Arnold Constable Corp.

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luis Reservoir and the Oroville Dam. Even though the Employer was drilling water wells for still another reservoir in the Feather River project, no Federal funds were received for this other reser- voir and consequently the Employer's work was not paid for by Federal moneys either directly or through State or other channels. In both Truman Schlup and Browne and Buford, supra, the Federal Government's contribution was to projects which the Employers worked on directly. Moreover, the Employer's uncontradicted testi- mony is it has not engaged in any comparable work on such project in 1964, and may never be involved in similar operations in the future. Upon consideration of these factors and the entire record, we con- clude that it would not effectuate the purposes of the Act to assert jurisdiction herein? [The Board dismissed the petition.] .'In view of our dismissal on jurisdictional grounds, we find it unnecessary to consider or determine the appropriate unit or whether drillers are supervisors within the meaning of the Act. Arnold Constable Corporation and District 65, Retail, Whole- sale Department Store Union , AFL-CIO, Petitioner. Cases Nos. 2-RC-12745, 93-RC-12746, and P3-RC-1?747. 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 Robert E. Harding. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, 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. 4.- The appropriate unit. The Employer is a Delaware corporation operating retail stores in New York, New Jersey, and Pennsylvania. These cases concern the' store located at 453 Fifth Avenue, New York City. Approxi- mately 500 employees are involved in this proceeding. 150 NLRB No. 80. ARNOLD CONSTABLE CORPORATION 789 The Employer's nonselling employees are largely organized. The Petitioner, District 65, Retail, Wholesale Department Store Union, AFL-CIO, seeks to represent almost all remaining unrepresented employees in three separate units : selling employees, office employ- ees, restaurant employees. It would exclude from all units only employees covered by collective-bargaining., agreements, women's alteration employees, display department employees, and mainte- nance shop employees. The Employer agrees that employees covered by collective-bar- gaining agreements should be excluded. It argues that all the re- maining store employees should be in a single unit. There is no collective-bargaining history for the employees whom Petitioner seeks to represent.' Five different unions now represent some store employees. Department and Specialty Store Employees' Union, Local 1499, Retail Clerks International Association, AFL- CIO (hereinafter referred to as the Retail Clerks), represents about 80 nonselling employees working as "cashier-wrappers, carriers, markers, parcel post clerks, runners, stock clerks, receiving clerks, checkers, and packers. . . ." 2 Local 25, New York Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, represents alteration employees in the men's alteration department. 'District Council No. 9, Brotherhood of Painters, Decorators and Paperhang- ers, AFL-CIO, represents a painter. Local 32B, Building Service Union, AFL-CIO, represents elevator operators, porters, and ma- trons employed by Allied Maintenance Company. The Petitioner represents employees in a beauty shop leased by an, independent contractor. The Employer's store has 38 departments on 6 floors and a base- ment. It sells principally men's and women's clothing and accesso- ries, stationery, and gifts. In addition to selling areas on every floor, the store includes stock receiving and handling areas, person- nel, customer service, sales promotion, general accounting and credit offices, and eating facilities for employees. The Retail Clerks' contract, which covers the bulk of the. nonsell- ing employees, includes most of the employees in the wrapping, delivery, receiving, suburban stock and shipping departments, and stockroom clerks and markers assigned to selling departments. The groups that remain unrepresented are selling, office, and restaurant employees. The largest group is the selling. - The selling employees: The Petitioner has confined its selling unit request to the approximately 250 salespeople who sell merchandise. i In 1950 the Board directed an election among all employees and, in 1953, the Board directed an election among cafeteria employees . However, the Board did not conduct elections because the petitions were withdrawn. 2 The Employer recognized the Retail Clerks as the bargaining representative for this nonselling unit more than 20 years ago. 790 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD Their duties in connection with selling include arranging stock, han- dling cash, and wrapping or bringing merchandise to wrappers. Other employees whose work may bring them in contact with sales- people, such as cashier-wrappers, stock clerks, or markers do not sell. These nonselling employees, including the stock clerks or markers assigned to selling departments, are represented by the Retail Clerks. The work of sales employees is concerned almost wholly with selling.