J. C. Penney Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. C. Penney Company and Retail Clerks Union Local 367, affiliated with United Food and Commercial Workers International Union, AFL-CIO. Case 19-CA- 1303 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENI.IO On June 17, 1980, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Employer filed ex- ceptions and a supporting brief, and the General Counsel filed a brief supporting the Administrative Law Judge's Decision. 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 record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, J. C. Penney Company, Tacoma, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In agreeing with the result reached herein, Member Jenkins agrees with the Administrative Law Judge's citation, at fn. 16 of his Decision, to Allied Stores of New York. Inc.. d/b/a Stern's Paramus, 150 NLRB 799 (1965); Arnold Constable Co.. 150 NLRB 812 (1965), as examples of cases in which the Board has weighed the various factors it considers in decid- ing whether a particular group of employees within a retail store is an accretion to an existing unit. However, for the reasons set out in his dis- senting opinions in those cases, Member Jenkins does not agree with the results reached therein 3 We shall modify the Administrative Law Judge's notice to conform to his recommended Order. 252 NLRB No. 47 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse to apply the terms of our currently effective agreement with Retail Clerks Union Local 367, affiliated with United Food and Commercial Workers International Union, AFL-CIO, to our catalog sales em- ployees and in the furture we shall apply the terms of that contract to those employees. WE WILl NOT refuse to recognize Local 367 as the exclusive representative of our catalog sales employees for collective-bargaining pur- poses and will bargain with Local 367 at its re- quest concerning any requested additions, revi- sions, or modifications of our current agree- ment with Local 367 affecting those employ- ees. WE WILL. NOT refuse to transfer any of our employees represented by Local 267 to the catalog sales department because of their rep- resentation by and membership in that organi- zation and WE WILL offer such transfer to those employees represented by Local 367 to whom we denied such transfer. WE Wll. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their Section 7 rights. WE WILL make whole those employees whose transfer requests we denied because of their union representation and membership for any losses they may have suffered because of that denial, with interest on any amounts due. WE WILL make those catalog sales employ- ees whole who suffered losses because of our refusal to apply the terms of our 1978-80 and any successor agreements witl Local 367 to them during their employment as catalog sales employees, with interest on any amounts due. WE WILL reimburse Local 367 for the losses it suffered because of our refusal to apply the terms of our 1978-80 and any successor union- security agreements with it, with interest on the amount due. J. C. PENNEY COMPANY 424 J. C. PENNEY COMPANY DECISION STATIMINF OlF THI CASi GEORGE CHRISTENSEN, Administrative Law Judge: On September 24, 25, and 26, 1979,1 I conducted a hear- ing at Tacoma, Washington, to try issues raised by a complaint issued on May 25 and amended on July 19 based on a charge filed by Retail Clerks Union Local 367, affiliated with United Food and Commercial Work- ers International Union, AFL-CIO,2 on April 16. The complaint alleged that J.C. Penney Company3 violated Section 8(a)(l), (3), and (5) of the National Labor Rela- tions Act, as amended (hereafter called the Act), by fail- ing or refusing to recognize and bargain with the Union as the collective-bargaining representative of its catalog sales department employees when it opened that depart- ment and by refusing to transfer to that department em- ployees in other sales departments because they were represented by the Union. While the Employer in its answer conceded, at times pertinent, the Union repre- sented a majority of its sales employees within a unit covered by a current agreement between the Employer and the Union, it denied the catalog sales employees con- stituted an accretion to that unit, denied the Union re- quested recognition and bargaining with regard to its catalog sales employees and the Employer denied that request, and denied it refused to transfer employees rep- resented by the Union to the newly opened department because they were represented by the Union. The issues for resolution are whether: 1. The catalog sales employees were an accretion to the existing unit represented by the Union; 2. The Employer refused the requests of union-repre- sented employees for transfer to the catalog sales depart- ment because they were represented by the Union; and 3. The Union demanded the Employer recognize the catalog sales employees as an accretion to the unit cov- ered by the Employer-Union contract and the Union as their collective-bargaining representative and the Em- ployer rejected that demand. The parties appeared at the hearing and were afforded full opportunity to adduce evidence, examine and cross- examine