Stern's, Paramus

National Labor Relations Board - Board Decisions

Jan 6, 1965

150 N.L.R.B. 799 (N.L.R.B. 1965)

STERN 'S, PARAMUS 799
most store employees, and uniformity of working conditions and
benefits for all employees. Moreover, also as in Stern's, Paramus,
the Petitioner has organized almost all the employees that are to be
organized and seeks to represent them; and the petitions for sepa-
rate units are nothing more than an election device.
I would therefore dismiss the separate petitions with leave to the
Petitioner to file a petition seeking a single residual unit of all un-
represented employees 21
n Polk Brothers , Inc., 128 NLRB 330. A residual unit would include employees in
the women 's alteration , display, maintenance , and advertising departments.
Allied Stores of New York, Inc. d/b/a Stern 's, Paramus and
District 65, Retail , Wholesale and Department Store Union,
AFL-CIO, Petitioner. Cases Nos. 29-RC-072, 22-RC-2073, and
202-RC-°2074. January 6, 1965
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the
National Labor Relations Act, a consolidated hearing was held
before Hearing Officer Earl S. Aronson. The Hearing Officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.-
Upon the entire record, including the briefs of the parties, the
other briefs and statements, and the oral argument, 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
employees of the Employer.
3. Questions affecting commerce exist concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
'After the hearing and pursuant to Section 102 67 of the National Labor Relations
Board Rules and Regulations , Series 8 , as amended , the Regional Director issued an order
transferring these cases to the Board for decision . Thereafter , the Employer and the
Petitioner filed briefs . The Employer also filed a reply brief, a request for oral argument,
and motions to reopen the record to receive additional evidence and to remand these cases
to the Regional Director . Three organizations filed separate briefs as amacus curiae.
They were Retail Clerks International Association , AFL-CIO, Industrial Union Depart-
ment, AFL-CIO, and American Retail Federation
The Board granted the Employer 's request for oral argument , and all parties and the
amid curiae participated therein.
After oral argument , the Employer filed a telegraphic motion, again requesting remand
of these cases to the Regional Director for decision or, in the event that the Board denied
this request, it asked that the Board delay decision in these cases until they can be decided
by a five-man Board.
We hereby deny the Employer 's motions as without merit.
150 NLRB No. 79.
775-692-65--vol. 150-52
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Employer is a New York corporation operating retail de-
partment stores in New York and New Jersey. Its main store is
located in New York City. The subject case involves only the
Paramus, New Jersey, store.
The Petitioner, District 65, Retail, Wholesale and Department
Store Union, AFL-CIO, seeks to represent the Paramus store em-
ployees in these separate units-selling, nonselling, and restaurant,
excluding office employees from all units. The Employer contends
that only a storewide unit is appropriate.
There is no bargaining history for the employees involved in this
proceeding.
The Employer's store has 130 departments on 3 floors, a basement,
and a lower level. In addition to selling areas, the store has stock
receiving and handling areas, management and personnel offices,
customer service offices, sales promotion offices, and eating facilities.
The warehousing and central office operations are performed in the
New York City store.
The Employer has approximately 695 employees. The proposed
selling unit includes the greatest number, almost 470, who are sales-
persons located in the various selling departments throughout the
store. There are approximately 70 employees in the proposed res-
taurant unit who perform duties in connection with a kitchen, all
employee cafeteria, a banquet room, and a customer restaurant and
cafe, all on the third floor, and a snackbar on the lower level. This
unit would include employees in such job classifications as cook,
sandwich maker, salad maker, vegetable cook, soda dispenser, dish-
washer and busboy, cafeteria server, waitress, counterman, bartender,
and cashier. The Petitioner desires to represent the remainder of the
employees (excluding only about 30 office employees) in, a nonselling
unit .2 The nonselling unit would include a group of approximately
125 receivers, checkers, stockmen, markers, wrappers, cashiers, altera-
tion employees, display employees, furniture finisher, sign -writers,
and a few clerical employees in the men's clothing department, fur
storage department, at the accommodation desk, and in the vendor
return room. There are but a few fringe categories of employees
in dispute .3
2 The office employees are variously designated as customer clerical , cash office clerical,
credit clerical , bill adjuster , merchandise clerical, customer complaints clerical , payroll
clerical , and audit clerks
Four merchandise clericals perform adjustment duties in four selling departments. Like
other merchandise clericals in the adjustment office, they are responsible to the office
manager in the performance of such duties.
3 The Petitioner would include 16 "flying squad" employees in the sales unit and exclude
4 merchandise clericals as office clerical employees The Employer contends that the
only appropriate unit is an overall one, including office employees . It therefore takes no
position on the unit placement of the "flying squad" and the merchandise clericals.