-3 To the extent that sales employees may arrange stock, obtain stock from a stockroom, or show a marker the merchandise to be marked, such tasks are but incidental to the selling job for which they were hired. The collective-bargaining contract between the Employer and the Retail Clerks excludes "employees who per- form work similar to that performed by employees covered hereby as an incidental part of their regular duties in other categories." Thus the Employer and the Retail Clerks have established, through more than 20 years of collective bargaining, a demarcation between selling and nonselling employees. We would give effect to that recognized difference between the two groups. The Employer would obliterate the distinctions between selling and. nonselling employees by arguing that selling is the incidental part of a salesperson's work. In its brief it breaks down the sales- person's work into the minutiae of detail that list such duties as receiving customer credit authorizations by telephone, writing a sales check, delivering merchandise for wrapping, and ringing a sale on the cash register as major duties apart from selling. From this the Employer argues that the nonselling "clericals," who may be called upon at busy periods to assist salespersons, perform sales work. We do not think that the occasional performance of such incidental tasks by nonselling personnel can erase the distinctive characteristics of the important job of selling for which the sales- person is hired.4 The restaurant employees: The Petitioner seeks to represent 12 restaurant employees who perform duties in connection with an employee cafeteria. These restaurant employees include, in addition to the two cooks who prepare food, others who perform the work of busboys, counter employees, dishwashers, kitchen helpers, and a cashier. -8 There is no breakdown in percentage of time spent by sales employees on duties other than selling except that the Employer 's vice president and general manager testified that sales employees in the ready -to-wear department spend 45 minutes to an hour arrang- ing stock at the beginning of the workday. * See our opinion in Allied Stores of New York, Inc., d/ b/a Stern's, Paramus, 150 NLRB 799, which emphasized the significant aspects of sales work. Cf Meier & Frank Company, 86 NLRB 517, holding that the homogeneity of an office clerical unit was not destroyed by frequent temporary interchanges between sales and office personnel. ARNOLD CONSTABLE CORPORATION 791 The Board has said that the work of cafeteria employees, involv- ing the preparation and service of food, is "singularly different" from the work performed by the selling or office groups and justifies establishing them as a separate unite The fact that the food prepa- ration and service employees perform their work in a cafeteria that serves employees only does not alter the nature of their work. • In- deed, in the principal cases establishing the appropriateness of a separate restaurant unit in retail department stores, such units in- clude those employees working in the employee cafeteria as well as in public food eating places." 11 The office employees: The Petitioner seeks to represent about 150 office employees in these departments: mail-order, bureau of. adjust- ment, auditing, c.o.d., accounts payable, accounts receivable, credit and collections, and statistical.7 It also seeks to represent in the office unit employees who perform like work in some of the selling and nonselling departments.8 The bulk of the Employer's business offices-mail-order, bureau of adjustment, auditing, c.o.d., accounts payable, accounts receivable, credit and collections, statistical, general cashier, and accounting- are located on the sixth floor. The mail-order department also has employees on the fifth floor. The general cashier's office has cashiers on the first and basement floors in addition to the sixth. Telephone operators are on the fifth floor. The payroll office is on the fourth floor. The central mail-order department has a mail-order section, which handles orders by mail, and another section which includes an order board to handle telephone orders and circulation employees-to han- dle the general mail. The department includes a parcel post em- ployee, wrappers, clericals who open, distribute, and address mail, a shopper, an order switchboard clerk, and four other telephone operators. The bureau of adjustment handles customer complaints. One em- ployee'interviews customers. Others answer telephones and fill out forms. s Allied Stores of Ohio, d%b/a A. Polsky Company, 90 NLRB 1868, 1869. e Allied Stores of New York, Inc ., d/b/a Stern's, Paramus, supra ; Allied Stores of Ohio, d/b/a A. Pol8ky Company, 90 NLRB 1868; Thalhimer Brothers, Incorporated, 93 NLRB 726. 7 The parties have agreed to exclude- the- accounting department personnel as con- fidential employees. They disagree as to inclusion of employees in the statistical , general cashier , and pay- roll departments. The Employer would exclude the statistical department employees as confidential and the Petitioner would exclude the other two departments. 8 Eighteen buyer's clericals , three credit clerks ( two assigned to the "flying squad" and one to the receiving department ), five other employees in the receiving department, two in the delivery department, one at the repair desk, one "will-call" employee in the men's clothing department, one clerical employee in the women's alteration department, one in the men's alteration department, two in the hold-room, one in the display department, and three advertising department employees. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The auditing department audits sales, returns, and similar items of the daily operation. The employees compute and verify- selling departments' daily sales totals and sort sales checks. The c.o.d. receivables, a part of the auditing department, keeps a record of purchases and customers' deposits of United Parcel Service payments on cash-on-delivery sales. The accounts payable department, under auditing department supervision, pays bills for merchandise, supplies, advertising, and other store expenses. The employees process vendors' -invoices and statements for payment, file and sort bills, and type letters. The accounts receivable department records customer purchases and bills customer accounts. The credit and collection department authorizes credit on new accounts and customer purchases and collects past-due accounts. Employees interview customers opening new charge accounts or who have unpaid accounts, verify accounts for sales employees, and file bills. The statistical department gathers merchandise and store oper- ating figures, prepares merchandise budgets, inventory stock ledgers, and operating statements showing sales, purchases, markups, mark- downs, and inventory with comparative data for previous years. The employees prepare this material for use by executives and department heads. The general cashier and paymaster office dispenses and receives daily money banks for sales employees, receives cash paid -by cus- tomers on cash sales and on credit accounts, prepares money for bank deposit, and cashes petty cash vouchers. The payroll office computes employees' pay from timesheets sub- mitted by the departments. The employees receive the cards, place wage changes on records, and insert wage payments in envelopes. The employees in the offices outlined above comprise • the main office employees. They perform the customary office duties that the Board has often held are sufficiently different from the duties per- formed by all other employees in a retail department store to war- rant a separate bargaining unit.9 The only other major issue exists as to the unit placement of clerical employees who perform like work in some of the selling and nonselling departments. The buyer clericals work in buyers' offices or at a stockroom table, generally removed from the selling department. They keep records of outstanding orders and send buyer confirmations to vendors. They check the receipt of merchandise against invoices and keep records of branch store merchandise transfers. They also answer telephones and refer complaints to buyers. e Montgomery Ward & Company, Inc., 100 NLRB 1351, 1352 ; Maas Brothers, Inc., 88 NLRB 129 ; Meier & Frank Company, supra. ARNOLD CONSTABLE CORPORATION 793 Two employees perform clerical tasks in the delivery department. One keeps records of deliveries to United Parcel Service and bills for transportation. The other handles deliveries by United Parcel Service and applies postage.by machine on letters and packages. Five additional employees perform clerical work for the receiving department: They principally check invoices which are in turn processed by the accounts payable department. The fur storage employees handle fur storage records. The will-call employee in the men's clothing department and the clerks in the men's and women's alteration departments keep records of incoming and outgoing merchandise and bring it to and from fitting areas and workrooms. The hold-room employees keep records of merchandise held for customers. The supply department employees record the receipt and requisi- tion of small supplies by the various store departments. - Three employees credit accounts for returned merchandise. Two are assigned to the roving sales force. The third, assigned to the delivery department, credits customers with merchandise returned by mail or United Parcel Service. The repair desk employee records customers complaints on mer- chandise and sends the merchandise to the manufacturer for repair. The display department clerk performs general clerical duties for the display and supply departments. There can be little question that these employees, whose unit place- ment is disputed, perform clerical work closely related to that cus- tomarily performed by the central office employees and are united with the undisputed office employees by the same interests. We therefore include them in the same unit with admitted office em- ployees. In grouping employees on the basis of work and interests, rather than place of work, we follow the pattern of organization in this store. For example, the Retail Clerks represents, inter alia, all markers and stock clerks, including those specifically assigned to sales departments whose sales employees it does not represent. The exclusions: The' Petitioner would exclude alteration, display, and maintenance employees from all units, but include certain adver- tising department employees in the office unit. Following is a brief description of what these categories do. Fitters in the women's alteration department mark a garment to indicate alterations for pieceworkers to alter. Two seamstresses and one sewer alter garments sold in the corset selling department. The parties have agreed to exclude the pieceworkers. The display department has, in addition to the clerk included in the office unit, employees who dress windows and set up displays and a signwriter. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The maintenance shop employees perform general repair duties, sand furniture, construct display backgrounds, and build partitions. The advertising department employees, whom the Petitioner would include in the office unit, are a receptionist, messenger, and adver- tising model. The model, not professionally trained, wears mer- chandise for the artist in the department. The parties have, agreed to exclude three advertising department employees-two layout art- ists and one copywriter-as professionals. Because the alteration, display, maintenance, and advertising em- ployees have duties and interests basically unrelated to the selling, office, or restaurant employees, we will exclude them from all units. Accordingly, we find that the following units, excluding from each the women's alteration employees, display department employees other than the clerk, maintenance department employees, advertising department employees, employees of leased departments,10 employees of independent contractors,11 employees covered by existing collec- tive-bargaining agreements, temporary, irregular part-time, contin- gent, casual, on-call and seasonal employees, series 2000 and series 4000 employees, pieceworkers,12 confidential employees,l3 professional employees'14 guards,15 and supervisors as defined in the Act, are 10 The parties agreed to exclude the following leased departments : shoes ( departments 89, 90, 91 , and 93-women's, men's, children 's moderate price shoes , and slippers ), beauty salon, better jewelry ( department 26), and watch repair. "Elevator operators , porters, and matrons are employed by Allied Maintenance Co. One demonstrator, Al. Morales , in the cosmetics department is excluded by the parties' agreement because her salary is wholly paid by the cosmetics manufacturer. Other demonstrators , only partially paid by manufacturers , are not excluded. Is The parties agreed to exclude pieceworkers in the women 's alteration workroom because they work on an irregular basis. The parties agreed to exclude employees listed in series 2000 and 4000, students and cooperative students listed on the employer 's payroll as contingents, casuals, and tem- porary on-call employees. >s The parties have agreed to exclude M. Darrah, receptionist to the executive officers, and P. Wright, H. Joyce, and E. Victory , executive secretaries , as confidential employees. They have agreed to exclude employees in the accounting department who also act as confidential employees. The Employer would exclude, and the Petitioner include, employees in the statistical department. The Petitioner would exclude , and the Employer include , the general cashier office and payroll office employees . The statistical department employees prepare merchandise and operating figures and budgets. The general cashier employees , working on the sixth, main, and basement floors, distribute cash banks to employees , receive cash paid by customers on sales , and prepare cash for bank deposit. Payroll office employees prepare the store payroll. None of these employees assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations. Goldblatt Bros., Inc., 118 NLRB 643, 648 . We find that these employees are not "con- fidential employees" as the Board defines the term and we shall therefore include them in the office employee unit herein found appropriate. I* The parties agreed to exclude the two nuises , M. Warburton and M. Quinn, as professional employees. They also agreed to exclude three employees in the advertising department as profes- sional employees : advertising copywriter (M. Lucas ) and advertising production or layout artists (D. Fortgang and J. Vogel). w The parties have agreed to exclude fitting room checkers and other employees in the protection department. ARNOLD CONSTABLE CORPORATION 795 appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act."' (1) All selling employees, including general sales and flying squad employees 17 (2) All office employees, including employees in the mail-order, bureau of adjustment, auditing, c.o.d., accounts payable, accounts receivable, credit and collection, statistical, general cashier and pay- master and payroll departments, buyer clericals, credit clerks in the flying squad and delivery department, and other clerical employees in the receiving department, delivery department, men's clothing department, men's and women's alteration departments, the hold- room, at the repair desk, and in the display department. .