witnesses, argue and file briefs. Briefs were filed by the General Counsel and the Company. Based on my review of the entire record, 4 observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at times pertinent the Employer was a Delaware corpo- ration with offices and a place of business in Tacoma, Washington, where it was engaged in operating a retail department store; that during the year preceding the issu- ance of the complaint the Employer received gross rev- enues in excess of $500,000 from its operations; that I Read 1979 after all further date references omitting the year. Hereafter called the Union. a Hereafter called the Employer 4 Certain errors in the transcript have been noted and correced during the same period it purchased and caused to be de- livered to its facilities within the State of Washington from sources outside that State or suppliers within that State who obtained them from outside the State, goods and services valued in excess of $50,000; and that it was an employer engaged in commerce in a business affecting commerce, and the Union was a labor organization within the meaning of Section 2 of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Employer operates retail department stores throughout the United States; this case involves a store located within a shopping mall at Tacoma, Washington. For years local unions affiliated with the Retail Clerks International Union (known as the United Food and Commercial Workers Union since the merger of the Retail Clerks and the Meatcutters International Unions) have represented the Employer's employees at various locations, including locations within California, Oregon, and Washington. In 1979 the Employer began to open catalog sales departments within its western division stores, beginning with Southern California, then North- ern California and lastly Oregon-Washington. In some stores within the latter group, the local affiliate of the United Food and Commercial Workers Union (hereafter called the UFCW), prior to the opening of the catalog sales departments within the stores, represented both sell- ing and office clerical employees; in such cases, the exist- ing contracts between the Employer and the local UFCW affiliate were extended to cover the catalog sales employees. In three stores within the group where the selling employees were represented by a local affiliate of the UFCW and the office clericals were represented by a local affiliate of the International Brotherhood of Team- sters (hereafter called IBT), representatives of the two locals met and agreed upon the inclusion of the new de- partment within the coverage of the Employer-IBT con- tract.5 In the balance of the stores, where selling em- ployees were represented by an affiliate of the UFCW and office clerical employees were unrepresented, the Employer took the position that the catalog sales em- ployees had a greater community of interest with office clerical employees than with the selling employees and refused to recognize the UFCW affiliate as the collec- tive-bargaining representative of the catalog sales em- ployees, refused to negotiate with the UFCW affiliate concerning their rates of pay, wages, hours, and working conditions, and refused to include the catalog sales em- 5 Local 1001 of the UFCW represented selling employees of three of the Employer's stores in the Seattle, Washington. area under a single con- tract. Local 117 of the IBT represented the office clericals and warehou- semen at the same three stores under a single contract When Local 1001 demanded recognition of the catalog sales employees as an accretion to Local 1001's unit, the Employer informed Local 1001 it already had rec- ognized the IT as their representative, negotiated pay scales higher than those contained in the Local 1001 contract for comparable work and the employees had become members of Local 117. Faced with a fair accomph and in order to avoid a jurisdictional battle with Local 117. Local 1001 met with Local 117 and agreed to abandon its claim for representation of the catalog ales employees at the Seattle area stores 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees within the coverage of the currently effective contract between the UFCW affiliate and the Employer. At the time the catalog sales department was opened for business at Tacoma, the selling employees and a few stock clerks were represented by the Union and the office clerical employees were unrepresented. 6 B. The Unit and the Union's Representative Status The Union has represented the Employer's selling em- ployees at Tacoma for a number of years. Their rates of pay, wages, hours, and working conditions have been governed by a series of collective-bargaining agreements between the Employer and the Union. The current agreement, for a 2-year term extending from June 1, 1978, through May 31, 1980, provides that: The Employer agrees to recognize and hereby does recognize the Union as the sole and exclusive col- lective-bargaining agent with respect to rates of pay, wages, hours and all other terms and condi- tions of employment for the appropriate bargaining unit herein established and described as follows: All employees employed by the Employer's Tacoma Mall Store No. 232, located at 