The Petitioner would also exclude fitting room checkers as guards and cymballet em-
ployees as professionals . The Employer would include them.
STERN'S, PARAMUS 801
The employees in each of the proposed separate units generally
work under separate supervision : the selling group is responsible to
sales department managers, the bulk of the nonselling to the receiv-
ing and marking manager, and restaurant to the restaurant man-
ager4 Office employees are under the supervision of the office
manager.
The nonselling, restaurant, and office employees work in depart-
ments and offices segregated from selling areas. The kitchen and
restaurants are on the third floor except for the lower level snack-
bar. The offices are located on the third floor. The lower level of
the store contains the receiving, loading, shipping, invoice checking,
and central wrapping rooms. Another marking room is also located
on' the second floor. The majority of employees in the requested
nonselling unit-stockmen, wrappers, and shipping and receiving
employees-work in such areas. Stockmen and carriers also bring
merchandise to the selling departments and to adjacent stockrooms,
and markers may mark merchandise on the selling floor.
There is no interchange between selling and nonselling employees.
Only salespersons sell. Restaurant, office, and other nonselling em-
ployees do not sell. Salespersons may at times assist stockmen or
markers although there is no showing of any substantial amount of
time spent in such work.5
Sales employees receive classroom training for their job. Such
training includes learning how to sell. The training of nonselling
employees is largely on the job.
Dress regulations differ for selling and nonselling employees.
Salesmen must wear a suit or conservative jacket, tie, and shirt.
Nonselling men need not wear a jacket. Women's dress regulations
are the same for those who have customer contacts, other than res-
taurant employees. All restaurant employees wear uniforms.
The Employer rates different factors in determining the job per-
formance of selling and of nonselling employees. The rating form
for a sales employee records the employee' s sales for a 6-month
period and the sales-cost percentage. The 6-month sales figure is a
cumulative record of daily sales. The sales and sales-cost percent-
age factors are not applied to nonselling employees. These are
measures of° the individual sales employee's productivity. Produc-
tivity for nonselling employees is measured on a departmental basis.6
* A few employees may, at times , receive assignments from a department manager.
Thus stockmen , who are responsible to the receiving and marking manager, may look to
sales department managers, for work assignments . And the will-call clerical, who is
responsible to. the receiving and marking manager, also reports to the men's clothing
department manager.
r Twice yearly almost all employees participate in a two -night store inventory . At that
time some employees act as callers of the merchandise and others are listers.
9 Rating factors applicable to all employees are attitude , attendance, accuracy , knowledge
of job, customer service, and appearance.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wages vary depending on duties performed. The Employer's
minimum wage scale runs from $1.05 (grade I) to $1.75 (grade V).
Minimum wages in the other grades are $1.35 (grade II), $1.45
(grade III), and $1.60 (grade IV). A further higher unspecified
wage (grade VI) depends on special skill. Most of the restaurant
classifications are in grade II, except for waitresses who are in
grade 1.7 Most stock classifications are grade II.8 Sales employees
are in grades II, III, and IV, depending on the department in which
they work .9 Office employees generally are in grade III.10
There have been few transfers between selling and nonselling jobs.
From 1958 through the first part of 1963, 85 employees made 122
transfers:11 47 of the job transfers were to or from the flying
squad; 12 30 were from sales to office work or from office to, sales;
5 were transfers between different office jobs. In the 1958-63 period
only three restaurant employees transferred to sales work. Two
sales employees transferred to restaurant jobs-as hostess and bar-
tender. There is no showing in the record as to the reasons for the
transfers; i.e., how many were made at the employees' request or how
many were transfers from part-time to full-time jobs.13
The record shows that sales employees stand apart from the con-
glomeration of nonselling employees. Apart from the markers,
checkers, receivers, and stockmen who bring merchandise to and
from the sales floors, there are a large number of employees who
perform work in segregated areas and engage, in occupations very
distinct from sales work. These include restaurant employees who
prepare and serve food, office employees who perform credit and
adjustment, payroll and auditing work, alteration and drapery em-
ployees who sew garments and drapes, display employees who trim
windows and interior areas, and the furniture ,finisher.
The record demonstrates, with respect to the units requested-
selling, nonselling, restaurant-that the employees' skills, duties, in-
terests, and conditions of employment in each group are sufficiently
different from each other as to warrant establishing separate units.
The bartender is in grade V and the baker and cook in grade VI. The hostess is
in grade III.
8 Two stock classifications , order checker and bulk marker , are in grade III. One,
packer ( bulk or heavy ), is in grade IV, and one , platform man, is in grade V.
6 All sales personnel , except those in 20 departments , are in grade II. Employees in
9 sales departments are in grade III and salespersons in 11 departments are in grade IV.
