Montgomery Ward & Co., Inc.

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Team- The Petitioner currently represents the general sters, Chauffeurs, Warehousemen and Helpers warehousemen and merchandise prep warehouse Local No. 542 of the International Brotherhood employees at the distribution center. These employ- of Teamsters, Chauffeurs, Warehousemen and ees, who perform traditional warehouse functions, Helpers of America, Petitioner. Case 21-RC- are supervised by the warehouse manager. In the instant proceeding, the Petitioner sought a unit of November 16, 1981 all warehouse clerical employees. Included among the employees sought by the Petitioner are unit DECISION ON REVIEW AND stock control clerks who take calls from the Em- DIRECTION OF ELECTION ployer's four San Diego stores serviced by the dis- tribution center, and who record all merchandise in ZB MEMBERS FANNING, JENKINS, AND the distribution center on stock status cards. Addi- ZIMMERMAN tionally, they write purchase orders on merchan- On March 25, 1981, the Regional Director for dise shipped out of the distribution center and Region 21 issued a Decision and Direction of Elec- handle delivery sales checks. The invoice records tion in the above-entitled proceeding in which he clerk maintains the Employer's book inventory and found appropriate a unit of various warehouse and is responsible for registering freight and damage other clerical employees' at the Employer's Big claims as well as invoices. The trucking and deliv- Ticket Distribution Center located in El Cajon, ery clericals enter sales check information on trip California. Thereafter, in accordance with Section sheets for merchandise delivery to customers. The 102.67 of the National Labor Relations Board merchandise prep clerical takes calls from custom- Rules and Regulations, Series 8, as amended, the ers requesting the repair of merchandise and sched- Employer filed a timely request for review of the ules merchandise repair by the outside prep em- Regional Director's decision on the ground, inter ployee. The PBX operators handle all incoming alia, that he departed from officially reported pre- calls to the distribution center. All the employees cedent by excluding the sales and maintenance em- sought by the Petitioner report to the warehouse ployees from the unit sought. manager. By telegraphic order dated April 23, 1981, the The Employer, contrary to the Petitioner, would request for review was granted.2 Neither party sub- have included in the unit all of the remaining ware- mitted a brief on review, but the Petitioner filed a house operations employees who report to the brief in opposition to the Employer's request for warehouse manager, including the two personnel review. office employees, the four salespersons, and the Pursuant to the provisions of Section 3(b) of the two maintenance employees. The Regional Direc- National Labor Relations Act, as amended, the Na- tor included the personnel office clericals but, as tional Labor Relations Board has delegated its au- indicated, excluded the salespersons and mainte- thority in this proceeding to a three-member panel. nance employees.3 The Board has considered the record in this The unit found by the Regional Director is com- case, including the brief in opposition to the re- prised of various classifications of employees per- quest for review, and makes the following findings: forming clerical and other support functions related The Employer is an Illinois corporation engaged to warehouse operations. The Regional Director's in the business of the retail sale of general mer- exclusion of the salespersons and maintenance em- chandise throughout the United States. Employer's ployees was based on his finding that they lacked a Big Ticket Distribution Center, involved herein, is community of interest with the other unrepresented comprised of a warehouse area, a repair service warehouse employees. We disagree. center, and a credit service department. Additional- The salespersons are inside rather than outside ly, the facility contains two bargain sales areas, a salespersons. They report to the warehouse man- furniture repair area, and personnel and merchan- ager and are physically located in the two bargain dise offices. sales areas of the distribution center where discon- tinued or damaged merchandise is sold at retail. 'The unit was described as: All warehouse clerical employees, includ- Sales checks generated by the salespersons neces- ing all truck and delivery clericals, PBX operators, unit stock office cleri- cals, merchandise preparation clericals, invoice records clericals, person- sarily flow to clerical personnel included in the nel office clericals and lead clericals employed by the Employer at its fa- unit. Further, if a customer requests delivery, the cility located at 1166 Fesler Street, El Cajon, California, excluding all sal other employees, confidential employees, professional employees, guards espersons will take the sales check to the deliv- and supervisors as defined in the Act. 2 In accordance with normal procedure, the directed election was held 3 The parties agreed to exclude two merchandisers who purchase mer- and the ballots were impounded, pending decision on review. chandise for the warehouse. 