Wickes Furnture

National Labor Relations Board - Board Decisions

Aug 5, 1977

231 N.L.R.B. 154 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wickes Furniture, a Division of The Wickes Corpora-
tion and Retail Store Employees Union, Local 345,
AFL-CIO, Petitioner. Case 3-RC-6782
August 5, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
On January 21, 1977, the Regional Director for
Region 3 issued his Decision and Order in the above-
entitled proceeding in which he dismissed the
petition filed herein, finding inappropriate the
Petitioner's requested unit of selling employees at the
Employer's Rochester, New York, store. Thereafter,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Petitioner filed a timely request
for review of the Regional Director's decision on the
grounds that he misapplied precedents and that there
are compelling reasons for reconsideration of prece-
dents relied on by him. The Employer filed a
statement in opposition thereto.
The National Labor Relations Board, by telegraph-
ic order dated February 14, 1977, granted the request
for review.
The Board has considered the entire record in this
case and makes the following findings:
The Employer operates retail furniture stores at a
number of locations throughout the United States.
The Regional Director stated that the facts pertain-
ing to operations at the Employer's Rochester store
are essentially unchanged from those found by the
Board in earlier Wickes cases.' The record shows
that the parties so stipulated. To support his
conclusion that the requested unit of selling employ-
ees was inappropriate, the Regional Director relied
on the Board's similar holdings in 201 NLRB 606
and 201 NLRB 608; his own decision in Wickes
Furniture, Case 3-RC-5629 (1973); and Levitz
Furniture Corporation, 223 NLRB 522 (1976). The
Petitioner urges Board reconsideration of the earlier
Wickes cases relied on by the Regional Director and
argues that Levitz Furniture, supra, is factually
distinguishable.
We have decided to overrule the holdings in the
Wickes cases that requested units of the Employer's
sales employees at its retail furniture stores are
inappropriate. 2 In our opinion, the Board majority in
those cases erroneously relied on The Grand, a
Division of Beco Stores of Delaware, Inc., a Subsidiary
of Beco Industries, Inc., 197 NLRB 1105 (1972); and
Levitz Furniture Company of Santa Clara, Inc., 192
i Wickes Furniture, a Division of The Wickes Corporation, 201 NLRB 606,
201 NLRB 608,. 201 NLRB 610, and 201 NLRB 615 (1973).
2 Chairman Fanning and Member Jenkins join in overruling these
NLRB 61 (1971). In The Grand, the Board found that
the request for a unit of nonselling employees was
"based, ultimately, on the single negative characteris-
tic that none of the included employees performs any
selling functions," and concluded that, in the
circumstances of the case, such employees did not
share a sufficiently distinct community of interest
apart from other store employees to constitute an
appropriate unit. Likewise, in Levitz Furniture Com-
pany of Santa Clara, the Board found merely that the
requested separate units of warehouse employees and
truckdrivers, respectively, were inappropriate. Thus,
in neither of those cases did the Board rule on the
appropriateness of a unit of selling employees. The
majority in those Wickes cases went on to note,
however, that the sales employees "regularly contact
certain other employees in, or adjacent to, the
showroom, including the front office clerical employ-
ees, merchandise control employees, and other
display employees"; that "selling and nonselling
employees coordinate their efforts in connection with
the monthly warehouse sales and taking inventory";
and that "several of the excluded employees have the
same immediate supervision as the selling employ-
ees." It concluded that the circumstances did not
warrant finding appropriate a separate unit for the
selling employees. Notwithstanding these factors, we
are satisfied that the sales employees here involved
have a sufficiently distinct community of interest
apart from other store employees to warrant their
establishment as a separate appropriate unit. They
are under separate immediate supervision, spend the
large majority of their time on the selling floor
initiating virtually all sales, alone receive commis-
sions for their sales, and have minimal contacts with
warehouse employees.3
Contrary to the Regional Director, the Levitz
Furniture case relied on by him is, in our opinion,
factually distinguishable. While many aspects of the
Levitz and Wickes furniture store operations are
similar, the Levitz store operations appear to be more
highly integrated, particularly with regard to the
frequent common and overlapping supervision of
selling and nonselling employees, and the employer's
policy of encouraging all employees to cross-train in
all aspects of the stores' operations in order to
facilitate temporary interchange.
We conclude therefore that the following employ-
ees of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
WiiAkes cases for the same reasons that led them to dissent therefrom and for
such additional considerations as are expressed herein.
I See Allied Stores of New York, Inc. d/b/a Stern's, Paramus, 150 NLRB
799, 803 (1965).
231 NLRB No. 38
154
WICKES FURNITURE
All salespersons employed by the Employer at its
Rochester, New York, area location, excluding all