Assistant department managers are in grade V.
10 One office classification , customer service clerical, is in grade II.
11 Employer Exhibits Nos . 38A and 38B show these transfers by years : 1958-12;
1959-41 ; 1960-17 ; 1961-31 ; 1962-17; and 1963-4.
>a The flying squad is a group of 16 employees who work without definite assignment
as a relief squad ; I .e , to cover jobs of absent employees and to increase the working force
on special sales days.
18 Of the 85 employees who transferred jobs in the 1958 -63 period, 32 were on
the payroll at the time of the hearing . Of the 32, 18 had held part -time jobs before their
transfers . The exhibits do not show whether all transfers were to full -time jobs.
STERN'S, PARAMUS 803
Although the Board has regarded the storewide unit in retail
establishments as "basically appropriate" 14 or "the optimum unit," 15
it has held that the single comprehensive unit is not the only appro-
priate unit in such establishments."' Thus it has directed elections
in separate units of selling and of nonselling employees where there
has been agreement among the parties or a history of collective bar-
gaining.17 And the Board has recognized the differences in work
and interest of many occupations in retail department stores and
has directed elections in a variety of small units. Such units are :
restaurant,18 bakery,19 office employees,20 alteration department'21
display employees,22 and carpet installers 23 Similarly, the Board
has directed elections in units of warehouse employees,24 building
service employees,25 beauty salon employees,26 and truckdrivers27
Indeed, without resort to the election procedures available under
this Act, retail department store employers and unions in the Metro-
politan New York area have voluntarily entered into collective-
bargaining agreements covering less than all store employees. Thus
employers and unions have recognized explicitly the diverse work
and interests of the various employee groups. At Lord & Taylor, in
New York City, separate unions bargain under separate contracts
for these employees : warehouse, men's alteration department,
women's alteration department, interior display department, deco-
rators, and elevator and maintenance employees. At Saks Fifth
Avenue, shoe sales employees are represented by a collective-bargain-
ing agent. At Arnold Constable, the Petitioner represents the em-
ployees in a leased beauty salon and a local of the Retail Clerks
1'Builock'8 Incorporated, d/b/a I. Magnin & Company, a Division of Bullock's In-
corporated, 119 NLRB 642, 643.
15 May Department Stores Company, Kaufmann Division, 97 NLRB 1007, 1008.
16 The Boot Dry Goods Co., Inc., 126 NLRB 953, 955.
17 See A. Victor & Co., 116 NLRB 319, in which the Board directed an election in an
agreed unit of sales employees.
In Bond Stores, Incorporated , 99 NLRB 1029, the petitioning union sought an overall
unit. The Board, however , directed an election in two units : a selling unit for which an
intervening union had been bargaining and a nonselling unit, saying that "either an over-
all unit of both selling and nonselling employees or separate units of each may be
appropriate.. . .
In The Root Dry Goods Co., Inc., 126 NLRB 953 , the Board directed a decertification
election in a unit of selling employees that had been established by collective bargaining.
Is F. W. Woolworth Company, 144 NLRB 307; Thalhimer Brothers, Incorporated, 93
NLRB 726; Allied Stores of Ohio, d/b/a A. Polsky Company, 90 NLRB 1868.
1e Rich's, Inc., 147 NLRB 163.
21 Montgomery Ward & Company, Inc., 100 NLRB 1351 ; Maas Brothers , Inc., 88 NLRB
129,133; Meter d Frank Company, 86 NLRB 517.
21 Foreman & Clark, Inc., 97 NLRB 1080.
22 Goldblatt Brothers, Inc. (Central Display ), 86 NLRB 914.
22 J. L. Hudson Company, 103 NLRB 1378.
24 A. Harris & Co., 116 NLRB 1268.
25 Thalhimer Brothers, Incorporated , 83 NLRB 664; The Bailey Department Stores Com-
pany, 85 NLRB 312, 314.
29 May Department Stores Company, Kaufmann Division, 97 NLRB 1007, 1008.
21 J. L . Brandeis & Sons, Inc., 142 NLRB 825.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association represents nonselling employees classified as "cashier-
wrappers , carriers , markers, parcel post clerks, runners, stock clerks,
receiving clerks, checkers, and packers. . . ." Collective-bargaining
agreements covering custodial, warehouse, and craft units are com-
mon in the industry. Although the Employer has a collective-bar-
gaining contract with the Petitioner covering almost all employees
at its New York City store, other unions represent porters, freight
elevator operators, passenger elevator operators, electricians,, boiler
operators, oilers, carpenters, plumbers, and certain mechanics.