200 Tacoma Mall and 5640 S. Durango Street, Tacoma, Washington engaged in selling or han- dling merchandise, including sales employees, stockroom employees, tire, battery and auto- motive (TBA) employees, but excluding confi- dential employees, guards, selling supervisors and supervisors as defined within the meaning of the Labor Management Relations Act of 1947, as amended, automotive service specialists, custo- dians, office employees and all other employees employed by the Employer. The complaint alleged, the answer admitted, and I find at times pertinent the unit specified above was appropri- ate for collective-bargaining purposes within the meaning of Section 9 of the Act and the Union represented a ma- jority of the employees therein. C. The Accretion Issue The Tacoma store occupies approximately 160,000 square feet on two levels; prior to the time the catalog sales department opened therein, the store operations were organized into approximately 18 selling depart- ments and 5 office clerical departments. 7 Warehousemen, invoice clerks, stock clerks, and supervisors were em- ployed at the Durango Street warehouse. The Union represented approximately 200 employees, consisting of all selling employees at the store, selling and installation employees within the automotive depart- ment, the counter clerk (who sold hair products, along with other functions) in the beauty salon and stock clerks 6 The office clerical employees at Tacoma at one time were represent- ed by an affiliate of the Office and Professional Workers Union. that union, however, was decertifled some time prior to 1979 ' Plus an automotive department, a restaurant, and a beauty parlor There also were security, display. custodial, maintenance, technical, and supervisory personnel. who worked between the store and the warehouse. A local affiliate of the IBT represented warehousemen at the warehouse. Invoice clerks at the warehouse, the office clerical employees at the store, automotive special- ists (mechanics) at the automotive departments, restau- rant employees, beauty operators, security employees, display employees, custodial employees, maintenance em- ployees and supervisors were unrepresented. Except for certain public holidays, the store was open for business every day; from 9:30 a.m. to 9:30 p.m. be- tween Mondays and Fridays; from 9:30 a.m. to 6 p.m. on Saturdays; and from 11 a.m. to 6 p.m. on Sundays. Each week most of the office clerical employees worked a reg- ular daytime shift between Monday and Friday while all the sales employees worked staggered shifts between Mondays and Sundays. Both the represented and unre- presented employees received certain standard Em- ployerwide benefits, i.e., life insurance, pension, medical and dental, savings and profit-sharing and employee dis- count plans, and the same provision for sick leave, funer- al leave, jury duty leave, vacations, holidays, lunch and breaktimes and leave of absence. They also shared common locker, rest and lunchroom facilities. Approximately 8 office clericals worked at the ware- house processing invoices; approximately 40 office cleri- cals worked within administrative offices located on the north side of the second floor at the store within the cus- tomer service, credit and layaway, sales audit, cashier and merchandise record departments, plus office clericals assigned to personnel, the manager's office, etc. The sales employees represented by the Union served customers, accepted personal and telephone orders for merchandise, encouraged purchases, prepared purchase orders, handled layaway orders (including preparation of the purchase order and acceptance of deposit), checked credit, used adding machines, accepted payment for mer- chandise, rang up sales on the POS (point of service) ter- minals or cash registers, tendered purchased merchan- dise, encouraged credit or charge accounts, accepted re- turned merchandise and prepared the necessary credit or other documentation, processed personal and telephone requests regarding prices and availability of merchandise and unloaded carts to place merchandise on shelves. The stock clerks represented by the Union handled merchan- dise brought from the warehouse to the store and trans- ferred merchandise between locations at the store. 8 The job title of the office clericals employed as in- voice clerks at the warehouse is descriptive of their work; the title of the departments which employed the sales audit, customer service, merchandise record, credit and lay away and cashier personnel is likewise self-de- scriptive. None of the office clericals performed any sales functions; most of them did not deal with customers (personnel clerks, secretaries, invoice clerks, sales audit and merchandise record clerks); and most of them did not handle merchandise (invoice clerks, sales audit, mer- chandise record, customer service, and cashier person- nel). " These findings are based upon the testimony of Tacoma sales clerks De Faxio. Dudley, Reimers, Rogers, and Tjomsland. 