Levitz Furniture Co. of Santa Clara, Inc.

LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 61 Levitz. Furniture -Company of Santa Clara, Inc. and -Warehousemen's 'Union Local 17, International -Longshoremen's and Warehousemen's Union, Inde- pendent, Petitioner. Levitz Furniture Company of Santa Clara, Inc. and Chauffeurs, Teamsters and Helpers Local 150, International Brotherhood-of^ Teamsters,, Chauf- feurs,',War'ehouseinen and ";Helpers of America, Independent,,Petitioner. Cases 20 - R and"20'- RC = 9713 _ July 12, 1971 DECISION AND` ORDER BY CHAIIWAN MILLER .AND MEMBERS BROWN AND JENKINS Upon separate petitions duly filed under Section, 9(c)(1) of the National Labor Relations Act, as amended, a consolidated hearing.was held before Hearing Officer Stuart R.' Dvorin. Following the hearing, pursuant to Section 102.87 of the, National Labor, Relations Board,Rules and Regulations and Statements of Procedure, Series 8, as amended, these cases 'were transferred to-,the National Labor Rela- tions,4Board ,for decision. Thereafter, the Employer and the Petitioners filedbriefs, and the Employer filed a reply brief, allof whichhave been duly considered. Pursuant to the provisions, of Section 3,(b) of the, National- Labor. Relations Act, as amended, the, National Labor Relations Board, has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed, the Hearing Officer's rulings made at the hearing and finds no prejudicial error. The rulings are hereby affirmed. Upon the, entire record in these cases, 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 assertjurisdiction herein., 2. The Petitioners are labor organizations claim- ing to represent certain employees of the Employer. 3. No question affecting commerce exists concern ing the representation 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: At Santa Clara, California, the Employer is engaged in retail furniture store operations in a sin gle facility known as the warehouse building, with approximately 105 employees. The Longshoremen seeks a'so-called warehouse unit of certain of the Employer's nonsell- ing employees in, the following categories: merchan- disewarehousemen, ACD warehousemen, receivers, pickers, and relocators, excluding all other employees.' 192 NLRB No. 13 The Teamsters seeks a. unit of truckdrivers and, truckdriver helpers, excluding- all- other, employees. Alternatively, the Longshoremen and the Teamsters jointly seek a single unit which combines both of -the aforementioned units, but excludes all other employ- ees.- The Employer contends that, in view of the small size and functional integration at its retail store, a storewide unit is alone appropriate, and, that, as neither the Longshoremen nor-the Teamsters desires - to represent such a unit, both petitions should be dismissed. There is no bargaining history at the Employer's store. Approximately one-third of the warehouse building, which contains furniture and furniture accessories but no appliances or, carpeting,, is used to display the furniture. The other two-thirds, is used for storage, offices, and shop space. Customers must enter the warehouse portion of the building,, and proceed approximately 200 feet in order -to -reach the show- room. Between the showroom and the warehouse storage area are the sales office; the ACD or accessory office; and the ACD warehouse, which-is actually a portion of the main warehouse in which accessory items are stored; the merchandise display preparation. area where furniture and accessory items are prepared ; for display and later prepared for storage; the EDP, or electronic data processing, office ; the main, or front, office; the customer service offices; the.merchandis- ing office; the buyers' office; the lounge; and the steps. The nonselling classifications sought by the Long- shoremen are under the immediate supervision of._, three supervisors and an assistant.