Even in retail department stores where unions currently represent
storewide units, organization rarely began on this basis. Unions
won bargaining rights successively for small units of occupational
groupings. Organization proceeded first in the nonselling groups
and only later included the sales force. This pattern of organization
demonstrates the understanding by unions and employers of the
singular differences in duties and interests between selling and non-
selling employees. At Stern's New York City store the Union first
won representation rights among nonselling employees, including
the warehouse, and the Employer entered into a bargaining contract
covering that group. Later, the selling employees were organized,
then the office employees and the parties added each group to the
bargaining unit 28
The Employer's argument, that no distinctions exist between-the
selling and nonselling forces, minimizes the significance of the Em-
ployer's main venture-to sell-and the salespeople whose ability to
sell plays a large part in the success of its business . Certainly the
obvious job qualifications of the competent salesperson-pleasing per-
sonality, poise, self-confidence, ease in dealing with strangers, imagi-
nation, ability to speak well, and to persuade-are not demanded of
nonselling personnel. The latter's work is- largely manual in bring-
ing merchandise in and out of the store, does not involve meeting
the public, knowing desirable features and construction of merchan-
dise, and showing initiative in marketing a product. Failure to
appreciate the difference between a salesperson's job and that of
other store employees is to disregard the obvious. We perceive a
great difference between a retail store, like the Employer, that em-
ploys salespeople to serve the public and one where the public serves
itself without the aid of sales personnel.21
28 A similar organizational pattern developed at R. H. Macy & Co., and Namm's New
York City stores and Loeser's Brooklyn store.
For a description of the pattern in the sequence of organization among retail employees
see Martin S. Estey, "The Strategic Alliance in Union Growth ," pp. 41-53 at pp. 48-49,
Industrial and Labor Relations Review, vol. 9, No. 1, October 1955 (N.Y. State School of
Industrial and Labor Relations at Cornell University, Ithaca, New York).
2 Cf. J. IV Hays, Inc., 147 NLRB 968.
STERN'S, PARAMUS 805
Moreover, the nature of the sales force--composed largely of
women ,30 working part-time,31 on a temporary basis-is far different
from the nonselling groups-composed largely of men,32 working
full-time, whose livelihood depends on continued employment 33
Government publications show that the great bulk of part-time
sales employees are primarily housewives and students who are not
seeking full-time employment because of school, family, or other
obligations.34 Personnel turnover is high in retail stores because
"many young people change employment after gaining some sales
experience and many of the women in this group leave to marry or
to take care of families.35
An employer spokesman recognized the different outlook and in-
terest of the white-collar employee in describing the union picture in
retail stores before a congressional committee : se
... the groups that traditionally are disposed to union mem-
bership, like the skilled crafts, are organized. The vast bulk of
the white collar workers that have been less receptive to unioni-
zation represent the salespeople, the office people, including a
30 Ave estimate that three times as many women as men work as salespersons in
department stores.
In 1958, about 1,326,671 workers were employed in general merchandise retailing
stores and 807,721 ( 60 percent ) of this total worked in department stores. ( 1958 Census
of Business , Vol. 1 , Retail Trade, Summary Statistics , Table B, p. 4, U.S. Dept. of Com-
merce, Bur. of Census, U.S. Govt. Printing Office, 1961 .) The 1960 Census of Popula-
tion indicates that 1 ,291,185 persons worked in general merchandise retailing. (U.S.
Census of Population , 1960. Occupation by Industry , p. 97, U S. Dept of Commerce,
Bur. of Census , U.S. Govt. Printing Office, 1963 .) If the same ( 60 percent) proportion
prevailed in 1960, then it is estimated that about 775,000 workers were employed in
department stores in that year . About 625 , 844 or 48 percent of-the workers were em-
ployed in sales jobs in general merchandise retailing. By applying the same percentage
(48 percent ), then about 372,000 workers held sales jobs in department stores in 1960
About three-fourths ( 78 percent ) of the workers in sales jobs in general merchandise
retailing were women in 1960. If this same sex distribution applied to department stores,
then about 280,000 women worked in sales 'jobs in department stores in 1960 and about
92,000 men worked as salesmen in department stores.
az In 1962 more than one-third of the women employed in the retail industry worked on
a part-time basis. Special Labor Force Report, "Work Experience of the Population in
1962," Table 2. Monthly Labor Review , January 1964 , pp. 18-27, at 19. Bureau of Labor
Statistics , U.S. Dept . of Labor.
32 All checkers , receivers , and stock employees in the Paramus store are men.
ss We are not, contrary to the statement in the dissent , separating employees into
different units on the basis of sex. All the units which we have found appropriate contain
both men and women.
""Manpower Report of the President," pp. 49-50, U.S. Dept . of Labor 1963 , U.S. Govt.
