Famous Barr Co.

National Labor Relations Board - Board Decisions

May 23, 1969

176 N.L.R.B. 160 (N.L.R.B. 1969)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The M May Department Stores Company, d/b/a
Famous Barr Company and Teamsters, Local
Union No . 688, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Petitioner . Cases 14-RC-5899 and 14-RC-4843'
May 23, 1969
DECISION AND DIRECTION OF
ELECTION
On March 15, 1968, the Petitioner , filed with
Region 14 of the National Labor Relations Board, a
Petition for Certification of Representative in Case
l4-RC-5899. A hearing was held on April 29 and
30, 1968, before Hearing Officer Roy V. Hayden.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure,
Series 8, as amended, and by direction of the
Regional Director for Region 14, this case was
transferred to the National Labor Relations Board
for decision. Thereafter, the Employer filed a brief
with the Board.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, including the
brief filed herein, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies 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 representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act.
4. The appropriate unit.
Petitioner filed its petition in, Case l4-RC-4843,
on May I, 1964. On June 22, 1965, the Board
directed an election in a unit of warehouse
employees employed at the Employer's Spring
Avenue Facility.' Pursuant to that decision, two
elections have been conducted and each has been set
aside because of employer conduct found by the
Board to have interfered with the employees'
freedom of choice.'
'In accordance with the Decision and Order in May Department Stores
Compwty d/b/a Famous Burr Company 174 NLRB No. 109, and as
amended May 8, 1969 , Case 14-RC-5899 is hereby consolidated with Case
14-RC-4843.
'153 NLRB 341. Petitioner actually sought a unit of employees
employed in certain named classifications which it had previously
represented on a members-only basis and which included some
nonwarehousing employees . As noted , the Board found a warehousing unit
to be appropriate.
'rhe decision setting aside the first election is not reported in the printed
volumes of Board Decision . The Decision setting aside the second election
is reported at 174 NLRB No. 109 . In that Decision, the Board ordered
During the processing of the petition in Case
14-RC-4843, Petitioner has continued its organizing
efforts at the Spring Avenue Facility. On March 9,
1967, Petitioner filed a petition for an election in a
unit of carpet workroom employees. That petition
was dismissed on November 24, 1967, essentially for
the reason that a unit limited to employees in one of
the several workrooms at the facility was
inappropriate. 4
On March 15, 1968, Petitioner filed its petition in
Case 14-RC-5899 for the purpose of obtaining
certification as the representative of all the
employees in all the workrooms and the cafeteria
employees in either one or two units as the Board
might decide. During the course of the hearing,
Petitioner amended its petition by adding an
alternative request for a bargaining unit which
would include all employees at the Spring Avenue
Facility not presently represented by any labor
organization, but excluding office clerical employee,
and guards and supervisors as defined in the Act. It
clearly indicated on the record that the warehouse
employees involved in Case 14-RC-4843 are
embraced within such requested unit.
The Employer, as it had in all proceedings
involving this operation, contends that a unit
consisting of all selling and nonselling employees of
its St. Louis operations is the only unit appropriate
for purposes of collective bargaining. The Employer
further contends that in the Board's prior decision
finding a unit of warehouse employees employed at
the Spring Avenue Facility to be appropriate, it
found, at least by necessary implication, that a unit
of all employees at that facility, such as now is
sought by Petitioner, to be inappropriate because it
would combine nonwarehouse employees with
warehouse employees. We find these contentions to
be without merit for reasons indicated below.
The Employer's operations in St. Louis have been
described in substantial detail in our previous
decisions reported at 153 NLRB 341 and 168
NLRB No. 63. To summarize briefly, the Employer
operates six retail department stores in St. Louis
and the Spring Avenue Facility. At the Facility,
employees are engaged in performing warehousing,
and service and repair functions on merchandise,
furniture, and appliances. Of the 350 or so persons
employed at the Facility, approximately 225
employees perform traditional warehousing
functions, approximately 90 employees are employed
in the furniture, carpet, appliance, and radio and
television workrooms, and in the fur storage vault.
In addition seven employees are employed in a
cafeteria on the second floor of the building which is
maintained by the Employer for the exclusive use of
employees working in the Facility. Since the hearing
on the petition involved in the Decision reported at
that Case 14-RC-4843 be severed from the companion unfair labor practice
cases also decided therein and that it be consolidated with Case
14-RC-5899 for such further proceedings as may be appropriate.
Case 14-RC-5661. 168 NLRB No. 63.
176 NLRB No. 14
FAMOUS BARR COMPANY 161
168 NLRB No. 63, the Employer has opened a
small retail store in the basement of the Facility for
the sale of clearance merchandise such as floor
samples, merchandise which has become shopworn
or has been damaged, and custom orders which have
been cancelled. All such merchandise is sold at
discount. The store employs four employees who are
supervised by an assistant buyer whose office is
located in the main store and who operates outside
the normal chain of command managing the
Facility.
The Spring Avenue Facility operations are
conducted under the supervision of the warehouse
superintendent who is responsible to the vice
president for operations. The superintendent has
various assistants who aid him in supervising the
work of the warehouse employees, who, as noted,
constitute the great majority of employees in the
Facility. The superintendent also has an assistant
whose primary responsibility is supervision of the
operations of the workrooms and the fur storage
vault. That individual is in turn aided in discharging
that responsibility by supervisors who are directly in
charge of each of the workrooms. The cafeteria is
supervised by an individual who reports directly to
the warehouse superintendent. The store employees
are the only employees in the Facility who are
supervised outside of the normal chain of command
managing the Facility.
In our previous reported decisions concerning the
unit placement of employees employed at this
Facility, we considered those factors demonstrating
that the employees in the Facility had a community
of interest separate from that of the employees
employed in the stores operated by the Employer.
For the reasons stated therein, we reject the
Employer' s renewed contention that only a unit of
