F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Aug 27, 1963

144 N.L.R.B. 307 (N.L.R.B. 1963)

F. W. WOOLWORTH COMPANY 307
F. W. Woolworth Company 1 and Hotel and Restaurant Em-
ployees Union Local 705, affiliated with the AFL-CIO, Peti-
tioner.2 Case No. 7-RC-5606. August ^V, 1963
DECISION ON REVIEW AND DIRECTION OF ELECTION
On February 26,1963, the Regional Director for the Seventh Region
issued a Decision and Order in the above-entitled proceeding dismiss-
ing the petition on the ground that the proposed unit is inappropriate.
Thereafter, the Petitioner, in accordance with Section 102.67 of the
Board's Rules and Regulations, Series 8, as amended, filed with the
Board a request for review of such Decision and Order. The Em-
ployer filed a statement in opposition to the request for review. The
Board, by telegraphic Order dated March 25, 1963, granted the re-
quest for review. Thereafter, the Employer and the Petitioner filed
briefs.
The Board has considered the entire record in this case with respect
to the Regional Director's determination under review, and makes the
following findings :
The Petitioner seeks to represent a unit composed of all employees
within department 340 at the Employer's retail variety store located at
6565 Woodward Avenue, Detroit, Michigan, including those who work
primarily at the lunch counter, snackbar, bakery counter, and in the
kitchen. The Employer contends that only a storewide unit is ap-
propriate. The Regional Director dismissed the petition on the ground
that the employees within department 340 do not constitute a func-
tionally distinct and homogeneous group entitled to separate rep-
resentation and that only a storewide unit is appropriate. In support
of its request for review, the Petitioner urges that the requested
employees are quite like other restaurant employees found by the
Board to constitute sufficiently distinct and homogeneous groups
entitled to separate representation.
The Employer, a retail variety store chain, is engaged in the sale
of general merchandise and in the preparation and serving of food in
its stores throughout the United States. The Detroit store involved
consists of three levels, a first floor, second floor, and basement. De-
partment 340 (hereinafter referred to as 340) is comprised of a kitchen,
located on the second floor, and a snackbar, lunch counter, and bakery
sales counter, all located closely adjacent, but not contiguous, on the
first floor. The kitchen staff, consisting of three bakers, a cook, two
busboys-who also work at the lunch counter-and a salad girl, who
works part-time as a lunch counter steamtable operator, prepares food
1 The name of the Employer appears as amended at the hearing.
2 The name of the Petitioner appears as amended at the hearing
144 NLRB No. 35.
727-033-64-vol. 144 21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the lunch counter or fountain and provides baked goods for the
bakery sales counter. The lunch counter, which is equipped with
59 stools and 9 dining booths, has 13 employees including 4 assigned to
the steamtable and 9 waitresses. The snackbar has two regular em-
ployees who make and sell sandwiches, hot dogs, and pizzas. The
bakery sales counter also has two regular employees who sell baked
goods for home and store consumption.
The record shows that all store employees are hired under the same
procession procedure; all are on a storewide payroll and are paid the
same starting wage on an hourly basis; all receive the same vacation,
sick leave, holiday, pension, Christmas bonus, and discount benefits;
and all punch the same timeclock. Uniforms worn by 340 employees
and smocks worn by other employees are furnished and laundered
by the Employer. However, the record also discloses that 340 is the
only department in the store whose employees are under separate
supervision. The fountain manager and the fountain assistant man-
ager, who have their own private office, are in complete charge of 340.
Two floor supervisors, whose responsibilities are divided between the
front half and back half of the store's main floor, have only routine
direction over all employees. The duties of the floor supervisors are
to see that new merchandise is displayed and that service is handled
properly on the main floor. On the other hand, the duties of the
fountain manager and assistant manager, both of whom have had
special training and possess special skills relating to the preparation
and serving of food, consist of seeing that food is prepared according
to Woolworth's policy and recipes and that customers are properly
served. They also make work schedules and generally oversee all four
operations within the department. Although some sales employees on
nearby counters occasionally "help out" during busy periods on the
bakery sales counter,' in no instance do they work in the kitchen, and
department 340 employees rarely work in other departments. It is
thus clear that employee interchange and transfers between 340 and
other store departments are practically nonexistent.
