Associated Dry Goods Corp.

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 80 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. f3-RC-19d751. 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. LORD & TAYLOR, DIV. OF ASSOCIATED DRY GOODS CORP . 813 Robert E. Harding.2 The Hearing Officer's rulings, made at the hearing are free from prejudicial error and are hereby affirmed .3 Upon the entire record, including the briefs of the parties and amicus curiae, and the oral argument, the Board finds: 1. The Employer is engaged in commerce within -the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organization involved claims to represent certain employees of the Employer.4 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act for the following reasons. 4. The Employer operates a number of retail department stores. Its main store, which is alone involved in this proceeding, is located in New York City. The Petitioner seeks to represent all "nonselling merchandise handlers" 6 who are employed in the New York store. The Em- ployer contends that the only appropriate unit is a storewidd unit. 2 After the hearing and pursuant to Section 102.67 of National Labor Relations Board Rules and Regulations , Series 8, as amended , the Regional Director issued an order trans- ferring this case to the Board for decision . Thereafter, the Employer and the Petitioner filed briefs The Board heard oral argument on June 10 , 1964. All parties, including amicus curiae Retail Clerks International Association , AFL-CIO, Industrial Union De- partment, AFL-CIO, and American Retail Federation , participated in the oral argument and filed briefs. 3 At the hearing , the Employer moved to dismiss the petition on the ground that the Petitioner was seeking to have the Board promulgate a new rule with respect to the appropriateness of bargaining units in the retail department store industry and that under 5 USC 1003 ( a), the Board cannot promulgate such a rule without giving "general notice of a proposed rule setting out the time and place of the proceedings ." Without conced- ing that promulgation of a rule is involved, we find this motion to be without merit and deny it. Seouraties and Exchange Commission v. Chenery Corporation, 322 U.S 194, 201-204. 4 At the hearing and in its brief , the Employer moved that the petition be dismissed because, allegedly, the Petitioner is a competitor of the Employer and as such competitor is not entitled to bargain with the Employer under the rule of Bausch & Lomb Optical Company, 108 NLRB 1555 . In Bausch & Lomb, the union established an optical company to engage in the same business as the employer and was in direct competition with the employer as well as with all other optical wholesalers in the area . Here, the Petitioner operates a cooperative store for use of its members only . In our opinion, such opera- tion is not the competition the Board was concerned with in Bausch & Lomb and does not warrant a holding that the Petitioner is not entitled to represent the employees of the Employer. In Bausch & Lomb, the union's enterprise could profit by driving the employer out of business-a factor not present here. Therefore, the Employer's motion is denied. 5 The Petitioner would include in the term "nonselling merchandise handlers " all em- ployees employed as stock, receiving , and marking department employees, transfer , inside delivery, and return goods room employees, cashier -wrappers, packers, store runners, and parcel collectors. The Petitioner would exclude sales employees , office employees, plant and buyers' clericals, workroom employees, beauty salon employees , restaurant and cafeteria employees, protection department employees , fitting room attendants , guards, watchmen, managerial employees, employees covered by existing collective-bargaining agreements, and supervisors. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the exception of already represented employees" and statutory exclusions. It also contends that it has no classification of employees designated as "nonselling merchandise handlers" and, further, that the unit requested is inappropriate in that there are other "nonsell- ing merchandise handlers" who are not requested by the Petitioner.' There is no previous bargaining history for the employees in- volved in this proceeding, and no union is seeking to represent all the employees in a storewide unit. The Employer has about 2,300 employees at its New York store, of whom 1,800 are staff (nonexecutive) employees. Of the latter, approximately 700 are sales employees and 1,100 are nonselling employees. Of the 1,100 nonselling employees which includes em- ployees already represented by labor organizations, clerical, beauty salon, guard, and restaurant employees, the Petitioner is requesting a unit consisting of approximately 290 employees. The New York store has 11 floors, a basement, a mezzanine (be- tween the basement and the first floor), a balcony (between the first and second floors), and 1 floor in the Lane Bryant Building, which is across the street. Merchandise for customer sales is located on floors 1 through 10 and the balcony. The basement is used for re- ceiving and marking goods. The mezzanine contains various offices and a reserve stockroom for the first floor. The 11th floor houses offices, employee lounge, cafeteria, medical facilities, employee train- ing facilities, and a company store where salvage merchandise is sold to employees. In addition to selling areas, there are reserve stock areas on each selling floor. Workshop areas are located throughout the store for shoe repairs, clothing and fur alterations, jewelry and handbag repair, and millinery design and manufacturing. The usual cus- tomer service offices (credit office, bill adjustment office, etc.) are also located at various places