R. H. Macy & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1965

151 N.L.R.B. 748 (N.L.R.B. 1965)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving the same two contending labor organizations. The 1961
agreement was an attempt permanently to resolve this fundamental
dispute by an allocation of work between members of the unions.
From 1961 until the present dispute arose, it has been adhered to by
the unions and most employers in the area. In other words, it
resulted in a settlement of the longstanding jurisdictional dispute.
In Acoustic cC Specialties, the Board said that considerable weight
should be given to voluntary agreements between unions resolving
jurisdictional disputes. "By so doing the Board will be encouraging
unions to settle such disputes by agreement, a desirable policy."
Although the Lathers has now repudiated this agreement, the Board
can still consider the practical effect of the agreement as a factor in
determining how the jurisdictional dispute should be resolved. Be-
cause we believe that a preponderance of relevant factors favors
carpenters, we shall award the disputed work to members of that
craft. In making this determination, we are assigning the disputed
work to carpenters who are represented by the Carpenters, but not
to that labor organization or its members.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10(k) of the Act:
Employees engaged as carpenters are entitled to do the work of
installing metal tracks and studs to which drywall gypsum board is
attached at the Lakewood House project of The Walter Corporation.
Bamberger 's Paramus , a Division of Bamberger's New Jersey, a
Division of R . H. Macy & Co., Inc.' and Local 723, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Case No. 22-RC-2446.
March 16, 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 Christopher J. Hoey . The Nearing Officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Briefs have been filed by the Employer and the Petitioner herein and
by the Retail Merchants Association as amicus curiae.
1 The name of the Employer appears as amended at the hearing.
151 NLRB No. 81.
BAMBERGER 'S PARAMUS, ETC. 749
Upon the entire record 2 in this case, the National Labor Relations
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.
The Petitioner seeks a unit composed of all tire installers, brake-
men, front-end men, stockmen, and seat cover men employed at the
Employer's Paramus, New Jersey, Auto Center .3 The Employer
opposes the unit sought and contends that only a storewide unit is
appropriate.
R. H. Macy & Co., Inc., is engaged in the department store busi-
ness with six operating divisions. Bamberger's New Jersey, herein
called Bamberger's or the Employer, is one of these divisions. In
addition to the Paramus store, the division operates stores in eight
other New Jersey locations. Bamberger's employs approximately
9,000 employees, of whom approximately 1,400 work in the various
departments at the Paramus store. This store has approximately
120 selling departments located in 1 large building and in 2 smaller
buildings located in the Garden State Plaza Shopping Center in
Paramus, New Jersey. One of the smaller buildings houses depart-
ments which sell pianos, rugs, sewing machines, and basement fur-
niture. The other shall building, located about 175 yards from the
main building, houses the Auto Center, with which we are primarily
concerned. The Auto Center is currently operating under a license
agreement 4 between Bamberger's and Vanderbilt Automotive Cen-
ters, Inc.5 This agreement specifies that employees in the Auto
Center shall be employees of the Employer and not employees of the
licensee.6 Under the license agreement, however, executive person-
nel and personnel performing services in confidential capacities in the
2 The Petitioner's request for oral argument is hereby denied as the record, including
the briefs, adequately presents the issues and positions of the parties.
3 Alternatively, the Petitioner would include in the unit salesmen who work in the Auto
Center
6 Other departments, all in the main store, operating under similar license agreements
are jewelry, razor, typewriter, light fixture, stereo, millinery, shoe, picture, mirror, kitchen
and planning, electrical appliance repair, and the photo studio. Nonlicensed departments
are operated directly by Bamberger's.
5 The original license agreement was between Bamberger's and Tire Mart Inc How-
ever, on December 31, 1961, pursuant to agreement of the parties, Tire Mart Inc. assigned
all of its rights under the license agreement to B. F Goodrich Company, and on January 1,
1962, B. F. Goodrich, in turn, assigned its rights under the agreement to Vanderbilt Auto-
motive Centers, Inc., the present licensee.
