A. Harris & Co.

National Labor Relations Board - Board Decisions

Nov 21, 1956

116 N.L.R.B. 1628 (N.L.R.B. 1956)

_,4628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Paperworkers has failed and refused to represent a substantial
,Number of the employees included-in the bargaining unit, for which it
'was certified. Ithas therefore failed to discharge its obligation under
the certificate and, in my opinion, has thereby forfeited its right to act
as the statutory representative of the Employer's employees under
the authority of the certificate. Accordingly, I would issue a notice
to the Paperworkers to show cause, if any it has, why its certificate
mould not be revoked.
Ibelieve that the employees listed above, including the photographic
employees, who were excluded from the contract unit, are properly
a part of the appropriate plantwide unit for which the Paperworkers
was certified, and that, therefore their exclusion was contrary to the
-Board's unit finding and the certification. I would therefore not treat
the photographic employees or any of the other excluded employees as
a historically unrepresented group entitled to a separate election under
the Zia doctrine. Instead I would find that all lithographic produc-
tion employees, of the Employer, including the offset pressmen and
the photographic employees, constitute the appropriate unit and
would,direct an election in that unit without according the Paperwork-
,ers a place on the ballot.
A. Harris & Co. and Dallas General Drivers, Warehousemen and
Helpers, Local Union No. 745, AFL-CIO,1.Petitioner. Cases Nos.
16' RC1752 and 16-RC-17,97 (not consolidated). November 21,
'1956'
DECISION AND DIRECTION OF ELECTION
On August 18, 1955, the above-named Union duly filed a petition
under Section 9 (c) of the Act for a unit of certain drivers, helpers,
and delivery employees of the Employer employed at one of..its ware-
houses. This petition was docketed on the files of the Board as Case
No. 16-RC-1737. On August 31, 1955, the Union and the Employer
entered into stipulation for certification upon the conduct of a consent
election in a unit substantially the same as that described in the above
petition. The election thus provided for in the agreement was con-
ducted on September 9, 1955, and was won by the Union. The latter
was duly certified by' the Board as the collective-bargaining agent in
the stipulated appropriate unit.
On September. 12, 1955, the Union filed the petition bearing Case
No. 16-11G-1752 on the Board's records, in which it sought the estab-
lishment of a unit of certain warehouse employees excluding those ' in
the certified unit. 'After this petition was filed, the Employer moved
i The AFL and CIO having merged since the hearing , we are amending the affiliation
of the Petitioner accordingly.
116 NLRB No. 236.
A. HARRIS , & CO. 1629,
to vacate tine certification issued to the Union in Case No. 16-RC-1737,
and requested that the Board consolidate that petition with the latter
one for purposes of hearing and disposition of the respective unit re-
quests of the Union in each case. In making this request the Employ-'
er.made no claim that any changes had occurred in its operations since'
the stipulation was executed. It claimed only that the unit it agreed
to was`-supported solely by "extent of organization" and was for that
reason, "arbitrary." We find no merit in this claim.3 Accordingly;
and because all terms of the consent-election agreement have been ful-
filled, we hereby deny the Employer's motion to revoke the certifica-
tion in Case No. 16-RC-1737, and to consolidate that petition with the
one in Case No. 16-RC-1752 for purposes of hearing and further
decision.'
