J. W. Mays, Inc.

National Labor Relations Board - Board DecisionsJun 29, 1964

147 N.L.R.B. 968 (N.L.R.B. 1964)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX R NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the. National Labor Relations Act, we hereby notify our employees that: WE WILL NOT warn employees of discharge for union activities or offer them inducements to abandon such activities. WE WILL NOT discourage membership in Local 635, Home Furnishings Em- ployees Union, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discriminating against employees with regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Local 635, Home Furnishings Employees Union, Retail Clerks Inter- national Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a) (3) of the Act, as amended. WE WILL offer the following employees immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay suffered by reason of the discrimination against them: Benny Filosa Marvin Reid Ivan Eddie Cohen Vito Cecero Walter Segarra Frances Richardson Alice Portas Frederick Buckley All of our employees are free to become, remain, or refrain from becoming or remaining , members of Local 635, Home Furnishings Employees Union, Retail Clerks International Association, AFL-CIO, or any other labor organization. J. W. MAYS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.If the above-named employees are currently serving in the Armed Forces of the United States , we will notify them of their right to full reinstatement after discharge from the Armed Forces, upon application , in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Fifth Floor , Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. J. W. Mays, Inc. and Home Furnishing Employees Union Local 635, Retail Clerks International Association , AFL-CIO. Case lino. 2-RC-12829. June 29, 19641 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before. Hearing Officer Bertram T. Kupsinel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 147 NLRB No. 105. J. W. MAYS, INC. 969 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of all "nonselling" employees at the Employer's Jamaica, New York, store, or alternatively, all em- ployees of this store. The Employer contends that an appropriate unit should include all employees at its five stores located in the New York metropolitan area. The Employer operates five department stores in the New York metropolitan area. The principal store is located in Brooklyn, New York; the main office is located in that store. Two of the stores are in Queens County, New York, and two are in Nassau County, New York. The present proceeding involves only employees at the Jamaica, Queens County, New York, store, which is from 5 to 30 miles distant from the other stores. Corporate officers and buyers for all departments are located in the Brooklyn office. These buyers purchase merchandise-for resale by all the stores and generally supervise their departments in all the stores. Main office officials prepare the budgets for all the stores, determine the number and working conditions for store employees, set store hours, and place store advertisements. Although the central supervi- sion and common ownership indicate that a companywide unit may be appropriate, it is not the only appropriate unit.' There are other factors which indicate that a unit limited to the Jamaica store employees is also appropriate 2 Thus, each store has its own store manager, assistant manager, and office manager who are di- rectly responsible to the Brooklyn headquarters for the operation of the stores All employees are under the supervision of the store man- ager, except office clericals who are under the office manager's supervi- i"There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit , or the most appropriate unit ; the Act requires only that the unit be `appropriate .' " Morand Brothers Beverage Co., 91 NLRB 409, 418, enfd . in part 190 F. 2d 576 (CA. 7). 2 The Employer contends that if the Board were to direct an election in a single-store unit, it would be violating Section 9 ( c)(5), which provides that the extent of organiza- tion shall not be controlling in the Board 's determination of the unit appropriate for the purposes of collective bargaining. As stated in N.L R.B. v. Quaker City Life Insurance Company, 319 F. 2d 690 , 694 (C A. 4 ), "The construction of the Section involved has generally been to permit extent of organization to be a factor , so long as other valid tests indicate that the unit is an appropriate one." 