G The Petitioner concedes that the employees involved herein are employees of Bam-
berger's, and there is no contention that the licensee and Bamberger's are joint employers
of these employees . Cf. Frostoo Super gave, Stores, Inc., 138 NLRB 125.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auto Center are employees of the licensee. The license agreement
further provides that employees of the Auto Center otherwise are
"selected, engaged, supervised and subject to discharge" by the Em-
ployer, and "all personnel policies and practices, including but not
limited to, wages, hours and conditions of employment" are deter-
mined by the Employer in accordance with the Employer's regular
procedures.
The Auto Center, which employs approximately 20 employees, is
divided into separate selling and service areas. Salesmen, who con-
stitute the Employer's department No. 7143, are engaged in selling
tires and auto accessories in the selling area. Employees in the gar-
age or service area, who constitute department No. 7144, install tires,
brakes, mufflers, tailpipes, batteries, and seat covers and perform
front-end alignment work and minor mechanical repairs. The serv-
ice area contains 16 bays for housing cars while they are being serv-
iced. Service employees have their own timeclock and washroom
facilities in the Auto Center. Unlike the salesmen in the Auto Cen-
ter and salesmen elsewhere in the Employer's department store,
service employees wear special uniforms; in this connection, to pro-
tect them when they work outside and are exposed to inclement
weather, they are also supplied with winter uniforms and jackets
carrying the identifying insignia of the Employer. Service employ-
ees keep their street clothes and personal effects in lockers located
in the service area, and most, if not all, of the servicemen, because
of the dirt and grime incidental to their job, bring their lunch to
work and eat in the service area rather than the cafeteria in the main
building. While the salesroom at the Auto Center is cleaned by
porters from the Employer's housekeeping department, service em-
ployees clean the garage area.
The Auto Center, which normally opens 11/2 hours earlier than the
main store, is supervised by a sales manager who reports directly to
one of the Employer's area managers. The sales manager, although
responsible to the Employer for seeing that Bamberger's policies and
procedures are followed, is an employee of the licensee. He initiates
all disciplinary proceedings, passes upon merit increases, and has
authority effectively to recommend the hire or discharge of service
employees. While there have been a number of temporary and
permanent transfers of salesmen in and out of the Auto Center,
transfers among the service employees have involved only a limited
number of stock clerks.
Bargaining at the Paramus store is currently confined to four
separate craft units. There has been no other bargaining history.
It is true that there are some factors which could justify the store-
wide unit urged by the Employer. Thus, fringe benefits of Auto
Center employees are comparable to those of other employees of the
BAMBERGER 'S PAR.AMUS, ETC. 751
store and, except for the brake installer and wheel alignment men
who receive an "unclassified rate," Auto Center employees are paid
on the same basis as other employees. Also, charge accounts and
customer policies apply at the Auto Center as well as at the main
store; all personnel records, payroll records, and the like for all
employees, including Auto Center employees, are maintained in the
main store building; all interviews and physical examinations are
conducted in the main store building; and there are standard appli-
cation, health, and review forms for all employees. Furthermore,
a storewide or overall unit is presumptively appropriate for the pur-
poses of collective bargaining.?
However, as we recently stated in the Montgomery Ward case,"
Section 9 (b) of the Act not only empowers the Board to decide in
each case "the unit appropriate for the purposes of collective bar-
gaining," but also directs it to make appropriate unit determination
which will "assure to employees the fullest freedom in exercising the
rights guaranteed by this Act"; i.e., the rights of self-organization
and collective bargaining. In effectuating this mandate, the Board
has recently reemphasized that the Act does not compel labor organi-
zations to seek representation in the most comprehensive grouping
of employees unless such grouping constitutes the only appropriate
unit8 Thus, the issue here, as in Montgomery Ward, is whether a
unit consisting of only the servicemen in the Auto Center is appro-
priate in the circumstances -of this case and not whether another
unit consisting of all employees employed in the Employer's Par-
amus store or all employees employed in the Auto Center would also
be appropriate, more appropriate, or most appropriate.