426 J. C. PENNEY COMPANY The Tacoma store's manager, Wayne Reinholt,9 was apprised in 1977 of the Employer's plan to install catalog sales departments in its western division stores on com- pletion of its Reno, Nevada, distribution center. Con- struction of facilities for the new department at Tacoma commenced in 1978 and were completed early in 1979. The catalog sales department at Tacoma was located at the southwest corner of the second level at the store, between two sales departments (toys and boys clothing). It consisted of a counter containing several POS termi- nals, catalogs and order forms and a storage area behind the counter for storing ordered merchandise until it was paid for and picked up by the customer who ordered it, telephones, desks and a teletype utilized to transmit cus- tomer orders to the Reno distribution center. Public notices were posted in the store beginning in late 1978 announcing the new department's opening in March 1979. In late 1978 and early 1979 Gary Williams, the Tacoma store's personnel manager, ° began hiring em- ployees to man the new department. In accordance with normal policy," Williams informed Sharon Turner, Leslie Hart, and Francine Dillon of the credit and layaway department at the Tacoma store that they would be transferred to the new department when it opened; 2 Karen Prida, an invoice clerk at the ware- house, was similarly informed; Heidi Babcock and Judy Anderson, employees within stores operated by the Em- ployer in Alaska who requested employment at Tacoma, were so informed; and Darlene Jones, an employee at the Employer's Kansas City, Missouri, store, was similarly advised. The balance of the initial work force, namely, Cheri Pahl, Jeanette Libby, Diane Anton, Jack Sprinkler, and Carol Purkey, were recruited locally as new hires. Anderson was a sales supervisor prior to her employ- ment; Sprinkler was a printer's helper; Purkey was a sales solicitor, etc. While a number of sales employees at Tacoma represented by the Union applied to Williams and Turner for transfer to the new department, not one was hired (either initially or later). The initial work force was trained in sales techniques, use of POS terminals, adding machines, use of catalogs, use of the various documents required for the work, etc., immediately prior to the March opening of the new de- partment. When the department opened, the catalog sales em- ployees served customers; accepted personal and tele- phone orders (for the same merchandise sold in the sell- ing departments); encouraged purchases;' processed personal and telephone requests for prices, availability of merchandise, expected delivery dates, etc.; prepared orders; checked credit; advised customers when their 9 An admitted supervisor and agent of the Employer at all pertinent times. 0' An admitted supervisor and agent of the Employer at all pertinent times. I To honor transfer requests by present employees before hiring new employees. 12 Turner, the supervisor of the credit and layaway department, was notified she would be the supervisor of the ness department. It was con- ceded Turner was a supervisor and agent of the Employer at all pertinent times. II They were instructed to push certain sales items. merchandise was available for pickup; accepted pay- ments for merchandise and rang up the sales on the POS terminals; utilized adding machines; encouraged charge accounts; accepted returned merchandise and prepared the necessary documentation; placed ordered merchan- dise in the storage area on delivery from the Reno distri- bution center and tendered such merchandise to custom- ers when they arrived to pay for it and pick it up. The stock clerks represented by the Union and the catalog employees transported merchandise from the loading dock to the storage area in the catalog department. The former invoice clerk, Prida, did most of the work of processing invoices and transmitting orders by teletype to the Reno distribution center.i 4 The bulk of the cata- log sales employees' work involved selling and handling merchandise and tasks related thereto.'5 Each of the selling and office/clerical departments had its own first-level supervisor, as did the warehouse, auto- motive department, and maintenance and security depart- ments. The second level of supervision consisted of the personnel manager, the operations manager, three gener- al merchandise managers, and one marketing manager. The third and top level of management consisted of the general manager. Since the catalog sales department began operations, there has not been any interchange between the catalog sales employees and either the office/clerical or floor selling employees. An examination of a line of pertinent decisions' 6 dis- closes the Board weighs a variety of factors in deciding whether a particular group of employees within a retail store is an accretion to an existing unit; i.e., the extent to which the group in question shares management and su- pervision with another group, particularly with regard to labor relations; the collective-bargaining history, if any; the interchange between employees in the group and those of other groups; the integration of the group's work within the overall operating structure; the geo- graphical proximity of the group to other groups, the similarity of the wages, hours, benefits, and working con- ditions received by the group to those received by other groups; and the similarity of the skills and type of work performed by the