Petrie Stores Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 130 (N.L.R.B. 1974)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petrie Stores Corporation and Poor People 's Union of
America , Petitioner . Case 10-RC-9883
June 27, 1974
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Martha A. Youmans
of the National Labor Relations Board. On March 7,
1974, following the close of the hearing, the Regional
Director for Region 10 transferred this case to the
Board for decision. Thereafter, the Employer filed a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization I involved claims to rep-
resent 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 Employer is a New York corporation en-
gaged in the distribution and retail sale of women's
apparel. The instant case concerns the three retail
i The Employer contested the Petitioner's status as a labor organization
and moved to stay the instant proceedings until the Board issued its decision
in S H Kress & Company, 212 NLRB No 12 In Kress, which has now
issued, the Board rejected identical challenges to the Petitioner's status and
found that the Petitioner was a labor organization within the meaning of the
Act We so find herein
In addition, the Employer urged, as did the employer in Kress, that the
Petitioner is prevented from raising a question concerning representation
because it discriminates in its membership on the basis of race The Board
has held that such inquiries are outside the scope of a preelection hearing
Bekms Moving and Storage Company of Florida, Inc, 211 - 'LRB No 7 As
noted therein, Chairman Miller and Member Jenkins would consider objec-
tions to a labor organization's capacity to fairly represent employees only
upon the postelection filing of properly sui•stantiated objections to the is-
suance of a certification Member Kennedy concurs substantially with that
postelection procedure but would limit consideration to the issue of alleged
discrimination on the basis of "race, alienage, or national origin " Members
Fanning and Penello reject the contentions of the Employer herein for the
reasons stated in their dissenting opinions in Bekins They would not consider
allegations of discriminatory practices by labor organizations in a precertifi-
cation proceeding but would "leave such questions as they may raise, with
respect to the Petitioner's willingness or capacity to represent fairly all em-
ployees in the bargaining unit, to be resolved in other proceedings under the
Act"
stores operated by the Employer at West End Mall,
Columbia Mall, and DeKalb Mall in Atlanta, Geor-
gia.
The Petitioner seeks to represent all the employees
in the West End Mall store excluding office clericals,
guards, and supervisors as defined in the Act. The
Employer contends that a multistore unit consisting
of all selling and non-selling employees excluding
guards and supervisors, employed in its three Atlanta
Stores, constitutes the only appropriate unit. At the
hearing, the Petitioner expressed a willingness to pro-
ceed in a three-store unit in the event that the Board
found such a unit appropriate.'
Based on the entire record, we find, in agreement
with the Employer, that the facts of this case require
a finding that the appropriate unit consists of the
employees in all three of the Employer's Atlanta
stores. The three stores, which are approximately 6 to
10 miles apart, constitute a separate, distinct, and
complete administrative division within the
Employer's organization. There is virtually no indi-
vidual store autonomy since the Employer's district
supervisor supervises, directs, and controls the daily
operations of all three stores. Thus, he does all the
hiring of employees for these stores; determines which
employees shall be discharged, disciplined, or trans-
ferred, and who among the employees shall receive
wage increases and the amounts thereof; sets hours of
employment and work schedules; decides the number
of employees to be employed at each store; and settles
any employee grievances that may arise. He is held
responsible for the profit and loss of each store's oper-
ations, and, in conjunction with the Employer's cen-
tral or home office in New Jersey, establishes and
implements uniform labor relations policies, wage lev-
els and schedules, and fringe benefits for all three
stores. Purchasing, warehousing, distributing, pricing,
and tagging of all merchandise sold by the three stores
is done by him through the home office which central-
ly controls these merchandising functions. Further-
more, the Employer maintains central payroll and
administrative records for all its employees including
those employed at the Atlanta stores.
