Arnold Constable Corp.

National Labor Relations Board - Board Decisions

Jan 6, 1965

150 N.L.R.B. 788 (N.L.R.B. 1965)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Luis Reservoir and the Oroville Dam. Even though the Employer
was drilling water wells for still another reservoir in the Feather
River project, no Federal funds were received for this other reser-
voir and consequently the Employer's work was not paid for by
Federal moneys either directly or through State or other channels.
In both Truman Schlup and Browne and Buford, supra, the Federal
Government's contribution was to projects which the Employers
worked on directly. Moreover, the Employer's uncontradicted testi-
mony is it has not engaged in any comparable work on such project
in 1964, and may never be involved in similar operations in the
future.
Upon consideration of these factors and the entire record, we con-
clude that it would not effectuate the purposes of the Act to assert
jurisdiction herein?
[The Board dismissed the petition.]
.'In view of our dismissal on jurisdictional grounds, we find it unnecessary to consider
or determine the appropriate unit or whether drillers are supervisors within the meaning
of the Act.
Arnold Constable Corporation and District 65, Retail, Whole-
sale Department Store Union , AFL-CIO, Petitioner. Cases
Nos. 2-RC-12745, 93-RC-12746, and P3-RC-1?747. 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 Robert E. Harding. The Hearing Officer's
rulings made at the hearing are free from prejudicial error and 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.
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.
4.- The appropriate unit.
The Employer is a Delaware corporation operating retail stores
in New York, New Jersey, and Pennsylvania. These cases concern
the' store located at 453 Fifth Avenue, New York City. Approxi-
mately 500 employees are involved in this proceeding.
150 NLRB No. 80.
ARNOLD CONSTABLE CORPORATION 789
The Employer's nonselling employees are largely organized. The
Petitioner, District 65, Retail, Wholesale Department Store Union,
AFL-CIO, seeks to represent almost all remaining unrepresented
employees in three separate units : selling employees, office employ-
ees, restaurant employees. It would exclude from all units only
employees covered by collective-bargaining., agreements, women's
alteration employees, display department employees, and mainte-
nance shop employees.
The Employer agrees that employees covered by collective-bar-
gaining agreements should be excluded. It argues that all the re-
maining store employees should be in a single unit.
There is no collective-bargaining history for the employees whom
Petitioner seeks to represent.' Five different unions now represent
some store employees. Department and Specialty Store Employees'
Union, Local 1499, Retail Clerks International Association, AFL-
CIO (hereinafter referred to as the Retail Clerks), represents about
80 nonselling employees working as "cashier-wrappers, carriers,
markers, parcel post clerks, runners, stock clerks, receiving clerks,
checkers, and packers. . . ." 2 Local 25, New York Joint Board,
Amalgamated Clothing Workers of America, AFL-CIO, represents
alteration employees in the men's alteration department. 'District
Council No. 9, Brotherhood of Painters, Decorators and Paperhang-
ers, AFL-CIO, represents a painter. Local 32B, Building Service
Union, AFL-CIO, represents elevator operators, porters, and ma-
trons employed by Allied Maintenance Company. The Petitioner
represents employees in a beauty shop leased by an, independent
contractor.
The Employer's store has 38 departments on 6 floors and a base-
ment. It sells principally men's and women's clothing and accesso-
ries , stationery, and gifts. In addition to selling areas on every
floor, the store includes stock receiving and handling areas , person-
nel, customer service, sales promotion, general accounting and credit
offices, and eating facilities for employees.
The Retail Clerks' contract, which covers the bulk of the. nonsell-
ing employees, includes most of the employees in the wrapping,
delivery, receiving, suburban stock and shipping departments, and
stockroom clerks and markers assigned to selling departments. The
groups that remain unrepresented are selling, office, and restaurant
employees. The largest group is the selling. -
The selling employees: The Petitioner has confined its selling unit
request to the approximately 250 salespeople who sell merchandise.
i In 1950 the Board directed an election among all employees and, in 1953, the Board
directed an election among cafeteria employees . However, the Board did not conduct
elections because the petitions were withdrawn.
2 The Employer recognized the Retail Clerks as the bargaining representative for this
nonselling unit more than 20 years ago.
790 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Their duties in connection with selling include arranging stock, han-
dling cash, and wrapping or bringing merchandise to wrappers.