A hearing on the petition in Case No. 16-RC-1752, was held before
William R. Renkel, Jr., hearing officer. The rulings of the hearing
officer made, ,at such hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in Case No. 16-RC-1752 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 certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The petition, as amended at the hearing, proposes the establish-
ment of a unit confined to the Employer's warehouse division em-
ployees. While the unit definition is framed in terms of the job
classifications held by the employees in such division,4 the only em-
2 Precedents in effect as of the date* of the consent-election agreement include ' several
in which the Board , in contested proceedings , established a unit confined to truckdrivers
and helpers of a department store , but excluding other warehousing workers See, e g.,
Krauss Co , Ltd., 98 NLRB No 77 ( not reported in the printed volumes of Board Deci-
sions and Orders ) ; May Department Stores , Inc., 85 NLRB 550 . They include many in
other industries , in which the Board has both established separate units of similar em-
ployees, and, at the request of affiliates of the Petitioner ' s parent body , has approved the
severance of such employees as a craft -like group See, e g, Q F. Wholesalers, Inc,
85 NLRB 582 ; Tennessee Egg Co ; 110 NLRB 180 ; Dallas Transfer & Terminal Co., Inc,
114 NLRB 18 , and cases there cited
3 Compare Baker and Taylor Co , 109 NLRB 245, 246, and Gi ewers We, ehoirse Com-
pany, Inc, 114 NLRB 1568 These cases explicate more fully the very special circum-
stances under which the Board will review and set aside the consent -election agreements
of parties , and the policy reasons for the narrow grounds of review in such cases
4 As defined by the Petitioner , the unit would encompass all employees classified as
stockmen, warehousemen , checkers, markers, wrappers , packers, porters, maids, labelers,
and monogrammers , other than those who are currently represented by the Petitioner.
It would exclude the following workers employed in the warehouse locations (in addition
to the workers employed in the ietail stores of the Employer and those employees it
currently represents ) . employees in the. upholstery department , appliance service de-
partment , fur storage department, unit control department , mail order department, tele-
phone order department, :und in the auditing department and all of any other employees
not under the warehouse division superintendent
1630 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
ployees therein employed whom the Petitioner would exclude are a
few warehousemen or stockmen who are presently included in the
certified unit of drivers and drivers-helpers because they act as relief
drivers.
The Employer opposes the request. It contends primarily that its
operations are so integrated as to preclude establishment of any unit
other than one extending, in scope, to all the employees in its Dallas
operations. It further argues that, in any event, the requested unit is
framed on arbitrary lines predicated solely on the extent of organiza-
tion. It points, in the latter connection, to the fact that, in terms
of physical location, the lines of the unit would not include all em-
ployees located in the warehouses, and in terms of classification, it
would not include employees at the retail stores having job classifica-
tions similar to those the Petitioner here seeks to represent.
The Employer is engaged in retail department store operations in
the city of Dallas, Texas. It conducts its business in several separate
buildings, including a main retail store, a branch retail store, and
three warehouses identified, respectively, as the Federal Street ware-
house, the Griffin Street warehouse, and the Camp Street warehouse.
It employs a total of approximately 1,200 people in conjunction with
such operations, about 900 of whom are employed at the main retail
store , 170 at a branch retail store, and about 150 at the 3 warehouses
servicing the main and branch retail stores. It recruits all employees
through one central recruiting office, establishes wage rates, job classi-
fications, and fringe-benefit policies on an employerwide basis, and
services all personnel grievances and transfer matters through one
central personnel office. However, for purposes of its ordinary day-
to-day operations, the Employer is internally organized into 3 or 4
major semiautonomous administrative divisions framed, broadly, on
functional lines. These are the warehouse division, headed by the
warehouse superintendent (one Blackburn by name), the merchan-
dising division, headed by the merchandising manager, the comp-
troller's division, headed by the comptroller, and the city delivery
department or division, headed by the city delivery manager (one
Hendricks by name). Within each of these divisions are a number of
departments each headed by subordinate supervisors responsible to
their respective division heads. So far as supervision is concerned,
the lines of authority extending between the division heads and the
various employees allocated to each division are clear and well-defined
and do not overlap.
In terms of physical location, most of the merchandising division
and comptroller division employees are housed in the retail store. A
few, however, are temporarily housed in the Federal Street warehouse
as a result of crowded conditions at the retail store,' and the few mer-
6 The merchandising division employees presently working at the Federal Street ware-
house are employed in the mail order , telephone order, unit-control , auditing, and fur
A.-HARRIS & CO. 1631
ciiandising division employees engaged in customer service and repair
functions are housed in the Griffin Street warehouses All of the em-
ployees comprising the 'city delivery division work out of the Camp
Street warehouse. The employees comprising the warehouse division
are housed in, or work out of, all three warehouses.