The authority of the individual store managers and
assistant store managers, on the other hand, is limited
2 Aside from the issue of t e scope of the appropriate unit, the parties
stipulated that any unit found appropriate by the Board should include sales
employees, cashiers, and stock employees The parties also stipulated that the
individual store managers and assistant store managers, as well as the district
supervisor, are supervisors within the meaning of the Act and should there-
fore be excluded from any unit found appropriate In addition, the Petioner's
representative at the hearing stated that the Petioner would exclude the two
employees classified as window trimmers from the single-store unit sought
by it, but, in the event that the Board were to find a three-store unit appropri-
ate, the Petitioner would include the window trimmers in the unit The
Employer took the position that the window trimmers should be included in
the three-store unit urged by it
212 NLRB No. 14
PETRIE STORES CORP. 131
to their issuing oral warnings to employees 3 and as-
signing them routine work tasks in furtherance of the
district supervisor's directives. Indeed, indicia of their
supervisory status primarily seems to be confined to
their recommending employees for promotions to the
district supervisor, and certain job applicants for hir-
ing.
The record establishes, in addition to centralized
administration, control, and common supervision for
all three stores, that the employees in one store have
the same job skills, functions, and classifications as
their counterparts in the other two stores. 'urther-
more, a common seniority list is maintained for all
three stores, and job applicants are referred between
the stores according to individual store needs. Essen-
tially, the employees at all three stores enjoy the same
hours and working conditions, and are subject to
identical work procedures and policies.
The record also establishes a high degree of regular
employee interchange between all three stores. Thus,
approximately 10 to 15 percent of the employees in
the three stores regularly transfer on a monthly basis
between stores and additional employees are transfer-
red in peak seasons. In addition, employees in all
three stores regularly transport merchandise between
stores in their private automobiles and work with em-
ployees of other stores when unloading such merchan-
dise. The record also contains uncontradicted
testimony as to an unspecified number of permanent
transfers between stores.,
The Employer employs two window trimmers who
work 1 or 2 days a week in each of the three stores on
a rotating basis. They work side by side with the regu-
lar store employees and are subject to the same super-
vision and receive the same wages and benefits as
store employees. Their presence in all three stores is
3 Only the district supervisor can issue written warnings.
further evidence of the functional integration between
the Employer's stores.
In view of the common supervision of all three
stores, the common wages rates, benefits, and other
conditions of employment, the extensive employee in-
terchange between stores, the common job skills,
functions, and classifications of employees in all three
stores, the centralized administrative and operational
control over all three stores, and the lack of any sub-
stantial individual store autonomy, we conclude that
the employees in all three of` the Employer's Atlanta
stores share a community of interest with each other
that requires their inclusion in the same appropriate
unit. Therefore we find that the following unit is ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All selling and nonselling employees of Petrie
Stores Corporation at,its West End Mall, Colum-
bia Mall and DeKalb Mall stores in Atlanta,
Georgia, including all sales employees, cashiers,
stock employees and window trimmers, but ex-
cluding all office clerical employees, guards and
supervisors, as defined in the Act.4
[Direction of Election and Excelsior footnote om-
itted from publication.]
4 Food Marts, Inc., 200 NLRB No. 5; Purity Supreme, Inc., 197 NLRB 917.
In accordance with the stated positions of both of the parties, and the record
evidence showing their common interests with the other employees , we have
included the window trimmers in the unit herein found appropriate.
The Petitioner requested that office clerical employees be excluded from
the appropriate unit It appears from the record that the Employer did not
take a contrary position. Thus, although the Employer proposed that the unit
should consist of "all selling and non-selling employees ," the Employer there-
after specified that the only employees to be included in the unit were sales
employees, cashiers , stock employees, and window trimmers . In addition,
there is nothing in the record to indicate that the Employer employs any
office clerical employees or other clerical employees, or that the employees
included in the unit perform any clerical duties. Therefore , in the absence of
such evidence and in accordance with the Board 's established policy, we have
excluded office clerical employees from the umt herein found appropriate.