group to those of other groups (with the last factor receiving the most emphasis). In a number of the cases cited above, while reciting the desirability of a wall-to-wall unit in retail store oper- ations, the Board nevertheless recognized a community of interest among selling employees (as distinguished from nonselling employees) and found in the Sears case cited above a unit limited to selling employees, including catalog sales employees, was appropriate. While the Board included a group of telephone sales employees within the office/clerical unit, the Board included within the selling 4 This teletype work involved approximately I hour of work per day 's These findings are based primarily upon Purkey's testimons. wshich is credited (and partially corroborated by Turner) i6 The Great .4tlantic and Pacific Tea Company (Family Savings Center) 140 NL.RB 1011 (1963): Arnold Constable Corporaion, 150 NRH 788 (1965); A.4ied Stores of New York. d/h/a Stern s. Paramus. 150 NLRB 799 (1965); L.ord &d Taylor, a Division of.Alssociated Dry Goods Corporation. 150 NI.RB 812 (1965): Sears. Roebhuck and Co. 174 NI.RR 941 (1969) 427 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit the catalog sales employees who had customer con- tact, as they do here. In this case the personnel and general managers exer- cise overall control over both the represented and unre- presented employees, including control of labor relations; the catalog sales, office/clerical and selling department employees have separate first-level departmental supervi- sion; there is no history of collective bargaining with regard to the catalog sales employees other than general recognition by the Employer at the Tacoma store that selling employees are included within the scope of the unit represented by the Union;' 7 there has not been any interchange between the catalog sales employees and office/clerical or floor sales employees; with respect to integration, the catalog sales and floor sales personnel sell and handle the same merchandise, the floor sales per- sonnel encourage and promote catalog sales, the catalog and floor sales personnel utilize the same techniques, equipment, and forms for processing sales through a common system; the catalog sales and floor sales person- nel are in adjacent locations, while the office/clericals are located in a different area; office/clerical, floor sales and catalog sales personnel utilize the same locker, rest and lunchroom areas, and share common fringe benefits, but the working schedules of the catalog sales employees are identical to those of the floor sales employees but only a small portion of the office/clericals (the layaway/ credit department employees); and the catalog sales and floor sales personnel utilize the same skills in performing basically the same function-selling and tendering to cus- tomers the Employer's merchandise. It is undisputed that the Employer for many years has recognized the Union as the exclusive representative of a unit of its employees consisting of: "All employees em- ployed by the Employer's Tacoma Mall Store No. 232 . . . engaged in selling or handling merchandise, includ- ing sales employees . . ." and I have entered findings that unit is appropriate for collective-bargaining purposes under the Act. I find the catalog sales employees at all pertinent times were encompassed by that description, included within the bargaining unit therein described and were an accre- tion to that unit. They primarily performed sales and re- lated functions, handled the merchandise they sold, dealt directly with customers, used the same mechanical aids (cash registers and adding machines), and had the same or comparable work shifts and other conditions as the floor sales employees represented by the Union and cov- ered by the Employer-Union contract, and therefore, much more in common with the floor sales employees than the Employer's office/clerical employees. D. The Transfer Refusals and Failure or Denial of Recognition Flcor sales and related employees and union members Karen Cooper, Sharon Coyne, Christine De Fazio, Ellen Dietz, Virginia Dunley, Louise Doun, Pat Frields, " Demonstrated by the contract language. the placement of the counter clerk at the beauty parlor within the unit represented by the Union because that clerk, inter alia, sells hair products; placement of the TBA employees within the unit represented by the Union because they install and sell, etc. Sheryl Reimers, Julia Rogers, Sabria Tjomsland, Carol Trowbridge, and Chadine Wood applied either to Turner or Williams or both for transfer to the catalog sales de- partment prior to its opening.'s While one employee 9 initially received some encouragement that her request would be granted, none of the union-represented transfer applicants were transferred to the new department. Williams testified that while it was store policy to fill vacancies by either promoting or transferring qualified employees who expressed an interest in such vacancies before going outside the store, he granted the requests of nonunion office/clerical employees Hart, Dillon, and Prida for transfer to the new department and rejected the requests of union-represented employees Cooper, et al., because the work of the new