Other employees whose work may bring them in contact with sales-
people, such as cashier-wrappers, stock clerks, or markers do not
sell. These nonselling employees, including the stock clerks or
markers assigned to selling departments, are represented by the
Retail Clerks.
The work of sales employees is concerned almost wholly with
selling.-3 To the extent that sales employees may arrange stock,
obtain stock from a stockroom, or show a marker the merchandise
to be marked, such tasks are but incidental to the selling job for
which they were hired. The collective-bargaining contract between
the Employer and the Retail Clerks excludes "employees who per-
form work similar to that performed by employees covered hereby
as an incidental part of their regular duties in other categories."
Thus the Employer and the Retail Clerks have established, through
more than 20 years of collective bargaining, a demarcation between
selling and nonselling employees. We would give effect to that
recognized difference between the two groups.
The Employer would obliterate the distinctions between selling
and. nonselling employees by arguing that selling is the incidental
part of a salesperson's work. In its brief it breaks down the sales-
person's work into the minutiae of detail that list such duties as
receiving customer credit authorizations by telephone, writing a
sales check, delivering merchandise for wrapping, and ringing a sale
on the cash register as major duties apart from selling. From this
the Employer argues that the nonselling "clericals," who may be
called upon at busy periods to assist salespersons, perform sales
work. We do not think that the occasional performance of such
incidental tasks by nonselling personnel can erase the distinctive
characteristics of the important job of selling for which the sales-
person is hired.4
The restaurant employees: The Petitioner seeks to represent 12
restaurant employees who perform duties in connection with an
employee cafeteria. These restaurant employees include, in addition
to the two cooks who prepare food, others who perform the work
of busboys, counter employees, dishwashers, kitchen helpers, and a
cashier.
-8 There is no breakdown in percentage of time spent by sales employees on duties other
than selling except that the Employer 's vice president and general manager testified
that sales employees in the ready -to-wear department spend 45 minutes to an hour arrang-
ing stock at the beginning of the workday.
* See our opinion in Allied Stores of New York , Inc., d/ b/a Stern's, Paramus, 150
NLRB 799, which emphasized the significant aspects of sales work . Cf Meier & Frank
Company, 86 NLRB 517, holding that the homogeneity of an office clerical unit was not
destroyed by frequent temporary interchanges between sales and office personnel.
ARNOLD CONSTABLE CORPORATION 791
The Board has said that the work of cafeteria employees, involv-
ing the preparation and service of food, is "singularly different"
from the work performed by the selling or office groups and justifies
establishing them as a separate unite The fact that the food prepa-
ration and service employees perform their work in a cafeteria that
serves employees only does not alter the nature of their work. • In-
deed, in the principal cases establishing the appropriateness of a
separate restaurant unit in retail department stores, such units in-
clude those employees working in the employee cafeteria as well as
in public food eating places." 11
The office employees: The Petitioner seeks to represent about 150
office employees in these departments: mail-order, bureau of. adjust-
ment, auditing, c.o.d., accounts payable, accounts receivable, credit
and collections, and statistical.7 It also seeks to represent in the
office unit employees who perform like work in some of the selling
and nonselling departments.8
The bulk of the Employer's business offices-mail-order, bureau of
adjustment, auditing, c.o.d., accounts payable, accounts receivable,
credit and collections, statistical, general cashier, and accounting-
are located on the sixth floor. The mail-order department also has
employees on the fifth floor. The general cashier's office has cashiers
on the first and basement floors in addition to the sixth. Telephone
operators are on the fifth floor. The payroll office is on the fourth
floor.
The central mail-order department has a mail-order section, which
handles orders by mail, and another section which includes an order
board to handle telephone orders and circulation employees-to han-
dle the general mail. The department includes a parcel post em-
ployee, wrappers, clericals who open, distribute, and address mail,
a shopper, an order switchboard clerk, and four other telephone
operators.
The bureau of adjustment handles customer complaints. One em-
ployee'interviews customers. Others answer telephones and fill out
forms.
s Allied Stores of Ohio, d% b/a A. Polsky Company, 90 NLRB 1868, 1869.
e Allied Stores of New York, Inc ., d/b/a Stern's, Paramus, supra ; Allied Stores of
Ohio, d/b/a A. Pol8ky Company, 90 NLRB 1868; Thalhimer Brothers, Incorporated,
93 NLRB 726.
7 The parties have agreed to exclude- the- accounting department personnel as con-
fidential employees.