(3) All cafeteria employees. [Text of Direction of Elections omitted from publication.] MEMBER JENKINS, dissenting : The majority has established a selling unit that includes only sales- persons and excludes employees who perform clerical duties in con- nection with selling departments. The office unit found includes employees working in traditional business offices, but also includes approximately 35 employees who perform clerical duties in various selling and nonselling departments. The restaurant employees, for whom the majority establishes a separate unit, perform duties in an employee cafeteria only. Under the established units, approximately 25 women's alteration, display, advertising, and maintenance em- ployees remain unrepresented. The majority excludes them from all units. I dissent from the establishment of such arbitrary group- ings of employees for which there is no precedent. The selling unit includes only some of the employees engaged in selling and related work. It excludes clerks who perform work closely connected with that of sales personnel, under the same super- vision as the sales employees, and in close physical proximity.with them. For example, it excludes from the sales unit, and includes in the office unit, buyer clericals, credit clerks, fur storage employees, repair desk employees, and the will-call employee in the men's cloth- ing department. le The parties have agreed to exclude buyers, assistant buyers, managers , assistant man- agers, executives , officers, heads of stock, merchandise managers, section managers, floor- men and superintendents, the employment manager ( M. Boccia ), the managerial assistant to the employment manager ( L. Borland ), and other supervisors . The Employer would also exclude the cook as a supervisor . The record shows that the cook responsibly directs work in the absence of the cafeteria manager. The manager is absent 1 day a week and '2 or 3 weeks when on vacation . As the cook exercises supervisory authority for regular and substantial periods of time, we find that she is a supervisor and exclude her. 17 The Employer classifies selling employees assigned to its first floor as general sales employees and those assigned to other floors as flying squad employees. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The buyer clericals keep records of outstanding orders, send buyer confirmations to vendors, check receipts of merchandise against rec- ords, refer complaints to buyers and perform general recordkeeping duties for sales departments. In departments where there is only one sales employee and one clerical employee, the clerical employee may spend more time assisting salespeople than in clerical duties. Two credit clerks, attached to the general sales force, credit cus- tomers' accounts for returned merchandise.18 Fur storage employees, under the supervision of the fur department buyer, recommend fur cleaning for which they are paid a commission, in addition to their regular salary. The repair desk employee, who handles customer complaints, consults with sales department employees before he sends merchandise to the manufacturer for repair. The will-call employee, under the supervision of the men's clothing department buyer, han- dles merchandise in bringing it to and from fitting areas and work- rooms. The majority decision also excludes from the selling unit employ- ees doing work similar to that of employee's whom it includes. Thus, it excludes fitters in the women's alteration department who mark garments for alteration by others. At the same time it includes salespeople in the corset department who perform the work of fitters. Sales employees perform a variety of nonselling duties, including stock handling. Selling departments that, do not have permanently assigned stock employees request stock help as needed. Sales em- ployees, too, may pick up stock from stockrooms as needed. Sales- people, together with all other store employees, participate in the semiannual store inventory. Some departments take weekly, or even daily, inventory, in which salespeople, buyer clericals; and stock clerks work interchangeably at checking or listing merchandise. Although some selling departments have markers assigned to them, others do not and their merchandise is marked by roving makers or by. department employees. Sales employees' duties bring them in close and constant contact with many of the nonselling departments in connection with the handling, delivery, or payment of merchandise and store supplies. These include the delivery, mail-order, c.o.d., accounts receivable, credit, auditing, and supply departments and the repair desk. The office employees, whom the majority places=in a separate unit, are scattered in offices and departments throughout the store. Some business offices are located on the sixth floor. The mail-order depart- ment has employees on' the fifth and sixth floors. The payroll office is on the fourth floor. The general cashier's office has cashiers on 28A third credit clerk , assigned to the delivery department , credits customers with merchandise returned by mail or United Parcel Service. I ARNOLD CONSTABLE CORPORATION 797 the first and basement floors in addition to the sixth. The buyer clericals work in buyer offices or in stock areas adjacent to selling departments on every floor. Some credit clerks are part of the gen- eral sales force on the first floor, and one credit clerk works in the delivery department located in the basement. The office unit includes other clerical employees who work in receiving and delivery depart- ments located in the basement, in the fifth floor supply department, in the hold-room, at the first floor repair desk, in the second floor men's clothing department, and in the second and third floor altera- tion departments. The employees who are now grouped together in one office unit perform a variety of unrelated work. In addition to the customary business offices concerned with billing, credit, customer service, and general store operations, the