Stewart & Co.

National Labor Relations Board - Board Decisions

Oct 18, 1962

139 N.L.R.B. 342 (N.L.R.B. 1962)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In another recent case,14 the Board has reiterated the factors of controlling owner-
ship , common control generally, and centralized control of labor relations. Again,
even where there were separate bargaining units and the labor relations of two
corporations were conducted separately, the Board found single-employer status;
but the labor relations of both companies were there controlled by the same owners,
and there was an interchange of employees, equipment, and contract work.15
The General Counsel argues an analogy with Local 138, International Union of
Operating Engineers, et at. (Nassau and Suffolk Contractors' Association, Inc.) 16
and the direction there that a responsible party, although in the background, remedy
unfair labor practices found. The question of control by and responsibility of Deer-
ing, Milliken & Co., Inc., has previously been considered in detail even though this
analogy was not.
The question of jurisdiction was featured in the recent case of Peninsular & Oc-
cidental Steamship Company, et al.17 Going beyond the element of ownership, the
Board there held that the chief respondent had full control of the vessel and was in
fact the employer of its crew and that other companies were merely its instrumental-
ities. (The relative significance of ownership and other factors herein have previously
been indicated.) Similar findings beyond ownership were made in the leading
case there relied on by the Board, West India Fruit and Steamship Company, Inc.
et al. 18
Neither with respect to remedy against the original respondent nor single-employer
status do the Board's recent decisions warrant modification of the findings, con-
clusions, or recommendations heretofore made. Given the opportunity, on the basis
of activities by other companies in 1960, to prove a single-employer status between
Darlington and Deering, Milliken & Co., Inc., in 1956, the General Counsel has not
shown that, whatever the present or 1960 connection between Deering, Milliken, Inc,
and other companies, that relationship and specifically a single-employer status
existed in 1956 and that it included Darlington.
Upon the basis of the above findings of fact, and upon the entire record at this
hearing and in the case, I make the following:
CONCLUSION OF LAW 19
1. Deering, Milliken & Co., Inc. (Deering, Milliken, Inc.), is not responsible for
the unfair labor practices of Darlington Manufacturing Company, or to remedy those
unfair labor practices?9
[Recommendations omitted from publication.]
14 Amalgamated Lithographers of America , et al (Miami Post Company), 130 NLRB
968, 975.
is Aluminum Tubular Corporation, et al., 130 NLRB 1306.
16 123 NLRB 1393, 1405.
17132 NLRB 10.
18130 NLRB 343, 347-348.
19 The conclusion and recommendation herein supplement those heretofore made in this
case.
20 This conclusion is in the language of the remand order of February 15, 1901
Stewart & Co . and Warehouse Employees Union, Local No. 570
affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Petitioner.
Case No. 5-RC-3784. October 18, 1962
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert A. Gritta, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
139 NLRB No. 21.
STEWART & CO. 343
Pursuant to the provisions of Section 3(b) of the Act the Board
has delegated its powers in connection with this case to a three- member
panel [Chairman McCulloch and Members Rodgers and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) and Section 2(6) and (7) of the Act, for the following reasons:
The Petitioner seeks to represent all employees of the Employer's
warehouse or service center, Baltimore, Maryland, excluding office
clericals, truckdrivers, guards, watchmen, and supervisors as defined
in the Act.' The Employer contends that the unit sought is inap-
propriate, that it is based on extent of organization, that it is too
limited in scope and that the petition should be dismissed. There is
no previous history of organization.
The Employer is engaged in the retail department store business
in Baltimore, Maryland. It operates a downtown store on Howard
Street, a suburban store in a retail shopping center on York Road
and a store and service center in the Reisterstown Road Plaza shop-
ping center, the facility involved herein. The York Road store was
opened in 1955 at which time the Employer operated three conven-
tional multistory warehouses geographically distant from the two
stores. After the opening of the York Road store, the Employer
engaged a firm of consulting engineers to undertake studies of its
operations and its material-handling facilities. As a result of these
studies, the Employer determined on what it alleges to be "a new
concept in merchandising" which necessitated the abandonment of
the old type of warehousing operations and the construction instead
of a completely different facility called a service center.2 This center
was not only to service the two existing stores but it was to be con-
structed adjacent to and physically connected with a new retail store,
with the operations of the center and the store completely integrated.
The Reisterstown service center was opened in late 1961 and the Plaza
store in January 1962. The three former warehouses were then closed.
