Famous Barr Co.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The M May Department Stores Company, d/b/a Famous Barr Company and Teamsters, Local Union No. 688, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 14-RC-5899 and 14-RC-4843' May 23, 1969 DECISION AND DIRECTION OF ELECTION On March 15, 1968, the Petitioner, filed with Region 14 of the National Labor Relations Board, a Petition for Certification of Representative in Case l4-RC-5899. A hearing was held on April 29 and 30, 1968, before Hearing Officer Roy V. Hayden. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 14, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer filed a brief with the Board. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the brief filed herein, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The appropriate unit. Petitioner filed its petition in, Case l4-RC-4843, on May I, 1964. On June 22, 1965, the Board directed an election in a unit of warehouse employees employed at the Employer's Spring Avenue Facility.' Pursuant to that decision, two elections have been conducted and each has been set aside because of employer conduct found by the Board to have interfered with the employees' freedom of choice.' 'In accordance with the Decision and Order in May Department Stores Compwty d/b/a Famous Burr Company 174 NLRB No. 109, and as amended May 8, 1969, Case 14-RC-5899 is hereby consolidated with Case 14-RC-4843. '153 NLRB 341. Petitioner actually sought a unit of employees employed in certain named classifications which it had previously represented on a members-only basis and which included some nonwarehousing employees . As noted, the Board found a warehousing unit to be appropriate. 'rhe decision setting aside the first election is not reported in the printed volumes of Board Decision . The Decision setting aside the second election is reported at 174 NLRB No. 109 . In that Decision, the Board ordered During the processing of the petition in Case 14-RC-4843, Petitioner has continued its organizing efforts at the Spring Avenue Facility. On March 9, 1967, Petitioner filed a petition for an election in a unit of carpet workroom employees. That petition was dismissed on November 24, 1967, essentially for the reason that a unit limited to employees in one of the several workrooms at the facility was inappropriate. 4 On March 15, 1968, Petitioner filed its petition in Case 14-RC-5899 for the purpose of obtaining certification as the representative of all the employees in all the workrooms and the cafeteria employees in either one or two units as the Board might decide. During the course of the hearing, Petitioner amended its petition by adding an alternative request for a bargaining unit which would include all employees at the Spring Avenue Facility not presently represented by any labor organization, but excluding office clerical employee, and guards and supervisors as defined in the Act. It clearly indicated on the record that the warehouse employees involved in Case 14-RC-4843 are embraced within such requested unit. The Employer, as it had in all proceedings involving this operation, contends that a unit consisting of all selling and nonselling employees of its St. Louis operations is the only unit appropriate for purposes of collective bargaining. The Employer further contends that in the Board's prior decision finding a unit of warehouse employees employed at the Spring Avenue Facility to be appropriate, it found, at least by necessary implication, that a unit of all employees at that facility, such as now is sought by Petitioner, to be inappropriate because it would combine nonwarehouse employees with warehouse employees. We find these contentions to be without merit for reasons indicated below. The Employer's operations in St. Louis have been described in substantial detail in our previous decisions reported at 153 NLRB 341 and 168 NLRB No. 63. To summarize briefly, the Employer operates six retail department stores in St. Louis and the Spring Avenue Facility. At the Facility, employees are engaged in performing warehousing, and service and repair functions on merchandise, furniture, and appliances. Of the 350 or so persons employed at the Facility, approximately 225 employees perform traditional warehousing functions, approximately 90 employees are employed in the furniture, carpet, appliance, and radio and television workrooms, and in the fur storage vault. In addition seven employees are employed in a cafeteria on the second floor of the building which is maintained by the Employer for the exclusive use of employees working in the Facility. Since the hearing on the petition involved in the Decision reported at that Case 14-RC-4843 be severed from the companion unfair labor practice cases also decided therein and that it be consolidated with Case 14-RC-5899 for such further proceedings as may be appropriate. Case 14-RC-5661. 168 NLRB No. 63. 176 NLRB No. 14 FAMOUS BARR COMPANY 161 168 NLRB No. 63, the Employer has opened a small retail store in the basement of the Facility for the sale of clearance merchandise such as floor samples, merchandise which has become shopworn or has been damaged, and custom orders which have been cancelled. All such merchandise is sold at discount. The store employs four employees who are supervised by an assistant buyer whose office is located in the main store and who operates outside the normal chain of command managing the Facility. The Spring Avenue Facility operations are conducted under the supervision of the warehouse superintendent who is responsible to the vice president for operations. The superintendent has various assistants who aid him in supervising the work of the warehouse employees, who, as noted, constitute the great majority of employees in the Facility. The superintendent also has an assistant whose primary responsibility is supervision of the operations of the workrooms and the fur storage vault. That individual is in turn aided in discharging that responsibility by supervisors who are directly in charge of each of the workrooms. The cafeteria is supervised by an individual who reports directly to the warehouse superintendent. The store employees are the only employees in the Facility who are supervised outside of the normal chain of command managing the Facility. In our previous reported decisions concerning the unit placement of employees employed at this Facility, we considered those factors demonstrating that the employees in the Facility had a community of interest separate from that of the employees employed in the stores operated by the Employer. For the reasons stated therein, we reject the Employer's renewed contention that only a unit of all selling and nonselling employees employed in its St. Louis operations is appropriate for purposes of collective bargaining. In our previous Decision in Case 14-RC-4843, reported at 153 NLRB 341, we found that the employees engaged in performing warehousing functions enjoyed a community of interests separate from that of other employees employed in the Facility by reason of their separate immediate supervision, separate work locations in the Facility and the difference in their skills and functions as compared with employees in the workrooms. We found, therefore, that such employees constituted a unit which is appropriate for purposes of collective bargaining. Contrary to the Employer, that decision was not intended to foreclose, nor could it foreclose, the possible grouping of such employees in a bargaining unit with other employees, in the future. This is so, for the simple reason that it is well settled that there may be more than one way in which employees may be grouped for purposes of collective bargaining.