Employees in the warehouse division do not regularly interchange
with, or work together with, employees in the merchandising division
or, in the comptroller division in the performance of their duties. Over
a yearly period of time, there are a few occasions, such as inventory-
taking or "special sales" occasions, when a few warehouse division
markers and stockmen are assigned, on a temporary day-to-day basis,
to assist retail store employees with the marking and sorting of
merchandise On such occasions employees report to the warehouse
division supervisor initially, and return to the warehouse at the end of
the day to check out. There is no evidence that employees normally
working at the retail store have been similarly assigned-even on the
same incidental basis-to work with warehouse division employees at
the warehouse. A few selling employees, however, sometimes visit the
warehouses to inquire about availability of merchandise or to assemble
ordered merchandise under special circumstances.' Furthermore,
although there is some duplication of job classifications in jobs held by
employees in the warehouse division, e. g., wrapping, checking, and
marking classifications, and those held by nonselling employees em-
ployed at the store in the merchandising division, it is to be noted that
the store employees are separately supervised from the warehouse
employees and that there is no interlacing of supervision along ad-
ministrative or functional lines.
There is no conclusive history of collective bargaining involving the
Employer. The Petitioner currently represents certain of the em-
ployees in city delivery and the warehouse division (under the certifica-
tion the Employer has moved to revoke) and its seeks, through its pres-
ent petition, to represent all unrepresented employees coming under
the supervision of the warehouse superintendent. No other labor
organization seeks to represent employees of the Employer.
Recognizing that a community of interests exists among all the em-
ployees in department stores, the Board frequently has approved
storage departments . , All of these , with the possible exception of the fur storage depart-
ment, were recently oved to the Federal Street warehouse from the retail store. It is
not clear from the record whether the "return goods " department, also located in the
Federal Street warehouse , is a part of the merchandising , rather than the warehouse,
division. 4&
9 The appliance service repair and upholstery departments of the merchandising divi-
sion are located in the Griffin Street warehouse.
7 The record also shows that all employees are free to transfer from one department or
division to another to any jobs for which they are qualified , and that, in the past 3
years , approximately 50 such transfers have occurred However , all transfers clear through
the personnel office in the same manner as initial applications , and are effected as perma-
nent transfers
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
storewide units in this industry.8 However, where the employer's
warehousing operation is '(1) geographically Iseparated from its retail
store operations; (2) there is separate supervisionof the employees
engaged in warehousing functions; and (3) there is no substantial
integration 'among the warehousing employees and 'those engaged in
other store functions, the Board also has found the more limited ware-
Housing units`,to be appropriate. e " ' " `' '
We' turn now to the instant petition: 'We are satisfied, upon 'the
facts set forth above, that the Petitioner's unit request meets the re-
quirement we have'heretofore established as the condition underwhich
"warehouse" petitions will be granted. Thus, the Petitioner seeks
to represent the employees forming a distinct and identifiable ad-
ministrative segment of the Employer's operations devoted essentially
to warehousing functions, 10 in circumstances disclosing that such-
employees: (a) are under supervision separate from other store em-
ployees; (b) perform substantially all of their work tasks in buildings
geographically separated from those in which the bulk of the remaining
employees of the Employer work; and (c) are not integrated, to any
substantial degree, with employees in other divisions in the per-
formance of their ordinary duties.
