Wickes Furniture

WICKES FURNITURE 545 Wickes Furniture, a Division of the Wickes Corpora- tion and Local Union No. 243, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 7-RC-15832 April 2, 1981 DECISION ON REVIEW On May 30, 1980, the Regional Director for Region 21 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found appropriate for the purposes of collective bargaining a unit consisting of all full-time and reg- ular part-time warehouse employees and refinishing employees employed by the Employer at its Li- vonia, Michigan, facility. Thereafter, the Employer filed a request for review of the Regional Direc- tor's Decision and Direction of Election, on the ground, inter alia, that a unit limited to those em- ployees is inappropriate. By telegraphic order dated July 7, 1980, the Board granted the request for review with respect to that issue. The Board has considered the entire record in this case with respect to the issue under review and hereby adopts the findings2 and conclusions of the Regional Director, with respect to that issue, as set forth in the portion of his Decision and Direction of Election attached hereto.3 ' The parties filed briefs on review; amicus curiae statements were sub- mitted by Levitz Furniture Corporation and Thrifty Drug and Discount Stores. 2 We do not adopt the Regional Director's finding that warehouse em- ployees "generally spend about 85 to 90 percent of their time in the warehouse area of the store," because that finding involves a credibility determination as to the various estimates given by witnesses whom the Regional Director did not observe. However, because the record shows that the warehousemen generally spend no less than 60 to 70 percent of their time in the warehouse, and that some warehousemen spend an even greater portion of their time there, we are satisfied that the Regional Di- rector's conclusion with regard to the warehousemen's community of in- terest is supported by the factor of their primary, separate work location. Similarly, while there is some conflict as to the percentage of the time the refinishers spend in the "shop," it is undisputed that they work pre- ponderantly in the "shop" and warehouse areas, and that they have sub- stantial, daily work contact with the warehouse employees. We affirm the Regional Director's exclusion of the four will-call cleri- cals from the warehouse unit. They have frequent contact with and their duties appear to be closely related to those of other nonunit personnel; namely, sales, office clerical, and data -processing employees. Although will-call employees also deal with warehouse employees, such contacts take place primarily in the office of the former, and they spend no more than a minimal amount of time in the warehouse when they return items of merchandise thereto. We therefore conclude in agreement with the Regional Director that the will-call employees should be excluded from the unit because their interests are more closely related to those of other nonunit employees than to those of the warehouse employees. 3 We find no merit in the contention that the Regional Director's con- clusions regarding the appropriateness of a warehouse and refinishing unit is in conflict with decisions of other regional directors with which we have been presented, notably, Wickes Furniture, a Division of The Wickes Corporation, Case 31-RC-4580 (1979), and Levitz Furniture Com- pony of the Pacific Inc., 31-RC-4547 (1979). In Wickes Furniture. a Divi- sion of The Wickes Corporation, 231 NLRB 154 (1977), the Board found insufficient evidence of operational integration of the entire Rochester, New York, facility to warrant a finding that only an overall unit was ap- 255 NLRB No. 80 Accordingly, as we have affirmed the Regional Director, we shall, and hereby do, remand this pro- ceeding to him in order that he may open and count the ballots in the election held herein and for further appropriate action. propriate, holding instead that a unit of selling employees was appropri- ate there. In Case 31-RC-4580, the Regional Director for Region 31 dis- tinguished the operation at the Wickes store in Woodland Hills, Califor- nia, from the operations of the Rochester store and found, in essence, that pursuant to recent management policies promulgated by the Wickes Cor- poration and implemented gradually at Woodland Hills, the operating parts of that store were much more highly integrated than were the cor- responding parts of the Rochester store. While the Employer claims in the instant case that the same new policies affect the Livonia, Michigan, store involved here, the evidence does not establish that, as of the date of the hearing, the Livonia store had in fact become significantly more inte- grated than the Rochester store. Moreover, Leviz Furniture Company of the Pacific, Inc., supra, on which the Employer relies, is distinguishable in that the facts there more closely