Although it is apparent from the foregoing that there are some fac-
tors that would support a finding of the appropriateness of a store-
wide unit, it is equally clear that the requested employees in depart-
ment 340, who are essentially restaurant employees, have a sufficient
mutuality of interests to justify their establishment in a bargaining
unit, apart from the other store employees.4 As the Board pointed out
3 Contrary to the statement of our dissenting colleagues that sales clerks in departments
010 and 020 regularly help out in department 340, the record reveals that the approxi-
mately 20 employees who are assigned to the kitchen, the lunch counter, and booths are
never assisted by employees from other departments . The other four employees at the
snackbar and the bakery sales counter are occasionally assisted by employees from outside
their department.
d See Allied Stores of Ohio, d/b/a A. Poisky Company, 90 NLRB 1868; Thalheimer
Brothers, Incorporated . 93 NLRB 726 . Cf. Walgreen Co. of New York, Inc, 97 NLRB 1101.
F. W. WOOLWORTH COMPANY 309
in the Allied Stores case,5 this mutuality exists by reason of their
singularly different work, training, and skills. Except for the two
employees on the bakery sales counter and the two on the snackbar,
it can hardly be said that the remaining 20 employees classified as
waitresses, bakers, cook, busboys, salad girl and steamtable operators
are engaged in selling. Accordingly, and as no labor organization is
seeking a broader unit, we find, contrary to the Regional Director, that
the requested unit limited to employees in department 340 is ap-
propriate, and that a question affecting commerce exists concerning
the representation of these employees, within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.'
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act :
All department 340 employees employed by F. W. Woolworth Com-
pany at 6565 Woodward Avenue, Detroit, Michigan, including those
working primarily at the lunch counter on the first floor, at the snack-
bar on the first floor, at the bakery counter on the first floor, and the
kitchen on the second floor, but excluding all other employees, office
clerical employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERs and LEEDOM, dissenting :
The Employer herein, F. W. Woolworth Company, has a nationwide
chain of retail variety stores, a familiar institution which requires
no further description. The Petitioner seeks to represent a unit con-
sisting only of those employees working in the kitchen, at the lunch
counter, snackbar, and bakery counter of one of the Employer's stores.
The Regional Director found the requested unit inappropriate for the
purposes of collective bargaining. We agree.
The Board has consistently adhered to the policy that, in view of
the highly integrated nature of retail store operations and the mu-
tuality of interest existing among retail store employees, an overall
unit of all selling and nonselling employees, rather than some smaller
grouping, is generally appropriate for collective bargaining.? Only
where it can be shown that the nature of the employment, or the con-
ditions of employment, give rise to a sufficiently separate and distinct
8 Allied Stores, ibid., at p. 1869.
, F. W. Woolworth Company, 119 NLRB 480 , 481, cited by the Employer in its brief, is
clearly distinguishable from the instant case. In this case, unlike the earlier one, all em-
ployees with department 340 are sought to be represented. Neither the cases cited,by our
dissenting colleagues nor any other Board precedent of which we are aware compels a
result contrary to that which we reach here.
7 Maas Brothers, Inc., 88 NLRB 129; C. C Anderson Stores Co ., 100 NLRB 986; J. J.
Moreau & Son, Inc, 107 NLRB 999; Ohrbaehs , Inc., 118 NLRB 231; John Breuner Co ,
129 NLRB 394 ; Montgomery Ward & Co, Incorporated , 132 NLRB 656.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
community of interest will the Board find,a segment of the overall unit
appropriate.' Here it has not been shown that the employees sought
by the Petitioner possess the requisite degree of distinction.
Most of the employees sought are engaged essentially in sales work.
This is precisely the kind of work performed by almost all the other
employees in this retail store. Thus the employees who work at the
bakery sales counter sell baked goods, just as the other clerks sell the
several thousand other items stocked by the Employer. To be sure,
the merchandise involved is food, rather than cosmetics, or toys, or
dry goods; it may be stored and displayed on shelves in display cases,
rather than on a counter, or on the floor; and it may be handled and
packaged somewhat uniquely because of its attributes. But we are
unable to agree with our colleagues that these "differences" are signifi-
cant, that these employees perform "singularly different work," or
that they possess different "training and skills." s
The waitresses, counter employees, and busboys perform duties that
differ somewhat from the duties of the other sales personnel. How-
ever, these employees deal with the public, the Employer's customers,
in the same manner as the sales clerks, and they perform the same type
of routine, repetitive tasks as the other employees. In view of these
facts, we conclude that the employment interests of these employees
are not sufficiently distinct to warrant their being placed in a separate
unit apart from the other selling and nonselling employees.
