Stern's, Paramus

STERN'S, PARAMUS 799 most store employees, and uniformity of working conditions and benefits for all employees. Moreover, also as in Stern's, Paramus, the Petitioner has organized almost all the employees that are to be organized and seeks to represent them; and the petitions for sepa- rate units are nothing more than an election device. I would therefore dismiss the separate petitions with leave to the Petitioner to file a petition seeking a single residual unit of all un- represented employees 21 n Polk Brothers, Inc., 128 NLRB 330. A residual unit would include employees in the women's alteration , display, maintenance , and advertising departments. Allied Stores of New York, Inc. d/b/a Stern's, Paramus and District 65, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioner. Cases Nos. 29-RC-072, 22-RC-2073, and 202-RC-°2074. January 6, 1965 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held before Hearing Officer Earl S. Aronson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.- Upon the entire record, including the briefs of the parties, the other briefs and statements, and the oral argument, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. Questions affecting commerce exist concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 'After the hearing and pursuant to Section 102 67 of the National Labor Relations Board Rules and Regulations , Series 8 , as amended , the Regional Director issued an order transferring these cases to the Board for decision . Thereafter , the Employer and the Petitioner filed briefs . The Employer also filed a reply brief, a request for oral argument, and motions to reopen the record to receive additional evidence and to remand these cases to the Regional Director . Three organizations filed separate briefs as amacus curiae. They were Retail Clerks International Association , AFL-CIO, Industrial Union Depart- ment, AFL-CIO, and American Retail Federation The Board granted the Employer's request for oral argument , and all parties and the amid curiae participated therein. After oral argument, the Employer filed a telegraphic motion, again requesting remand of these cases to the Regional Director for decision or, in the event that the Board denied this request, it asked that the Board delay decision in these cases until they can be decided by a five-man Board. We hereby deny the Employer's motions as without merit. 150 NLRB No. 79. 775-692-65--vol. 150-52 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Employer is a New York corporation operating retail de- partment stores in New York and New Jersey. Its main store is located in New York City. The subject case involves only the Paramus, New Jersey, store. The Petitioner, District 65, Retail, Wholesale and Department Store Union, AFL-CIO, seeks to represent the Paramus store em- ployees in these separate units-selling, nonselling, and restaurant, excluding office employees from all units. The Employer contends that only a storewide unit is appropriate. There is no bargaining history for the employees involved in this proceeding. The Employer's store has 130 departments on 3 floors, a basement, and a lower level. In addition to selling areas, the store has stock receiving and handling areas, management and personnel offices, customer service offices, sales promotion offices, and eating facilities. The warehousing and central office operations are performed in the New York City store. The Employer has approximately 695 employees. The proposed selling unit includes the greatest number, almost 470, who are sales- persons located in the various selling departments throughout the store. There are approximately 70 employees in the proposed res- taurant unit who perform duties in connection with a kitchen, all employee cafeteria, a banquet room, and a customer restaurant and cafe, all on the third floor, and a snackbar on the lower level. This unit would include employees in such job classifications as cook, sandwich maker, salad maker, vegetable cook, soda dispenser, dish- washer and busboy, cafeteria server, waitress, counterman, bartender, and cashier. The Petitioner desires to represent the remainder of the employees (excluding only about 30 office employees) in, a nonselling unit .2 The nonselling unit would include a group of approximately 125 receivers, checkers, stockmen, markers, wrappers, cashiers, altera- tion employees, display employees, furniture finisher, sign -writers, and a few clerical employees in the men's clothing department, fur storage department, at the accommodation desk, and in the vendor return room. There are but a few fringe categories of employees in dispute .3 2 The office employees are variously designated as customer clerical , cash office clerical, credit clerical , bill adjuster, merchandise clerical, customer complaints clerical , payroll clerical , and audit clerks Four merchandise clericals perform adjustment duties in four selling departments. Like other merchandise clericals in the adjustment office, they are responsible to the office manager in the performance of such duties. 