Printing Office; "Part-time Employment for Women," Women's Bureau Bulletin 273, at
13, U.S. Dept , of Labor , U.S. Govt. Printing Office, 1960 ; "Employment and Earnings,"
October 1964 , vol. 11 , No. 4, U.S. Dept . of Labor, Bureau of Labor Statistics.
as We are not , contrary to the statement in the dissent , separating employees into
different units on the basis of sex . All the units which we have found appropriate contain
both men and women.
ae Hearings before the House Committee on Education and Labor , House of Representa-
tives, 83d Cong., 1st sess., pursuant to H. Res. 115 on Matters Relating to the Labor
Management Relations Act of 1947, and for other purposes . Statement of Frederick G.
Atkinson , Chairman , Employee Relations Committee, American Retail Federation . Part 6,
p. 2183.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very large proportion of relatively young unmarried women
who, I regret to say, also represent relatively short-term employ-
ment because they are all interested in getting married or mov-
ing on, and that group tends generally, I think, throughout-the
industry, to be unorganized today. ' But you have in many
stores these fractions that represent those employees engaged
in skilled crafts and similar units.
The specific facts of these cases, the current bargaining pattern
in the industry, the history of bargaining in the area, and a close
examination of the composition of the work force in the industry
require a recognition of the existing differences in work tasks, and
interests between selling and nonselling employees in department
stores. Accordingly, we find that separate units for the selling em-
ployees and for the nonselling employees are appropriate herein and
shall direct elections in such separate units.
We further hold, as we have in numerous cases, that the work
performed by the restaurant and kitchen employees is "singularly
different from the usual retail store or industrial plant work," and
employees engaged in such work "have among themselves a mutuality
of employment interests not shared by the remaining employees." 37
We therefore find a unit of restaurant employees appropriate.
Similarly, as office clerical employees in department stores may
constitute a separate unit because they "have interests which are
distinct from those of other employees," 38 the office clericals may be
excluded from the other store units.
The dissenting member is largely influenced in his position by the
fact that one union has petitioned for three units. But his position
is neither supported by precedent or founded in reason39 Had the
Petitioner been a craft union seeking to represent separately several
crafts, departmental or other identifiable groups, the majority would
have directed separate elections in such several units4° We would
not depart from precedent permitting a single union to compete for
representation rights in several units if the units requested are other-
wise appropriate. We' think they are in these cases.
a7 Allied Stores of Ohio, d/b/a A. Polsky Company, 90 NLRB 1868, 1871. Accord:
Thalhimer Brothers, Incorporated, 93 NLRB 726, 727-728; John W. Thomas & Co., 104
NLRB 868, 872; F. W. Woolworth Company, 144 NLRB 307; Piggly Wiggly California
Company, 144 NLRB 708.
98Montgomery Ward & Company , Inc., 100 NLRB 1351, 1352. Accord: Maas Brothers,
Inc., 88 NLRB 129; Meier & Frank Company , 86 NLRB 517.
9D Only this circumstance has prompted the dissenting member to disregard well-settled
precedent respecting the appropriateness of a restaurant unit here and in Arnold Constable
Corporation, 150 NLRB 788 and the appropriateness of an office unit in Arnold
Constable.
*a International Paper Company, Southern Kraft Daviseon , 94 NLRB 483, 494-498; 94
NLRB 500 ; Magma Copper Company, 124 NLRB 41, 43-44.
STERN'S, PARAMUS 807
Finally, the dissenting view, that the Petitioner's motive in seek-
ing separate units was guided by the extent to which the union had
organized, is immaterial so long as the Board, in its choice of appro-
priate unit, does not give controlling weight to that fact. - Section
9 (c) (5) says that extent of organization shall not be the controlling
factor. We have emphasized many valid factors of representation
case law in reaching our unit determination. The statute does not
preclude Board reliance on such factors warranting the establish-
ment of separate units, even assuming that another factor, extent
of organization, may have motivated the union.
Accordingly, we find that the following units, excluding from
each all office clerical employees,41 demonstrators, 42 beauty salon
employees,43 casual or per diem employees, on-call or seasonal em-
ployees,44 confidential employees'41 professional employees,46 employ-
ees covered by existing collective-bargaining agreements,47 guards,48
44 The Petitioner would exclude as office employees merchandise clericals who perform
adjustment duties in four sales departments . The Employer would include all office em-
ployees , but takes no position respecting the unit placement of the merchandise clericals.
The merchandise clericals adjust customer complaints from one-third to one-half of their
time and perform recordkeeping and other clerical duties . As their adjustment duties are
substantial , are like the duties performed by merchandise clericals working in the adjust-
ment office and are performed under the supervision of the office manager, we shall exclude
them together with other office clericals.