resembled those found in the Employer's Woodland Hills operation and in other Levitz Furniture cases than those found in the Rochester Wickes case. We therefore conclude that our deci- sion in 231 NLRB 154 with respect to distinct communities of interest is dispositive here. Accordingly, we find, in agreement with the Regional Director, that a separate warehouse unit located in a single facility com- bining warehouse and nonwarehouse functions is an appropriate unit for collective bargaining. See Welsech Lumber and Supply. Inc.. d/b/a Big Buck Lumber, 241 NLRB 639 (1979), and Sears Roebuck and Co.. supra, 235 NLRB at 678-680. Further because the refinishers share a close com- munity of interest with the warehouse employees in this case, the Region- al Director appropriately included them in the unit. APPENDIX The Employer operates three combined retail furniture stores and warehouses in the Detroit Metropolitan area located in Livonia, Warren, and Riverview, Michigan. The petitioned-for Livonia store is twenty-five miles dis- tant from both the Warren and Riverview stores, while thirty-seven miles separate the Warren and Riverview stores. There is no history of collective bargaining at any of the three stores. The Livonia store occupies a single 97,000 square foot building. Approximately one half of the building is a warehousing area with the remaining portion containing several customer display sites and a central office. The customer entrance, located at the center of the west side of the building, opens onto a long main corridor which extends nearly to the back of the building; the corridor contains a variety of furniture displays. To the right of the customer as he enters is the warehouse area, which is separated from the main aisle by a 10 foot high wall. Ad- jacent to the customer entrance are swinging doors lead- ing into the loading dock area and warehouse. Addition- ally, the right hand wall has several windows and fire doors leading into the warehouse. On the left hand side of the main corridor is a center island containing a will- call or warehouse office, a customer lounge, and res- trooms and a front office area housing managerial of- fices, a cash register area, and the locator. Just past the front office area and near the entrance to the main sales room floor is the "point" where sales consultants meet the customers. The warehouse area contains 22 aisles of furniture. The front or west wall of the warehouse area has nine doors for the loading and receiving of merchandise with WICKES FURNITURE 545 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the two doors closest to the main customer entrance being reserved for customer loading. The seven doors farthest from the customer entrance contain truck wells where incoming merchandise is received. At the far end of the main corridor is an enclosed repair shop. The main entrance of the repair shop opens into the ware- house and it also has a door leading into the main sales floor area. Adjacent to the repair shop on the warehouse floor is an area reserved for furniture that has been re- paired. The main sales floor is located to the left of the center aisle and the island of offices; it is separated from the center aisle and warehouse by a wall that extends to the ceiling of the building. The customer entrance to the main sales room is adjacent to the front office area. There is also a partial second floor to the building above the island area which contains an employee lounge and a vending machine room, electric data processing room (EDP), a conference room, and a clearance loft. Approximately 68 employees are employed at the Li- vonia store, who fall into the following six job areas or classifications: sixteen warehouse employees, three refin- ishers, twenty-one clericals, three electronic data processing employees, two display employees, and twenty-three sales consultants. In addition there is a complex manager, a sales manager and an operations manager. Pay rates differ among classifications but fringe bene- fits are uniform except that they differ between full-time and part-time employees. Wage rates are as follows: Warehouse employees range from $3.40 to $6.40 per hour with an average of $6.00. Refinishers start at $6.85 per hour, and the starting rate for clericals is $3.10 an hour. Salesmen are paid by commission based on 4.5% of their sales volume, and receive a draw against commis- sion of $150 per week, with the top salesman earning $1600 a month. The wage rates of the other employees is not set forth on the record. All employees in the six job areas eat in the same lunch room, sign time sheets, gener- ally work eight hour shifts, attend store-wide parties sponsored by the Employer, and participate in the incen- tive program and in contests sponsored by the Employer. Because they are paid by commission, sales consultants accumulate points at a lesser rate under the incentive