The Wickes Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1973

201 N.L.R.B. 606 (N.L.R.B. 1973)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wickes Furniture , a Division of The Wickes Corpora-
tion and Retail Store Employees Union Local 444,
chartered by Retail Clerks International Associa-
tion, AFL-CIO, Petitioner. Case 30-RC-1669
February 5, 1973
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Ted G.
Carpenter of the National Labor Relations Board.
Following the close of the hearing the Regional
Director for Region 30 transferred this case to the
Board for decision. The Petitioner filed a brief.
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, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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 Petitioner seeks a unit of selling employees
at the Employer's West Allis, Wisconsin, retail
furniture store.' The Employer contends that the unit
sought by the Petitioner is inappropriate and that the
only appropriate unit is a storewide unit which
includes all selling and nonselling employees.
The Employer's store is housed in a single one-
story building, of which the front two-thirds is a
warehouse and the rear one-third is a showroom,
separated from the warehouse by a firewall. Custom-
ers proceed some 200 feet through the warehouse,
past packaged furniture, to the showroom, where the
furniture is displayed and sold. On the left side of the
showroom are a counter and offices for the office
clerical staff to complete the sales, the information
area, the manager's office, and the EDP, or electron-
ic data processing, room. On the right is another
counter for the use of the accessories department in
wrapping orders. Customers make their purchases
and credit arrangements in the showroom and
adjacent front office and, if they wish to take the
purchase with them, proceed back through the
warehouse area to the warehouse office near the
front of the building to obtain the item. The
' Alternatively, the Petitioner seeks a unit of salesmen, shipping and
receiving clerks, skilled servicemen , and warehousemen at the store . In view
warehouse operations include the warehouse office,
shipping and receiving, a repair shop, and a
customers' lounge. The showroom, unlike the ware-
house, is carpeted and air conditioned.
Of the approximately 106 employees in the West
Allis store, there are 32 salesmen who show,
represent, and sell the furniture items set up for
display by the display staff in the showroom, write
sales orders, escort customers to the sales counter,
and introduce them to the front office credit
employees or the cashier for completion of the sales.
The salesmen wear distinctive blazers, spend virtual-
ly their entire time in the showroom area, and do no
loading or storage work or perform clerical duties.
They are the only commissioned employees at the
store, attend weekly sales meetings, and are required
to conform to certain employee rules applicable only
to salesmen.
On the other hand, the salesmen , in the course of
their selling operations, contact such office clericals
as the merchandise control employees to ascertain
the availability of items about to be purchased, credit
employees to arrange for credit terms, or the cashier
for cash sales , as the case may be. They also are in
regular contact with the display personnel in the
showroom. They participate with other employees in
occasional warehouse sales and in taking inventory,
work the same hours, have the same benefits, punch
the same timeclock, use the same employees' lounge,
and are under the supervision of the sales supervisor,
who also supervises the three full-time and three
part-time display staff employees in the showroom.
There is no collective-bargaining history concerning
the employees at the facility.
In view of the integration of operations and
overlapping of functions among selling and nonsell-
ing employees in this operation, we believe that the
community of interest of the selling and nonselling
employees outweighs any separate interest that each
might have. In The Grand, a Division of Beco Stores of
Delaware, Inc., a Subsidiary of Beco Industries, Inc.,
197 NLRB No. 156, the Board found a unit limited
to nonselling employees to be inappropriate where
the facts did not justify a conclusion that the
nonselling employees had a sufficiently distinct
community of interest apart from other (selling)
employees to warrant a separate unit . And in Levitz
Furniture Company of Santa Clara, Inc., 192 NLRB
No. 13, under facts very similar to those here, the
Board found requested units smaller in scope than
the storewide unit to be inappropriate in view of the
community of interest shared by all the store
employees. In the present case , all employees work
inside a single one-story building. All employees
of our disposition of this case finding only a storewide unit appropriate, we
reject the Petitioner's alternative unit request.
201 NLRB No. 60
WICKES FURNITURE
work the same hours, punch the same timeclock, use
the same lounge, and have the same benefits. As
indicated, the sales employees regularly contact
certain other employees in, or adjacent to, the
showroom, including front office clerical employees,
merchandise control employees, and other display
employees. The record establishes that the selling
and nonselling employees coordinate their efforts in
connection with the monthly warehouse sales and
taking inventory. Several of the excluded employees
have the same immediate supervision as the selling
employees. In our view, the circumstances in this
case do not warrant finding a separate unit for the
selling employees.
Accordingly, and as no labor organization seeks to
represent the Employer's employees in a storewide
unit, we shall dismiss the instant petition.
ORDER
It is hereby ordered that the instant petition be,
and the same hereby is, dismissed.
MEMBERS FANNING and JENKINS, dissenting:
We respectfully disagree with the result reached by
our colleagues. In our opinion, the Beco and Levitz
decisions relied on by our colleagues are clearly
distinguishable. In Beco, the Board held that a unit of
nonselling employees in a retail store operation is
inappropriate where its sole claim to a community of
interest rested on the negative characteristic that it
engaged in no selling activity. The Beco facts are thus
far wide of those in the instant case, in view of the
many positive characteristics listed by our colleagues
in their majority opinion. These facts, in our opinion,
illustrate a positive and close community of interests
among the salesmen sufficient to justify their
establishment as a separate appropriate unit. Levitz,
although the store was arranged in somewhat the
same manner as the instant store, is in other respects
2 See Disco Fair Stores, Inc., 189 NLRB No . 61; Sears, Roebuck and Co.,
174 NLRB 941, and 172 NLRB 1266; Allied Stores ofNew York, Inc. d/b/a
Stern 's Paramus, 150 NLRB 799, 803. Member Jenkins adheres to his
607
readily distinguishable. There separate segmented
warehouse and truckdriver units were sought, and
the basic conduct of the Levitz operation, in contrast
to the instant operation, involved a high degree of
cross-supervision, employee interchange, and multi-
ple job functions involving salesmen and warehouse
employees alike, both inside and outside the store.
Although the Board has regarded the storewide
unit in retail establishments as "basically appropri-
ate" or "the optimum unit," it has held that a single
comprehensive unit is not the only appropriate unit in
such establishments and has made it clear that, under
the Act, a unit of less than all of the employees in a
mercantile operation may be appropriate where the
employees sought to be separately represented are
under separate immediate supervision, perform
different functions, utilize different skills, work in a
separate area, and have limited interchange and
minimal contacts with other employees.2 In our view,
the salesmen herein sought, who are under the
separate immediate supervision of the sales supervi-
sor, spend the large majority of their time on the
selling floor initiating virtually all of the selling
activity for the entire store, alone receive commis-
sions for their selling activity, and have minimal
contacts with warehouse employees, fulfill these
requirements to a degree sufficient to justify a
finding that they constitute an appropriate unit for
purposes of collective bargaining. This is not a select-
your-merchandise-and-take-it-to-the-cashier enter-
prise. Here the selling function counts. The salesmen
who make that approach possible for the Employer
deserve representation as a group now if they desire
it, without waiting for organization on a storewide
basis.
In these circumstances, we would find appropriate,
and direct an election in, the requested unit of the
Employer's salesmen.
dissents in those cases, but regards them as clearly distinguishable from the
present case.