4' The parties have agreed to the exclusion of demonstrators who receive more than
50 percent of their salary from employers other than the subject Employer.
43 The parties agreed to exclude these employees.
44 The parties have agreed to exclude casual or per diem employees and on-call or
seasonal employees.
45 The parties have agreed to exclude clerk-typist Di. Pullman as a confidential
employee.
4e The Petitioner would exclude two employees in the cymballet department as profes-
sionals. The Employer would include them. The two employees teach dancing and
poise to children . There is no evidence that these employees meet the "professional em-
ployee" definition in Section 2(12) of the Act. We find, however, that they have work
interests separate and apart from those of the regular store employees . We therefore
exclude them. Grinnell Brothers , 88 NLRB 397, 400.
47 The Petitioner seeks to exclude employees covered by existing collective -bargaining
agreements . This exclusionary clause is in the contract between the parties covering the
Employer's New York City store.
48 The Petitioner would exclude fitting room checkers as guards . The Employer would
include them and argues that they are included under the terms of the contract between
the Employer and the Petitioner covering the Employer's New York City store. That
contract does not specifically mention fitting room checkers but does expressly exclude
protection department employees . We note that the parties in Arnold Constable Corpo-
ration, supra, have stipulated to the exclusion of such checkers as guards.
The fitting room checkers are under the overall supervision and budget of the protection
department and are assigned to ladies ' ready-to-wear departments Their prime duty is
to secure the Employer ' s merchandise from theft. A checker assigns a fitting room to the
customer and gives her a tag or disk denoting the number of garments the customer is
taking into the room. When the customer leaves the fitting room, the checker checks
her out, insuring that the same number of garments taken into the room are returned and
that the room is cleared for further customer use. Should a customer check out with
less merchandise than she had when she entered the fitting room, the checker would
notify the protection department. As the checkers "enforce against . . . persons rules
to protect property of the employer . . . ." we find that they are guards within the
meaning of Section 9 (b) (3) of the Act and exclude them.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervisors 49 as defined in the Act, are appropriate for the pur-
poses of collective bargaining within the meaning of Section 9(b)
of the Act.
(1) All selling employees, including the flying squad 50
(2) All nonselling employees, excluding cymballet department
employees.
(3) All restaurant employees, including the hostess.
[Text of Direction of Elections omitted from publication.]
MEMBER JENKINS, dissenting :
The Petitioner has been actively engaged in organizing practically
all the Paramus store's unrepresented employees, but instead of
seeking an election in a single unit of these employees, it has pro-
posed dividing them into three separate bargaining units. The ma-
jority adopts such proposal and establishes three separate units.
I do not believe that the lines of demarcation among these three
groups, whether based on physical or administrative separateness,
skills, duties, working conditions, or interests, are sufficiently distinct
to justify establishing them as separate bargaining units.
The Petitioner has been unsuccessful in organizing a storewide unit.
In 1960, the present parties consented to a representation election
in a unit that included all store employees 61 The Petitioner lost
the election. In June 1962, the Petitioner wrote two letters to the
Employer requesting a bargaining date and stating in one that it
represented all regular and regular part-time employees; and in the
49 The parties have agreed to exclude the approximately 45 department managers as
supervisors . The Petitioner would also exclude 14 assistant department managers, the
restaurant hostess, and the fitter -foremen as supervisors . The Employer would include
them. There is no evidence that the assistant managers perform other than routine
duties. Although employees may look to them to head the department in the absence of
the manager , there is no showing that they exercise the manager 's supervisory duties. We
find that the assistant managers are not supervisors within the meaning of the Act. We
therefore include them.
The restaurant hostess, who works under the supervision of the restaurant manager,
had been employed for a little more than a month at the time of the hearing . The record
evidence is insufficient for us to determine her status. We shall therefore permit her
to vote subject to challenge
The fitter -foreman's duties include assignment of work but he performs his duties under
the instruction and direction of the alterations room supervisor . We find that the fitter-
foreman is not a supervisor under the Act and include him in the nonselling unit.
5° The Petitioner would include the flying squad of 16 employees . See footnotes 3 and
12, supra. - As the Employer contends for an overall unit, it takes no position on the unit
placement of these employees . The flying squad members perform a variety of nonselling
as well as selling duties , but almost 80 percent of their time is spent selling. We there-
fore include them in the sales unit.
51 Case No. 22-RC-747.
STERN'S, PARAMUS 809
second, that it represented all employees working less than 20 hours
a week. Thereafter, the Petitioner filed two petitions : one for full-
time employees and another for regular part-time employees.52 Later
it' withdrew those petitions and filed the instant petitions.