3 The Petitioner would include 16 "flying squad" employees in the sales unit and exclude 4 merchandise clericals as office clerical employees The Employer contends that the only appropriate unit is an overall one, including office employees . It therefore takes no position on the unit placement of the "flying squad" and the merchandise clericals. The Petitioner would also exclude fitting room checkers as guards and cymballet em- ployees as professionals . The Employer would include them. STERN'S, PARAMUS 801 The employees in each of the proposed separate units generally work under separate supervision : the selling group is responsible to sales department managers, the bulk of the nonselling to the receiv- ing and marking manager, and restaurant to the restaurant man- ager4 Office employees are under the supervision of the office manager. The nonselling, restaurant, and office employees work in depart- ments and offices segregated from selling areas. The kitchen and restaurants are on the third floor except for the lower level snack- bar. The offices are located on the third floor. The lower level of the store contains the receiving, loading, shipping, invoice checking, and central wrapping rooms. Another marking room is also located on' the second floor. The majority of employees in the requested nonselling unit-stockmen, wrappers, and shipping and receiving employees-work in such areas. Stockmen and carriers also bring merchandise to the selling departments and to adjacent stockrooms, and markers may mark merchandise on the selling floor. There is no interchange between selling and nonselling employees. Only salespersons sell. Restaurant, office, and other nonselling em- ployees do not sell. Salespersons may at times assist stockmen or markers although there is no showing of any substantial amount of time spent in such work.5 Sales employees receive classroom training for their job. Such training includes learning how to sell. The training of nonselling employees is largely on the job. Dress regulations differ for selling and nonselling employees. Salesmen must wear a suit or conservative jacket, tie, and shirt. Nonselling men need not wear a jacket. Women's dress regulations are the same for those who have customer contacts, other than res- taurant employees. All restaurant employees wear uniforms. The Employer rates different factors in determining the job per- formance of selling and of nonselling employees. The rating form for a sales employee records the employee' s sales for a 6-month period and the sales-cost percentage. The 6-month sales figure is a cumulative record of daily sales. The sales and sales-cost percent- age factors are not applied to nonselling employees. These are measures of° the individual sales employee's productivity. Produc- tivity for nonselling employees is measured on a departmental basis.6 * A few employees may, at times , receive assignments from a department manager. Thus stockmen, who are responsible to the receiving and marking manager, may look to sales department managers, for work assignments . And the will-call clerical, who is responsible to. the receiving and marking manager, also reports to the men's clothing department manager. r Twice yearly almost all employees participate in a two -night store inventory . At that time some employees act as callers of the merchandise and others are listers. 9 Rating factors applicable to all employees are attitude , attendance, accuracy, knowledge of job, customer service, and appearance. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wages vary depending on duties performed. The Employer's minimum wage scale runs from $1.05 (grade I) to $1.75 (grade V). Minimum wages in the other grades are $1.35 (grade II), $1.45 (grade III), and $1.60 (grade IV). A further higher unspecified wage (grade VI) depends on special skill. Most of the restaurant classifications are in grade II, except for waitresses who are in grade 1.7 Most stock classifications are grade II.8 Sales employees are in grades II, III, and IV, depending on the department in which they work .9 Office employees generally are in grade III.10 There have been few transfers between selling and nonselling jobs. From 1958 through the first part of 1963, 85 employees made 122 transfers:11 47 of the job transfers were to or from the flying squad; 12 30 were from sales to office work or from office to, sales; 5 were transfers between different office jobs. In the 1958-63 period only three restaurant employees transferred to sales work. Two sales employees transferred to restaurant jobs-as hostess and bar- tender. There is no showing in the record as to the reasons for the transfers; i.e., how many were made at the employees' request or how many were transfers from part-time to full-time jobs.13 The record shows that sales employees stand apart from the con- glomeration of nonselling employees. Apart from the markers, checkers, receivers, and stockmen who bring merchandise to and from the sales floors, there are a large number of employees who perform work in segregated areas and engage, in occupations very distinct from sales work. These include restaurant employees who prepare and serve food, office employees who perform credit and adjustment, payroll and auditing work, alteration and drapery em- ployees who sew garments and drapes, display employees who trim windows and interior areas, and the furniture ,finisher. The record demonstrates, with respect to the units requested- selling, nonselling, restaurant-that the employees' skills, duties, in- terests, and conditions of employment in each group are sufficiently different from each other as to warrant establishing separate units. The bartender is in grade V and the baker and cook in grade VI. The hostess is in grade III. 8 Two stock classifications , order checker and bulk marker , are in grade III. One, packer (bulk or heavy ), is in grade IV, and one , platform man, is in grade V. 6 All sales personnel , except those in 20 departments , are in grade II. Employees in 9 sales departments are in grade III and salespersons in 11 departments are in grade IV. Assistant department managers are in grade V. 10 One office classification , customer service clerical, is in grade II. 11 Employer Exhibits Nos . 