed on July 25 and May 9, 1958, respectively, neither contract has been in existence for a period (i.e., 2 years) sufficient to remove it as a bar. The Board has determined that when the execution date and the effective date of a contract differ, the effective date is controlling for contract-bar purposes.' Accordingly, as the instant petitions were timely filed within the 150- to 160-day period before the end of the first 2 years of the contract term,10 we find that existing agreements do not constitute a bar. 4. In Case No. 6-RC-2459, the Petitioner seeks a unit of all bench- men, finishers, and furniture road servicemen at the May Company store. The Petitioner presently represents a unit of cabinetmakers at this store. In Case No. 6-RC-2460, the Petitioner seeks a unit of cabinetmakers, benchmen, finishers, and furniture road servicemen at the Horne Company store. The Petitioner contends that the units sought are appropriate as a craft or departmental group. The Em- ployers and the Intervenors contend that their presently existing units at the two stores, which consist of all the warehouse employees with certain minor exceptions at the designated locations, are the only appropriate units. This position is based upon the alleged integrated nature of the warehouse operations and the long history of bargaining on the broader basis. They also assert that in any event it was incumbent upon the Petitioner to seek its requested units on a scope embracing all the member stores of the Labor Standards Association. The record discloses that at the May Company the employees in question are located in one of the Employer's warehouse facilities, which is separate and distinct from its retail operation. The cabinet- makers, henchmen, and finishers work in an enclosed shop in the warehouse and are under the direct supervision of a foreman who is exclusively the supervisor of these employees. At the Horne Com- 8 General Electric Company, 125 NLRB 718, footnote 6, Boyd Leedom v International Brotherhood of Electrical Workers Local Union No 108 , AFL-CIO (General Cable Corp.), 278 F 2d 237 (CA, DC.). 'Ben Franklin Paint and Varnish Company, 124 NLRB 54. 10 Pacific Coast Association of Pulp and Paper Manufacturers, supra, at 993 MAY DEPARTMENT STORES CO . (KAUFMANN DIVISION) 23 pany, the employees in question, with the exception of the furniture road servicemen, are also located at the warehouse, which is apart from the selling operation. Although the Employer does not main- tain a separate and distinct furniture workroom, it assigned space along one wall of the warehouse for use as a "furniture line," and this area is used exclusively by the employees in question. These employees sought are under different supervision from the rest of the warehouse employees. The nature of their work at the two stores is almost identical and maybe described as follows. Cabinetmakers handle furniture pieces which are damaged beyond the ability of the finishers to repair. Their function is to replace the damaged part with one which they have fashioned out of unfin- ished wood, and they exercise the skills generally attributed to cabi- netmakers. In carrying out their duties, they use various power .and hand tools such as shapers, handsaws, joiners, lathes, and sanders of different types. One of the two cabinetmakers sought by the Pe- titioner at the Horne Company testified that he studied cabinetmaking nights at vocational school and that he was hired by the Horne Com- pany as a journeyman cabinetmaker. The parties agreed that the testimony of the other cabinetmaker at the Horne Company would be the same if he had testified. Finishers make repairs to furniture which do not require replace- ment of the damaged part. They repair cracks and remove scratches in the finish and also refinish any new parts made up by the cabinet- makers. They are required to know the various wood finishes and to be able to match the different furniture shades. In the course of their duties, the finishers use such tools as a burn-in-knife, lacquer sticks, different size brushes, a burning torch, and various hand tools. The present finishers with one exception have been employed as benchmen for several years prior to their promotion. The one exception was hired by the May Company as an experienced finisher. There is no apprenticeship program in effect at either store. Furniture road servicemen make calls on the customers at their homes in response to complaints. Their duties generally consist of repairing broken or damaged furniture legs, eliminating nicks and scratches in the finish, and refitting doors and drawers. On occasion these employees, at the request of the customer, assemble furniture, hang mirrors, and in some cases repair household appliances or bi- cycles, but the greater part of their time is spent in performing duties similar to those of the warehouse finishers. The record indicates that like the finishers these employees were employed as henchmen for several years prior to being assigned to their present jobs. When the 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD situation warrants and they are called upon to work in the warehouse, they are usually assigned work as finishers or henchmen under the same supervision as the latter employees. Benchmen uncrate and initially inspect the furniture. They polish the furniture, fit and attach metal fixtures, and adjust and assemble items received in a "knocked down" state. They also plane drawers and repair minor nicks and scratches to the finish. In the event the benchman determines he is unable to make the necessary repair, he turns the article over to a finisher for completion. The record shows that several of the henchmen were originally hired in other capacities before being made benchmen. We are of the opinion that this record fails to establish that the finishers, furniture road servicemen, and benchmen perform genuine craft skills within the strict requirements of the American Potash case." In none of these classifications are the employees required to serve, with their respective Employer or elsewhere, a period of ap- prenticeship or comparable training under generally accepted stand- ards for the acquisition of craft status. That the incumbents, on average, have held long employment in their particular jobs does not demonstrate an experience equivalent, as we are not convinced that upon attainment of job proficiency these employees possess and exercise the high degree of manual dexterity and judgment to qualify as true craftsmen. Nor can we find here a functionally distinct de- partment severable within the narrowly confined criteria of American Potash. Accordingly, as the Petitioner