department required office/clerical rather than sales skills. Williams' testimony is incredible, however, inasmuch as he hired a sales su- pervisor from Alaska for one of the positions (Judy An- derson), hired another whose prior experience related solely to telephone sales solicitation (Carol Purkey) and a third whose only prior work experience was as a print- er's helper (Jack Sprinkler) and rejected the transfer re- quest of one union member whose work involved a large amount of office/clerical work. 2 0 It is further weakened by the fact both Turner and Williams originally (in Feb- ruary) welcomed Dudley's transfer application because she was an older, experienced employee.2 1 As noted in my findings under "C" above, the duties and functions of the catalog sales employees were closely related to those of the floor sales employees represented by the Union, and thus were readily transferable to the new department, necessitating much less training than that required for new hires. It is, therefore, apparent the Employer's motive for denying transfer to the union-rep- resented employees was other than their lack of relevant experience. The remarks of Turner and Williams, when responding to the requests of several of the union-represented sales employees, leave no doubt what that motive was. When Reimers approached Turner and asked for trans- fer to the new department, Turner informed Reimers the new department was going to be nonunion and Reimers might want to consider that in deciding if she wanted to transfer and even after Reimers later told Williams she was willing to withdraw from the Union in order to re- ceive a transfer to the new department, Williams re- sponded the Employer had decided to avoid any "harass- ment" from the Union by going "outside" to fill the complement for the new department. In similar vein, while Turner initially welcomed Dudley's application for transfer to the new department, in response to Dudley's repeated later inquiries concerning whether she was "i Turner's designation as the supervisor of the new department was common knowledge among the store's employees for some time prior to the time catalog sales commenced; it was common practice among the employees to request a desired transfer of the supervisor of a department where an opening was available and for such supervisor to pats on the request to Williams, as occurred in the case of these 12. 19 Virginia Dudley. (i Dietz. (1 Dudley's testimony to that effect is credited: she was a forthright, direct witness 428 J. C. PENNEY COMPANY going to be transferred, Turner informed Dudley she did not think any of the floor sales employees were going to be transferred because they were union represented. Turner also informed Rogers the new department was going to be nonunion. 22 Reinholt and Williams evaded the Union's inquiries concerning the Employer's intentions with regard to unit placement of the catalog sales employees until a full non- union complement of employees had been recruited and hired to man the new department. In early February several employees represented by the Union informed their union representative, Jay Murphy, they heard the new department was going to be nonunion. Murphy sought out Reinholt at his office in Williams' presence, stated he heard rumors the Employer intended to keep the new department nonunion, and asked if the rumor was true. Reinholt asked him where he heard it. Murphy responded he picked it from the floor. Reinholt stated the Employer had not made a deci- sion yet. In early March, Murphy again contacted Rein- holt and Williams at the former's office and said he was now hearing the catalog sales crew had been selected and was nonunion; Reinholt replied no decision had been made yet. Murphy then stated he had been informed that none of the employees represented by the Union who re- quested transfer to the new department were being chosen to man it; Reinholt replied that the Employer was not discriminating. Murphy then informed Reinholt it was the Union's position that catalog sales employees were within the bargaining unit represented by the Union and were covered by the current Employer-Union contract. Reinholt did not respond. 23 Near the end or at the beginning of each month, Murphy normally picked up copies of new hire slips covering all new employees hired during the month pre- ceding, in order to police the Employer-Union union-se- curity agreement. When he asked for such slips in late March, the personnel clerk handed him one slip. Aware the catalog sales crew commenced work earlier in the month, Murphy asked where their hiring slips were. The clerk informed Murphy she had been instructed not to give him their slips inasmuch as they were not within the unit represented by the Union. Murphy immediately ap- proached Williams and asked him why the Employer was withholding from the Union the hiring slips of the catalog sales employees (inasmuch as he had asserted at their previous meeting that those employees were cov- ered by the Employer-Union contract, including the union-security agreement therein). Williams replied the catalog sales employees were part of the Employer's office/clerical/employee group or unit, not the selling and related employee unit, and