They disagree as to inclusion of employees in the statistical , general cashier , and pay-
roll departments . The Employer would exclude the statistical department employees as
confidential and the Petitioner would exclude the other two departments.
8 Eighteen buyer's clericals , three credit clerks ( two assigned to the "flying squad" and
one to the receiving department ), five other employees in the receiving department, two
in the delivery department , one at the repair desk , one "will-call" employee in the men's
clothing department , one clerical employee in the women's alteration department, one
in the men 's alteration department , two in the hold -room, one in the display department,
and three advertising department employees.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The auditing department audits sales , returns, and similar items
of the daily operation. The employees compute and verify- selling
departments' daily sales totals and sort sales checks.
The c.o.d. receivables, a part of the auditing department, keeps a
record of purchases and customers' deposits of United Parcel Service
payments on cash-on-delivery sales.
The accounts payable department, under auditing department
supervision, pays bills for merchandise, supplies, advertising, and
other store expenses . The employees process vendors' -invoices and
statements for payment, file and sort bills, and type letters.
The accounts receivable department records customer purchases
and bills customer accounts.
The credit and collection department authorizes credit on new
accounts and customer purchases and collects past-due accounts.
Employees interview customers opening new charge accounts or who
have unpaid accounts, verify accounts for sales employees, and file
bills.
The statistical department gathers merchandise and store oper-
ating figures, prepares merchandise budgets, inventory stock ledgers,
and operating statements showing sales , purchases, markups, mark-
downs, and inventory with comparative data for previous years.
The employees prepare this material for use by executives and
department heads.
The general cashier and paymaster office dispenses and receives
daily money banks for sales employees, receives cash paid -by cus-
tomers on cash sales and on credit accounts, prepares money for
bank deposit, and cashes petty cash vouchers.
The payroll office computes employees' pay from timesheets sub-
mitted by the departments. The employees receive the cards, place
wage changes on records, and insert wage payments in envelopes.
The employees in the offices outlined above comprise • the main
office employees. They perform the customary office duties that the
Board has often held are sufficiently different from the duties per-
formed by all other employees in a retail department store to war-
rant a separate bargaining unit.9 The only other major issue exists
as to the unit placement of clerical employees who perform like work
in some of the selling and nonselling departments.
The buyer clericals work in buyers' offices or at a stockroom table,
generally removed from the selling department. They keep records
of outstanding orders and send buyer confirmations to vendors. They
check the receipt of merchandise against invoices and keep records
of branch store merchandise transfers. They also answer telephones
and refer complaints to buyers.
e Montgomery Ward & Company, Inc., 100 NLRB 1351, 1352 ; Maas Brothers , Inc., 88
NLRB 129 ; Meier & Frank Company , supra.
ARNOLD CONSTABLE CORPORATION 793
Two employees perform clerical tasks in the delivery department.
One keeps records of deliveries to United Parcel Service and bills
for transportation. The other handles deliveries by United Parcel
Service and applies postage.by machine on letters and packages.
Five additional employees perform clerical work for the receiving
department: They principally check invoices which are in turn
processed by the accounts payable department.
The fur storage employees handle fur storage records.
The will-call employee in the men's clothing department and the
clerks in the men's and women's alteration departments keep records
of incoming and outgoing merchandise and bring it to and from
fitting areas and workrooms.
The hold-room employees keep records of merchandise held for
customers.
The supply department employees record the receipt and requisi-
tion of small supplies by the various store departments.
- Three employees credit accounts for returned merchandise. Two
are assigned to the roving sales force. The third, assigned to the
delivery department, credits customers with merchandise returned
by mail or United Parcel Service.
The repair desk employee records customers complaints on mer-
chandise and sends the merchandise to the manufacturer for repair.
The display department clerk performs general clerical duties for
the display and supply departments.
There can be little question that these employees, whose unit place-
ment is disputed, perform clerical work closely related to that cus-
tomarily performed by the central office employees and are united
with the undisputed office employees by the same interests. We
therefore include them in the same unit with admitted office em-
ployees. In grouping employees on the basis of work and interests,
rather than place of work, we follow the pattern of organization in
this store. For example, the Retail Clerks represents, inter alia, all
markers and stock clerks, including those specifically assigned to
sales departments whose sales employees it does not represent.
