The Broadway

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broadway Hale Stores, Inc., d/b/a The Broadway and International Union of Police and Protection Employees-I.W.A. Local 151, Petitioner. Case 31-RC-2694 November 22, 1974 DECISION ON REVIEW BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 7, 1974, the Regional Director for Region 31 issued a Decision and Direction of Election in the above-entitled proceeding in which he directed an elec- tion in a guard (security) unit at the Employer's Las Vegas, Nevada, department store.' Thereafter, in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for re- view of the Regional Director's Decision, contending, inter alia, that in finding the fitting room checkers not to be guards, and therefore excluded from the unit, the Regional Director made erroneous findings of fact and departed from established Board precedent. By telegraphic order dated August 12, 1974, the Na- tional Labor Relations Board granted review as to the exclusion of the fitting room checkers, denied review in all other respects, and stayed the election pending deci- sion on review. 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. The Board has considered the entire record, includ- ing the Employer's brief on review, with respect to the issue under review and makes the following findings: The Employer is a California corporation with a place of business in Las Vegas, Nevada, involved herein, where it is engaged in operating a retail depart- ment store selling general merchandise. With respect to the duties and functions of the fitting room checkers, the Regional Director found that, in response to problems of inventory shrinkage and shop- lifting, the Employer established rules limiting the customers to four garments in a fitting room at one time. To enforce this procedure, and to maintain a continual presence around the fitting rooms, fitting room checkers are utilized. Checkers are stationed near 1 or more of the 72 fitting rooms on two floors and wear distinctive red vests with "Broadway Security" patches. When a customer approaches a fitting room area, a checker will take the garments from the customer, count them, make sure that all have tags, and return i This unit includes detectives , part-time and full-time security inspectors, and watchmen, but excludes all other employees , fitting room checkers, office clerical employees and supervisors, as defined in the Act them to the customer. Utilizing numbered discs given to the customer, the checkers keep records of the num- ber of garments taken into and brought out of the fitting rooms. The checker makes sure that fitting rooms not in use are clear of garments and, when a room is empty, directs the customer to it, requesting that the customer return the garments and numbered disc to the checker. As they are to allow no more than four garments in a fitting room, checkers explain that they will keep extra garments until the customer is ready. While on duty, the checkers may not sell to customers, nor are they to leave the fitting room area. If they see anyone acting suspiciously or if a problem arises, they have a clerk call the security number or store management. The Employer employs security inspectors2 who wear the same uniform as checkers but whose duties are somewhat more ambulatory. They move about, maintaining a patrol of all fitting room areas to prevent theft and determine that customers and checkers are adhering to the four-garment limit and other store poli- cies. However, they also devote over half their time to the performance of regular checking duties, primarily while filling in for checkers who are on break or at lunch. The full-time security inspector testified she spends 80 percent of her time sitting in as a cnecker. The Regional Director found that the security in- spectors were guards, but concluded that the Em- ployer's fitting room checkers were not, distinguishing these employees from a similar classification of em- ployees found in Stern's, Paramus' to be guards. However, in accord with the Employer's contention, we find no warrant for such a distinction. Considering the nature of their duties, which are similar to those of security inspectors, we conclude that the fitting room checkers here, like those in Stern's, Paramus, enforce rules of the Employer against persons patronizing the store in order to protect the property of the Employer. Therefore, we find that they are guards within the meaning of Section 9(b)(3) of the Act. In so finding we, unlike the Regional Director, do not give controlling weight to the fact that the Em- ployer's fitting room employees are utilized in selling and other functions. However, this fact does present the issue of whether the involved employees spend suf- ficient time performing fitting room functions to war- rant inclusion in the unit. The record reveals that the fitting room checkers are drawn primarily from a pool of "contingent em- ployees" who are not permanently attached to any one department but can be moved to other departments as 2 Prior to this present designation, security inspectors were previously referred to as fitting room supervisors and fitting room inspectors , in fact, they were so referred to throughout most of the hearings 3 Allied Stores of New York, Inc d/b/a Stern's, Paramus, 150 NLRB 799 (1965) 215 NLRB No. 2 THE BROADWAY needed. As such, they are subject to being scheduled to work irregular hours and short shifts as checkers, and most of these employees work a substantial portion of their time in selling and other nonselling positions. In order to best satisfy the objectives of the Act, and to insure that only those employees who perform fitting room checking duties on more than a sporadic basis are included in the unit, we have decided to provide an equitable formula for determining eligibility. Accord- ingly, those employees who have worked as fitting room checkers for the Employer for 15 days, or parts thereof, during the 90-day period immediately preced- ing the eligibility date herein, are considered eligible to be included in the guard unit found by the Regional Director.' 47 Accordingly, the case is hereby remanded to the Re- gional Director in order that he' may conduct an elec- tion pursuant to his Decision and Direction of Election, as modified herein,' except that the payroll period for determining eligibility shall be that immediately preceding the date of issuance of this Decision. [Excelsior footnote omitted from publication.] 5 As the unit found appropriate herein is larger than that sought by Petitioner, if the Petitioner does not now wish to participate in an election in the unit found appropriate , we shall permit it to withdraw its petition without prejudice upon notice to the Regional Director within 5 days from the date of this Decision Also, as the Petitioner's showing of interest was for a unit smaller than the unit in which an election is being directed , the Regional Director shall determine whether the Petitioner has an adequate showing of interest in the broader unit found appropriate before proceeding to an election 4 Member Kennedy joins in adopting this formula because of the particu- lar facts in this case.