program than do other employees. Certain contests, in which the company awards trips and prizes, are only open to the sales consultants and management. Warehouse employees generally spend about 85 to 90% of their time in the warehouse area of the store with the remainder being spent in the will-call area, the repair shop, and the sales floor. The warehouse employ- ees are divided into the following functional sub-groups: Warehousemen, who generally drive hi-lo's, pull mer- chandise from stock, and take to and obtain merchandise from the repair shop; Dockmen, who generally load fur- niture into customer's cars and unload and check mer- chandise delivered at the receiving area; and the Deluxer, who works in the receiving area inspecting furniture, performing minor repairs and assembly and otherwise preparing furniture for delivery. One warehouse employ- ee, however, spends about 75% of his time on the sales floor aiding display employees in the placement of furni- ture. According to the Employer, this employee reports to Sales Assistant Joseph Smalcuga and reports to Oper- ations Assistant Keith Nelson when working in the ware- house. Once a month when major changes are made on the furniture displays certain warehousemen assist in moving the furniture; this is often done before normal store hours when sales employees are not present. Furthermore, about once a week a number of warehousemen also assist in the moving of merchandise on the display floor. Addi- tionally, about once a week warehousemen may be asked by sales assistants to move furniture to or from the clear- ance loft. Except for loading customers' cars warehouse employ- ees have little contact with customers. All paper work from the warehouse to the will-call office, EDP, and the front office area is routed through Senior Warehouseman Richard Dorf. The refinishers spend 70% of their time repairing fur- niture in the shop with the remainder being expended fixing furniture in the receiving area and on the display floor. Generally, the warehousemen take the furniture that needs to be repaired to the shop; occasionally a sales consultant or display employee will bring damaged mer- chandise into the shop. Refinishers also help inspect fur- niture prior to delivery. One refinisher spends 95% of his time repairing furniture in customer's homes. Once the furniture is repaired, the refinishers return the furniture to the area in the warehouse outside of the shop, and from there warehousemen return it to stock. Sales consultants are primarily responsible for sales of furniture, accessories, and credit insurance. Nearly 60% of their time is spent on the selling floor, with the re- mainder in the clerical areas. A sales consultant may, on occasion, go into the customer loading area to inspect furniture if there is a problem raised by a customer or to show a customer furniture that is not on display. Sales consultants do not generally help load automobiles with furniture. However, they will carry to the customers' cars accessories, such as lamps or pictures which would otherwise be performed by the customer. Salesmen occa- sionally deliver furniture to a customer's home in a com- pany van, but the vast majority of the deliveries are per- formed by an outside contractor. When a salesman effects a sale, he takes the customer to the cashier in the front office area, writes up the sales ticket, and gives it to the front office clerical. One or the other of the two then requests the locator clerical for the warehouse location of the purchased items. The sales ticket and merchandise location information is then trans- mitted to the will-call or warehouse office by means of a pneumatic tube. Display and merchandising employees' primary re- sponsibilities are to arrange the furniture displays on the sales floor and to provide decorating assistance to cus- tomers. The vast majority of their time is spent arranging furniture and preparing sales floor displays. They also visit customers homes and do occasionally take damaged merchandise to the repair shop. They also enter the warehouse in order to obtain or return accessories used in connection with their display work. WICKES FURNITURE 547 The clericals work in two different areas: the will-call office and the front office area. Will-call clericals are as- signed to the areas of receiving, customer service, and deliveries, where they share an office with Senior Ware- houseman Richard Dorf. After merchandise had been re- ceived and tagged by the warehousemen, a receiving clerical checks the information against purchase orders and bills of lading. After a sale has been made, the sales ticket along with location information, is sent to the will- call office from the front office. For take-with merchan- dise the delivery clerical in the will-call office pages the warehouseman, who is to pull the merchandise, set out the merchandise order and location information for him. In