throughout the store. "The Employer has collective-bargaining agreements with various unions covering cer- tain employees at its New York store, to wit: decorators and display department employees (Petitioner), men's alteration department employees (Amalgamated Clothing Workers), women's alteration department employees (International Ladies' Garment Workers' Union), plumbers and pipefitters ( Building and Construction Trades Council of Greater New York), carpenters (United Brotherhood of Carpenters and Joiners), electricians , helpers and apprentices , stationary engineers , painters, and elevator mechanics (union not iden- tified on this record ). In addition, the Employer has a contract with Allied Maintenance Company for the performance of cleaning and other services at the store; Allied Main- tenance has a collective-bargaining contract with Local 32B, Building Service Union, AFL-CIO, covering porters, balers , and elevator operators. 7 The parties agree that all employees covered by collective-bargaining agreements, professional, confidential , and seasonal employees , executives, managers, floor managers, department managers , assistant department managers, buyers, all categories of assistant buyers, managerial employees, employees of leased departments , employment office inter- viewers, executive secretaries , draftsmen , service manager assistants, guards, and watch- men should be excluded from any unit found appropriate The record supports such exclusions. LORD & TAYLOR, DIV. OF ASSOCIATED DRY GOODS CORP. 815 The Employer is known as a "buyers run" store. A buyer is in charge of a department (e.g., women's sportswear) and he usually has three assistants : a senior assistant buyer, a branch assistant buyer, and a New York assistant buyer. Each department has sales clerks and usually specific stock personnel and a buyer's clerical. In general, the employees who are requested by the Petitioner are those mainly responsible for receiving, checking, marking, moving, transferring, and maintaining the Employer's merchandise. In- cluded are the following : 1. Seventy-six merchandise checkers, receivers, ticket markers and makers, distributors, and packers : They receive merchandise in the basement, unpack, and check it against invoices, and make tickets for, mark, distribute, and pack merchandise that is to be returned to the manufacturer. These employees work in the basement, on the mezzanine, and on all floors except the 8th and the 11th. 2. One hundred forty-one stock employees: They are located and work on all floors, both in the selling areas and in adjacent stock- rooms. Their principal function is the movement, care, transfer, and maintenance of stock. They also keep the stockroom clean, see that there is adequate room for incoming merchandise, help take stock counts and inventories, mark or mark down items, run errands, write stock transfer tickets, check in transfers from branch stores, handle customer returns, and take telephone calls and check on mer- chandise when the buyer's clerical is out of the office. 3. Fifty-seven wrappers: These employees gift wrap customer purchases. They also sell special gift-wrap paper. Some of them are called cashier-wrappers and also make change for sales clerks. They are located on all selling floors of the store. 4. Five transfer room clerks : The record is not clear as to what these employees actually do. However, they work on the mezzanine and from their job title it is reasonable to assume that they are re- sponsible for the transfer of merchandise throughout the store.8 5. Seven parcel collectors: They collect from the floors packages of merchandise that have been sold. They place small packages in a chute that goes to the delivery room but use a handtruck to take heavier merchandise to central wrapping and delivery areas. They also distribute wrapping and packing supplies to wrapping and packaging. 6. Three return goods clerks: These clerks work in the basement and handle merchandise returned from customers. They sort such 8 The record does contain some discussion as to the duties of "transfer boys " Their "duties are to take merchandise from the departments to the merchandise room, and from the merchandise rooms to the various departments on the floor " There appears to be no official classification of "transfer boys," so such employees may well be transfer room clerks. 775-692-65-vol. 150-53 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merchandise by department and' floor, pack it in cases, and route it to the various departments. 7. Three inside delivery men: They handle outgoing parcel post packages. 8. Four store rzuitners : They run errands for the store as a whole and work out of a pool. As stated previously, the Employer contends that only a storewide unit is appropriate. For the reasons stated in Allied .Stores of New York, Inc., d/b/a Stern's, Paramnus,° and Arnold Constable Corpora- tion,10 both also decided today, we find this contention to be without merit." The Employer, however, contends that the requested unit is, also inappropriate because it does not include all "nonselling merchan- dise handlers." ^ In Stern's, Paramus and Arnold Constable, the Board held that separate units of selling, nonselling, restaurant, and clerical employees are appropriate in the retail department store industry. The Petitioner here, however, has requested only a seg- ment of the Employer's nonselling employees whom it has charac- terized' as "nonselling merchandise handlers." ._ In our opinion the requested "nonselling merchandise handlers', are not sufficiently distinct, homogeneous, and identifiable,to • justify establishing them as a separate bargaining unit apart from other nonselling employees.12 However, a nonselling unit is appropriate. As Petitioner's -proposed unit includes most of