Petrie Stores Corp.

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petrie Stores Corporation and Poor People's Union of America, Petitioner. Case 10-RC-9883 June 27, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Martha A. Youmans of the National Labor Relations Board. On March 7, 1974, following the close of the hearing, the Regional Director for Region 10 transferred this case to the Board for decision. Thereafter, the Employer filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The labor organization I involved claims to rep- resent certain employees of the Employer. 3. A question affecting commerce exists concern- ing 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 Employer is a New York corporation en- gaged in the distribution and retail sale of women's apparel. The instant case concerns the three retail i The Employer contested the Petitioner's status as a labor organization and moved to stay the instant proceedings until the Board issued its decision in S H Kress & Company, 212 NLRB No 12 In Kress, which has now issued, the Board rejected identical challenges to the Petitioner's status and found that the Petitioner was a labor organization within the meaning of the Act We so find herein In addition, the Employer urged, as did the employer in Kress, that the Petitioner is prevented from raising a question concerning representation because it discriminates in its membership on the basis of race The Board has held that such inquiries are outside the scope of a preelection hearing Bekms Moving and Storage Company of Florida, Inc, 211 - 'LRB No 7 As noted therein, Chairman Miller and Member Jenkins would consider objec- tions to a labor organization's capacity to fairly represent employees only upon the postelection filing of properly sui•stantiated objections to the is- suance of a certification Member Kennedy concurs substantially with that postelection procedure but would limit consideration to the issue of alleged discrimination on the basis of "race, alienage, or national origin " Members Fanning and Penello reject the contentions of the Employer herein for the reasons stated in their dissenting opinions in Bekins They would not consider allegations of discriminatory practices by labor organizations in a precertifi- cation proceeding but would "leave such questions as they may raise, with respect to the Petitioner's willingness or capacity to represent fairly all em- ployees in the bargaining unit, to be resolved in other proceedings under the Act" stores operated by the Employer at West End Mall, Columbia Mall, and DeKalb Mall in Atlanta, Geor- gia. The Petitioner seeks to represent all the employees in the West End Mall store excluding office clericals, guards, and supervisors as defined in the Act. The Employer contends that a multistore unit consisting of all selling and non-selling employees excluding guards and supervisors, employed in its three Atlanta Stores, constitutes the only appropriate unit. At the hearing, the Petitioner expressed a willingness to pro- ceed in a three-store unit in the event that the Board found such a unit appropriate.' Based on the entire record, we find, in agreement with the Employer, that the facts of this case require a finding that the appropriate unit consists of the employees in all three of the Employer's Atlanta stores. The three stores, which are approximately 6 to 10 miles apart, constitute a separate, distinct, and complete administrative division within the Employer's organization. There is virtually no indi- vidual store autonomy since the Employer's district supervisor supervises, directs, and controls the daily operations of all three stores. Thus, he does all the hiring of employees for these stores; determines which employees shall be discharged, disciplined, or trans- ferred, and who among the employees shall receive wage increases and the amounts thereof; sets hours of employment and work schedules; decides the number of employees to be employed at each store; and settles any employee grievances that may arise. He is held responsible for the profit and loss of each store's oper- ations, and, in conjunction with the Employer's cen- tral or home office in New Jersey, establishes and implements uniform labor relations policies, wage lev- els and schedules, and fringe benefits for all three stores. Purchasing, warehousing, distributing, pricing, and tagging of all merchandise sold by the three stores is done by him through the home office which central- ly controls these merchandising functions. Further- more, the Employer maintains central payroll and administrative records for all its employees including those employed at the Atlanta stores. The authority of the individual store managers and assistant store managers, on the other hand, is limited 2 Aside from the issue of t e scope of the appropriate unit, the parties stipulated that any unit found appropriate by the Board should include sales employees, cashiers, and stock employees The parties also stipulated that the individual store managers and assistant store managers, as well as the district supervisor, are supervisors within the meaning of the Act and should there- fore be excluded from any unit found appropriate In addition, the Petioner's representative at the hearing stated that the Petioner would exclude the two employees classified as window trimmers from the single-store unit sought by it, but, in the event that the Board were to find a three-store unit appropri- ate, the Petitioner would include the window trimmers in the unit The Employer took the position that the window trimmers should be included in the three-store unit urged by it 212 NLRB No. 14 PETRIE STORES CORP. 131 to their issuing oral warnings to employees 3 and as- signing them routine work tasks in furtherance of the district supervisor's directives. Indeed, indicia of their supervisory status primarily seems to be confined to their recommending employees for promotions to the district supervisor, and certain job applicants for hir- ing. The record establishes, in addition to centralized administration, control, and common supervision for all three stores, that the employees in one store have the same job skills, functions, and classifications as their counterparts in the other two stores. 'urther- more, a common seniority list is maintained for all three stores, and job applicants are referred between the stores according to individual store needs. Essen- tially, the employees at all three stores enjoy the same hours and working conditions, and are subject to identical work procedures and policies. The record also establishes a high degree of regular employee interchange between all three stores. Thus, approximately 10 to 15 percent of the employees in the three stores regularly transfer on a monthly basis between stores and additional employees are transfer- red in peak seasons. In addition, employees in all three stores regularly transport merchandise between stores in their private automobiles and work with em- ployees of other stores when unloading such merchan- dise. The record also contains uncontradicted testimony as to an unspecified number of permanent transfers between stores., The Employer employs two window trimmers who work 1 or 2 days a week in each of the three stores on a rotating basis. They work side by side with the regu- lar store employees and are subject to the same super- vision and receive the same wages and benefits as store employees. Their presence in all three stores is 3 Only the district supervisor can issue written warnings. further evidence of the functional integration between the Employer's stores. In view of the common supervision of all three stores, the common wages rates, benefits, and other conditions of employment, the extensive employee in- terchange between stores, the common job skills, functions, and classifications of employees in all three stores, the centralized administrative and operational control over all three stores, and the lack of any sub- stantial individual store autonomy, we conclude that the employees in all three of` the Employer's Atlanta stores share a community of interest with each other that requires their inclusion in the same appropriate unit. Therefore we find that the following unit is ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All selling and nonselling employees of Petrie Stores Corporation at,its West End Mall, Colum- bia Mall and DeKalb Mall stores in Atlanta, Georgia, including all sales employees, cashiers, stock employees and window trimmers, but ex- cluding all office clerical employees, guards and supervisors, as defined in the Act.4 [Direction of Election and Excelsior footnote om- itted from publication.] 4 Food Marts, Inc., 200 NLRB No. 5; Purity Supreme, Inc., 197 NLRB 917. In accordance with the stated positions of both of the parties, and the record evidence showing their common interests with the other employees , we have included the window trimmers in the unit herein found appropriate. The Petitioner requested that office clerical employees be excluded from the appropriate unit It appears from the record that the Employer did not take a contrary position. Thus, although the Employer proposed that the unit should consist of "all selling and non-selling employees," the Employer there- after specified that the only employees to be included in the unit were sales employees, cashiers , stock employees, and window trimmers . In addition, there is nothing in the record to indicate that the Employer employs any office clerical employees or other clerical employees, or that the employees included in the unit perform any clerical duties. Therefore , in the absence of such evidence and in accordance with the Board 's established policy, we have excluded office clerical employees from the umt herein found appropriate.