case of merchandise to be delivered, the will-call cler- icals prepare a delivery schedule and post it in the will- call office for the warehousemen. Customer complaints, returns, or exchanges, are re- ferred to will-call clericals. The customer service clerical completes the paper work necessary for the transaction, and where an exchange is involved contacts the locator clerical to determine the location of the furniture, and then pages a warehouseman to the will-call office. The warehouseman will thereupon pull the merchandise from stock, and direct the customer to the customer loading area when it is ready. At times, the will-call clericals may return accessories to the warehouse. Clericals assigned to the front office area assist in sales paper work, perform inventory control, perform credit functions, maintain customer files, complete documents involving inter-store furniture transfers, prepare inputs for EDP, and perform other office functions. Ninety-five per cent of their time is spent in the front office area. Occasionally these clericals will assist in the sales of credit insurance and will encourage customers to finance their purchases. EDP employees work in the computer room on the second floor, where they feed information into the com- puter relating to sales, deliveries, inventory, and location of furniture. They receive from all job areas data which is to be placed in the computer. Interchange between the petitioned-for unit of the warehousemen and refinishers and the remaining store employees is minimal. While several warehousemen have permanently transferred to refinisher positions, no ware- housemen or refinishers have ever permanently trans- ferred to any of the clerical or sales positions. No sales or clerical employees have ever transferred into ware- house or refinisher positions. Five clericals have trans- ferred to EDP positions, one customer service clerical has transferred into a merchandise clerical position, and one clerical was transferred to a sales consultant position. Temporary interchange among the job areas is mini- mal. Warehouse employees occasionally fill in for receiv- ing clericals in the will-call office. Additionally, in 1979, 16 sales consultants each spent a total of about six hours in customer service, receiving, credit, and location func- tions, apparently, as a part of their initial job orientation. On the other hand, when warehouse employees are hired they are only given a tour of the warehouse facilities and they receive no cross training. On December 26, 1979, there were several transfers between clerical and dis- play/merchandising positions. All employees participate in the annual furniture inventory and the semi-annual ac- cessories inventories. Except as set forth above there is no cross-training of the employees in the six job areas. The supervisory hierarchy of the Livonia store is as follows: At the apex of the managerial hierarchy is Com- plex Manager Lawrence Gerlach. He is assisted by Oper- ations Assistant Manager Keith Nelson who is in charge of the warehouse, refinishing, and the clerical and EDP employees and Sales Assistant Manager Jospeh Smalcuga who is in charge of the sales consultants and the display/ merchandising employees. The parties stipulated that they are supervisors within the meaning of the Act, and I so find. The record, however, further reveals that the display/merchandising area is headed by a display man- ager named Allen Radford and the front office by a senior clerical or office manager named Cheryl Fronek whose statuses I need not determine in view of the unit finding I make below. Additionally, there is also a senior warehouseman or warehouse supervisor and two ware- house lead men, whose statuses are in issue. Senior Warehouseman Richard Dorf is referred to by other warehousemen as warehouse supervisors. He assigns and directs the work of warehousemen, prepares posted work schedules, grants warehouse em- ployees excused time off, and approves job transfer. Dorf also interviews job applicants. Although Dorf has never hired an employee and the Employer denies that he has any such authority, the previous senior warehousemen hired employees during Lawrence Gerlach's tenure as complex manager. Moreover, unlike other warehouse- men, Richard Dorf has a desk in the warehouse office, performs little if any manual work, wears a suit and tie, earns a substantially higher pay, is payed bi-weekly, re- ceives no overtime pay, and does not sign in and out for work. Based on the foregoing, I conclude that Richard Dorf, senior warehouseman or warehouse supervisor, is a supervisor within the meaning of Section 2(11) of the Act. Butter-Johnson Corporation, 237 NLRB 688. Up until recently, the Board found warehouse employ- ee units to be appropriate in retail operations only where, (I) such employees came under separate supervision, (2) such employees performed substantially all their