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion. All employees in the Jamaica store are hired by the Jamaica store, their personnel records are maintained at the Jamaica store, and they are paid from a local bank account maintained by that store. The employees of the Jamaica store are not, except for the rare in- stance of a new store opening, transferred from that store to other stores of the Employer. There is no direct supervision of employees located in the Jamaica store by main office officials except for the gen- eral control over merchandise sold which is exercised by the buyers for the individual departments. Summarizing the foregoing, it appears that the Jamaica store is geographically separated from the Employer's other stores; its man- ager has substantial authority over the operation of the store and its personnel ; its employees are not transferred to or from the other stores ; and there is neither a bargaining history nor a request by any labor organization for a larger unit. We find, therefore, that the employees working at the Jamaica store may constitute an appropri- ate unit for purposes of collective bargaining.' As stated, Petitioner seeks to limit its unit-to "nonselling" employees, which it defines as all employees except the following : wrappers, stock- girls, stockboys, trainees, and one seamstress. It would also exclude the sales help in the six departments (three of which are leased) where the Employer's operation is not self-service. The Employer contends that, apart from the six departments mentioned, there are no selling functions performed by any of its employees and therefore the distinction between functions which Petitioner is attempting to draw is meaningless.4 The Jamaica store operates basically as a self-service store with the customer picking out the item to be purchased and carrying it to a cashier to pay for it. The selling areas contain either tables with merchandise piled on them, or pipe racks from which the merchandise is hung. There are no salespeople in the usual sense of the word. There are stockgirls and stockboys in these areas who straighten out and replace stock. They are instructed not to attempt to guide a cus- tomer in making purchases, but only to tell customers where a re- quested item may be found. Also employed on the selling floor are wrappers and cashiers. The functions of the various categories of "selling" employees are as follows : Wrappers check to see that the cashier has rung up the sale, place the merchandise in a bag or box, staple the bag or fold the box, and hand it to the customer. Stockgirls fold merchandise and 3 Sau=On Drugs, Inc., 138 NLRB 1032; American Linen Supply Co ., Inc., 129 NLRB 993; Thompson Ramo Wooldridge, Inc., 128 NLRB 236; Victory Grocery Company, et at., 129 NLRB 1415 * The parties stipulated at the hearing that If the Board directs an election in a unit composed of all employees at the Jamaica store , the unit shall include salespeople in the three owned and three leased departments. J. W. MAYS, INC. 971 keep it accessible and in order . They also carry merchandise to and from the receiving department and the floor, ticket merchandise, and take stocklists. Stockboys do exactly the same work as stockgirls ex- cept that the boys do heavier work. Trainees do the same work as stockboys-the only difference is that trainees are considered to be potential assistant buyers and are therefore expected to become more expert than stockboys. The seamstress makes minor adjustments, such as sewing on buttons and belts and mending torn seams. She does no alteration work. The functions of the various "nonselling" categories are as follows : Adjustment and refund department employees give refunds or credits on returned merchandise in accordance with preestablished guidelines. Cashiers receive payment for goods purchased and, where the volume of purchases is low, also wrap the purchases. Display personnel pre- pare window displays and decorations for use inside the store . Receiv- ing employees receive merchandise on the loading platform, open it, place it on tables or conveyors and check that the amount shipped has been received, prepare tickets, ticket merchandise, distribute it throughout the store, and process the invoices received. Reticketing personnel replace tickets on those items where tickets have been re- moved or where the item is to be marked down without the markdown showing. Maintenance men maintain the air-conditioning, elevators, electrical, heating, plumbing, and ventilation systems. The painter does general store painting and some display work. Office employees handle payrolls, check invoices, and supervise the accuracy of all in- formation sent to the Brooklyn headquarters; they also balance re- ceipts and deposit all moneys received. Telephone operators perform the functions their title suggests. Porters keep the store clean and also help run the elevators and load or unload merchandise. Hangers as- sort the various types of hangers which accumulate during the day from sales of merchandise . The bailer operates a machine which bales waste paper . Matrons do light dusting around the store and keep the ladies room clean . Lunchroom personnel serve food ( cafeteria style) to employees only and clean up the area and the utensils . Box depart- ment personnel supply various sizes of boxes and bags to the wrapping desks. Elevator operators operate both freight and passenger eleva- tors of the push -button type . Credit department personnel accept, review, and check charge account applications , but have no authority to approve accounts. In its unit request, Petitioner excludes wrappers , trainees , stock- girls, and stockboys, but includes cashiers. All these categories (ex- cept