City Stores Co., Inc.

National Labor Relations Board - Board DecisionsMay 19, 1965

152 N.L.R.B. 719 (N.L.R.B. 1965)

LOVEMAN, JOSEPH & LOEB DIVISION, ETC. 719 rational basis which is persuasive to us on the lnerits," should not end our evaluation of this factor. While the Joint Board's award does not specify the criteria upon which it is founded, the standards it uses are a matter of public information and of record evidence herein. The Procedural Rules and Regulations of that body state quite clearly that its job decisions shall be based upon either estab- lished trade practice or area practice, both of which are valid tests in our own determinations and both of which I believe favor Respondent.1' As noted previously, I would find that the only factors supporting the Laborers are those of the Employer's assignment herein and its like assignment in the past. These, alone, should not be sufficient to sustain an award under Section 10(k), a fact earlier recognized by the Board in a significant decision examining the Supreme Court's directive in the CBS case.12 Local Union No. 68, Wood, Wire and Metal Lathers International Union, AFL-CIO (Acoustics cC Spe- cialties, Inc.), 142 NLRB 1073, 1079, at footnote 4. For the foregoing reasons, I would assign the work in dispute to plumbers represented by Respondent. n In a related manner, the Board may now conclude as it declined to do in Venneri, supra ( in which I dissented ) which involved a dispute between the same Internationals over the same type of work , that the general jurisdictional grant conferred upon Re- spondent in Its AFL charter supports its claim to such work . There, after tracing the long history of conflict between the two Unions, the majority concluded as follows: The total picture of these old events, now vague in memory , ambiguous in many instances , and frequently inconsistent , sheds no clear light as to what the official position of the AFL-CIO might be today respecting the limits of the two competing work claims . The specific work dispute which gave rise to this proceeding has not been considered by the . . . Joint Board . . . . [Emphasis supplied.] 145 NLRB 1580, at 1591. Here, the Joint Board has made such a decision , which supports Respondent 's jurisdic- tional claim to the work in dispute both here and in Venneri. 12 N.L.R.B. v. Radio & Television Broadcast Engineers Union Local 1212 , etc , 364 U.S. 573. Loveman , Joseph & Loeb Division of City Stores Company, Inc. and United Wholesale and Warehouse Employees Union, Local 261, AFL-CIO, Petitioner. Case No. 10-RC-6136. May 19,1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer H. Carlton Bryan, Jr. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with 152 NLRB No. 72. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case to a three-member panel [Members Fanning, Brown, and Jenkins]. Upon the entire record in this case, including briefs filed by the par- ties herein, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks to represent all warehousemen, truckdrivers, deliverymen, and garage employees at the Employer's Birmingham, Alabama, warehouses, but excluding all office employees, clerical employees, shipping clerks, receiving clerks, watchmen and/or guards, and supervisors as defined in the Act. The Employer contends that the unit is too limited in scope, and that the petition should be dis- missed. The Employer is engaged in retail department store operations in Birmingham, Bessemer, and Montgomery, Alabama. In Birmingham, it conducts its business in several separate buildings, including the retail store in one building and the two warehouse buildings located approximately six blocks away. The Employer contends that only a unit including the Bessemer and Montgomery stores as well as the Birmingham operations is appropriate. Alternatively, the Employer contends that in view of the identity of job functions and community of interest of employees of the Birmingham store and warehouse employees, a unit encompassing both of these groups is appropriate. As the unit sought by the Petitioner is limited to the Birmingham warehouses only, the Employer urges that the petition should be dismissed. The Employer asserts that its Birmingham store and warehouses constitute an integrated operation; that there is a strong community of interest between selling and nonselling employees; that employees in both locations perform similar if not identical functions, receive the same pay, and enjoy identical benefits, terms, and conditions of employ- ment; and that there is a continuous interchange of employees between the two locations. Warehousing functions for the three retail stores are carried on at the warehouses with some stock storage operations carried on at the stores in storerooms usually adjacent to or in near proximity to the selling department involved. Employees classified as markers, wrap- pers, and layaway employees are assigned to departments in the stores LOVEMAN, JOSEPH & LOEB DIVISION, ETC. 721 and to the warehouses. Practically all the merchandise for all three stores is received and cleared through the order-checking office at the warehouses and then sent to the receiving and marking rooms where the articles are removed from the original carton, marked and prepared for storage in the warehouse, or transferred to the stores. Only a small portion of the merchandise sold is transferred to the stores. Dis- plays of furniture and major appliances are maintained at the stores, but purchases are delivered directly to customers from the warehouses, either at the warehouses or the customer's residence. Other merchan- dise purchased at the stores which is to be delivered is prepared for delivery and delivered from the warehouses. The record shows that the employees located at the warehouses per- form the essential tasks pertaining to the movement of goods in and out of the warehouses with little if any assistance from employees located in the store. These employees rarely leave their location to go to the store except during inventory time when several of the ware- house stockmen perform duties at the store. When warehouse sales are conducted, the warehouse employees work with store personnel for the very limited periods of the sales, which occur about three times a year.' In addition, the warehouse employees are under separate and direct supervision of the warehouse superintendent, who with two assistants has immediate supervision over all the employees employed in the warehouses except the maintenance men .2 In A. Harris cf Co., 116 NLRB 1628, the Board reaffirmed its prior recognition of the functional distinction between employees in the retail department store industry who perform warehouse functions and employees performing other functions. There the Board rejected the