F. W. Woolworth Co.

F. W. WOOLWORTH COMPANY 307 F. W. Woolworth Company 1 and Hotel and Restaurant Em- ployees Union Local 705, affiliated with the AFL-CIO, Peti- tioner.2 Case No. 7-RC-5606. August ^V, 1963 DECISION ON REVIEW AND DIRECTION OF ELECTION On February 26,1963, the Regional Director for the Seventh Region issued a Decision and Order in the above-entitled proceeding dismiss- ing the petition on the ground that the proposed unit is inappropriate. Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a request for review of such Decision and Order. The Em- ployer filed a statement in opposition to the request for review. The Board, by telegraphic Order dated March 25, 1963, granted the re- quest for review. Thereafter, the Employer and the Petitioner filed briefs. The Board has considered the entire record in this case with respect to the Regional Director's determination under review, and makes the following findings : The Petitioner seeks to represent a unit composed of all employees within department 340 at the Employer's retail variety store located at 6565 Woodward Avenue, Detroit, Michigan, including those who work primarily at the lunch counter, snackbar, bakery counter, and in the kitchen. The Employer contends that only a storewide unit is ap- propriate. The Regional Director dismissed the petition on the ground that the employees within department 340 do not constitute a func- tionally distinct and homogeneous group entitled to separate rep- resentation and that only a storewide unit is appropriate. In support of its request for review, the Petitioner urges that the requested employees are quite like other restaurant employees found by the Board to constitute sufficiently distinct and homogeneous groups entitled to separate representation. The Employer, a retail variety store chain, is engaged in the sale of general merchandise and in the preparation and serving of food in its stores throughout the United States. The Detroit store involved consists of three levels, a first floor, second floor, and basement. De- partment 340 (hereinafter referred to as 340) is comprised of a kitchen, located on the second floor, and a snackbar, lunch counter, and bakery sales counter, all located closely adjacent, but not contiguous, on the first floor. The kitchen staff, consisting of three bakers, a cook, two busboys-who also work at the lunch counter-and a salad girl, who works part-time as a lunch counter steamtable operator, prepares food 1 The name of the Employer appears as amended at the hearing. 2 The name of the Petitioner appears as amended at the hearing 144 NLRB No. 35. 727-033-64-vol. 144 21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the lunch counter or fountain and provides baked goods for the bakery sales counter. The lunch counter, which is equipped with 59 stools and 9 dining booths, has 13 employees including 4 assigned to the steamtable and 9 waitresses. The snackbar has two regular em- ployees who make and sell sandwiches, hot dogs, and pizzas. The bakery sales counter also has two regular employees who sell baked goods for home and store consumption. The record shows that all store employees are hired under the same procession procedure; all are on a storewide payroll and are paid the same starting wage on an hourly basis; all receive the same vacation, sick leave, holiday, pension, Christmas bonus, and discount benefits; and all punch the same timeclock. Uniforms worn by 340 employees and smocks worn by other employees are furnished and laundered by the Employer. However, the record also discloses that 340 is the only department in the store whose employees are under separate supervision. The fountain manager and the fountain assistant man- ager, who have their own private office, are in complete charge of 340. Two floor supervisors, whose responsibilities are divided between the front half and back half of the store's main floor, have only routine direction over all employees. The duties of the floor supervisors are to see that new merchandise is displayed and that service is handled properly on the main floor. On the other hand, the duties of the fountain manager and assistant manager, both of whom have had special training and possess special skills relating to the preparation and serving of food, consist of seeing that food is prepared according to Woolworth's policy and recipes and that customers are properly served. They also make work schedules and generally oversee all four operations within the department. Although some sales employees on nearby counters occasionally "help out" during busy periods on the bakery sales counter,' in no instance do they work in the kitchen, and department 340 employees rarely work in other departments. It is thus clear that employee interchange and