The exclusions: The' Petitioner would exclude alteration, display,
and maintenance employees from all units, but include certain adver-
tising department employees in the office unit. Following is a brief
description of what these categories do.
Fitters in the women's alteration department mark a garment to
indicate alterations for pieceworkers to alter. Two seamstresses and
one sewer alter garments sold in the corset selling department. The
parties have agreed to exclude the pieceworkers.
The display department has, in addition to the clerk included in
the office unit, employees who dress windows and set up displays
and a signwriter.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The maintenance shop employees perform general repair duties,
sand furniture, construct display backgrounds, and build partitions.
The advertising department employees, whom the Petitioner would
include in the office unit, are a receptionist, messenger, and adver-
tising model. The model, not professionally trained, wears mer-
chandise for the artist in the department. The parties have, agreed
to exclude three advertising department employees-two layout art-
ists and one copywriter-as professionals.
Because the alteration, display, maintenance, and advertising em-
ployees have duties and interests basically unrelated to the selling,
office, or restaurant employees, we will exclude them from all units.
Accordingly, we find that the following units, excluding from
each the women's alteration employees, display department employees
other than the clerk, maintenance department employees, advertising
department employees, employees of leased departments,10 employees
of independent contractors,11 employees covered by existing collec-
tive-bargaining agreements, temporary, irregular part-time, contin-
gent, casual, on-call and seasonal employees, series 2000 and series
4000 employees, pieceworkers,12 confidential employees,l3 professional
employees'14 guards,15 and supervisors as defined in the Act, are
10 The parties agreed to exclude the following leased departments : shoes ( departments
89, 90, 91 , and 93-women's, men 's, children ' s moderate price shoes , and slippers ), beauty
salon, better jewelry ( department 26), and watch repair.
"Elevator operators , porters, and matrons are employed by Allied Maintenance Co.
One demonstrator , Al. Morales , in the cosmetics department is excluded by the parties'
agreement because her salary is wholly paid by the cosmetics manufacturer.
Other demonstrators , only partially paid by manufacturers , are not excluded.
Is The parties agreed to exclude pieceworkers in the women 's alteration workroom
because they work on an irregular basis.
The parties agreed to exclude employees listed in series 2000 and 4000, students and
cooperative students listed on the employer ' s payroll as contingents , casuals, and tem-
porary on -call employees.
>s The parties have agreed to exclude M. Darrah , receptionist to the executive officers,
and P. Wright , H. Joyce, and E. Victory , executive secretaries , as confidential employees.
They have agreed to exclude employees in the accounting department who also act as
confidential employees.
The Employer would exclude, and the Petitioner include, employees in the statistical
department . The Petitioner would exclude , and the Employer include , the general
cashier office and payroll office employees . The statistical department employees prepare
merchandise and operating figures and budgets. The general cashier employees , working
on the sixth , main , and basement floors, distribute cash banks to employees , receive cash
paid by customers on sales , and prepare cash for bank deposit . Payroll office employees
prepare the store payroll.
None of these employees assists and acts in a confidential capacity to persons who
formulate , determine , and effectuate management policies in the field of labor relations.
Goldblatt Bros., Inc., 118 NLRB 643, 648 . We find that these employees are not "con-
fidential employees" as the Board defines the term and we shall therefore include them in
the office employee unit herein found appropriate.
I* The parties agreed to exclude the two nuises , M. Warburton and M. Quinn, as
professional employees.
They also agreed to exclude three employees in the advertising department as profes-
sional employees : advertising copywriter ( M. Lucas ) and advertising production or layout
artists (D. Fortgang and J . Vogel).
w The parties have agreed to exclude fitting room checkers and other employees in the
protection department.
ARNOLD CONSTABLE CORPORATION 795
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act."'
(1) All selling employees, including general sales and flying squad
employees 17
(2) All office employees, including employees in the mail-order,
bureau of adjustment, auditing, c.o.d., accounts payable, accounts
receivable, credit and collection, statistical, general cashier and pay-
master and payroll departments, buyer clericals, credit clerks in the
flying squad and delivery department, and other clerical employees
in the receiving department, delivery department, men's clothing
department, men's and women's alteration departments, the hold-
room, at the repair desk, and in the display department.
.(3) All cafeteria employees.
[Text of Direction of Elections omitted from publication.]