38A and 38B show these transfers by years : 1958-12; 1959-41 ; 1960-17 ; 1961-31 ; 1962-17; and 1963-4. >a The flying squad is a group of 16 employees who work without definite assignment as a relief squad ; I .e , to cover jobs of absent employees and to increase the working force on special sales days. 18 Of the 85 employees who transferred jobs in the 1958 -63 period, 32 were on the payroll at the time of the hearing . Of the 32, 18 had held part-time jobs before their transfers. The exhibits do not show whether all transfers were to full -time jobs. STERN'S, PARAMUS 803 Although the Board has regarded the storewide unit in retail establishments as "basically appropriate" 14 or "the optimum unit," 15 it has held that the single comprehensive unit is not the only appro- priate unit in such establishments."' Thus it has directed elections in separate units of selling and of nonselling employees where there has been agreement among the parties or a history of collective bar- gaining.17 And the Board has recognized the differences in work and interest of many occupations in retail department stores and has directed elections in a variety of small units. Such units are : restaurant,18 bakery,19 office employees,20 alteration department'21 display employees,22 and carpet installers 23 Similarly, the Board has directed elections in units of warehouse employees,24 building service employees,25 beauty salon employees,26 and truckdrivers27 Indeed, without resort to the election procedures available under this Act, retail department store employers and unions in the Metro- politan New York area have voluntarily entered into collective- bargaining agreements covering less than all store employees. Thus employers and unions have recognized explicitly the diverse work and interests of the various employee groups. At Lord & Taylor, in New York City, separate unions bargain under separate contracts for these employees : warehouse, men's alteration department, women's alteration department, interior display department, deco- rators, and elevator and maintenance employees. At Saks Fifth Avenue, shoe sales employees are represented by a collective-bargain- ing agent. At Arnold Constable, the Petitioner represents the em- ployees in a leased beauty salon and a local of the Retail Clerks 1'Builock'8 Incorporated, d/b/a I. Magnin & Company, a Division of Bullock's In- corporated, 119 NLRB 642, 643. 15 May Department Stores Company, Kaufmann Division, 97 NLRB 1007, 1008. 16 The Boot Dry Goods Co., Inc., 126 NLRB 953, 955. 17 See A. Victor & Co., 116 NLRB 319, in which the Board directed an election in an agreed unit of sales employees. In Bond Stores, Incorporated, 99 NLRB 1029, the petitioning union sought an overall unit. The Board, however , directed an election in two units : a selling unit for which an intervening union had been bargaining and a nonselling unit, saying that "either an over- all unit of both selling and nonselling employees or separate units of each may be appropriate.. . . In The Root Dry Goods Co., Inc., 126 NLRB 953 , the Board directed a decertification election in a unit of selling employees that had been established by collective bargaining. Is F. W. Woolworth Company, 144 NLRB 307; Thalhimer Brothers, Incorporated, 93 NLRB 726; Allied Stores of Ohio, d/b/a A. Polsky Company, 90 NLRB 1868. 1e Rich's, Inc., 147 NLRB 163. 21 Montgomery Ward & Company, Inc., 100 NLRB 1351 ; Maas Brothers, Inc., 88 NLRB 129,133; Meter d Frank Company, 86 NLRB 517. 21 Foreman & Clark, Inc., 97 NLRB 1080. 22 Goldblatt Brothers, Inc. (Central Display ), 86 NLRB 914. 22 J. L. Hudson Company, 103 NLRB 1378. 24 A. Harris & Co., 116 NLRB 1268. 25 Thalhimer Brothers, Incorporated, 83 NLRB 664; The Bailey Department Stores Com- pany, 85 NLRB 312, 314. 29 May Department Stores Company, Kaufmann Division, 97 NLRB 1007, 1008. 21 J. L. Brandeis & Sons, Inc., 142 NLRB 825. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association represents nonselling employees classified as "cashier- wrappers, carriers, markers, parcel post clerks, runners, stock clerks, receiving clerks, checkers, and packers. . . ." Collective-bargaining agreements covering custodial, warehouse, and craft units are com- mon in the industry. Although the Employer has a collective-bar- gaining contract with the Petitioner covering almost all employees at its New York City store, other unions represent porters, freight elevator operators, passenger elevator operators, electricians,, boiler operators, oilers, carpenters, plumbers, and certain mechanics. Even in retail department stores where unions currently represent storewide units, organization rarely began on this basis. Unions won bargaining rights successively for small units of occupational groupings. Organization proceeded first in the nonselling groups and only later included the sales force. This pattern of organization demonstrates the understanding by unions and employers of the singular differences in duties and interests between selling and non- selling employees. At Stern's New York City store the Union first won representation rights among nonselling employees, including the warehouse, and the Employer entered into a bargaining contract covering that group. Later, the selling