transfers between 340 and other store departments are practically nonexistent. Although it is apparent from the foregoing that there are some fac- tors that would support a finding of the appropriateness of a store- wide unit, it is equally clear that the requested employees in depart- ment 340, who are essentially restaurant employees, have a sufficient mutuality of interests to justify their establishment in a bargaining unit, apart from the other store employees.4 As the Board pointed out 3 Contrary to the statement of our dissenting colleagues that sales clerks in departments 010 and 020 regularly help out in department 340, the record reveals that the approxi- mately 20 employees who are assigned to the kitchen, the lunch counter, and booths are never assisted by employees from other departments . The other four employees at the snackbar and the bakery sales counter are occasionally assisted by employees from outside their department. d See Allied Stores of Ohio, d/b/a A. Poisky Company, 90 NLRB 1868; Thalheimer Brothers, Incorporated. 93 NLRB 726 . Cf. Walgreen Co. of New York, Inc, 97 NLRB 1101. F. W. WOOLWORTH COMPANY 309 in the Allied Stores case,5 this mutuality exists by reason of their singularly different work, training, and skills. Except for the two employees on the bakery sales counter and the two on the snackbar, it can hardly be said that the remaining 20 employees classified as waitresses, bakers, cook, busboys, salad girl and steamtable operators are engaged in selling. Accordingly, and as no labor organization is seeking a broader unit, we find, contrary to the Regional Director, that the requested unit limited to employees in department 340 is ap- propriate, and that a question affecting commerce exists concerning the representation of these employees, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.' We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All department 340 employees employed by F. W. Woolworth Com- pany at 6565 Woodward Avenue, Detroit, Michigan, including those working primarily at the lunch counter on the first floor, at the snack- bar on the first floor, at the bakery counter on the first floor, and the kitchen on the second floor, but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS RODGERs and LEEDOM, dissenting : The Employer herein, F. W. Woolworth Company, has a nationwide chain of retail variety stores, a familiar institution which requires no further description. The Petitioner seeks to represent a unit con- sisting only of those employees working in the kitchen, at the lunch counter, snackbar, and bakery counter of one of the Employer's stores. The Regional Director found the requested unit inappropriate for the purposes of collective bargaining. We agree. The Board has consistently adhered to the policy that, in view of the highly integrated nature of retail store operations and the mu- tuality of interest existing among retail store employees, an overall unit of all selling and nonselling employees, rather than some smaller grouping, is generally appropriate for collective bargaining.? Only where it can be shown that the nature of the employment, or the con- ditions of employment, give rise to a sufficiently separate and distinct 8 Allied Stores, ibid., at p. 1869. , F. W. Woolworth Company, 119 NLRB 480 , 481, cited by the Employer in its brief, is clearly distinguishable from the instant case. In this case, unlike the earlier one, all em- ployees with department 340 are sought to be represented. Neither the cases cited,by our dissenting colleagues nor any other Board precedent of which we are aware compels a result contrary to that which we reach here. 7 Maas Brothers, Inc., 88 NLRB 129; C. C Anderson Stores Co., 100 NLRB 986; J. J. Moreau & Son, Inc, 107 NLRB 999; Ohrbaehs, Inc., 118 NLRB 231; John Breuner Co , 129 NLRB 394 ; Montgomery Ward & Co, Incorporated , 132 NLRB 656. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD community of interest will the Board find,a segment of the overall unit appropriate.' Here it has not been shown that the employees sought by the Petitioner possess the requisite degree of distinction. Most of the employees sought are engaged essentially in sales work. This is precisely the kind of work performed by almost all the other employees in this retail store. Thus the employees who work at the bakery sales counter sell baked goods, just as the other clerks sell the several thousand other items stocked by the Employer. To be sure, the merchandise involved is food, rather than cosmetics, or toys, or dry goods; it may be stored and displayed on shelves in display cases, rather than on a counter, or on the floor; and it may be handled and packaged somewhat uniquely because of its attributes. But we are unable to agree with our