work in buildings geographically separated from those whereat the other employees worked, and (3) such employees' duties were not substantially integrated with those of other employees. A. Harris & Co., 116 NLRB 1628; Levitz Furniture of Santa Clara, 192 NLRB 61. In apply- ing this doctrine to the Employer's facilities, the Board concluded initially that only wall-to-wall units would be appropriate. Wickes Furniture a Division of the Wickes Corporation, 201 NLRB 606; Wickes Furniture a Division of the Wickes Corporation, 201 NLRB 608; Wickes Furni- ture a Division of the Wickes Corporation, 201 NLRB 610. However, more recently, the Board found less than a store-wide unit to be appropriate where the employee group had a separate and identifiable community of inter- WCKES FURNITURE 547 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD est. Thus, in Wickes Furniture, 231 NLRB 154, the Board demarcated a unit delimited to sales employees in a store similar to that in the present case where the sales em- ployees were under separate supervision, spent the large majority of time on the salesroom floor, and had minimal contacts with warehouse employees. More significantly, in a factual context that closely parallels the one in the instant case, the Board has recently found as appropriate a unit limited to warehouse employees in a combined wholesale and retail operation. Welsch Lumber and Supply, Inc. d/b/a Big Buck Lumber, 241 NLRB 639. More specifically, the Board there found as appropriate a bargaining unit limited to yard men (i.e. warehousemen) and drivers but excluding loaders, gate checkers, sales- men, inventory control employees, cashiers and front office clerical, even though there was common overall supervision, some overlapping of job duties, some func- tional integration, common working conditions and bene- fits and a warehousing area which was not geographical- ly separate from the sales operation, in the sense applied under A. Harris, supra, that is, physical apartness, not merely separation. The Board in Big Buck Lumber held that the warehouse employees constituted an appropriate unit since warehouse employees (with a few exceptions) worked in a separate area, there was no substantial em- ployee interchange, the warehouse-yard men came under separate immediate supervision, and were the only em- ployees who performed traditional warehouse function. Similarly, in Sears Roebuck & Co., 235 NLRB 678, the Board found appropriate a unit limited to warehousemen, drivers, and helpers in a combined warehouse and serv- ice center operation. Excluded from the unit found to be appropriate were clerical, parts department employees and repairmen, notwithstanding common overall supervi- sion, common benefits, some functional overlap between warehouse and non-warehouse employees, and the de- pendency of warehouse operations in the paper work generated by the clericals. The Board rested its decision on the factors of these warehousemen, drivers, and help- ers performing traditional warehouse work, having sepa- rate immediate supervision, and occupying a separate and distinct area of the warehouse. Applying Big Buck Lumber and other recent cases to the facts of the instant case, I find the petitioned-for unit of warehousemen and refinishers to be appropriate in view of their working in a separate and discrete ware- house area of the store, their minimal work contacts with the sales consultants, the display employees, and the cler- icals, their lack of any significant temporary or perma- nent interchange with other employees and their being the only ones performing traditional warehouse work functions. It is appropriate to include the refinishers in the unit because they share the same immediate supervi- sion with the warehousemen, there is substantial function integration and overlap between the duties of warehouse- men and refinishers, the repair shop is adjacent to and opens into the warehouse area, and they otherwise have similar wages and other working conditions. The clericals in the warehouse office, particularly those assigned to delivery and receiving functions, have some identification with the warehouse employees.-War- ehousemen have daily contact with such clericals but it generally takes the form of clericals posting orders for warehousemen to pull from stock. Ocasionally, a ware- houseman will temporarily fill in for receiving clericals, but will-call office clericals also interchange with front office clericals. Moreover, the will-call office clericals have more contact with EDP employees and front office clericals than they do with the warehouse employees. Based on the foregoing, I conclude that the will-call office clericals have a greater community of interest with the front office clericals and EDP employees than they do with the warehousemen, and for that reason they will be excluded from the unit. Sears & Roebuck Company, supra at 680.