-'Thus the merchan- , dise warehousemen are under the merchandise manager; the ACD warehousemen are under the ACD manager; and the receivers, 'pickers, and relocators are under the warehouse manager and his assistant. However, these immediate supervisors also supervise .employees in other nonselling categories whom the Longshoremen would exclude. The .mer- chandise manager also supervises, buyers, merchan- dise clerks, and an advertising man; the ACD manager also supervises an -ACD clerk, maids, trimmers, and helpers; and the warehouse manager also supervises a warehouse clerk,'the truckdrivers and truckdriver helpers whom the Teamsters would represent, and janitors. In'summary, the Longshore- men would include, in its unit 20 employees under the merchandise manager,, the ACD manager, ' and the warehouse manager and his assistant, , but would exclude 25 employees, including the 4' truckdrivers and 4 driver helpers soughtby'the Teamsters, who are also under their supervision. The Longshoremen would furthermore exclude the following additional nonselling categories under `other immediate supervi- sion, 10 clerks under the EDP manager and 7 cashiers 62 DECISIONS ^OF NATIONAL LABOR RELATIONS BOARD and, 2, clerks,,, under the front office manager. They would additionally exclude the 32 salesmen under the sales manager. All employees enjoy, substantially the same benefits and-'conditions of employment and are, hourly paid;' except' for the'salesmen who receive a"guarantee plus commission`.Selling'and' nonselling employees share the same lounge, have `the same-coffeebreaks; punch thesame-timeclocks,-and,,exceptfor the'truchdrivers, have thesaineiunch'periods. The entire store activities are devoted to all-phases of selling merchandise. Individual sales' thus require the close`cooperation of several sellingand nonselling categories ; ,','-in the ' course " of such sales there' is substantial 'contact between customers and most of the selling", ate.;- nonselling employees, including salesmen; EDP clerks,--, cashiers, warehouse clerks; ACD , employees', except maids, truckdrivers, and customer' service employees. There is likewise consid- erable'movement'by :employees throughout the entire building in the per'formanoe of their primary-duties, in the course of 'which tionwarehouse" employees use warehouse facilities, as, for example, salesmen, who, in` obtaining ,,items -`from storage areas, use the warehopsemen's jack stacker, a sophisticated `forkl'ft' regularly" used ' `by- the warehouse employees to' remove the items from, the 32-foot-high shelves. All employees partieipat in taking inventory once a year and, approximately every 6 weeks, all participate in dockside sales, of surplus merchandise. 'During`the approximately 3 months which elapsed between the"inception of the Employer's store and the instant ` hearing, there- 'were 12 employee transfers. Temporary interchanges of employees throughout the store, 'including truckdr'ivers, are frequent and regu- lar." Thus,' 'during` a sample 3-week'.penod, five cashiers, a customern,'service clerk;'a personnel'and insurance clerk, ,a maid, a servicemen, a warehouse clerk, and a ' merchandise - warehousemen worked" as salesmen. At'such ;times they attended sales meetings and _wer"e` paid "spiff s;" or promotional money paid to salcsnien°to promote one item over another. Similar` interchanges' apply to truckdrivers, who normally spend ^60'to°65 percent of their time- away from `the plant Yand "the balance in the store or warehouse area. on Sundays, or on their days off, or when not engaged in"deliveries; they have performeda large'amount'of will-call`rpicking.i `S`imilarly, "'o'ther -employees have performed work regularly performedby truckdrivers and 'their helpers: Thus;' servicemen, receivers, and A random Rsampling during the,iirst' 3 months of operations,shows, 45 instances of will-call picking by four different trackdnvers and their helpers. 2 Cf. Sears, Roebuck and "Co.,..151 NLRB 1356, where the Board held that warehouse :employees having .a degree; of functional difference and autonomy (including geographic and, supervisory separateness) within the overall ooniplex 'of the employer's retail operations' 'clearly demonstrated a pickers have" made -individual, deliveries in the delivey trucks :-and' service vans, and, ; on -one occasioii, two salesmen rented a truck to'make a delivery When- "'the Employer's delivery schedule was filled.. Truckdrivers, their helpers, and pickers all do loading and unload, the course of which they use-storage` equipment' such as the jack stacker: ACD men use,delivery `trucks to haul trash, ' and pickers,` servicemen, and" receivers have performed as truckdrivers. When -truckdnvers are on vacation, anyone assigned,' as driveir will perform their jobs. They require no special license or driving test. At least three truckdrivers were asked to sell on the sales floor. i The Longshoremen contends that :Stern's, Paramus. 