other employees, clerical employees, professional
employees, guards and supervisors as defined in
the Act.
[Direction of Election omitted from publication.] 4
MEMBER MURPHY, concurring:
I join in finding appropriate the unit of selling
employees sought by the Petitioner. Like Chairman
Fanning and Member Jenkins, I find that they have
separate interests from the nonselling employees 5 for
the reasons set forth in the principal opinion.
I recognize that the Board's historical approach in
the retail store industry has been that all employees,
including office clericals, must be included in a single
overall unit, and I have participated in some cases
finding such units appropriate. However, the validity
of this as an unyielding principle regardless of the
facts seems doubtful to me; if it ever was mandated
by conditions in the retail store industry as a whole,
no justification appears for continued slavish adher-
ence to a rigid rule. It is my firm opinion that each
case must be decided on the basis of the facts
presented. As in other industries, the unit in a retail
store need not be the most appropriate one; it is
sufficient if the unit sought is or may be an
appropriate unit. Accordingly, I believe that the
Board should reconsider its views on retail store units
and should be less reluctant to find appropriate a
unit such as is sought herein.
The board has previously found that less than
storewide units may also be appropriate (Allied
Stores of New York, Inc. d/b/a Stern's, Paramus, 150
NLRB 799 (1965)), but that precedent has rarely
been applied or followed. This is clearly a proper
case in which to do so.
MEMBERS PENELLO and WALTHER, dissenting:
We dissent from the majority's arbitrary overruling
of the Wickes cases, 6 for the record here shows, as it
did in the original Wickes decisions, that the selling
and nonselling employees share a strong community
of interest which "outweighs any separate interest
that the selling employees may have." Wickes, 201
NLRB 608. Indeed, the majority admits that the facts
which support the original unit determination have
remained essentially unchanged, to wit, the selling
and nonselling employees have regular and frequent
contracts, overlapping duties and supervision, and
common working conditions, hours, and benefits.
But apparently the above evidence of integrated
operations and community of interest is no longer
4 [Excelsior footnote omitted from publication.]
It appears that the nonselling classifications probably include ware-
housemen, warehouse clericals, service men, maintenance personnel.
adequate. Some other evidence of community of
interest is now required by the Board before it will
find a selling unit inappropriate. According to the
majority, the requisite evidence of community of
interest is found in two prior decisions, The Grand
and Levitz, both cited supra. While these decisions
were authority for the now-overruled decisions, the
Board states that the prior majority "erroneously
relied" on them for its finding that a unit limited to
selling employees was inappropriate. Our colleagues
distinguish these cases on the grounds that they dealt
with the appropriateness of nonselling units, rather
than selling, and because of alleged factual differenc-
es. These efforts to distinguish these cases, are not, in
our opinion, persuasive.
First, although the precise unit issue was different,
the overall legal issue was the same; what is the
appropriate bargaining unit for a retail establish-
ment, and, more particularly, with regard to Levitz,
for a retail establishment which has its own ware-
housing operation on the premises and offers this
feature to the public as a reason for their patronage.
To this end, both cases had a fully developed record
as to the community of interest of selling as well as
nonselling employees, and the considerations which
support a finding that a nonselling unit is inappropri-
ate are equally applicable to a selling unit. Thus, we
fail to see the inapplicability of The Grand and Levitz
on this ground.
Indeed, the former majority's reliance on Levitz is
particulary compelling, since Wickes has the same
kind of combined warehousing and sales operation.
The present majority concedes that the "Levitz and
Wickes furniture store operations are similar." but
concludes that "Levitz store operations appear to be
more highly integrated, particularly with regard to
frequent common and overlapping supervision of
selling and nonselling employees, and the employer's
policy of encouraging all employees to cross-train in
all aspects of the store's operations in order to
facilitate temporary interchange." Like the former
majority, we do not believe that slight differences in
the amount of overlapping supervision and in cross-
training are enough either to distinguish Levitz or to
outweigh the strong evidence described above which
supports the inappropriateness of a unit limited to
sales employees. Nor is it sufficient to conclude that
Levitz is distinguishable because it "appear[s] to be
more highly integrated .... " (Emphasis supplied.)
In making these kinds of distinctions the majority
ignores the forest of facts against it and concentrates
on the thin underbrush for support. Accordingly, we
respectfully dissent.
truckdrivers, office clericals. and display personnel. See Wickes Furniture,
201 NLRB 608 (1973).
6 See citations in fn. I of the majority opinion.
155