seeks only a unit of finishers, furniture road servicemen, and henchmen at the May Company, we shall dismiss the petition in Case No. 6-RC-2459. Although the unit petitioned for in Case No. 6-RC-2460 is likewise inappropriate for severance purposes, we shall consider the Petition- er's alternative request for a unit of cabinetmakers at the Horne Com- pany. (As noted, the Petitioner already represents such a unit at the May Company.) One of the two employees involved was hired as a "journeyman cabinetmaker." It was testified that the incumbents "exercise the skills generally attributed to cabinetmakers," an occupa- tion broadly recognized in industry as entailing a high form of skill u American Potash & Chemical Corporation , 107 NLRB 1418, 1423, in which the Board stated, inter alia, that "a true craft unit consists of a distinct and homogeneous group of skilled journeymen craftsmen , working as such, together with their apprentices and/or helpers. To be a 'journeyman craftsman ' an individual must have a kind and degree of skill which is normally acquired only by undergoing a substantial period of apprentice- ship or comparable training. An excellent rule-of-thumb test of a worker 's journeyman standing is the number of years' apprenticeship he has served-the generally accepted standards of which vary from craft to craft. We will, however, recognize an experience equivalent where it is clearly demonstrated to exist." MAY DEPARTMENT STORES CO. (KAUFMANN DIVISION) 25 in the making of fine woodwork.12 And specific evidence was ad- duced 13 that the cabinetmakers here utilize in their work the tradi- tional tools of the carpentry craft, e.g., shapers, joiners, lathes, the operation of which normally requires the exercise of a high degree of skill.14 Accordingly, we find that the record sufficiently establishes that the cabinetmakers sought are craftsmen of a type which may be allowed a severance election to determine their desires as to separate representation.15 Contrary to the Employer, we do not find that the work of the cabinetmakers at the Horne Company is so integrated with the Employer's merchandising operation as to preclude establishment of the requested unit. Nor is there merit in the contention that the requested unit must encompass all the member stores of the Labor Standards Association, as the record clearly shows that collective bargaining has not been conducted on the basis of an associationwide or multiemployer unit. The Employer and the Intervenor contend that the Petitioner is not the traditional representative of the em- ployees it seeks to represent. At the hearing, the Petitioner testified that one of its locals was specifically organized to represent cabinet- makers, among others, in the Pittsburgh area, and that there is pres- ently a large number of such employees in that local. Petitioner also named for the record several area furniture stores in which it repre- sents such employees. We are satisfied that the Carpenters is a union which has historically represented cabinetmakers in the wood crafts." Accordingly, in Case No. 6-RC-2460, we shall direct an election in the following voting group : All cabinetmakers at the warehouse of the Horne Company, Pitts- burgh, Pennsylvania, excluding finishers, furniture road servicemen, benchmen, upholstery shop employees," all other employees, and all supervisors as defined in the Act. If a majority vote for the Petitioner they will be taken to have indi- cated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for this unit, which the Board, under such circumstances, finds to be appropriate for purposes of collective bargaining. In the event a majority do not vote 12 See Dictionary of Occupational Titles, vol . I, at 170 (1949). '- Only one cabinetmaker testified ; It was stipulated that the testimony of the other would be the same if he testified. 14 See, e.g., National Fireworks Ordnance Corporation, 104 NLRB 792. 15 See, e.g., North American Aviation, Inc., 113 NLRB 1049. 1° Ibid. 17 It appears that there are one or two employees in the upholstery shop, represented by another union, who perform work exclusively on upholstered furniture in a separate location. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Petitioner, these employees shall remain a part of the existing' unit and the Regional Director shall issue a certification of results of election to such effect. [The Board dismissed the petition in Case No. 6-RC-2459.] [Text of Direction of Election omitted from publication.] MEMBER RODGERS, dissenting : The Petitioner seeks to represent craft or departmental units comprised of several employee classifications at the May Company and the Horne Company. The majority finds that most of these employ- ees are not craftsmen, but finds that two employees classified as cabinetmakers are craftsmen. I do not agree that these employees should be found to be craftsmen. As the Board said in its American Potash decision," craftsmen must be engaged primarily in the performance of tasks requiring the exer- cise of their craft skills. In that case, the Board also placed upon the union seeking severance the burden of establishing this fact together with other requisite criteria. In my opinion the Petitioner has failed to establish that the cabinetmakers here involved are craftsmen. These cabinetmakers do not construct furniture; they only make such repairs as are required by damage to furniture shipped to their Employer. The majority bases its finding largely on evidence that the cabinetmakers use var- ious power and hand tools. I cannot agree that the use of such tools is 'sufficient to establish that these individuals are craftsmen. - The record does not indicate that these individuals are called upon to exercise the full range of what are considered to be cabinetmakers' skills in the course of the limited repair work which they perform. It further appears that even if it is assumed that the use of power woodworking tools supports a finding of craft status, only one of the employees here involved uses such tools, as only one employee works on the fourth floor where the power tools are located. The other ap- pears to work exclusively on the fifth floor in the center of the "line" of benchmen and finishers, who are found by the majority not to be craftsmen. In the past the Board has refused to establish a craft unit where only one employee exercises craft skills,'9 and this Direction of Election appears to be an unjustified departure from this rule. I would dismiss the petition in both Cases Nos. 6-RC-2459 and 6-RC-2460. IsAmerican Potash d Chemical Corporation, 107 NLRB 1418. 19 Cincinnati Division, Davison Chemical Company, etc, 110 NLRB 85, 87.