150 NLRB 799, is dispositive of the instant case, inasmuch as in that-case the Board "carved out a separate warehouse unit," in a facility whee the warehousing and sales functions, as is true her, were performed ' - under one `roof." We disagrees The particular unit- found appropriate " in' Stern's was a unitt not' of warehouse -,employees but of all -nonselling employees in a large department `store, with ''a different composition-'from that of the instant case,' and without 'evidence of the cross-supervision and interchange indicative of the highly integrated Qpera-' tions of `the-instant' Employer's store.'Furthermore' in- view of the ' .ongshoremen's- above-stated -conten tions, from which we deduce that it essentially seeks Ia warehouse unit, we find, contrary to the Lo hore=` men, that the decisions in A. Harris, &tCo.,116 14LRB 1628; Sears, Roebuck"& Co., 117 NLRB-133; Sears, Roebuck & "Cti.; -180 NLRB No. 132; and 'ears, Roebuck & Co., 182'NLRB No.121, involving s'niilar' relatively small, integrated store operation, -are clearly dispositive of the instant case. In all'o^ "these decisions it is clearly stated that, in circumstances like the present, the 'Board evil,' not permit a separate warehouse- unit unless the following` three factors pertain: (1) the employees are under separate supervi- sion; (2) they perform substantially all their, work tasks in, buildings geographically separated - from those in which the bulk of the'remaining employees work; and (3) they are not integrated, to any substantial degree, with" employees in other diMisions in" the performance off their ordinary duties. None of these' factors 'is satisfied in the instant case.2 As an additional reason` for not according the Longshore- men the so-called warehouse `unifvit seeks, we find that, by the exclusion of certain employee categories engaged in warehouse duties, including warehouse coma unity • of _ interest- among- the warehouse employees 'suffcientto warrant placing them in a ,separate unit. rThis, principle was followed by the Board `m Lovemas Joseph & Loeb Division of Cily Stores Company, Inc., 152 NLRB 719; J W Robinson"Co._153 NLRB' 989;` John's Barg'ain' Stores Corp., 160 NLRB 1519. The present case is,' for reasons noted, infra clearly distinguishable from these cases. LEVITZ FURNITURE CO. OF SANTA CLARA, INC. 63 clerks, trimmers, janitors, and maids, the warehouse unit it seeks is further 'defective, because it fails to include all of the employees who perform warehouse functions .3 For the same reason, we find inappropri- ate the Longshoremen's and the Teamsters alterna- tive unit.4 As to the. Teamsters,-original unit of truckdrivers and truckdriver helpers, • they are under the same common supervision as several_ of the store employ- ees, as noted „above; -receive, substantially similar benefits; work the same hours; and are paid on the same basis as other employees. Their duties are closely associated with the plant operations. Notwith- standing that the truckdrivers spend a majority of their time' away from the plant, there exists such regular and frequent interchange with other employ- ees in the store as to,warranta finding that they do not constitute a separate identifiable unit. Thus, they spend a substantial portion of their time working 3 Sears; Roebuck & Co., 182 NLRB No. 121. 4 Sears, Roebuck & Co., 182NLRB No. 321. 5 See Dura-Containers, Inc., 164 NLRB 293; Kalamazoo Paper Box` Corporation, 136 NLRB 134 at 138; Clandge Logging Company, Inc., 164 alongside, or in close proximity with, other employ- ees, and other employees also makeFtruck-deliveries. In such circumstances, which tend to emphasize the community of interest of all of, the employees at the Employer's store, we find that the truckdrivers do not constitute a functionally distinct group' with, special interests sufficient to warrant their separate representation3 Accordingly, we find that none of the units herein sought constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and we shall therefore dismiss the instant petitions. ORDER It is hereby ordered that the instant petitions be, and theyherebyare, dismissed. NLRB 168; Boyden Logging I sc., 164 NLRB `1069. Compare 6. Fox & Co., 155 NLRB 1080; J. L Brandeis & Sons, -Inc.,. 142 NLRB $25; Searss, Roebuck & Co., 123 NLRB 942; Maas Brothers, Inc., 119 NLRB 568; Sears,, Roebuck & Ca, 118 NLRB 277.