The retail store and the service center both sit atop the ground on
two separate locations, approximately 285 feet apart, with the inter-
vening distance occupied by a customers' parking lot. The service
center unlike the typical department store warehouse is a one-story
1 Included in the unit sought are the following classifications of employees : drapery, rug
and furniture workroom employees , invoice office clerks and transfer operation employees,
furniture stock and other stock personnel , receiving clerks , markers and checkers , wrappers,
packers and delivery department employees , porters, carpenters and painters , supply stock
clerks, and miscellaneous service center clericals.
2 The Petitioner has referred to the service center as a "warehouse." Inasmuch as the
facility in question was constructed as a "service center" and is denoted as such on the
Employer 's records , it will be referred to herein as the service center.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
building (one side of which is partly underground), purposely built
in such a manner as to conform to and blend with the two-story retail
store and all other buildings in the shopping center.
Underneath the parking lot and physically connecting the two
buildings is a tunnel 285 feet long, 15 feet wide, and 12 to 15 feet
high. The tunnel was designed and constructed to accommodate and
facilitate a continuous interchange of people and merchandise between
the two buildings. The tunnel is divided by a longitudinal yellow
line on one side of which a towveyor operates with the other side left
clear for the movement of persons between the buildings. The tow-
veyor system is an underground power-driven chain 1,700 feet long,
traveling at 90 feet a minute, which runs the perimeter of the service
center, through the tunnel into the store and returns in a continuous,
uninterrupted chain. When merchandise arrives at the service center
and has been processed,' it is put on a rack (in the case of clothes) or
in a hamper or a flatbed truck, placed on the towveyor, a pin is inserted
in the continuous slot of the towveyor and by an electronic dial switch
the equipment is activated and becomes destined for any one of 10
automatic sidings, one of which is in the store end of the tunnel.
When merchandise is sold in the store, the reverse process takes place
and by the electronic switch, the piece of equipment becomes destined
to any one of nine positions in the center. By merely turning the
dial on the electronic selector, an employee can send a piece of equip-
ment to any station in the system without further attention. The
towveyor is also designed and used to remove from the store and
center all trash and rubbish to be disposed of in the incinerator located
in the area of the center next to the tunnel.
Each building has its own heating and cooling systems but power
from the store's substation (located outdoors at the rear of the store) is
routed through the tunnel; likewise water connections. A common
telephone and P.B.X system services both buildings; likewise an
Auto-Call paging system, the lines running through the tunnel. There
is an employees' canteen in the service center and an employees' cafe-
teria in the store with both facilities used by the employees via the
tunnel route. The tunnel is also used by messengers, clerks, and por-
ters. Sales personnel in the store who may have immediate need of an
item may call the service center and the item will arrive by the tow-
veyor in not more than 10 minutes. However, the sales person, a
porter, or stock clerk may go through the tunnel to pick up the desired
a Over-the-road shipments arrive daily at the service center These are unloaded and
then processed either for the downtown or the York Road store or the Plaza store or
temporarily held in stock in the center. The center serves as the main receiving depot for
the three stores though each store may receive direct shipments . Eighty percent of all
shipments are received at the center. Merchandise received at the center for the account
of the other two stores is trucked to these stores which are about 61h miles from the
service center.
STEWART & CO. 345
item. It also appears the customers may go through the tunnel to the
center to inspect an item and purchases may be completed in the center
in such instances. The tunnel is used by the carpenters and painters
located in the service center but who work in all the stores. Likewise,
the mechanics of the Plaza store who service all equipment in the serv-
ice center besides the towveyor itself, use the tunnel in the course of
their duties.
There are three doors either in or adjacent to the tunnel. One is
an employees' and pedestrians' entrance and exit door opening into
the receiving area of the store.4 There is a fire door on the store side
of the tunnel. This is the main door between the two buildings and
is closed when the center closes. The third door is a "panic door" in
the tunnel itself. This panic door is required by the city code so that
if there are simultaneous fires in the store and the center, any pedes-
trian caught in the tunnel would be able to evacuate himself through
this door which can only be opened from the inside. There are no
doors at the service center end of the tunnel.
There are 158,000 square feet of space in the service center of which
only 60,000 are devoted to storage of goods for sale in the stores. Part
of the dock of the center was designed to allow customers to drive up
in their cars to accept delivery of merchandise which they desire to
obtain immediately. In such a case, the stores sales person calls the
center to have the proper item ready in the public area of the dock.
In many instances the sale is consummated at the service center and not
at the store. Under its lease, the Employer may have 18 days of sales
at the center and certain areas of the center were designed for such
sales with the same lighting as the store.