As for the three bakers, the Board has recently held that a unit of
bakers in retail supermarkets, whose duties were essentially similar to
those of the bakers herein, was not appropriate for the purposes of
collective bargaining. The Board found that the bakers constituted
"an integral part of the operating personnel" of the stores. Safeway
Stores, Incorporated, 137 NLRB 1741. In our opinion, the same may
be said of the bakers, and indeed all the other employees sought by
the Petitioner, in the instant case.
It appears to us that this is simply the latest in a series of cases 10
in which our colleagues have held that arbitrary groupings of em-
ployees, obviously based solely on the Union's extent of organization,"
constitute appropriate units for the purposes of collective bargaining.
In this connection we note that there are two other "departments" in
the Employer's store that sell food products-department 010, the
candy and nuts counter, and department 020, the cookies, pretzels,
potato chips, and hams counter. Both of these departments are con-
8 See, for example , Bullocks , Inc, d/b/a I Magnin & Company, 119 NLRB 642; F TV
Woolworth Company, 119 NLRB 480.
9 See Peoples Drug Stores, Inc, 115 NLRB 1001, 1003
10 See, for example, Metropolitan Life Insurance Company, 138 NLRB 512 ; Equitable
Life Insurance Company , 138 NLRB 529 ; Dixie Belle Mills, Inc , 139 NLRB 629
Member Rodgers also regards P Ballentine & Sons, 141 NLRB 1103, and Sav-0n Dr ugs,
Inc, 138 NLRB 1032, as falling within this group.
"Section 9(c) (5) of the Act prohibits the Board from making "the extent to which
the employees have organized . . . controlling "
GENERAL TELEPHONE COMPANY OF FLORIDA 311
tiguous to the bakery sales counter. The sales clerks in these depart-
ments regularly help out at the bakery sales counter and snackbar 12
which indicates that there is no difference between the sales clerks
in departments 010 and 020 and the sales clerks included in the unit
found appropriate by our colleagues.
Based on the above, we would find that the unit sought by the Peti-
tioner is inappropriate and, accordingly, would dismiss the petition."
12 The record shows that employees from nearby departments , including 010, 020, 017
(notions), and 140 (jewelry), help out at the snackbar and bakery sales counter when-
ever those counters are busy or short of help , which occurs on the average of four or
five times a week ; and similarly, that employees from the snackbar and bakery sales
counter wait on customers at the above-mentioned departments whenever the need arises.
13Welgreen Company of New York, Inc ., supra; Peoples Drug Stores , Inc., supra;
F. W. Woolworth Company, 119 NLRB 480. In a recent case , Frostco Super Save Stores,
Inc., 138 NLRB 125 , our colleagues found that a unit of cooks, counter employees , busboys,
and employees operating a popcorn concession was not appropriate , in the context of a
discount department store, as such employees "do not comprise a group with sufficiently
disparate employment interests . . . In each of the cited cases, the Board found in-
appropriate for the purposes of collective bargaining , units of lunch counter-soda
fountain employees similar to the unit sought by the Petitioner herein.
General Telephone Company of Florida and System Council T-2,
International Brotherhood of Electrical Workers, AFL-CIO.'
Case No. 12-CA-2331. August 30, 1963
DECISION AND ORDER
On April 3, 1963, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices al-
leged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached Intermediate
Report. The General Counsel and Union filed exceptions to the
Intermediate Report and the General Counsel filed a supporting
brief. The Respondent filed a reply brief in opposition to those
exceptions and in support of the Trial Examiner's Intermediate
Report and Recommended Order.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
1 System Council T-2 was described at the hearing as a committee consisting of repre-
sentatives elected by various IBEW local unions representing the Respondent 's employees.
144 NLRB No. 28.