Raymond's, Inc.

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT try to discourage you from helping or joining the Amalga- mated Clothing Workers of America, AFL-CIO, by terminating or refusing to rehire our employees. WE WILL NOT threaten to discharge employees for voting for the Union or threaten to discharge the union committee. WE WILL offer Deola Richardson her former job with all of her rights and any backpay due. All our employees are free to become or remain union members. LOUISIANA GARMENT MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361. Raymond's, Inc. and Local 224, Retail Clerks International Asso - ciation, AFL-CIO, Petitioner. Case 1-RC-8570. November 9,. 1966 .DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer S. Anthony diCiero. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed by the Employer, the Petitioner, and the Intervenor.2 Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Zagoria]. Upon the entire record in this case, including the briefs filed by the parties, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. i The Employer's request that the Board hear oral argument in this case is hereby denied as the briefs, the Hearing Officer's report, and the transcript of the testimony and exhibits adequately present all the issues involved herein. a The Raymond 's Associates , Inc., was permitted to intervene at the hearing on the basis of a current contract with the Employer. 161 NLRB No. 80. RAYMOND'S, INC. 839 2. The labor organizations involved claim to represent certain employees of the Employer. 3. The Employer and the Intervenor assert that a contract executed by them, covering the employees in all the Employer's stores, consti- tutes a bar to the petition in this case for an election among the employees in the Employer's Quincy, Massachusetts, store. The Employer had had contractual relations with the Intervenor since, at least, the year 1940. The current contract was made effective October 2, 1961, and provided that it was to remain in effect until March 17, 1963. It was thereafter to be automatically renewed on a year-to-year basis from the latter date unless proper notice was given of an intention to modify or terminate the agreement. The contract contains provisions for (a) recognition; (b) dues deductions; (c) the workweek for various classifications; (d) relief periods; (e) over- time; (f) vacation; (g) paid holidays; (h) discounts on the purchase of merchandise by employees; and (j) provisions for promotions of employees. It also contains provisions for a first aid room with an attending nurse, and for an employees' dining room. As to wages, it simply provides that the existing rates shall remain in effect. It also specifically provides that any amendments to the agreement are to be in writing and signed by both parties. Since 1961, substantial changes have been made in the conditions of employment, but none of them have been reduced to writing or incor- porated into the contract. Thus, the employees' wage rates, life insur- ance coverage, sickness and accident insurance coverage, and relief periods have been altered. There is no evidence that any of these changes were the result of collective barganing between the Employer and Intervenor. The record does disclose that the changes in the com- mission rates paid to certain employees were accomplished through negotiation, but these changes, like the others, were not made part of the contract. Neither party to the 1961 agreement has attemped to give notice of intention to modify or terminate the contract in accord- ance with its terms. Moreover, the terms of the 1961 contract have not been carried out in other respects as well. Thus, the provisions requir- ing the Employer to provide a nurse and an employee dining room have never been implemented. In Appalachian Shale 3 we held that a contract, to serve as a bar to a petition for representation, must be in writing, signed by the parties, and contain substantial terms and conditions of employment. As we there pointed out, experience has demonstrated that "real sta- bility in industrial relations can only be achieved where the contract 8 Appalachian Shale Products Co., 121 NLRB 1160, 1163. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undertakes to chart with adequate precision the course of the bargain- ing relationship, and the parties can look to the actual terms and con- ditions of their contract for guidance in their day-to-day problems." The Board has consistently adhered to these requirements.' The present contractual arrangement between the Employer and Intervenor plainly does not meet these criteria. The conditions estab- lished by the 1961 contract have been substantially altered, in large measure, in the absence of bargaining and by the Employer's unilat- eral action. The changes made pertain to some of the most important substantive terms provided by the agreement, wages for example, and yet none of the changes have been reduced to writing as required by the contract's own terms. In these circumstances it could not be possi- ble for the parties to look to the terms of the 1961 contract either to