employees were organized, then the office employees and the parties added each group to the bargaining unit 28 The Employer's argument, that no distinctions exist between-the selling and nonselling forces, minimizes the significance of the Em- ployer's main venture-to sell-and the salespeople whose ability to sell plays a large part in the success of its business. Certainly the obvious job qualifications of the competent salesperson-pleasing per- sonality, poise, self-confidence, ease in dealing with strangers, imagi- nation, ability to speak well, and to persuade-are not demanded of nonselling personnel. The latter's work is- largely manual in bring- ing merchandise in and out of the store, does not involve meeting the public, knowing desirable features and construction of merchan- dise, and showing initiative in marketing a product. Failure to appreciate the difference between a salesperson's job and that of other store employees is to disregard the obvious. We perceive a great difference between a retail store, like the Employer, that em- ploys salespeople to serve the public and one where the public serves itself without the aid of sales personnel.21 28 A similar organizational pattern developed at R. H. Macy & Co., and Namm's New York City stores and Loeser's Brooklyn store. For a description of the pattern in the sequence of organization among retail employees see Martin S. Estey, "The Strategic Alliance in Union Growth," pp. 41-53 at pp. 48-49, Industrial and Labor Relations Review, vol. 9, No. 1, October 1955 (N.Y. State School of Industrial and Labor Relations at Cornell University, Ithaca, New York). 2 Cf. J. IV Hays, Inc., 147 NLRB 968. STERN'S, PARAMUS 805 Moreover, the nature of the sales force--composed largely of women ,30 working part-time,31 on a temporary basis-is far different from the nonselling groups-composed largely of men,32 working full-time, whose livelihood depends on continued employment 33 Government publications show that the great bulk of part-time sales employees are primarily housewives and students who are not seeking full-time employment because of school, family, or other obligations.34 Personnel turnover is high in retail stores because "many young people change employment after gaining some sales experience and many of the women in this group leave to marry or to take care of families.35 An employer spokesman recognized the different outlook and in- terest of the white-collar employee in describing the union picture in retail stores before a congressional committee : se ... the groups that traditionally are disposed to union mem- bership, like the skilled crafts, are organized. The vast bulk of the white collar workers that have been less receptive to unioni- zation represent the salespeople, the office people, including a 30 Ave estimate that three times as many women as men work as salespersons in department stores. In 1958, about 1,326,671 workers were employed in general merchandise retailing stores and 807,721 ( 60 percent ) of this total worked in department stores. ( 1958 Census of Business, Vol. 1 , Retail Trade, Summary Statistics , Table B, p. 4, U.S. Dept. of Com- merce, Bur. of Census, U.S. Govt. Printing Office, 1961 .) The 1960 Census of Popula- tion indicates that 1 ,291,185 persons worked in general merchandise retailing. (U.S. Census of Population, 1960. Occupation by Industry , p. 97, U S. Dept of Commerce, Bur. of Census , U.S. Govt. Printing Office, 1963.) If the same ( 60 percent) proportion prevailed in 1960, then it is estimated that about 775,000 workers were employed in department stores in that year. About 625 ,844 or 48 percent of-the workers were em- ployed in sales jobs in general merchandise retailing. By applying the same percentage (48 percent ), then about 372,000 workers held sales jobs in department stores in 1960 About three-fourths ( 78 percent ) of the workers in sales jobs in general merchandise retailing were women in 1960. If this same sex distribution applied to department stores, then about 280,000 women worked in sales 'jobs in department stores in 1960 and about 92,000 men worked as salesmen in department stores. az In 1962 more than one-third of the women employed in the retail industry worked on a part-time basis. Special Labor Force Report, "Work Experience of the Population in 1962," Table 2. Monthly Labor Review, January 1964 , pp. 18-27, at 19. Bureau of Labor Statistics, U.S. Dept. of Labor. 32 All checkers , receivers , and stock employees in the Paramus store are men. ss We are not, contrary to the statement in the dissent, separating employees into different units on the basis of sex. All the units which we have found appropriate contain both men and women. ""Manpower Report of the President," pp. 49-50, U.S. Dept. of Labor 1963 , U.S. Govt. Printing Office; "Part-time Employment for Women," Women's Bureau Bulletin 273, at 13, U.S. Dept, of Labor, U.S. Govt. Printing Office, 1960 ; "Employment and Earnings," October 1964 , vol. 11 , No. 4, U.S. Dept . of Labor, Bureau of Labor Statistics. as We are not, contrary to the statement in the dissent, separating employees into different units on the basis of sex . All the units which we have found appropriate contain both men and women. ae Hearings before the House Committee on Education and Labor , House of Representa- tives, 83d Cong., 1st sess., pursuant to H. Res. 115 on Matters Relating to the Labor Management Relations Act of 1947, and for other purposes . Statement of Frederick G. Atkinson, Chairman, Employee Relations Committee, American Retail Federation . Part 6, p. 2183. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD very large proportion of relatively young unmarried women who, I regret to say, also represent relatively short-term employ- ment because they are all interested in getting married or mov- ing on, and that group tends generally, I think, throughout-the industry, to be unorganized today. ' But you have in many stores these fractions that represent those employees engaged in skilled crafts and similar units. The specific facts of these cases, the current bargaining pattern in the industry, the history of bargaining in the area, and a close examination of the composition of the work force in the industry require a recognition of the existing differences in work tasks, and interests between selling and nonselling employees in department stores. Accordingly, we find that separate units for the selling em- ployees and for the nonselling employees are appropriate herein and shall direct elections in such separate units. We further hold, as we have in numerous cases, that the work performed by the restaurant and kitchen employees is "singularly different from the usual retail store or industrial plant work," and employees engaged in such work "have among themselves a mutuality of employment interests not shared by the remaining employees." 37 We therefore find a unit of restaurant employees appropriate. Similarly, as office clerical employees in department stores may constitute a separate unit because they "have interests which are distinct from those of other employees," 38 the office clericals may be excluded from the other store units. The dissenting member is largely influenced in his position by the fact that one union has petitioned for three units. But his position is neither supported by precedent or founded in reason39 Had the Petitioner been a craft union seeking to represent separately several crafts, departmental or other identifiable groups, the majority would have directed separate elections in such several units4° We would not depart from precedent permitting a single union to compete for representation rights in several units if the units requested are other- wise appropriate. We' think they are in these cases. a7 Allied Stores of Ohio, d/b/a A. Polsky Company, 90 NLRB 1868, 1871. Accord: Thalhimer Brothers, Incorporated, 93 NLRB 726, 727-728; John W. Thomas & Co., 104 NLRB 868, 872; F. W. Woolworth Company, 144 NLRB 307; Piggly Wiggly California Company, 144 NLRB 708. 98Montgomery Ward & Company , Inc., 100 NLRB 1351, 1352. Accord: Maas Brothers, Inc., 88 NLRB 129; Meier & Frank Company, 86 NLRB 517. 9D Only this circumstance has prompted the dissenting member to disregard well-settled precedent respecting the appropriateness of a restaurant unit here and in Arnold Constable Corporation, 150 NLRB 788 and the appropriateness of an office unit in Arnold Constable. *a International Paper Company, Southern Kraft Daviseon, 94 NLRB 483, 494-498; 94 NLRB 500 ; Magma Copper Company, 124 NLRB 41, 43-44. STERN'S, PARAMUS 807 Finally, the dissenting view, that the Petitioner's motive in seek- ing separate units was guided by the extent to which the union had organized, is immaterial so long as the Board, in its choice of appro- priate unit, does not give controlling weight to that fact. - Section 9 (c) (5) says that extent of organization shall not be the controlling factor. We have emphasized many valid factors of representation case law in reaching our unit determination. The statute does not preclude Board reliance on such factors warranting the establish- ment of separate units, even assuming that another factor, extent of organization, may have motivated the union. Accordingly, we find that the following units, excluding from each all office clerical employees,41 demonstrators, 42 beauty salon employees,43 casual or per diem employees, on-call or seasonal em- ployees,44 confidential employees'41 professional employees,46 employ- ees covered by existing collective-bargaining agreements,47 guards,48 44 The Petitioner would exclude as office employees merchandise clericals who perform adjustment duties in four sales departments . The Employer would include all office em- ployees , but takes no position respecting the unit placement of the merchandise clericals. The merchandise clericals adjust customer complaints from one-third to one-half of their time and perform recordkeeping and other clerical duties . As their adjustment duties are substantial , are like the duties performed by merchandise clericals working in the adjust- ment office and are performed under the supervision of the office manager, we shall exclude them together with other office clericals. 4' The parties have agreed to the exclusion of demonstrators who receive more than 50 percent of their salary from employers other than the subject Employer. 43 The parties agreed to exclude these employees. 44 The parties have agreed to exclude casual or per diem employees and on-call or seasonal employees. 45 The parties have agreed to exclude clerk-typist Di. Pullman as a confidential employee. 4e The Petitioner would exclude two employees in the cymballet department as profes- sionals. The Employer would include them. The two employees teach dancing and poise to children . There is no evidence that these employees meet the "professional em- ployee" definition in Section 2(12) of the Act. We find, however, that they have work interests separate and apart from those of the regular store employees . We therefore exclude them. Grinnell Brothers, 88 NLRB 397, 400. 