The nonstorage areas of the center are devoted in great part to vari-
ous production workrooms including the drapery, furniture and rug
workrooms, and facilities for the painters and carpenters. The drap-
ery workroom employees fabricate and hang the draperies ordered
by customers as well as the draperies which decorate the stores them-
selves and spend nearly a month each year in the stores, installing and
maintaining the store draperies. The furniture workroom employees
make repairs to furniture sold to customers before it is delivered from
furniture stock in the center and also work in the stores for periods up
to 30 days repairing furniture. The rug workroom employees cut and
shape rugs sold in the stores to customers' specifications and also lay
rugs at customers' homes. The carpenters and painters work in the
stores, fabricating and installing store fixtures, props and displays,
though a great number of these are carpentered and painted in the
center.
The store has no basement and the tunnel has a 6-percent upgrade from the service
center so that the doors described herein are at street level.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is not disputed that when the above-mentioned employees of the
center work in the stores they are under supervision of store personnel.
However, the record also shows that almost all center employees are
under dual supervision. There is a service center manager and others
under him in supervisory capacities who have general supervision of
the functioning of the center and the personnel therein. But, as con-
ceded in Petitioner's brief :
It is undeniable that the Buyers have the prerogative of causing
the dismissal of an employee in the warehouse, and this stems
from the fact that he is directly responsible to the management
of Stewart & Co. for the successful operations of his particular
department.5
The buyers under the organizational setup of the Employer are
directly responsible for all operations that directly concern or affect
the merchandise sold in their departments and their authority in-
cludes both store and center personnel. A buyer is charged with the
cost of handling his merchandise in the center as well as the cost of
the employees who sell it in the store. Consequently, the buyer decides
how many center employees he needs to stock and handle his mer-
chandise and the details of their performance, instructing and direct-
ing them as he requires. He is empowered to reward efficiency with
pay increases and dispose of lax or inefficient employees by transfer
or discharge, though a discharge must be approved by the Employer's
president. In case of a conflict with the center manager over a dis-
puted employee, both the buyer and the manager will make their
respective recommendations.
The record shows that there are many store employees with the same
job classifications and performing the same functions as the center
employees. These include stock personnel, porters, wrappers and
packers, supply stock personnel, receiving clerks, and markers. These
employees are interchangeable with their rate of pay constant where-
ever located. Moreover, the record shows there are constant inter-
changes and transfers of employees from the center to the stores and
vice versa. Each year approximately 30 percent of the center em-
ployees transfer in or out of the center on a permanent basis carrying
with them their accumulated seniority. Center employees also are
transferred regularly on a temporary basis to the stores in connection
with particular store needs such as sales or to meet other circumstances
in the Employer's daily operations. Center employees work in the
stores, side by side with store employees, during sales and inventory
periods ; likewise, store employees work in the warehouse during clear-
ance sales, side by side with the warehouse employees who on such
occasions wear store jackets and engage in selling to customers, all
being under the supervision of the department buyer.
5 Petitioner's brief, p. 9.
BURROUGHS CORP., THE TODD COMPANY DIVISION 347
In A. Harris cf Co.,' the Board reexamined its policies with respect
to the establishment of separate units of warehousing employees in
the retail department store industry. In accordance with that deci-
sion, the Board will find appropriate a separate unit of warehousing
employees where : (1) the Employer's warehousing operation is geo-
graphically separated from its retail store operations; (2) there is
separate supervision of employees engaged in warehousing functions;
and (3) there is no substantial integration among the warehousing
employees and those engaged in other functions. However, as stated
in Sears, Roebuck d Company,' "Only where all three of these condi-
tions are met will such units be approved."
We now turn to the facts of the instant case. Assuming that the
service center is a warehouse though, as the record shows, less than
half of its space is devoted to warehousing and storage operations, we
are convinced that the operation does not meet the geographical sep-
aration requirement of Harris. Not only are the service center and
the Plaza store physically and geographically connected but their
operations are so designed as to be physically integrated to the extent
that if the center were not attached to the retail store, the store would
have to be redesigned in great part to include facilities now located
in the center. Furthermore, the record shows that there are many
classifications of employees common to the stores and center with a
constant, substantial interchange of employees between the two facili-
ties and that the center employees do not have the separate supervision
required by Harris. We therefore find that these circumstances pre-
clude the establishment of a separate unit of the employees of the
Employer's Reisterstown Plaza service center, Baltimore, Maryland.'
Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
6 116 NLRB 1628.
7117 NLRB 133, 134.
8 Milens, 124 NLRB 389, 391; Rhodes , Inc., 124 NLRB 714, 716; Sears, Roebuck
Company, supra.
Burroughs Corporation , The Todd Company Division 1 and Local
No. 11 , Amalgamated Lithographers of America , Petitioner.
Case No. 3-RC-2847. October 18, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Henry J. Winters,
1 The names of the Employer and the Petitioner appear as amended at the hearing.
139 NLRB No. 24.