contention that the employer's organizational integration of its opera- tions precluded the establishment of any unit less than storewide in scope where the operations of the unit sought were devoted essentially to the warehousing functions of servicing the main and branch retail stores and the employees' principal and regular duties consisted of performing what were typically warehouse functions. It concluded that the facts and circumstances relating to geographic and super- visory separateness and the lack of integration with respect to the duties 'The lack of employee interchange is further emphasized by the testimony of the Employer's personnel director and store manager, who could only recall one department by name, the china department, where the stockmen in the warehouse came to the store to help the buyer and this was apparently only on an overtime basis The testimony also established that the furniture stockmen only came to the store twice a year for inventory taking, while the wrappers and other stockhandlers rarely go from the ware- houses to the stores or vice versa. 2 The Employer employs one painter and two carpenters who are stationed in the old warehouse These employees have been excluded from the unit by agreement of the parties, as well as electricians who work at times in the warehouse but are stationed at the store. 789-730-66-vol. 15 2-4 7 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performed by the warehouse employees and by the employees in the retail stores warranted the establishment of a separate unit of ware- house employees. These principles were recently applied in Sears, Roebuck and Co., 151 NLRB 1356, and the conclusion reached there is equally applicable here. The warehouses are primarily devoted to the receiving, prepara- tion, and direct delivery of goods to customers. They have a degree of functional difference and autonomy (including geographic and supervisory separateness) within the overall complex of the Empoly- er's retail operations which clearly demonstrates a community of inter- est among the warehouse employees sufficient to warrant placing them in a separate unit. The warehouse employees perform their basic job functions at the warehouses under the separate and immediate supervision of the ware- house manager and his assistants. They work different schedules from the store employees, and they rarely leave the warehouses for work in the store. Moreover, their counterparts from the store spend only a few days annually at the warehouses preparing for the periodic ware- house sales. Even then the store employees have limited contact with their warehouse counterparts inasmuch as they generally remain assigned to their particular department and remain under the super- vision and direction of the store supervisors. Based upon the record facts detailed above, we reject the Employer's contention that its opera- tions are so integrated as to preclude the establishment of a unit of less than storewide scope. The Petitioner would include in the unit all warehousemen, truck- drivers, deliverymen, and garage employees, but exclude all office employees, clerical employees, shipping clerks, receiving clerks, watch- men and/or guards, and supervisors as defined in the Act. The Employer objects to the exclusion of the warehouse clerical employees, shipping clerks, and receiving clerks. The record shows that the warehouse clerical employees in the order- checking office check, in and prepare the inventory cards as merchandise is received at the warehouse. These employees turn the merchandise over to the receiving and marking clerks where the merchandise is removed from the original carton, marked, and transferred either to the store areas or to the storage areas in the warehouses. When a sale is made, either in the store with the article sent to the warehouse for wrapping, or for delivery from warehouse stock, the wrappers in the warehouse, who are under the direct supervision of the warehouse supervisor, prepare and wrap the article for delivery. The article is then turned over to the shipping clerk who checks and records goods LOCAL 25, INT'L BROTHERHOOD OF ELECTRICAL, ETC. 723 delivered from the warehouse. The dockhands at the warehouse then load the goods on the Employer's trucks for delivery to the homes of the various customers. From the above facts, it is clear that the clerical employees, shipping and receiving clerks, markers, and wrappers employed at the ware- house are integral parts of the overall warehouse operation, and are appropriately included in the unit .3 Accordingly, we find that the following employees employed at the Birmingham warehouses of the Employer's Birmingham, Alabama, operation constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 4 All warehouse employees employed in the Employer's warehouses located at 930 North 19th Street, Birmingham, Alabama, including truckdrivers, deliverymen, garage employees, clerical employees, ship- ping clerks, receiving clerks, markers, and wrappers, but excluding watchmen, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 3 The Petitioner would also exclude Georgia McKee and John Hall on the ground that they are both supervisors. From the record it is clear that although both of these employees work as assistants to admitted supervisors, neither has the authority to hire, fire, reward, or discipline, etc., or to effectively recommend such action, or to substitute for the supervisors in their absence. In addition, the testimony shows that neither employee has the authority to responsibly direct other employees in their work, although they sometimes relay directions to the employees from the supervisors . In these cir- cumstances we find that they are not supervisors and include them in the unit. "At the hearing , the Employer filed a motion to dismiss the petition setting forth several grounds including , among others , the assertions that the unit is inappropriate, too limited in scope , arbitrarily drawn, and lacking in cohesiveness . This motion was referred to the Regional Director for consideration and thence to the Board . In view of our decision herein directing an election , we deny the Employer 's motion to dismiss the petition. Local 25, International Brotherhood of Electrical Workers, AFL- CIO and New York Telephone Company and Communications Workers of America, AFL-CIO, and Its Local 1104 . Cases Nos. 29-CD-2 (formerly 2-CD-301), 29-CD-2-2 (formerly 2-CD- 301-2), 09-CD-2-3 (formerly 2-CD-301-3), and 09-CD-4 (for- merly 2-CD-303). May 20,1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, following the filing of charges under Sec- tion 8 (b) (4) (D) of the National Labor Relations Act, as amended. A hearing was held before Hearing Officer Jordan Ziprin on various dates 152 NLRB No. 75.