Wickes Furnture

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wickes Furniture, a Division of The Wickes Corpora- tion and Retail Store Employees Union, Local 345, AFL-CIO, Petitioner. Case 3-RC-6782 August 5, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION On January 21, 1977, the Regional Director for Region 3 issued his Decision and Order in the above- entitled proceeding in which he dismissed the petition filed herein, finding inappropriate the Petitioner's requested unit of selling employees at the Employer's Rochester, New York, store. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the grounds that he misapplied precedents and that there are compelling reasons for reconsideration of prece- dents relied on by him. The Employer filed a statement in opposition thereto. The National Labor Relations Board, by telegraph- ic order dated February 14, 1977, granted the request for review. The Board has considered the entire record in this case and makes the following findings: The Employer operates retail furniture stores at a number of locations throughout the United States. The Regional Director stated that the facts pertain- ing to operations at the Employer's Rochester store are essentially unchanged from those found by the Board in earlier Wickes cases.' The record shows that the parties so stipulated. To support his conclusion that the requested unit of selling employ- ees was inappropriate, the Regional Director relied on the Board's similar holdings in 201 NLRB 606 and 201 NLRB 608; his own decision in Wickes Furniture, Case 3-RC-5629 (1973); and Levitz Furniture Corporation, 223 NLRB 522 (1976). The Petitioner urges Board reconsideration of the earlier Wickes cases relied on by the Regional Director and argues that Levitz Furniture, supra, is factually distinguishable. We have decided to overrule the holdings in the Wickes cases that requested units of the Employer's sales employees at its retail furniture stores are inappropriate. 2 In our opinion, the Board majority in those cases erroneously relied on The Grand, a Division of Beco Stores of Delaware, Inc., a Subsidiary of Beco Industries, Inc., 197 NLRB 1105 (1972); and Levitz Furniture Company of Santa Clara, Inc., 192 i Wickes Furniture, a Division of The Wickes Corporation, 201 NLRB 606, 201 NLRB 608,. 201 NLRB 610, and 201 NLRB 615 (1973). 2 Chairman Fanning and Member Jenkins join in overruling these NLRB 61 (1971). In The Grand, the Board found that the request for a unit of nonselling employees was "based, ultimately, on the single negative characteris- tic that none of the included employees performs any selling functions," and concluded that, in the circumstances of the case, such employees did not share a sufficiently distinct community of interest apart from other store employees to constitute an appropriate unit. Likewise, in Levitz Furniture Com- pany of Santa Clara, the Board found merely that the requested separate units of warehouse employees and truckdrivers, respectively, were inappropriate. Thus, in neither of those cases did the Board rule on the appropriateness of a unit of selling employees. The majority in those Wickes cases went on to note, however, that the sales employees "regularly contact certain other employees in, or adjacent to, the showroom, including the front office clerical employ- ees, merchandise control employees, and other display employees"; that "selling and nonselling employees coordinate their efforts in connection with the monthly warehouse sales and taking inventory"; and that "several of the excluded employees have the same immediate supervision as the selling employ- ees." It concluded that the circumstances did not warrant finding appropriate a separate unit for the selling employees. Notwithstanding these factors, we are satisfied that the sales employees here involved have a sufficiently distinct community of interest apart from other store employees to warrant their establishment as a separate appropriate unit. They are under separate immediate supervision, spend the large majority of their time on the selling floor initiating virtually all sales, alone receive commis- sions for their sales, and have minimal contacts with warehouse employees.3 Contrary to the Regional Director, the Levitz Furniture case relied on by him is, in our opinion, factually distinguishable. While many aspects of the Levitz and Wickes furniture store operations are similar, the Levitz store operations appear to be more highly integrated, particularly with regard to the frequent common and overlapping supervision of selling and nonselling employees, and the employer's policy of encouraging all employees to cross-train in all aspects of the stores' operations in order to facilitate temporary interchange. We conclude therefore that the following employ- ees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: WiiAkes cases for the same reasons that led them to dissent therefrom and for such additional considerations as are expressed herein. I See Allied Stores of New York, Inc. d/b/a Stern's, Paramus, 150 NLRB 799, 803 (1965). 231 NLRB No. 38 154 WICKES FURNITURE All salespersons employed by the Employer at its Rochester, New York, area location, excluding all other employees, clerical employees, professional employees, guards and supervisors as defined in the Act. [Direction of Election omitted from publication.] 