In making such findings, we have rejected so much of the Em-
ployer's argument in opposition to the petition as is based upon assign-
ments of warehouse department markers to the retail store, and the
transfers of employees from warehouse to store jobs. The record facts,
detailed above, establish the sporadic and incidental nature of the ware-
house employees' assignments to the store in relation to their princi-
pal and regular duties, the permanent nature of the job transfers to
which the Employer refers us,11 and the small proportion of the total
warehouse division complement affected in -either case." Because of
8 See, for example , Sears Roebuck f Co, 76 NLRB 167 ; Namm's, Inc, 81 NLRB 1019;
P. B Magrane Store, Iiae , 84 NLRB 345 , Spiegel Fashion Shops , 85 NLRB 347, John W
Thomas ,& Co., 104 NLRB 868, Sears Roebuck it Company , 106 NLRB 242
9 Morris Kirschman it Co. Inc . 111 NLRB 776 ; and Montgomery Ward it Co , Incor-
porated , 89 NLRB 528, 89 NLRB 1370 Cf . Montgomery Ward & Co ., 113 NLRB 798,
Sears , Roebuck it Company , 106 NLRB 242 , 101 NLRB 665 , and Marshall Field it Com-
pany, 90 NLRB 1
10 As indicated above , the proposed unit definition contained in the instant petition, as
amended , excludes a few warehousemen or stockmen falling under the supervision of the
warehouse superintendent This exclusion does not stem from any unwillingness of the
Petitioner to represent such employees It stems solely from the fact that such em-
ployees are included within the driver -unit established by the consent -election agreement,
and are thus already represented by the Petitioner as part of such unit
11 The Board has not ordinarily regarded permanent interdepartmental transfers of em-
ployees from one job to another as constituting evidence destructive of the functional
identity of a departmental or divisional unit This is particularly so where transfers have
affected a very small proportion of the0employer 's total complement See, e. g , Silver-
wood 's, 92 NLRB 1114 , 1117 ; Cohn-Hall-Marx Company , 86 NLRB 101.
la Cf Sterchs Bros Stores , Inc, 100 NLRB 70; Sslverwood's, supra ; Morris Kirschman &
Co , Inc, All NLRB 776, Montgomery Ward it Co., 113 NLRB 798, 799 ; see also Krauss
Company Ltd, 98 NLRB No 77 ( not reported in printed volumes of Board Decisions and
Oiders).
Compare by analogy the fact that the coverage granted under the FLSA, as amended,
in 1949 , to "warehouse" employees of certain retail establishments , is not affected by
A. HARRIS .& CO. 1633
all the foregoing, we reject the Employer's contentions that (1) its
operations are so integrated as to preclude the establishment of any unit
of lesser than storewide scope and (2) that the requested warehouse
unit is based solely upon the extent of Petitioner's organization.13
As noted above, the Petitioner's proposed unit description excludes
employees located in the warehouse but employed in the upholstery,
appliance service, fur storage, unit control, mail order, the phone
order, and auditing departments. We shall, exclude these employees
from the unit herein found appropriate not only because they are
not under the supervision of the warehouse superintendent but also
for the further reason that in general they are not engaged in per-
forming typically warehouse functions.
There remains for consideration the resolution of a special unit
problem occasioned by the earlier consent-election agreement. Limi-
tation of the unit in the instant case to the unrepresented warehouse
division employees will result in a situation in which the city delivery
division wrappers and checkers, who work with the warehousing
employees, will be the sole employees who will be denied the right of
representation, notwithstanding the fact that they have a close com-
munity of interests with the latter. We believe this obvious inequity
can best be remedied, in these exceptional circumstances, by including
them within the unit hereafter found appropriate.
In light of the foregoing, and the'record as a whole, we find that
the following employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act: all employees at the Employer's Dallas, Texas,
warehouses (respectively located at Federal Street, Camp Street, and
Griffin Street), who are under the supervision of either the ware-
house superintendent 14 or of the city delivery division manager, in-
cluding stockmen, warehousemen, checkers, markers, wrappers, pack-
ers, porters, maids, labelers, and monogrammers, but excluding all
employees currently represented by the Petitioner, all employees in
the upholstery department, appliance service department, fur storage
department, unit control department, mail order department, tele-
phone order department, and the auditing department, and excluding,
also, guards and supervisors within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
the fact that such employees may be called upon on "sporadic" occasions to work in a
retail store establishment exempted from the provisions of the FLSA See 15 \HAI 375-
376
13 Montgomery Ward & Co , Inc , 89 NLRB 1370 , hfo, ris Hirschman & Co , Inc , 111
NLRB 776
14 It is not clear from the record whether the "return goods" department employees,
working at the Federal Street warehouse are under the supervision of the warehouse super-
intendent or whether , like other excluded groupings , in the various departments described
above, they are in a separate department falling within the merchandising division If
these " return goods" employees are under the warehouse superintendent 's supervision
they shall be deemed included . Otherwise they are excluded.
40544 8-57-v of 116-104