colleagues that these "differences" are signifi- cant, that these employees perform "singularly different work," or that they possess different "training and skills." s The waitresses, counter employees, and busboys perform duties that differ somewhat from the duties of the other sales personnel. How- ever, these employees deal with the public, the Employer's customers, in the same manner as the sales clerks, and they perform the same type of routine, repetitive tasks as the other employees. In view of these facts, we conclude that the employment interests of these employees are not sufficiently distinct to warrant their being placed in a separate unit apart from the other selling and nonselling employees. As for the three bakers, the Board has recently held that a unit of bakers in retail supermarkets, whose duties were essentially similar to those of the bakers herein, was not appropriate for the purposes of collective bargaining. The Board found that the bakers constituted "an integral part of the operating personnel" of the stores. Safeway Stores, Incorporated, 137 NLRB 1741. In our opinion, the same may be said of the bakers, and indeed all the other employees sought by the Petitioner, in the instant case. It appears to us that this is simply the latest in a series of cases 10 in which our colleagues have held that arbitrary groupings of em- ployees, obviously based solely on the Union's extent of organization," constitute appropriate units for the purposes of collective bargaining. In this connection we note that there are two other "departments" in the Employer's store that sell food products-department 010, the candy and nuts counter, and department 020, the cookies, pretzels, potato chips, and hams counter. Both of these departments are con- 8 See, for example, Bullocks, Inc, d/b/a I Magnin & Company, 119 NLRB 642; F TV Woolworth Company, 119 NLRB 480. 9 See Peoples Drug Stores, Inc, 115 NLRB 1001, 1003 10 See, for example, Metropolitan Life Insurance Company, 138 NLRB 512 ; Equitable Life Insurance Company , 138 NLRB 529 ; Dixie Belle Mills, Inc , 139 NLRB 629 Member Rodgers also regards P Ballentine & Sons, 141 NLRB 1103, and Sav-0n Dr ugs, Inc, 138 NLRB 1032, as falling within this group. "Section 9(c) (5) of the Act prohibits the Board from making "the extent to which the employees have organized . . . controlling " GENERAL TELEPHONE COMPANY OF FLORIDA 311 tiguous to the bakery sales counter. The sales clerks in these depart- ments regularly help out at the bakery sales counter and snackbar 12 which indicates that there is no difference between the sales clerks in departments 010 and 020 and the sales clerks included in the unit found appropriate by our colleagues. Based on the above, we would find that the unit sought by the Peti- tioner is inappropriate and, accordingly, would dismiss the petition." 12 The record shows that employees from nearby departments , including 010, 020, 017 (notions), and 140 (jewelry), help out at the snackbar and bakery sales counter when- ever those counters are busy or short of help , which occurs on the average of four or five times a week ; and similarly, that employees from the snackbar and bakery sales counter wait on customers at the above-mentioned departments whenever the need arises. 13Welgreen Company of New York, Inc., supra; Peoples Drug Stores, Inc., supra; F. W. Woolworth Company, 119 NLRB 480. In a recent case , Frostco Super Save Stores, Inc., 138 NLRB 125 , our colleagues found that a unit of cooks, counter employees , busboys, and employees operating a popcorn concession was not appropriate , in the context of a discount department store, as such employees "do not comprise a group with sufficiently disparate employment interests . . . In each of the cited cases, the Board found in- appropriate for the purposes of collective bargaining, units of lunch counter-soda fountain employees similar to the unit sought by the Petitioner herein. General Telephone Company of Florida and System Council T-2, International Brotherhood of Electrical Workers, AFL-CIO.' Case No. 12-CA-2331. August 30, 1963 DECISION AND ORDER On April 3, 1963, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices al- leged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. The General Counsel and Union filed exceptions to the Intermediate Report and the General Counsel filed a supporting brief. The Respondent filed a reply brief in opposition to those exceptions and in support of the Trial Examiner's Intermediate Report and Recommended Order. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record 1 System Council T-2 was described at the hearing as a committee consisting of repre- sentatives elected by various IBEW local unions representing the Respondent's employees. 144 NLRB No. 28.