47 The Petitioner seeks to exclude employees covered by existing collective -bargaining agreements . This exclusionary clause is in the contract between the parties covering the Employer's New York City store. 48 The Petitioner would exclude fitting room checkers as guards . The Employer would include them and argues that they are included under the terms of the contract between the Employer and the Petitioner covering the Employer's New York City store. That contract does not specifically mention fitting room checkers but does expressly exclude protection department employees . We note that the parties in Arnold Constable Corpo- ration, supra, have stipulated to the exclusion of such checkers as guards. The fitting room checkers are under the overall supervision and budget of the protection department and are assigned to ladies ' ready-to-wear departments Their prime duty is to secure the Employer's merchandise from theft. A checker assigns a fitting room to the customer and gives her a tag or disk denoting the number of garments the customer is taking into the room. When the customer leaves the fitting room, the checker checks her out, insuring that the same number of garments taken into the room are returned and that the room is cleared for further customer use. Should a customer check out with less merchandise than she had when she entered the fitting room, the checker would notify the protection department. As the checkers "enforce against . . . persons rules to protect property of the employer . . . ." we find that they are guards within the meaning of Section 9 (b) (3) of the Act and exclude them. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and supervisors 49 as defined in the Act, are appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. (1) All selling employees, including the flying squad 50 (2) All nonselling employees, excluding cymballet department employees. (3) All restaurant employees, including the hostess. [Text of Direction of Elections omitted from publication.] MEMBER JENKINS, dissenting : The Petitioner has been actively engaged in organizing practically all the Paramus store's unrepresented employees, but instead of seeking an election in a single unit of these employees, it has pro- posed dividing them into three separate bargaining units. The ma- jority adopts such proposal and establishes three separate units. I do not believe that the lines of demarcation among these three groups, whether based on physical or administrative separateness, skills, duties, working conditions, or interests, are sufficiently distinct to justify establishing them as separate bargaining units. The Petitioner has been unsuccessful in organizing a storewide unit. In 1960, the present parties consented to a representation election in a unit that included all store employees 61 The Petitioner lost the election. In June 1962, the Petitioner wrote two letters to the Employer requesting a bargaining date and stating in one that it represented all regular and regular part-time employees; and in the 49 The parties have agreed to exclude the approximately 45 department managers as supervisors. The Petitioner would also exclude 14 assistant department managers, the restaurant hostess, and the fitter -foremen as supervisors . The Employer would include them. There is no evidence that the assistant managers perform other than routine duties. Although employees may look to them to head the department in the absence of the manager, there is no showing that they exercise the manager's supervisory duties. We find that the assistant managers are not supervisors within the meaning of the Act. We therefore include them. The restaurant hostess, who works under the supervision of the restaurant manager, had been employed for a little more than a month at the time of the hearing . The record evidence is insufficient for us to determine her status. We shall therefore permit her to vote subject to challenge The fitter-foreman's duties include assignment of work but he performs his duties under the instruction and direction of the alterations room supervisor . We find that the fitter- foreman is not a supervisor under the Act and include him in the nonselling unit. 5° The Petitioner would include the flying squad of 16 employees . See footnotes 3 and 12, supra. - As the Employer contends for an overall unit, it takes no position on the unit placement of these employees . The flying squad members perform a variety of nonselling as well as selling duties , but almost 80 percent of their time is spent selling. We there- fore include them in the sales unit. 51 Case No. 22-RC-747. STERN'S, PARAMUS 809 second, that it represented all employees working less than 20 hours a week. Thereafter, the Petitioner filed two petitions : one for full- time employees and another for regular part-time employees.52 Later it' withdrew those petitions and filed the instant petitions. All employees involved work in the one store which has 130 de- partments on 3 floors, a basement, and a lower level. , Selling depart- ments are scattered throughout the store area. Nonselling depart- ments are also unconfined to a given store location. Operations relating to stock receiving and handling are generally located on the lower level, but the ready-to-wear receiving and marking room is on the second floor. The alterations department employees are on the second floor, whereas the fur storage, the display department, the sign shop, the furniture work area, and