perceive the course of their bargaining relationship or to obtain guid- ance in solving their day-to-day problems. Where, as here, the only written document does not contain the current terms and conditions of employment and, to the contrary, embodies substantial terms which have since been abandoned by the parties, we cannot honor that con- tract as one imparting sufficient stability to the bargaining rela- tionship to justify our withholding a present determination of representation.5 Accordingly, we find that a question affecting commerce exists con- cerning the representation 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 Petitioner seeks a unit consisting of all full-time and regular part-time employees, including employees of leased departments, at the Employer's Quincy, Massachusetts, store. In the alternative, Petitioner requests a unit of all full-time and regu- lar part-time employees working in leased departments in this store. The Employer and Intervenor contend that a unit limited to employ- ees of the Quincy, Massachusetts, store is inappropriate and that only a unit comprising the Employer's entire seven-store operation is appropriate. The Employer operates seven department stores in Massachusetts. The principal store is located in Boston, and the Company's main offices are located in that store. Five other stores are in Dedham, Quincy, Malden, Waltham, and Lynn, Massachusetts, all in the gen- * Janeen Art Studio, Inc., 123 NLRB 82; Central Coat, Apron & Linen Service, Inc., 126 NLRB 958 ; Yellow Cab, Inc., 131 NLRB 239 ; Whiting Milk Company, 137 NLRB 1143, 1144. 5 The Petitioner advanced several other contentions in support of its assertion that the contract between the Employer and Intervenor is not a bar to an election. In view of our disposition of this issue as above set forth , we find it unnecessary to consider these other contentions. RAYMOND'S, INC. 841 eral Boston 'metropolitan area. The remaining store is located at Methuen, about 25 miles from Boston. For the reasons stated above in our discussion of the issue of whether the Intervenor's contract with the Employer constitutes' a bar to an election, we further find that such history of bargaining as is exemplified by that contract is enti- tled to little weight in determining whether a single unit encompass- ing the seven stores is alone appropriate. We shall turn therefore to a consideration of other factors bearing upon the unit issue. The record shows that control of labor relations is vested in the Employer's personnel director and that there are common conditions of employment in all seven stores. Purchasing, merchandising, and advertising are controlled from the Boston store, and a central ware- house services all seven stores. Employment records of all employees are filed in the Boston store, and all employees are paid from the Boston store. The final decision in hiring new employees is vested in the personnel director, and he also has the final authority in the dis- charge of employees in most cases. The foregoing facts indicate that a unit composed of all the employees at the Employer's seven stores may be appropriate. We do not believe that they are sufficient, how- ever, to compel a finding that such a companywide unit may be the only appropriate unit. There are other factors which we believe indicate that a unit lim- ited to the employees at the Quincy store may also be appropriate. As stated above, the stores are geographically separate, one of the stores being 25 miles from the main office in Boston. Although the record shows that there have been brief, temporary interchanges of employ- ees when a new store is opened or when a sale has been held in one store only, and that there have also been temporary transfers where vacations or illness require it in order to balance personnel among the seven stores, it further shows that during the period of a year pre- ceding the hearing there had been only one permanent transfer from the Quincy store to another store and there were only two transfers to the Quincy store from other stores in the chain. The record also reveals that the store manager is in complete charge of the store on a day-to-day basis. He may discharge employees for flagrant viola- tions of company rules and recommend discharges for other reasons; he also conducts the initial interview of prospective employees, and may hire part-time employees under some circumstances. The facts in this case present a situation remarkably similar to the factual situation which was before us in Purity Foods.s Here, as in 8 Purity Food Stores, Inc., 160 NLRB 651. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that case, the single-store unit requested by the Petitioner encom- passes a separate, identifiable group of employees working in a store geographically separated by some distance from other stores and their employees, and under management having a substantial degree of autonomous direction of day-to-day operations affecting various aspects of wages, hours, and working conditions important to employee welfare. In that case, in finding appropriate a unit limited to the Peabody store employees , the Board said : The Peabody store employees regularly work together and have common interests in relation to their Employer, some of which are separate and apart from those of employees in other locations. The freedom of choice of this one cohesive group of employees to have or not to have a bargaining representative should not be dependent upon the interest or lack of interest in such representa- tion on the part of other employees in separated , and in this case somewhat distant, retail chain outlets serving other markets in a populous area. As heretofore indicated , there is a substantial amount of hiring done at the Peabody store and of autonomy in the direction of day-to-day operations , reflecting the Respond- ent's own allocation of distinct responsibilities there... . At the same time, the degree of centralized management evi- denced herein does not alter the separate economic identity of the Peabody store . Such control is not to be confused or equated with the degree of interrelationship of operations effective to merge a single establishment into a more comprehensive unit hence defeat- ing the individual identity of that facility... . In the instant case, we are satisfied that bargaining limited to the Peabody store, which as previously indicated constitutes a dis- tinct, self-contained economic unit, will neither preclude Respondent's continued reliance upon centralized policy determi- nations, defeat its practice of utilizing central office executives to oversee day-to-day store operations , nor otherwise impair effec- tive management of the chain. It is also noteworthy in this con- nection that the impact of any labor dispute at the Peabody store is not likely to be felt at Respondent's other outlets which serve different markets. In our judgment, the institution of localized bargaining on behalf of the separate , identifiable group of Pea- body employees , involving, inter alia, such matters as the estab- lishment and administration of local work rules , grievance pro- tections, vacation programs , seniority, and pension rights, as well as the setting of wage rates, is not only entirely feasible, but would not unduly encroach on the Employer 's various adminis- trative controls. RAYMOND'S, INC. 843 These comments concerning the basis of the Board's determination in Purity Foods are, we find, equally applicable to the unit limited to employees of the present Employer's Quincy store which the Peti- tioner seeks in this proceeding.' We conclude here too that our unit determination is not at odds with the mandate of Section 9(c) (5) of the Act. Here there is no bargaining history other than that epito- mized by the contract which we have found no longer serves to fix the employees' terms and conditions of employment and is inadequate to stabilize the bargaining relationship. No labor organization seeks a broader unit, unless it be the Intervenor, which has appeared in this proceeding for the sole expressed purpose of asserting its contract as the basis of a request to dismiss the petition. As set forth above, we have determined that this contract is insufficient to justify deferral of a new determination of representatives and the bargaining history, such as it is, which is reflected by that contract is not of a kind enti- tled to weight in determining the appropriate unit. The facts recited above, disclosing, as we have found, that the Quincy store constitutes a geographically separate and functionally distinct economic unit within the Employer's chain of retail operations, convince us that a unit limited to that store is one that is inherently appropriate for bargaining purposes. Hence the extent of Petitioner's organization, while a factor considered along with others, does not control our unit determination. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act : All full-time and regular part-time employees at the Employer's Quincy, Massachusetts, store, including leased department employees," but excluding employees employed at Raymond's Tire Store, guards, professional employees, and supervi- sors as defined in the Act.9 [Text of Direction of Election omitted from publication.] 10 11 See also Sav-On Drugs, Inc., 138 NLRB 1032; Davis Cafeteria, Inc.. 160 NLRB 1141. 8 The Employer and Petitioner agree, and we find, that the lease arrangements give the Employer such control over the leased department employees as to make the Employer a joint employer of the leased department employees. O The Intervenor did not state at the hearing whether or not it wished to participate In an election in a single store unit. It may appear on the ballot In the election herein directed if it indicates its interest in representing the employees in this unit. 1o An election eligibility list, containing the names and addresses of all the elgible voters, must be filed by the Employer with the Regional Director for Region 1 within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extention of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236. ll As indicated In footnote 8, the Raymond's Associates will appear on the ballot only If that union so desires.