the nonselling em- ployees, we shall direct an election in a nonselling unit, provided, however, that Petitioner may, if it so desires, withdraw its petition. We shall include the following unrepresented employees • in the nonselling unit. Messengers assigned to the window display, mail and telegraph orders, and public relations departments. They run errands for the departments to, which they are assigned. The only difference be- tween these messengers and ' store runners whom Petitioner desires to include in its unit is that the latter work out. of a pool and run errands for all store departments: Monogrammer iri the women's alteration department monograms with a machine. Stock maintenance employee in the women's alteration department maintains stock. Alterations -inspector in the women's alteration department checks merchandise before shipment. Fitters in the women's alteration department fit women's apparel. 9150 NLRB 799 10 150 NLRB 788. 11 Indeed, the Employer presently recognizes various unions as the bargaining representa- tive for several separate units of its employees See footnote 0, supra. 22 Cf. Sears, Roebuck & Co , 149 NLRB 1525. LORD & TAYLOR, DIV. OF ASSOCIATED DRY GOODS CORP. 817 Dry cleaner in the women's alteration department spot cleans women's apparel., I Linen room stock employee cares for and issues linen and, uniforms. Millinery fitters and copyists in the millinery workroom repair, copy, design, and make hats and veils. - Seamstresses in the bridal workroom do alteration work and make veils. Jewelry repairer strings beads and, handles, packs, and ships mer- chandise to be repaired. Corset sewers in the corset workroom alter corsets. Men's alteration fitter in the men's alteration workroom fits men's and boy's clothing. Checker examiner in the men's alteration workroom examines mer- chandise before shipment. Shoe workmen in the shoe repair shop repair shoes., Fabric cutter in the stockroom ,cuts fabrics., , ;, , Fur fitter in the furshop ,fits furs and makes minor alterations and repairs. - - Cashiers take money, from customers.13 Sign printers operate, sign-making equipment and do free hand printing. - Locksmiths repair office machinery, locks, ,and cash registers. Handyman does general repair work throughout the,store. We shall exclude beauty salon employees, including receptionists, beauty operators, manicurists, maids and waitresses, because their interests appear to be different from those of nonselling employees included in the unit. We shall likewise exclude-all restaurant-em- ployees. We shall also exclude nurses as professionals and fitting room attendants as guards.14 Finally, we shall exclude the follow- ing as clerical or sales employees, or as having work interests more closely related to those of excluded clerical and sales employees than to those of nonselling employees : Floor and furniture adjusters; merchandise, credit, and bill ad- justment interviewers; buyer's clericals; information desk clericals; plant clericals; receptionists; secretaries; business machine oper- ators; telephbne order takers; comparison shoppers; head of proof- room ; outgoing mail clerks and outgoing mail collectors; librarian ; switchboard operators; and estimators. 13 Cashiers appear to have the same interests as cashier-wrappers who, both parties agree, should be in the nonselling unit. Moreover , in Stern's, Paramus, footnote 9, supra, the Board included cashiers in the nonselling unit. 14 Fitting room attendants are responsible for keeping watch over the fitting rooms to make certain no merchandise is removed from the premises. They also report employee infractions to, management . As they "enforce against . . . persons rules to protect prop- erty/ of the employer," we find that they are guards within the meaning of Section 9(b) (3) of the Act, and, therefore, exclude them from the nonselling units. See Stern's, Paramus, footnote 9, supra. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act : All regular full-time and part-time nonselling employees employed as stock, receiving, and marking department employees, transfer, inside delivery, and return goods room employees, cashier-wrappers, cashiers, packers, store runners, messengers, parcel collectors, linen room stock employees, monogrammers, stock maintenance employees, alteration inspectors, drycleaners, checker examiners, fitters, milli- nery fitters and copyists, fur fitters, men's alteration fitters, seam- stresses, corset sewers, fabric cutters, shoemakers, jewelry repairers, sign printers, locksmiths, and handymen at the Employer's New York City retail store at 424 Fifth Avenue, excluding all other em- ployees, sales employees, office employees, plant clericals, buyers' clericals, beauty salon employees, restaurant and cafeteria employees, floor and furniture adjusters, merchandise, credit and bill adjust- ment interviewers, information desk clericals, receptionists, secre- taries, business machine operators, telephone order takers, compari- son shoppers, head of proof room, outgoing mail clerks and collec- tors, librarians, nurses, switchboard operators, estimators, protection department employees, fitting room attendants, guards and watch- men, managerial employees, employees covered by existing collective- bargaining agreements, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER JENKINS , dissenting : For the reasons stated in my dissents in Stern's, Paramus, 150 NLRB 799, and Arnold Constable, 150 NLRB 788, both decided today also, I would dismiss this petition. Wilson Concrete Company, Inc. and General Drivers and Helpers Union Local No. 554, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 17-CA-9389. January 7, 1965 DECISION AND ORDER On October 2, 1964, Trial Examiner Owsley Vose issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's 150 NLRB No. 74.