all selling and nonselling employees employed in its
St. Louis operations is appropriate for purposes of
collective bargaining.
In our previous Decision in Case 14-RC-4843,
reported at 153 NLRB 341, we found that the
employees engaged in performing warehousing
functions enjoyed a community of interests separate
from that of other employees employed in the
Facility by reason of their separate immediate
supervision, separate work locations in the Facility
and the difference in their skills and functions as
compared with employees in the workrooms. We
found, therefore, that such employees constituted a
unit which is appropriate for purposes of collective
bargaining. Contrary to the Employer, that decision
was not intended to foreclose, nor could it foreclose,
the possible grouping of such employees in a
bargaining unit with other employees, in the future.
This is so, for the simple reason that it is well
settled that there may be more than one way in
which employees may be grouped for purposes of
collective bargaining.` The fact that a given group of
employees may have an identifiable community of
interests separate and distinct from other employees
of an employer does not mean that the various
groups of employees do not also have a larger
common community of interests. Indeed, Section
9(b) of the Act reflects this basic fact of industrial
and mercantile life in establishing the presumptive
appropriateness of an employer unit, craft unit,
plant unit, or subdivision thereof. Quite obviously,
the fact that a subdivision of a plant may be
appropriate does not preclude a finding that such
employees may also appropriately be included in
one of the larger enumerated units. We therefore
reject the Employer's contention that our prior
decisions preclude the establishment of the
Facility-wide unit sought by the Petitioner.6
On the basis of the entire record in these cases we
are satisfied that the Facility-wide unit sought by
the Petitioner is an appropriate unit for purposes of
collective bargaining. Thus, except for the 4 store
employees, all the employees in the Facility work
under the overall supervision of the warehouse
superintendent, who in turn reports to the
vice-president of Operations. The Employer has
recently provided a personnel manager who deals
only with the personnel problems of the Facility.
The Facility is geographically separated from the
Employer's other operations. There is little or no
interchange of employees between the Facility and
the retail stores. The Facility functions essentially as
a place where goods are received, stored in bulk,
processed, and then shipped either to the retail
stores or directly to customers. Though employees
in the workrooms have skills and functions different
from those of the warehousing employees, there is
frequent contact between the two groups. Thus,
stockmen bring goods and supplies to the
workrooms and the fur storage vault, and stock
clericals often work within those areas. All
employees use the same personal service facilities
such as the cafeteria, washrooms, drinking
fountains, and the like. Except for the fur storage
vault and the paint spray room, the workrooms are
not separate rooms, but are areas partitioned off by
the stock which is principally worked on in those
areas. Employees not engaged in the principal task
of the particular workrooms frequently walk
through the areas as they move about the Facility.
Inasmuch as the cafeteria serves all the personnel in
the Facility, there is frequent contact between the
cafeteria employees and other employees in the
Facility, and, as already noted, the cafeteria
employees are supervised by Angelo Fuse,_ who
'For a discussion of the underlying reasons therefor and a citation of
illustrative precedents , see Metropolitan Life Insurance Company, 156
NLRB 1408 at 1412.
'We also reject the Employer's contention that Petitioner has not made
an adequate showing of interest to support an election in such a unit. In
the first place that issue is not litigable in this proceeding. Secondly,
Petitioner did submit an adequate showing of interest among the
warehousing employees to support the petition in 14-RC-4843 and among
the remaining employees to support the petition in 14-RC-5899, and the
combined showing of interest is obviously sufficient to support the
alternative unit request under consideration - herein.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reports directly to the warehouse superintendent.
The foregoing demonstrates that the employees in
the Spring Avenue Facility share common working
conditions including supervision which does not
extend to employees in other work locations, work
in a building geographically separated from other
facilities of the Employer, do not interchange with
employees in such other facilities, and perform
duties which are for the most part not performed at
such other facilities. On the basis of these factors,
and in accordance with our usual practice and
policy, we find that the following employees in the
Spring Avenue Facility have a separate community
of interests' and that they constitute a unit
appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:"
All employees at the Employer's Spring Avenue
Facility at Spring Avenue and Market Street in
St. Louis, Missouri, but excluding all sales
employees,' office clericals, professional
employees, guards , supervisors as defined in the
Act, and all employees presently represented by
other labor organizations.
[Direction of Election'° omitted from publication.]
'See Metropolitan Life Insurance Company, supra, for a discussion of
tests used by the Board to measure community of interests.
'Associated Dry Goods Corporation. d/b/a J . W. Robinson Co.. 153
NLRB 989, where the Board found a unit similar to the one involved
herein to be appropriate and in accord with our general policies concerning
units of employees performing warehousing and related functions for retail
merchandising operations.
'We exclude the retail store employees located in the Facility because of
their separate supervision , different functions , and lack of interchange with
other employees in the Facility.
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc.. 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company.
394 U.S. 759, decided April 23, 1%9. Accordingly, it is hereby directed
that an election eligibility list, containing the names and addresses of all
the eligible voters , must be filed by the Employer with the Regional
Director for Region 14 within 7 days of the date of this Decision and
Direction of Election . The Regional Director shall make the list available
to all parties to the election. No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed . Though the petition in
Case 14-RC-4843 was filed prior to the Excelsior decision , we find that it
will effectuate the policies of the Act to attach this requirement because
this election is being conducted in a substantially larger unit as requested
by Petitioner in Case 14-RC-5899 . Accord : Daniel Construction Inc., 167
NLRB No. 159.