` The fact that a given group of employees may have an identifiable community of interests separate and distinct from other employees of an employer does not mean that the various groups of employees do not also have a larger common community of interests. Indeed, Section 9(b) of the Act reflects this basic fact of industrial and mercantile life in establishing the presumptive appropriateness of an employer unit, craft unit, plant unit, or subdivision thereof. Quite obviously, the fact that a subdivision of a plant may be appropriate does not preclude a finding that such employees may also appropriately be included in one of the larger enumerated units. We therefore reject the Employer's contention that our prior decisions preclude the establishment of the Facility-wide unit sought by the Petitioner.6 On the basis of the entire record in these cases we are satisfied that the Facility-wide unit sought by the Petitioner is an appropriate unit for purposes of collective bargaining. Thus, except for the 4 store employees, all the employees in the Facility work under the overall supervision of the warehouse superintendent, who in turn reports to the vice-president of Operations. The Employer has recently provided a personnel manager who deals only with the personnel problems of the Facility. The Facility is geographically separated from the Employer's other operations. There is little or no interchange of employees between the Facility and the retail stores. The Facility functions essentially as a place where goods are received, stored in bulk, processed, and then shipped either to the retail stores or directly to customers. Though employees in the workrooms have skills and functions different from those of the warehousing employees, there is frequent contact between the two groups. Thus, stockmen bring goods and supplies to the workrooms and the fur storage vault, and stock clericals often work within those areas. All employees use the same personal service facilities such as the cafeteria, washrooms, drinking fountains, and the like. Except for the fur storage vault and the paint spray room, the workrooms are not separate rooms, but are areas partitioned off by the stock which is principally worked on in those areas. Employees not engaged in the principal task of the particular workrooms frequently walk through the areas as they move about the Facility. Inasmuch as the cafeteria serves all the personnel in the Facility, there is frequent contact between the cafeteria employees and other employees in the Facility, and, as already noted, the cafeteria employees are supervised by Angelo Fuse,_ who 'For a discussion of the underlying reasons therefor and a citation of illustrative precedents, see Metropolitan Life Insurance Company, 156 NLRB 1408 at 1412. 'We also reject the Employer's contention that Petitioner has not made an adequate showing of interest to support an election in such a unit. In the first place that issue is not litigable in this proceeding. Secondly, Petitioner did submit an adequate showing of interest among the warehousing employees to support the petition in 14-RC-4843 and among the remaining employees to support the petition in 14-RC-5899, and the combined showing of interest is obviously sufficient to support the alternative unit request under consideration -herein. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reports directly to the warehouse superintendent. The foregoing demonstrates that the employees in the Spring Avenue Facility share common working conditions including supervision which does not extend to employees in other work locations, work in a building geographically separated from other facilities of the Employer, do not interchange with employees in such other facilities, and perform duties which are for the most part not performed at such other facilities. On the basis of these factors, and in accordance with our usual practice and policy, we find that the following employees in the Spring Avenue Facility have a separate community of interests' and that they constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act:" All employees at the Employer's Spring Avenue Facility at Spring Avenue and Market Street in St. Louis, Missouri, but excluding all sales employees,' office clericals, professional employees, guards, supervisors as defined in the Act, and all employees presently represented by other labor organizations. [Direction of Election'° omitted from publication.] 'See Metropolitan Life Insurance Company, supra, for a discussion of tests used by the Board to measure community of interests. 'Associated Dry Goods Corporation. d/b/a J . W. Robinson Co.. 153 NLRB 989, where the Board found a unit similar to the one involved herein to be appropriate and in accord with our general policies concerning units of employees performing warehousing and related functions for retail merchandising operations. 'We exclude the retail store employees located in the Facility because of their separate supervision, different functions, and lack of interchange with other employees in the Facility. "In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc.. 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company. 394 U.S. 759, decided April 23, 1%9. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 14 within 7 days of the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. No extension 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 . Though the petition in Case 14-RC-4843 was filed prior to the Excelsior decision, we find that it will effectuate the policies of the Act to attach this requirement because this election is being conducted in a substantially larger unit as requested by Petitioner in Case 14-RC-5899. Accord : Daniel Construction Inc., 167 NLRB No. 159.