the switchboard oper- ators are on the third floor. Executive offices and the protection office are on the second floor, but other offices-employment and per- sonnel, credit and adjustment-are on the third floor. Kitchen, cafeteria, and restaurant are on the third floor, but a frankfurter stand or snack bar is on the lower level. Selling and nonselling de- partments may be adjacent to one another, as in the case of the reserve stock areas which are located near the selling departments. Few of the employees have craft or craftlike skills. Applicants for selling jobs are usually unskilled and receive only a day or a day and a half of training before they are assigned to selling duties in the selling departments. Most sales personnel are in labor grades II7 III, and IV, for which the minimum hourly wages are $1.35, $1.45, and $1.60, respectively. Nonselling and restaurant employees undergo no formal training at all. Most of them are in the same labor grades as the selling employees. The nonselling unit includes a heterogeneous group of employees whose single common characteristic is the negative one of not en- gaging in selling. The employees in the nonselling unit work in different departments, under different supervision, and perform a variety of different tasks. For example, this unit would include checkers, receivers, stockmen, alteration department employees, cash- iers, gift wrappers, display employees, sign writers, and clerical employees assigned to -different departments. There is a considerable overlap in duties and supervision among employees in the selling and nonselling units. Thus, cashiers and wrappers are in the nonselling unit, but sales personnel in the vari- 6' Cases Nos. 22-RC-2002 and 22-RC-2022. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ous departments also make change and wrap merchandise. The cashiers and wrappers, like the salespeople, write sales checks. Mer- chandise clericals who are assigned to selling departments and are supervised by the managers of those departments are excluded from the selling unit 63 These clericals process sales checks after they are written, handle customer complaints, service customer exchanges, and perform other departmental duties. Markers, who are in the non- selling unit, may mark merchandise on the selling floor three or four times a day working directly with a salesperson or the department manager. Stock employees assigned to certain departments, also included in the nonselling unit, may spend more than 50 percent of their time on the selling floor subject to the supervision of the sales department manager. The "will call" clerical who works in the men's clothing department, included in the nonselling unit, is super- vised by the manager of that department as well as by the receiving and marking manager. Sales employees, as well as stock employees, unload merchandise brought from the receiving room and store it in reserve stock areas or at counters in selling departments. The flying squad employees, who do not have a definite assignment and perform a variety of duties throughout the store, are included in the selling unit .54 All employees, including most of the restaurant employees, participate in taking the twice-yearly store inventory. Although it is characteristic of the selling employees to, deal directly with the public, other employees who are excluded from the selling unit have as many customer contacts as sales personnel. Included among these are wrappers, cashiers, clerical employees in the fur storage department, restaurant waitresses, fitters, employees in the credit and adjustment offices, and merchandise clericals in the selling departments. Conditions of work and employee benefits are identical for all store employees-selling, nonselling, and restaurant. • All employees use the same employee entrance, lounge, lockers, lavatories, cafeteria, and medical office. All participate in store social functions and enjoy the same benefits, including holidays, vacations, store dis- counts, hospital, surgical, and life insurance, severance pay, jury duty pay, and leave. "Merchandise clericals work in the housewares , major appliances, china, glass, silver, and curtain and drapery departments. ss For example , flying squad employees have worked as restaurant cashier and hostess, as markers or stock employees , as an employee in the fashion coordinator's office, as merchandise clericals in the adjustment office, and as clerical employees in the fur storage department and in selling departments. STERN'S, PARAMUS 811 The integration of operations, overlapping of duties and supervi- sion, lack of distinctive job skills for most store employees, and the uniformity of employee working conditions and benefits revealed in this record demonstrate why the Board has long regarded a unit of selling and nonselling employees as basically appropriate for department stores 55 I do not assert that separate units of selling and nonselling employees can never be appropriate. The Board has found a sales unit in a department store appropriate where the parties had agreed to such a unit,b6 and where there had been a his- tory of bargaining for sales personnel in a separate unit.67 There may be other situations where separate units of sales or other em- ployees will be found appropriate. But on the record in this case, applying the usual standards for unit determination, an exception to the general rule that in department stores the appropriate unit should be storewide in scope, is not warranted. 