Under all the circumstances of this case, we are persuaded that the
Petitioner's requested unit of service employees in the Auto Center
comprises a homogeneous and identifiable grouping sufficiently dis-
tinct from other employees in the Paramus store to warrant a finding
that such unit is appropriate. We rely on the facts that service
employees in the Auto Center perform different functions, utilize
different skills, work in a separate area of the Auto Center building,
wear uniforms which set them apart from other employees, and have
limited interchange and minimal contacts with other employees. In
4 See Section 9(b), National Labor Relations Act, as amended See also J. W Mays,
Inc., 147 NLRB 942; Polk Brothers , Inc., 128 NLRB 330; Bullock's Incorporated, d/b/a
I. Magnin & Company, 119 NLRB 642 , 643; Western Electric Company, Incorporated,
98 NLRB 1018, 1032; May Department Stores Company, Kaufmann Division, 97 NLRB
1007, 1008
s Montgomery Ward & Co., Incorporated, 150 NLRB 598 . In that case , the Board
found appropriate a unit of service department employees of the automotive service center
of the employer ' s department store.
6 Bagdad Copper Company, 144 NLRB 1496; P. Ballantine & Sons, 141 NLRB 1103. See
also P. W Woolworth Company, 144 NLRB 307; Diaie Belle Mills, Inc, 139 NLRB 629 ;
Sav-On Drugs, Inc., 138 NLRB 1032; Quaker City Life Insurance Company, 134 NLRB
960, enfd on this point 319 F 2d 690 (C.A. 4).
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding Auto Center salesmen from the unit, we rely on the fact
that salesman are separately located, do not interchange with service
employees, and, unlike service employees who perform no selling
functions,"' are engaged primarily in selling. As recently articulated
by the Board in Allied Stores of New York, Inc. d/b,/a Stern's
Paramus, 150 NLRB 799, and in other cases, there is a separa-
bility for unit purposes between selling and nonselling employees in
the retail store industry.'1 Accordingly, we find that the following'
employees of the Employer constitute a unit appropriate for pur=
poses of collective bargaining within the meaning of Section 9(b)
of the Act : 12
All employees employed in the service department of the Auto
Center at the Employer's Paramus, New Jersey, store, including tire
installers, brakemen, front-end men, stockmen, and seat cover men,
but excluding all other employees, office clerical employees, salesmen,
guards, and supervisors, as defined by the Act.
[Text of Direction of Election omitted from publication.]
10 Although service employees may receive commissions or "stims" for suggesting the sale
of certain items to customers while servicing their cars , we do not regard this fact as
establishing that these service employees are engaged in a selling function.
11 Consistent with his dissenting opinion in the Allied Stores case, Member Jenkins
would include the Auto Center salesmen in the unit.
12 See Montgomery Ward & Co., Incorporated , supra; J. C. Penney Company Store
No. 139, 151 NLRB 53.
Wenatchee Thrifty Drugs, Inc. and Retail Store Employees Local
631, Retail Clerks International Association , AFL-CIO. Cases
Nos. 19-CA-2687 and 19-CA-2812. March 17, 1965
DECISION AND ORDER REMANDING
CASE TO THE TRIAL EXAMINER
On September 10, 1964, Trial Examiner Martin S. Bennett issued
his Decision in the above-entitled proceeding, recommending that the
complaints be dismissed for the reason that the operations of the
Respondent do not meet the National Labor Relations Board's stand-
ards for the assertion of jurisdiction, as set forth in the attached
Trial Examiner 's Decision. Thereafter, the Charging Party filed
exceptions to the Trial Examiner's Decision and a supporting brief
and the Respondent filed a brief in reply to the Charging Party's
exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with these cases to a three-member panel [Chairman
McCulloch and Members Brown and Jenkins].
151 NLRB No. 84.