MEMBER JENKINS, dissenting :
The majority has established a selling unit that includes only sales-
persons and excludes employees who perform clerical duties in con-
nection with selling departments. The office unit found includes
employees working in traditional business offices, but also includes
approximately 35 employees who perform clerical duties in various
selling and nonselling departments. The restaurant employees, for
whom the majority establishes a separate unit, perform duties in an
employee cafeteria only. Under the established units, approximately
25 women's alteration, display, advertising, and maintenance em-
ployees remain unrepresented. The majority excludes them from
all units. I dissent from the establishment of such arbitrary group-
ings of employees for which there is no precedent.
The selling unit includes only some of the employees engaged in
selling and related work. It excludes clerks who perform work
closely connected with that of sales personnel, under the same super-
vision as the sales employees, and in close physical proximity.with
them. For example, it excludes from the sales unit, and includes in
the office unit, buyer clericals, credit clerks, fur storage employees,
repair desk employees, and the will-call employee in the men's cloth-
ing department.
le The parties have agreed to exclude buyers, assistant buyers, managers , assistant man-
agers, executives , officers, heads of stock, merchandise managers , section managers, floor-
men and superintendents , the employment manager ( M. Boccia ), the managerial assistant
to the employment manager ( L. Borland ), and other supervisors . The Employer would
also exclude the cook as a supervisor . The record shows that the cook responsibly
directs work in the absence of the cafeteria manager. The manager is absent 1 day a week
and '2 or 3 weeks when on vacation . As the cook exercises supervisory authority for
regular and substantial periods of time, we find that she is a supervisor and exclude her.
17 The Employer classifies selling employees assigned to its first floor as general sales
employees and those assigned to other floors as flying squad employees.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The buyer clericals keep records of outstanding orders, send buyer
confirmations to vendors, check receipts of merchandise against rec-
ords, refer complaints to buyers and perform general recordkeeping
duties for sales departments. In departments where there is only
one sales employee and one clerical employee, the clerical employee
may spend more time assisting salespeople than in clerical duties.
Two credit clerks, attached to the general sales force, credit cus-
tomers' accounts for returned merchandise.18 Fur storage employees,
under the supervision of the fur department buyer, recommend fur
cleaning for which they are paid a commission, in addition to their
regular salary. The repair desk employee, who handles customer
complaints, consults with sales department employees before he sends
merchandise to the manufacturer for repair. The will-call employee,
under the supervision of the men's clothing department buyer, han-
dles merchandise in bringing it to and from fitting areas and work-
rooms.
The majority decision also excludes from the selling unit employ-
ees doing work similar to that of employee's whom it includes. Thus,
it excludes fitters in the women's alteration department who mark
garments for alteration by others. At the same time it includes
salespeople in the corset department who perform the work of fitters.
Sales employees perform a variety of nonselling duties, including
stock handling. Selling departments that, do not have permanently
assigned stock employees request stock help as needed. Sales em-
ployees, too, may pick up stock from stockrooms as needed. Sales-
people, together with all other store employees, participate in the
semiannual store inventory. Some departments take weekly, or even
daily, inventory, in which salespeople, buyer clericals; and stock
clerks work interchangeably at checking or listing merchandise.
Although some selling departments have markers assigned to them,
others do not and their merchandise is marked by roving makers or
by. department employees.
Sales employees' duties bring them in close and constant contact
with many of the nonselling departments in connection with the
handling, delivery, or payment of merchandise and store supplies.
These include the delivery, mail-order, c.o.d., accounts receivable,
credit, auditing, and supply departments and the repair desk.
The office employees, whom the majority places=in a separate unit,
are scattered in offices and departments throughout the store. Some
business offices are located on the sixth floor. The mail-order depart-
ment has employees on' the fifth and sixth floors. The payroll office
is on the fourth floor. The general cashier's office has cashiers on
28A third credit clerk , assigned to the delivery department , credits customers with
merchandise returned by mail or United Parcel Service. I
ARNOLD CONSTABLE CORPORATION 797
the first and basement floors in addition to the sixth. The buyer
clericals work in buyer offices or in stock areas adjacent to selling
departments on every floor. Some credit clerks are part of the gen-
eral sales force on the first floor, and one credit clerk works in the
delivery department located in the basement. The office unit includes
other clerical employees who work in receiving and delivery depart-
ments located in the basement, in the fifth floor supply department,
in the hold-room, at the first floor repair desk, in the second floor
men's clothing department, and in the second and third floor altera-
tion departments.