259 NLRB No. 41 MONTGOMERY WARD & CO., INC. 281 ery clerical to schedule the delivery. The salesper- If a majority of employees in the above voting sons are paid on a commission basis but otherwise group vote for the Petitioner, they will be taken to share the same benefits as unit employees. have indicated their desire to constitute part of the The two maintenance employees perform their existing unit currently represented by the Petition- cleaning functions in the warehouse facilities after er, and the Regional Director shall issue a certifica- the center is closed. They, too, report to the ware- tion of results to that effect.6 house manager and receive common benefits with Direction of Election omitted from publication.] other unrepresented warehouse employees. Al- though the maintenance employees lack contact MEMBER JENKINS, dissenting: with others included in the unit, they perform a Unlike the majority, I believe the Regional Di- maintenance function at the warehouse facility. rector was correct in finding appropriate a unit The unit found appropriate by the Regional Di- consisting of the unrepresented clerical employees rector is, as indicated, a mixed group of warehouse at the Employer's El Cajon, California, warehouse. clericals and some office clericals. To exclude the The majority characterizes the unit as a "mixed salespersons and maintenance employees from the group of warehouse clericals and some office cleri- mixed unit comprised essentially of the other re- cals." However, there is no showing that the PBX maining warehouse operations employees would operators and the personnel office clericals, those unduly fragmentize the work complement and, in most traditionally classified as office clericals, have these circumstances, be unwarranted. 4 an essentially different community of interest from Accordingly, we find that the salespersons and the other clericals. In fact, the parties stipulated to maintenance employees share a sufficient communi- the inclusion of the PBX operators, and there is no ty of interest with the other included employees exception to the Regional Director's finding that that they should be included in the voting group the personnel office clericals share a substantial hereinafter described. community of interests with the other clerical em- As the Petitioner presently represents the tradi- ployees. The Regional Director's uncontested find- tional warehouse employees, and no other labor or- ing is that the personnel office clericals "work the ganization seeks to separately represent the various same basic hours as do the employees in the stipu- clerical, sales, and maintenance employees here in- lated classifications, and are likewise paid an hourly volved who essentially constitute the remaining un-, wage, use the same type of clerical skills in the per- represented warehouse operations personnel, this formance of their duties, and come into frequent group of employees may be represented only as part of the existing unit after a self-determination daily contact with the included employees during election.5 Therefore, the election directed by the the course of their work." Therefore, the major- Regional Director is hereby vacated and we shall ity's characterization of the unit as "mixed" prom direct a self-determination election herein in the ises more significance than it can deliver. voting group described below to determine wheth- Presumably, the majority finds the other cleri- er such employees wish to be included as part of cals-truck and delivery clericals, unit stock office the existing unit represented by the Petitioner: clericals, merchandise preparation clericals, and in- All warehouse clerical employees, including voice records clericals-to be plant clericals. How- all truck and delivery clericals, PBX operators, ever, their functions, as well as their skills (as unit stock control clericals, invoice records found by the Regional Director), are compatible clerks, merchandise preparation clericals, per- with those of office clericals. See, e.g., Nuturn sonnel office clericals, lead clericals, salesper- Corp., 235 NLRB 1139 (1978). In the absence of a sons, and maintenance employees employed by distinct difference between them, there is no valid the Employer in its warehouse operation at its basis on which to deny the existence of a sufficient facility located at 1166 Felser Street, El Cajon, separated community of interest among all the California, excluding all other employees, con- warehouse clerical employees to warrant such a fidential employees, professional employees, grouping as an appropriate bargaining unit. Cf. guards and supervisors as defined in the Act. Wickes Furniture, a Division of the Wickes Corpora- tion, 255 NLRB 545 (1981) ("will-call" clericals 'Although the Board does not normally include office clericals in a and office clerical employees excluded from a unit unit of warehouse clericals, no review of the Regional Director's action and office clerical employees excluded from a unit in this regard was sought. Rather, review was limited to the exclusion of of warehouse employees because of separate com- salesmen and janitors from the unit. In these circumstances, we conclude munity of interest). See also my dissenting opinion that the unit presented to us is, in effect, a residual warehouse unit in which it would be improper to exclude any segment or classification. 5 Lorillard. a Division of Lowes Theatres. Incorported, 219 NLRB 590 (1975). 6 [Excelsior footnote omitted from publication.] 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Gustave Fischer, Inc., 256 NLRB 1069 (1981).' Inc., 219 NLRB 590, to be inapplicable and would direct a standard elec- tion, not a self-determination election. Inasmuch as the majority has con- structed a voting group that, unlike the unit found appropriate by the Re- gional Director, is truly heterogeneous, I have some doubt of Lorillard's I Because I find that all the warehouse clerical employees have a sepa- applicability even if the majority is correct in finding the Regional Direc- rate community of interest, I find Lorillard. a Division of Lowes Theatres. tor's unit inappropriate.