Retail, Wholesale, & Department Store Union v. NLRB

• Decision Date: 14 September 1967
• Docket Number: 20498.,No. 20440,20440
• Citation: 128 US App. DC 41,385 F.2d 301
• Parties: RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Saks & Company, Intervenor. SAKS & COMPANY, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Retail, Wholesale, and Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 41, 385 F.2d 301 (1967)

RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Saks & Company, Intervenor.

SAKS & COMPANY, a corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Retail, Wholesale, and Department Store Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, Intervenors.

Nos. 20440, 20498.

United States Court of Appeals District of Columbia Circuit.

Argued March 6, 1967.

Decided September 14, 1967.

Mr. Jerry D. Anker, Washington, D. C., with whom Mr. David E. Feller, Washington, D. C., was on the brief, for petitioners in No. 20,440 and intervenors in No. 20,498.

Mr. Eugene H. Gordon, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Michael G. Kushnick, Washington, D. C., was on the brief, for petitioner in No. 20,498 and intervenor in No. 20,440.

Mr. John D. Burgoyne, Atty., N.L.R.B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Mrs. Nancy M. Sherman, Atty., N.L.R.B., were on the brief, for respondent.

Before DANAHER, WRIGHT and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

These consolidated appeals are before the court on two petitions to review one decision and order of the National Labor Relations Board issued against Saks and Company, holding that Saks violated Sections 8(a) (1) and (5)¹ of the National Labor Relations Act in refusing to bargain with the unions certified by the Board as representing the non-selling employees at the Saks store in Chicago.² The issue presented in the company's petition is whether the bargaining unit created by the Board in the representation proceedings is an "appropriate" one within the intendment of Section 9³ of the Act. In their petition the unions ask for additional relief. They would have the Board order that any collective bargaining agreement ultimately negotiated by the parties be made retroactive to the date when the company first refused to bargain. We enforce the Board's order as issued.

I

The record shows that both the unions and the company filed representation petitions which were consolidated for hearings. The hearings developed that Saks in Chicago is a traditional type retail department store having approximately 500 employees basically divided into selling, non-selling and clerical. The non-selling employees include stockmen, wrappers, drivers, engineers, maintenance men, and similar classifications. The clerical employees are of two kinds: "Selling Department Clerical" who work in the selling areas maintaining various records principally relating to inventory, and central office or "Control Division" clerical, which division is headed by the company's controller. Clerical jobs in that division are administrative and include jobs like auditing, billing, payroll, customer service, telephone operators and cashiers.

The lines of supervision of the three kinds of employees differ significantly. The selling employees are answerable to their department heads, the Control Division clerical are answerable to the controller, and the non-selling employees are supervised by different overseers depending on the particular job classification. All the store employees work the same hours, receive identical benefits, and are subject to the same company rules. Sometimes selling and non-selling employees work together in preparation for sales or in taking inventory. But there is little if any interchange of employees between selling and non-selling jobs. Selling employees do not punch time clocks; non-selling employees, including selling department clericals, do. Selling employees are required to dress according to set standards while non-selling employees, with the exception of those who come in contact with the public, have no specific dress regulations. The pre-assignment training of the two groups is different; in fact, most of the non-selling personnel receive no pre-assignment training at all from the company.

There is no history of collective bargaining for any of the employees involved in this case. During the organizational campaign the extent of the unions' organizational efforts changed. Initially the unions courted only the non-selling employees; then briefly they distributed leaflets appealing for affiliation of all of the company's employees; and finally, at the hearing, the unions sought to limit the bargaining unit to some 40 employees less than all of the non-selling personnel. Throughout the company contended that only a storewide unit of all employees would be appropriate.

Relying on three recent decisions of the Board,⁴ the Regional Director rejected the company's contention and concluded that a unit limited to the non-selling employees was also appropriate under the Act. Since the unit requested by the unions did not embrace all of the non-selling personnel, the Regional Director added certain employee classifications amounting to 40 employees and directed an election.⁵ The unions won the elections handily and were certified as the exclusive representatives of the company's employees in the unit. The company admittedly refused to bargain with the unions and the unions filed the unfair labor practice charges.

At the hearing on these charges the company sought to offer evidence relating to the construction, after the representation hearing, of a new building which increased the selling area approximately 50 per cent. Since the company's construction plans were available to the company prior to the representation hearing, the Trial Examiner found that none of the evidence offered was newly discovered. The Board held that the changes effected in the store after the representation hearing "had no significant impact upon the validity of the initial determination as to the appropriate unit." The Board further concluded that the company had violated Sections 8(a) (5) and (1) of the Act by its admitted refusal to bargain with the unions. It required the company to bargain with the unions and to post the usual notices. It rejected the request of the unions that it order that any contractual benefits negotiated by the parties be retroactive to the date of the unions' original bargaining demand.

II

On appeal the company continues to pursue its argument made before the Board that only a storewide unit is appropriate under Section 9 of the Act. It asserts that Stern's, Paramus, Arnold Constable Corporation, and Lord & Taylor, Div. of Dry Goods Corp., 150 N.L. R.B. 799, 788, 812 (1965), in which the Board adopted a basically new approach to department store organization, have never been tested in the courts. In the Stern's trilogy, as these three cases are called, the Board held that under Section 9(b) "in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act," a unit appropriate for collective bargaining with department stores may be a segment or subdivision, rather than all, of the store employees. Assuming these cases were properly decided, the company argues that they "did not overrule the long line of Board decisions declaring a storewide unit to be the appropriate unit in the retail industry,"⁶ that, in any event, the method of operation at Saks is significantly different from that in the department stores in the Stern's trilogy, and that because of these differences the principles announced in the trilogy should not be applied here.

The company also argues that, in applying the principles announced in the Stern's trilogy in this case, the Regional Director created a unit by arbitrarily grouping some, but not all, non-selling employees. In this connection it makes the point that in Arnold Constable the selling department clerical and the central office clerical employees were grouped in an appropriate unit, whereas here the central office clericals, but not the selling department clericals, have been excluded from the non-selling unit. The company also asserts that a few employees in the advertising and personnel departments and models have been excluded from the non-selling unit. In short, the company contends that the unit created by the Regional Director was based primarily on the unions' extent of organization, in violation of Section 9(c) (5)⁷ of the Act.

The company also raises an evidentiary point. During the hearings it sought to show, through a central office clerical employee, the wishes of the employees of that department with respect to the formation of a bargaining unit. Relying on N.L.R.B. v. Ideal Laundry and Dry Cleaning Co., 10 Cir., 330 F.2d 712 (1964), it asserts that the refusal to hear this testimony was error.

III

The labor policy of the United States is stated in Section 1⁸ of the Act. It reads in part:

"It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining * * *."

In implementing this policy the Congress provided, in Section 9(b), that "the Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * * *." 29 U.S.C. § 159(b). Once the Board determines the unit appropriate to insure employees the fullest freedom in exercising the rights guaranteed by the Act, absent irrational and arbitrary action by the Board the matter "is beyond our power of review." Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); May Department Stores Co....