therefore were not cov- ered by the Employer-Union contract. He told Murphy to contact the Employer's attorney if he questioned that disposition of the unit question. Murphy asked Williams why he withheld that information at their previous meet- ings. Williams responded he could not contradict his su- perior's statement (that no decision had been reached by 22 I credit the testimony of Reimers. Turner, and Rogers to that effect; they were convincing witnesses, 23 These findings are based upon Murphy's testimony. which is cred- ited. He was a forthright witness. the Employer concerning the unit placement of the cata- log sales employees). Murphy informed Williams he was going to file unfair labor practice charges over the Em- ployer's refusal to recognize the Union as the exclusive collective-bargaining representative of the catalog sales employees and their coverage under the Employer- Union contract. Williams did not respond. In short order (on April 16), after consultation with its counsel, the Union filed charges so alleging, which led to this pro- ceeding. I find the Employer anticipated that, prior to the ini- tial hire of its catalog sales employees, the Union was going to demand that the Employer recognize those em- ployees as an accretion to the unit covered by the Em- ployer-Union contract, and also decided, prior to that initial hire, to stall the Union until it could recruit and hire a complement of employees to man the department who were not members of the Union and nonsupportive of the Union, and then to reject the Union's demand on the ground they were not within the unit represented by the Union, which it did. Since findings have been entered that the catalog sales employees were an accretion to the unit represented by the Union and covered by the Employer-Union contract, I find that by its failure and refusal to recognize the Union as their exclusive collective-bargaining representa- tive and by its failure and refusal to apply the terms and conditions of the current Employer-Union contract 24 and any successor contracts to them from their dates of hire, the Employer violated and continues to violate Sec- tion 8(a)(l) and (5) of the Act. 25 I further find that it rejected the applications of its em- ployees represented by the Union to avoid having any union adherents within its complement of catalog sales employees, i.e., because they were members of the Union, and thereby violated Section 8(a)(1) and (3) of the Act. 26 CONCL.USIONS OF LAW 1. At all pertinent times the Employer was an employ- er engaged in commerce in a business affecting com- merce and the Union was a labor organization within the meaning of Section 2 of the Act. 2. At all times material Reinholt, Williams, and Tucker were supervisors and agents of the Employer acting on its behalf. 3. At all material times the following unit was appro- priate for collective-bargaining purposes within the meaning of Section 9 of the Act: All employees employed by the Employer's Tacoma Mall Store No. 232, located at 200 Tacoma Mall and 5640 S. Durango Street, Tacoma, Wash- ington, engaged in selling or handling merchandise, including sales employees, stockroom employees' 24 1978 80 2s The Baron Rouge Water Works Company 170 NLRB 1183 (1968): affd 417 F.2d 1065 (5th Cir. 1969); Safety Electric Corporation and San Joaquin Pacific Corporation, 239 NLRB 40 (1978) 21 (Jnga Painting Corporation, 229 NLRB 567 (1977) Al4exander Dauson Inc dh/a .4Acxander'i Restaurant nd Lounge, 228 NLRB 165 (1977). 429 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD tire, battery and automotive (TBA) employees, but excluding confidential employees, guards, selling su- pervisors and supervisors as defined within the meaning of the Labor Management Relations Act of 1947, as amended, automotive service specialists, custodians, office employees and all other employ- ees employed by the Employer. 4. At all pertinent times the Union has represented a majority of the Employer's employees within the above- specified unit. 5. The catalog sales employees employed by the Em- ployer at the aforementioned store constituted an accre- tion to the above-described unit from and after their dates of hire. 6. The Employer violated Section 8(a)(l) and (3) of the Act by rejecting all and any applications filed by em- ployees within the' above-described bargaining unit for transfer to the Employer's catalog sales department prior to and since its opening because they were represented by and members of the Union. 7. The Employer violated Section 8(a)(l) and (5) of the Act by failing and refusing to recognize all its cata- log sales employees from their dates of hire were cov- ered by the currently effective 27 (and any successor) col- lective-bargaining agreement between the Employer and the Union, failing and refusing to apply all the terms of that agreement (or those agreements) to its catalog sales employees from their dates of hire, and failing or refus- ing to bargain with the Union concerning the rates of pay, wages, hours, and working conditions of its catalog sales employees. 