The employees who are now grouped together in one office unit
perform a variety of unrelated work. In addition to the customary
business offices concerned with billing, credit, customer service, and
general store operations, the majority includes employees whose
work is more closely connected to the nonselling or selling depart-
ment where they work than with the traditional business offices.
This is true of the .buyer clericals or the will-call employee in the
men's clothing department whose work is bound up with the sales
department for which they perform duties. Five receiving depart-
ment clerks, included as part of the office unit, check invoices, work
like that performed by other receiving department employees. Sup-
ply department employees, who stock and furnish small supplies to
various store departments, check in supplies with the receiving
department and their work is very like that of the stock and receiv-
ing employees.19
It is noteworthy, too, that these office unit employees have many
contacts with sales and stock employees and perform some of the
duties of sales employees. For example, the mail-order shopper or
order board clerk may write up sales checks for merchandise. The
shopper enlists the aid of a stock person in finding an ordered item,
requests a buyer clerical to order merchandise not in stock, asks a
salesperson to assist in selecting merchandise, or contacts the bureau
of adjustment to determine the reason a customer did not receive
merchandise. Bureau of adjustment employees contact selling em-
ployees in processing complaints. Employees in the c.o.d. receivables
department check the shipment, receipt, or payment of merchandise
with sales and delivery departments. Accounts payable employees
check invoices with selling or stock employees in authorizing cus-
tomer purchases on credit. Statistical department employees verify
records of merchandise transferred to branch stores with stock em-
ployees' transfer records. General cashier employees dispense daily
19 I note the contradiction in the Petitioner's position in Allied Stores of New York,
Inc., d/b/a Stern's, Paramus, supra, in which it seeks a nonselling unit that
would include clericals of the same type whom, in the subject case, it would place in an
office unit.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
banks to sales employees. Significantly, office and other clerical
employees work in sales departments during busy periods-or in'th6
absences of regular sales employees.
The cafeteria unit includes employees who work in an employee
cafeteria. The cafeteria serves store employees only. The cafeteria
offers sandwiches and desserts and one or two simple hot meals
between 11 a.m. and 2 p.m. From 2 to 4 p.m. the cafeteria- sells
soft drinks, coffee, and milk. Prices are low and the cafeteria does
not operate at a profit. The Employer's vice president and general
manager testified that the Employer lost $20,000 on its 1962-63 cafe-
teria operation.
The cafeteria area serves as a rest and social area, and employees
use it without making purchases. Employees may bring their lunch
to eat there. The area is also used for social events. The depart-
ment of public health does not require the Employer to obtain a
permit to operate the cafeteria.
The work of the cafeteria employees, other than the two cooks, is
unskilled. None receives special training and all interchange in -their
work. Busgirls and kitchenmen at times relieve counter employees,
kitchenmen help to make sandwiches and to bring trays into the eat-
ing area, countergirls on occasion relieve the cashier.
The exclusions : The units found-selling, office, and restaurant-
exclude entirely a substantial number of unrepresented employees.
The fitters in the women's alteration department mark garments for
alteration by others. Testimony at the hearing showed that cus-
tomers rely on a fitter's judgment and that sometimes fitters select
stock from the stockroom for a customer. The seamstresses and
sewer perform duties for the corset selling department. Display
department employees dress windows and set up displays. Adver-
tising department employees no less promote sale of merchandise.
The maintenance shop employees make minor repairs and construct
display backgrounds and partitions.
Personnel and wage policies, employee benefits, and working con-
ditions are the same for all store employees.
As the basic reasons for my dissent in Stern's, Paramus, issued this
day, are also present here, I would find that the three separate units
of selling, cafeteria, and office employees are not appropriate 20
Thus, the operations are similarly integrated and there is a com-
parable overlapping of duties, lack of distinction in job skills for
24 C. C. Anderson Stores Company, 100 NLRB 986 , 987. In this case the Board, in
denying a request for a separate unit of office clerical employees, said:
The Board has heretofore held that office employees share strong mutual interests
with other department store employees , and that, particularly where no other union
seeks to represent them separately , office employees should be included 'in a store-
wide unit.
Accord: John Brenner Co ., 129 NLRB 394 , 396; T. P. Taylor & Company, Inc., et al., 118
NLRB 376, 379.
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 employees21
2 '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. 9293-RC-207?, 22-RC-2073, and
22-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 ansicus 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
amici 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