58 Although I reach this conclusion independently of the following, I am confirmed in this conclusion by evidence that Petitioner conducted a single or- ganizational campaign among selling, nonselling, and restaurant employees, and now seeks to represent all these employees, but is resorting to the device of dividing the store employees into three separate units primarily to insure winning an election at least among some segment of the employees. There is a separate question involving the proposed unit of res- taurant employees. The Board has recently held that restaurant employees in a retail variety store, analogous to a department store, may constitute a separate appropriate unit where no labor organi- zation is seeking to represent such employees in a broader unit 5s In the present case, Petitioner is seeking to represent the restaurant employees in an ostensibly separate unit. However, as I have pointed out above, the Petitioner has in fact been organizing em- ployees on a broader basis and is seeking to represent more than the restaurant employees. The separate unit for restaurant employees is nothing more than an election device. Under these circumstances, I would find that the proposed separate unit of restaurant employees is not appropriate. 65J. W. Maya, Inc, 147 NLRB 968; Polk Brothers, Inc., 128 NLRB 330; Bullock's Incorporated, d/b/a I. Magnin & Company, etc., 119 NLRB 642, 643; May Department Stores Company, Kaufmann Division, 97 NLRB 1007, 1008. ce A. Victor & Co , 116 NLRB 319. 57 The Root Dry Goods Co., Inc., 126 NLRB 953. sa Cf. Maas Brothers, Inc., 116 NLRB 1886. 10 F. W. Woolworth Company, 144 NLRB 307 (Members Leedom and Rodgers dissenting). 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I would find, on the record as a whole, that the petitions seek units inappropriate for the purposes of collective bargaining. I would therefore dismiss them 60 00 In granting the Petitioner's unit requests , the majority Members make a number of statements which I do not regard as valid. They have pointed out that the Board in the past has found a variety of small units in department stores appropriate . But these units have been craft, craftlike , or otherwise traditional bargaining units . They state that in the department store field organization has proceeded on a step-by-step basis. This is nothing more than an assertion that extent of organization has governed repre- sentation in this field. But Section 9(c)(5) of the Act precludes the Board from giving controlling weight to this factor. The Board has also, as I have indicated, found appropriate a unit of selling employees where the parties agreed to, or there was a history of bargaining for employees in, such unit. But the Board almost pro forma approves units to which parties have agreed, or for which there is a bargaining history, even though it would not in a contested case find such unit appropriate, unless the unit is repugnant to Board policy or does not give the employees the fullest freedom in exercising the rights guaranteed in the Act. West Virginia Pulp and Paper Co., 120 NLRB 1281, 1284; Stand- ard Oil Company of California, 116 NLRB 1762, 1765. In an effort to buttress the lack of real distinctions between the selling and nonselling personnel , the Board has focused on the fact that most department store salespersons are women and that the nonselling groups are primarily men, adding that most of the men work full time whereas some of the women work part time. To separate employees into difffferent units on the basis of sex is not only unprecedented but is counter to recent efforts of Congress to equalize the treatment of employees without regard to sex. Moreover , it is of no relevance that some regularly employed part-time workers may be housewives or young people whose tenure in the labor market or in the specific job held is thought to be less permanent. Finally, the majority Members quote employer testimony in other circumstances that sales forces in department stores have been traditionally resistant to unionization and they therefore conclude that fragmentizing of department store employees in small units should be sanctioned. But the largest and most active union in the retail field , Retail Clerks In- ternational Association , AFL-CIO, in an amicus brief urging the Board to maintain its existing rule that a storewide unit is the basically appropriate unit in department stores, challenges the argument that the "failures or lack of success in organizing some stores is . . . attributable to the Board's unit policies ." (Br. p. 3.) The Retail Clerks asserts categorically on the basis of its experience that "successful and effective bargaining in the retail field is found on a storewide basis." (Br. p. 7.) It also says that where, be- cause of special circumstances, it has been recognized for a unit less than storewide in scope, the collective-bargaining experience has been most unsatisfactory and has deterred storewide organization . ( Br. p. 8. ) The Retail Clerks agrees with my conclusion that the present day retail operation is a highly integrated enterprise and all department store employees share a single community of interest whether classified as sales or sales sup- porting . ( Br. pp. 11-16.) Lord & Taylor, a Division of Associated Dry Goods Corpora- tion and District 65, Retail, Wholesale & Department Store Union, AFL-CIO,' Petitioner. Case No. 2-RC-12751. Janu- ary 6, 1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer 1 The names of the parties appear as amended at the hearing. 150 NLRB No. 81.