8. The aforesaid unfair labor practices affected and affect commerce within the meaning of the Act. THE REMEDY Having found the Employer engaged in unfair labor practices in violation of Sections 8(a)(l), (3), and (5) of the Act, I shall recommend the Employer cease and desist therefrom and take affirmative action designed to effectuate the purposes of the Act. Having found the Employer violated the Act by refusing all requests made by union-represented employees for transfer to the cata- log sales department because of such representation, I shall recommend the Employer offer all such employees transfer to that department and make them whole for any losses they may have suffered by virtue of the Em- ployer's refusal of their requests, with interest on any amounts due. Having found the Employer violated the Act by failing or refusing to implement the terms and conditions of the 1978-80 and any successive Employer- Union collective-bargaining agreements with respect to the catalog sales employees it has hired since that depart- ment commenced operations, I shall recommend all em- ployees in that department be made whole for any losses they may have suffered by virtue of the Employer's fail- ure to apply the terms and conditions of those agree- ments to them from the date of their employment within that department, with interest on any amounts due, and the Employer apply all the terms and conditions of those 27 1979-80. agreements with the Union to such employees. I shall further recommend the Union be made whole for the losses it has suffered by virtue of the Employer's failure or refusal to apply the 1978-80 and any successor Em- ployer-Union agreements to its catalog sales employees by bargaining with the Union at its request concerning any additions or modifications to such agreements affect- ing its catalog sales employees and by reimbursing the Union for all initiation fees and dues it would have re- ceived but for the Employer's failure to apply the terms of the 1978-80 and any successor Employer-Union union-security agreements to its catalog sales employees from and after their employment within that department, with interest on the amounts due. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Sec- tion 10(c) of the Act, I recommend the issuance of the following: ORDER2 8 The Respondent, J. C. Penney Company, Tacoma, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to apply the terms of the 1978-80 or any successor agreement between it and Retail Clerks Union Local 367, affiliated with United Food & Commercial Workers International Union, AFL-CIO to its catalog sales employees employed at its Tacoma, Washington, facilities. (b) Failing and refusing to recognize and bargain with the aforementioned Union as the exclusive collective-bar- gaining representative of those employees. (c) Refusing requests of its union-represented employ- ees for transfer to its catalog sales department at its Tacoma, Washington, facilities because they were repre- sented by the Union and covered by the 1978-80 and any successor agreement with the Union. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Offer transfer to those union-represented employees whose applications therefore were rejected because they were represented by and members of the Union. (b) Make such employees whole for such losses as they may have suffered by reason of the Employer's rejection of their transfer requests, with interest on the amounts due computed in accordance with the formula set out in Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Make whole all catalog department employees hired since the opening of that department for any losses they may have suffered by virtue of the Employer's fail- 28 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 430 J. C. PENNEY COMPANY ure to apply the terms of the 1978-80 and any successor agreements with the Union to them, with interest on any amounts due computed in accordance with the formula set out in Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (d) Recognize and bargain with the Union at its re- quest concerning any additions, revisions or modifica- tions of the 1978-80 or any successor agreement con- cerning its catalog sales employees at its Tacoma, Wash- ington facilities. (e) Reimburse the Union for all initiation fees and dues it would have received but for the Employer's failure to apply the terms of the current or any successive union- security agreement with the Union to its catalog sales employees at its Tacoma, Washington, facilities, with in- terest on the amounts due computed in accordance with the formula set out in 2(b) above. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amounts due under the terms of this Order. (g) Post at its facilities at Tacoma, Washington, copies of the attached notice marked "Appendix."2 9 Copies of that notice, on forms provided by the Regional Director for Region 19, after being signed by the Employer's au- thorized representatives, shall be posted by the Employer immediately upon receipt thereof, and shall be main- tained for 60 consecutive day thereafter, :n conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Employer to ensure the notices are not altered, defaced, or covered by other material. (h) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Employer has taken to comply with the Order. 29 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 431