All employees involved work in the one store which has 130 de-
partments on 3 floors, a basement, and a lower level. , Selling depart-
ments are scattered throughout the store area. Nonselling depart-
ments are also unconfined to a given store location. Operations
relating to stock receiving and handling are generally located on the
lower level, but the ready-to-wear receiving and marking room is
on the second floor. The alterations department employees are on
the second floor, whereas the fur storage, the display department,
the sign shop, the furniture work area, and the switchboard oper-
ators are on the third floor. Executive offices and the protection
office are on the second floor, but other offices-employment and per-
sonnel, credit and adjustment-are on the third floor. Kitchen,
cafeteria, and restaurant are on the third floor, but a frankfurter
stand or snack bar is on the lower level. Selling and nonselling de-
partments may be adjacent to one another, as in the case of the
reserve stock areas which are located near the selling departments.
Few of the employees have craft or craftlike skills. Applicants
for selling jobs are usually unskilled and receive only a day or a
day and a half of training before they are assigned to selling duties
in the selling departments. Most sales personnel are in labor grades
II7 III, and IV, for which the minimum hourly wages are $1.35,
$1.45, and $1.60, respectively. Nonselling and restaurant employees
undergo no formal training at all. Most of them are in the same
labor grades as the selling employees.
The nonselling unit includes a heterogeneous group of employees
whose single common characteristic is the negative one of not en-
gaging in selling. The employees in the nonselling unit work in
different departments, under different supervision, and perform a
variety of different tasks. For example, this unit would include
checkers, receivers, stockmen, alteration department employees, cash-
iers, gift wrappers, display employees, sign writers, and clerical
employees assigned to -different departments.
There is a considerable overlap in duties and supervision among
employees in the selling and nonselling units. Thus, cashiers and
wrappers are in the nonselling unit, but sales personnel in the vari-
6' Cases Nos. 22-RC-2002 and 22-RC-2022.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ous departments also make change and wrap merchandise. The
cashiers and wrappers, like the salespeople, write sales checks. Mer-
chandise clericals who are assigned to selling departments and are
supervised by the managers of those departments are excluded from
the selling unit 63 These clericals process sales checks after they are
written, handle customer complaints, service customer exchanges, and
perform other departmental duties. Markers, who are in the non-
selling unit, may mark merchandise on the selling floor three or four
times a day working directly with a salesperson or the department
manager. Stock employees assigned to certain departments, also
included in the nonselling unit, may spend more than 50 percent of
their time on the selling floor subject to the supervision of the sales
department manager . The "will call" clerical who works in the
men's clothing department, included in the nonselling unit, is super-
vised by the manager of that department as well as by the receiving
and marking manager . Sales employees, as well as stock employees,
unload merchandise brought from the receiving room and store it
in reserve stock areas or at counters in selling departments. The
flying squad employees, who do not have a definite assignment and
perform a variety of duties throughout the store, are included in
the selling unit .54 All employees, including most of the restaurant
employees, participate in taking the twice-yearly store inventory.
Although it is characteristic of the selling employees to, deal
directly with the public, other employees who are excluded from
the selling unit have as many customer contacts as sales personnel.
Included among these are wrappers, cashiers, clerical employees in
the fur storage department, restaurant waitresses , fitters, employees
in the credit and adjustment offices, and merchandise clericals in the
selling departments.
Conditions of work and employee benefits are identical for all
store employees-selling, nonselling , and restaurant. • All employees
use the same employee entrance, lounge, lockers, lavatories, cafeteria,
and medical office. All participate in store social functions and
enjoy the same benefits, including holidays, vacations, store dis-
counts, hospital, surgical, and life insurance, severance pay, jury
duty pay, and leave.
"Merchandise clericals work in the housewares , major appliances , china, glass , silver,
and curtain and drapery departments.
ss For example , flying squad employees have worked as restaurant cashier and hostess,
as markers or stock employees , as an employee in the fashion coordinator's office, as
merchandise clericals in the adjustment office, and as clerical employees in the fur storage
department and in selling departments.
STERN'S, PARAMUS 811
The integration of operations, overlapping of duties and supervi-
sion, lack of distinctive job skills for most store employees, and the
uniformity of employee working conditions and benefits revealed
in this record demonstrate why the Board has long regarded a unit
of selling and nonselling employees as basically appropriate for
department stores 55 I do not assert that separate units of selling
and nonselling employees can never be appropriate. The Board has
found a sales unit in a department store appropriate where the
parties had agreed to such a unit,b6 and where there had been a his-
tory of bargaining for sales personnel in a separate unit.67 There
may be other situations where separate units of sales or other em-
ployees will be found appropriate. But on the record in this case,
applying the usual standards for unit determination, an exception
to the general rule that in department stores the appropriate unit
should be storewide in scope, is not warranted. 58 Although I reach
this conclusion independently of the following, I am confirmed in
this conclusion by evidence that Petitioner conducted a single or-
ganizational campaign among selling, nonselling, and restaurant
employees, and now seeks to represent all these employees, but is
resorting to the device of dividing the store employees into three
separate units primarily to insure winning an election at least
among some segment of the employees.