4 MEMBER MURPHY, concurring: I join in finding appropriate the unit of selling employees sought by the Petitioner. Like Chairman Fanning and Member Jenkins, I find that they have separate interests from the nonselling employees 5 for the reasons set forth in the principal opinion. I recognize that the Board's historical approach in the retail store industry has been that all employees, including office clericals, must be included in a single overall unit, and I have participated in some cases finding such units appropriate. However, the validity of this as an unyielding principle regardless of the facts seems doubtful to me; if it ever was mandated by conditions in the retail store industry as a whole, no justification appears for continued slavish adher- ence to a rigid rule. It is my firm opinion that each case must be decided on the basis of the facts presented. As in other industries, the unit in a retail store need not be the most appropriate one; it is sufficient if the unit sought is or may be an appropriate unit. Accordingly, I believe that the Board should reconsider its views on retail store units and should be less reluctant to find appropriate a unit such as is sought herein. The board has previously found that less than storewide units may also be appropriate (Allied Stores of New York, Inc. d/b/a Stern's, Paramus, 150 NLRB 799 (1965)), but that precedent has rarely been applied or followed. This is clearly a proper case in which to do so. MEMBERS PENELLO and WALTHER, dissenting: We dissent from the majority's arbitrary overruling of the Wickes cases,6 for the record here shows, as it did in the original Wickes decisions, that the selling and nonselling employees share a strong community of interest which "outweighs any separate interest that the selling employees may have." Wickes, 201 NLRB 608. Indeed, the majority admits that the facts which support the original unit determination have remained essentially unchanged, to wit, the selling and nonselling employees have regular and frequent contracts, overlapping duties and supervision, and common working conditions, hours, and benefits. But apparently the above evidence of integrated operations and community of interest is no longer 4 [Excelsior footnote omitted from publication.] It appears that the nonselling classifications probably include ware- housemen, warehouse clericals, service men, maintenance personnel. adequate. Some other evidence of community of interest is now required by the Board before it will find a selling unit inappropriate. According to the majority, the requisite evidence of community of interest is found in two prior decisions, The Grand and Levitz, both cited supra. While these decisions were authority for the now-overruled decisions, the Board states that the prior majority "erroneously relied" on them for its finding that a unit limited to selling employees was inappropriate. Our colleagues distinguish these cases on the grounds that they dealt with the appropriateness of nonselling units, rather than selling, and because of alleged factual differenc- es. These efforts to distinguish these cases, are not, in our opinion, persuasive. First, although the precise unit issue was different, the overall legal issue was the same; what is the appropriate bargaining unit for a retail establish- ment, and, more particularly, with regard to Levitz, for a retail establishment which has its own ware- housing operation on the premises and offers this feature to the public as a reason for their patronage. To this end, both cases had a fully developed record as to the community of interest of selling as well as nonselling employees, and the considerations which support a finding that a nonselling unit is inappropri- ate are equally applicable to a selling unit. Thus, we fail to see the inapplicability of The Grand and Levitz on this ground. Indeed, the former majority's reliance on Levitz is particulary compelling, since Wickes has the same kind of combined warehousing and sales operation. The present majority concedes that the "Levitz and Wickes furniture store operations are similar." but concludes that "Levitz store operations appear to be more highly integrated, particularly with regard to frequent common and overlapping supervision of selling and nonselling employees, and the employer's policy of encouraging all employees to cross-train in all aspects of the store's operations in order to facilitate temporary interchange." Like the former majority, we do not believe that slight differences in the amount of overlapping supervision and in cross- training are enough either to distinguish Levitz or to outweigh the strong evidence described above which supports the inappropriateness of a unit limited to sales employees. Nor is it sufficient to conclude that Levitz is distinguishable because it "appear[s] to be more highly integrated .... " (Emphasis supplied.) In making these kinds of distinctions the majority ignores the forest of facts against it and concentrates on the thin underbrush for support. Accordingly, we respectfully dissent. truckdrivers, office clericals. and display personnel. See Wickes Furniture, 201 NLRB 608 (1973). 6 See citations in fn. I of the majority opinion. 155