majority includes employees whose work is more closely connected to the nonselling or selling depart- ment where they work than with the traditional business offices. This is true of the .buyer clericals or the will-call employee in the men's clothing department whose work is bound up with the sales department for which they perform duties. Five receiving depart- ment clerks, included as part of the office unit, check invoices, work like that performed by other receiving department employees. Sup- ply department employees, who stock and furnish small supplies to various store departments, check in supplies with the receiving department and their work is very like that of the stock and receiv- ing employees.19 It is noteworthy, too, that these office unit employees have many contacts with sales and stock employees and perform some of the duties of sales employees. For example, the mail-order shopper or order board clerk may write up sales checks for merchandise. The shopper enlists the aid of a stock person in finding an ordered item, requests a buyer clerical to order merchandise not in stock, asks a salesperson to assist in selecting merchandise, or contacts the bureau of adjustment to determine the reason a customer did not receive merchandise. Bureau of adjustment employees contact selling em- ployees in processing complaints. Employees in the c.o.d. receivables department check the shipment, receipt, or payment of merchandise with sales and delivery departments. Accounts payable employees check invoices with selling or stock employees in authorizing cus- tomer purchases on credit. Statistical department employees verify records of merchandise transferred to branch stores with stock em- ployees' transfer records. General cashier employees dispense daily 19 I note the contradiction in the Petitioner's position in Allied Stores of New York, Inc., d/b/a Stern's, Paramus, supra, in which it seeks a nonselling unit that would include clericals of the same type whom, in the subject case, it would place in an office unit. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD banks to sales employees. Significantly, office and other clerical employees work in sales departments during busy periods-or in'th6 absences of regular sales employees. The cafeteria unit includes employees who work in an employee cafeteria. The cafeteria serves store employees only. The cafeteria offers sandwiches and desserts and one or two simple hot meals between 11 a.m. and 2 p.m. From 2 to 4 p.m. the cafeteria- sells soft drinks, coffee, and milk. Prices are low and the cafeteria does not operate at a profit. The Employer's vice president and general manager testified that the Employer lost $20,000 on its 1962-63 cafe- teria operation. The cafeteria area serves as a rest and social area, and employees use it without making purchases. Employees may bring their lunch to eat there. The area is also used for social events. The depart- ment of public health does not require the Employer to obtain a permit to operate the cafeteria. The work of the cafeteria employees, other than the two cooks, is unskilled. None receives special training and all interchange in -their work. Busgirls and kitchenmen at times relieve counter employees, kitchenmen help to make sandwiches and to bring trays into the eat- ing area, countergirls on occasion relieve the cashier. The exclusions : The units found-selling, office, and restaurant- exclude entirely a substantial number of unrepresented employees. The fitters in the women's alteration department mark garments for alteration by others. Testimony at the hearing showed that cus- tomers rely on a fitter's judgment and that sometimes fitters select stock from the stockroom for a customer. The seamstresses and sewer perform duties for the corset selling department. Display department employees dress windows and set up displays. Adver- tising department employees no less promote sale of merchandise. The maintenance shop employees make minor repairs and construct display backgrounds and partitions. Personnel and wage policies, employee benefits, and working con- ditions are the same for all store employees. As the basic reasons for my dissent in Stern's, Paramus, issued this day, are also present here, I would find that the three separate units of selling, cafeteria, and office employees are not appropriate 20 Thus, the operations are similarly integrated and there is a com- parable overlapping of duties, lack of distinction in job skills for 24 C. C. Anderson Stores Company, 100 NLRB 986 , 987. In this case the Board, in denying a request for a separate unit of office clerical employees, said: The Board has heretofore held that office employees share strong mutual interests with other department store employees , and that, particularly where no other union seeks to represent them separately , office employees should be included 'in a store- wide unit. Accord: John Brenner Co ., 129 NLRB 394 , 396; T. P. Taylor & Company, Inc., et al., 118 NLRB 376, 379. 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 employees21 2 '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. 9293-RC-207?, 22-RC-2073, and 22-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 ansicus 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 amici 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