trainees who mainly work in receiving ) work on the selling floor of the store although none of them engages in selling activities. The distinction Petitioner desires to draw may properly be described as one between employees who generally work in areas to which the 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD public is admitted and those who do not. This distinction is a dif- ferentiation in job location which is not consistently followed inas- much as Petitioner wishes to include cashiers and exclude trainees in its proposed unit. Further, as a regular part of its operations, the Employer assigns its stockgirls and stockboys to the receiving depart- ment to unpack and ticket merchandise, and the employees in the receiving department are regularly assigned to stock activities on the selling floors. Reticketing employees are also used to supplement stock personnel on the selling floors when needed. The Employer estimated that up to 50 percent of the working time of stockgirls and more than 50 percent of that of stockboys is spent in receiving work. It further estimated that wrappers spend 20 to 25 percent of their time in receiving, cashiers spend 35 percent of their time either in receiving or as stockgirls, receiving personnel spend 15 percent of their time on the selling floor, and that there is similar interchange among the janitorial staff. From the foregoing, it appears that the unit petitioned for is an arbitrary one, and does not comprise a homogeneous group which can justifiably be established as a separate appropriate bargaining unit. Rather, as under the Employer's self- service operation the "nonselling" employees and the "selling" em- ployees perform virtually the same functions and have the same in- terests, we find it would best effectuate the policies of the Act if all employees of the Jamaica store are, included in one unit. We turn therefore to the points of disagreement as to composition of the unit. The Employer would include, and the Petitioner exclude, from the unit the two shoppers who are carried on the Jamaica payroll. These shoppers, who are supervised by the Brooklyn store, do comparison shopping for the benefit of all the Employer's stores. They merely return to their Jamaica office to write up the information they have collected and to tag the merchandise purchased. They arrange with their supervisor where to work and do not have to report to the Jamaica store in the morning. They do not sign in on a time sheet as all other Jamaica store employees do. We find that the shoppers do not have a community of interest with the employees at the Jamaica store. We shall, accordingly, exclude them from the unit. The Petitioner also contends that Ann Hubert, a cashier, is a super- visor within the meaning of the Act and so should be excluded from the unit. The Employer contends she is not a supervisor and should be included. Ann Hubert assists De Groot, the supervisor of cashiers, and in her absence may make temporary assignments of cashiers. These assignments are usually on the basis of a list prepared in ad- vance by De Groot. Further, as Hubert does not have the power to hire, discharge, or expressly recommend such action, we find that she is not a' supervisor. We shall include her in the unit. RANDOLPH METAL WORKS, INC. 973 We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act : All selling and nonselling employees at the Jamaica, New York, store of the Employer, including sales personnel in the three owned and three leased departments, but excluding shoppers, professional employees, guards, watchmen, confidential employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Randolph Metal Works, Inc. and Local Union 1841 , International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Cases Nos. 4-RC-5587 and 4-RC-5609. June 29, 1964 DECISION AND ORDER Upon a petition filed under Section 9 (c) of the National Labor Rela- tions Act, a hearing was held before Hearing Officer Katherine W. Tereshinski. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer.' 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act for the following reasons : Randolph Metal Works, Inc., the Employer herein, is a Pennsylvania corporation engaged in the manufacture of lamps. On September 27, 1962, pursuant to a petition filed by Local Union 1841, IBEW, AFL- CIO, the Petitioner herein, an election was held among the production and maintenance employees of the Employer. Petitioner lost the election and no union was certified as representative of the employees involved. On June 21, 1963, the Employer recognized the Building Service Employees International Union, Local 252, AFL-CIO, the Intervenor herein, as representative of its production and maintenance employees on the basis of a card showing. Thereafter, the Employer and Intervenor entered into a collective-bargaining agreement cover- ing these employees, effective from July 2, 1963, until June 30, 1966. 'Building Service Employees International Union, Local 252, AFL-CIO, herein called Intervenor, was permitted to intervene on the basis of its contractual interest in the employees involved. 147 NLRB No. 150.