There is a separate question involving the proposed unit of res-
taurant employees. The Board has recently held that restaurant
employees in a retail variety store, analogous to a department store,
may constitute a separate appropriate unit where no labor organi-
zation is seeking to represent such employees in a broader unit 5s
In the present case, Petitioner is seeking to represent the restaurant
employees in an ostensibly separate unit. However, as I have
pointed out above, the Petitioner has in fact been organizing em-
ployees on a broader basis and is seeking to represent more than the
restaurant employees. The separate unit for restaurant employees
is nothing more than an election device. Under these circumstances,
I would find that the proposed separate unit of restaurant employees
is not appropriate.
65J. W. Maya, Inc, 147 NLRB 968; Polk Brothers, Inc., 128 NLRB 330; Bullock's
Incorporated, d/b/a I. Magnin & Company, etc ., 119 NLRB 642, 643; May Department
Stores Company, Kaufmann Division, 97 NLRB 1007, 1008.
ce A. Victor & Co , 116 NLRB 319.
57 The Root Dry Goods Co., Inc., 126 NLRB 953.
sa Cf. Maas Brothers , Inc., 116 NLRB 1886.
10 F. W. Woolworth Company, 144 NLRB 307 (Members Leedom and Rodgers dissenting).
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would find, on the record as a whole, that the petitions seek
units inappropriate for the purposes of collective bargaining. I would
therefore dismiss them 60
00 In granting the Petitioner' s unit requests , the majority Members make a number of
statements which I do not regard as valid. They have pointed out that the Board in the
past has found a variety of small units in department stores appropriate . But these
units have been craft , craftlike , or otherwise traditional bargaining units . They state
that in the department store field organization has proceeded on a step -by-step basis.
This is nothing more than an assertion that extent of organization has governed repre-
sentation in this field . But Section 9(c)(5) of the Act precludes the Board from giving
controlling weight to this factor. The Board has also, as I have indicated, found
appropriate a unit of selling employees where the parties agreed to, or there was a history
of bargaining for employees in, such unit . But the Board almost pro forma approves
units to which parties have agreed , or for which there is a bargaining history, even though
it would not in a contested case find such unit appropriate , unless the unit is repugnant
to Board policy or does not give the employees the fullest freedom in exercising the rights
guaranteed in the Act . West Virginia Pulp and Paper Co., 120 NLRB 1281, 1284; Stand-
ard Oil Company of California, 116 NLRB 1762, 1765. In an effort to buttress the lack
of real distinctions between the selling and nonselling personnel , the Board has focused
on the fact that most department store salespersons are women and that the nonselling
groups are primarily men, adding that most of the men work full time whereas some of
the women work part time. To separate employees into difffferent units on the basis of
sex is not only unprecedented but is counter to recent efforts of Congress to equalize the
treatment of employees without regard to sex. Moreover , it is of no relevance that some
regularly employed part-time workers may be housewives or young people whose tenure
in the labor market or in the specific job held is thought to be less permanent . Finally, the
majority Members quote employer testimony in other circumstances that sales forces in
department stores have been traditionally resistant to unionization and they therefore
conclude that fragmentizing of department store employees in small units should be
sanctioned . But the largest and most active union in the retail field , Retail Clerks In-
ternational Association , AFL-CIO, in an amicus brief urging the Board to maintain its
existing rule that a storewide unit is the basically appropriate unit in department stores,
challenges the argument that the "failures or lack of success in organizing some stores
is . . . attributable to the Board ' s unit policies ." (Br. p. 3.) The Retail Clerks asserts
categorically on the basis of its experience that "successful and effective bargaining in
the retail field is found on a storewide basis." (Br. p. 7.) It also says that where, be-
cause of special circumstances , it has been recognized for a unit less than storewide in
scope, the collective-bargaining experience has been most unsatisfactory and has deterred
storewide organization . ( Br. p. 8. ) The Retail Clerks agrees with my conclusion that
the present day retail operation is a highly integrated enterprise and all department store
employees share a single community of interest whether classified as sales or sales sup-
porting . ( Br. pp. 11-16.)
Lord & Taylor, a Division of Associated Dry Goods Corpora-
tion and District 65, Retail, Wholesale & Department Store
Union, AFL-CIO,' Petitioner. Case No. 2-RC-12751. Janu-
ary 6, 1965
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
1 The names of the parties appear as amended at the hearing.
150 NLRB No. 81.