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THE NEIMAN MARCUS GROUP, INC., d/b/a BERGDORF GOODMAN Employer and LOCAL 1102 RETAIL, WHOLESALE DEPARTMENT STORE UNION Petitioner Case No. 02-RC-076954
DECISION AND DIRECTION OF ELECTION
Under a petition filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before a hearing off icer of the National Labor Relations Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its authority in this proceeding to the Regional Director, Region 2. Upon the entire record in this consolidated proceeding, as well as the briefs filed by the Petitioner and the Employer after the closing of the record, it is found that: 1. The Hearing Officer's rulings are free from prejudicial error and are hereby
aff irmed. 2. The parties stipulated, and I find, that The Neiman Marcus Group, Inc. d/b/a
Bergdorf Goodman, herein the Employer, a Delaware corporation, is engaged in operating retail department stores throughout the United States. During the past twelve
months, the Employer has derived income from the sale of products in excess of $500,000, and has purchased and received at its New York City store goods valued in excess of $5,000 from sources and suppliers located outside the State of New York, The Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Based upon the record, and the stipulation of the parties, Ifind that the Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 3. The parties stipulated that Local 1102, Retail, Wholesale, Department Store
Union, is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, based upon the stipulation of the parties, the record establishes, and I find, that the petitioner is a labor organization within the meaning of Section 2(5) of the Act. 4. A question affecting commerce exists concerning the representation of certain
employees of the Employer within the meaning of Section 9(c) of the Act. 5. Petitioner seeks to represent all full-time and regular part-time women's shoes
associates in the 2nd Floor Designer Shoes Department and in the 5th Floor Contemporary Shoes Department employed in the Employer's retail store located at 754 Fifth Avenue, New York, NY, and excluding all other employees, office clerical employees, guards and supervisors as defined by the Act. The Employer, on the contrary, asserts that the smallest appropriate unit must be comprised of a store-wide unit, or in the alternative, all selling associates in the store. For the reasons set forth herein, Ifind that the petitioned-for unit is an appropriate unit for collective bargaining, and the Employer has not established that
employees in a store-wide unit or in a unit of all sales associates have an overwhelming community of interest with the petitioned-for employees. . OVERVIEW OF OPERATIONS The Employer is a luxury retailer located on Fifth Avenue in Manhattan. Its operation consists of a Women's store at 754 Fifth Avenue, and a Men's store, which is located at 745 Fifth Avenue. The Employer's corporate headquarters is located in Dallas, Texas. Bill Brobston is senior vice president and general manager with responsibility for both the Men's and Women's store locations. Brobston reports to Neva Hall, executive vice president over specialty retail. Hall works in the corporate headquarters. At the Manhattan stores, there is a vice president of operations, who covers support associates' employed at both store locations and reports to Brobston. Nelson Liriano, who responsible for the Men's store, Diane Kruger, who responsible for fine apparel on 2, designer sportswear on 3, fine apparel on 4, contemporary ready to wear clothing on 5, contemporary shoes on 5, sportswear on 6, lingerie/coats/swimwear on 6, bridal gown salon on 7, and Anne Marie Seuff, who is responsible for cosmetics and sunglasses on 1, precious jewelry on 1, designer jewelry on 1, handbags and accessories on 1, shoe salon on 2, decorative home on 7, and the children's department on 7, are directors of sales. All three directors of sales report directly to Brobston. Each floor has a manager who reports to one of the directors and various department managers who report to a floor manager. John Marazio is Vice President of Human Resources. Bob Gassensmith, Director of Human Resources for the Women's and Men's stores, reports to Marazio. Job classification of support associate is discussed infra. 3
There are three human resources managers who report to Gassensmith. One handles human resources for the Men's store and some support areas, another handles nonapparel, including 2nd and 5th floor shoes, the other is responsible for human resource services for apparel in the Women's store. SALES OPERATION The Employer employs about 372 sales associates in its two Manhattan stores, including personal shoppers. In addition, the Employer employs 41 selling assistants. There are 327 "support" associates, who are non-selling employees, in the Women's store and 49 in the Men's store. The support associates in the Women's store include store design, wrap & pack, cashiers, 2 mail room, housekeeping, carpenters, vertical transportation (VTC), shipping, client services, restaurant, alterations, fur storage, stock, loss prevention, visual, and selling services. In the Men's store, support associates include those employed in housekeeping, returned goods, client services, alterations, stock, and loss prevention. The housekeepers and alterations employees are currently represented by the Teamsters and UNITE, respectively.3 The evidence on the record indicated that the support staff does not sell products in the traditional sense. 4 Each sales associate is assigned to a particular department. The 41 selling assistants are assigned to personal shoppers and high-selling sales associates. The selling assistants help sales associates gather clothing and merchandise. There are no
Cashiers do not ring up merchandise on the floor. They work in a cash office and handle all the cash flow in the store. Sales associates ring up their own transactions. 3 Alterations employees in both Women's and Men's stores belong to the Union. It was unclear from the record whether Teamsters represents housekeeping employees in both stores or just the Women's store. 4 Brobston testified that client services sell gift cards and restaurant employees sell food, but that support employees do not sell in the traditional sense.
sales assistants in the shoe departments or the Men's store. 5 The selling assistants go to the sales floor whenever their supervisor asks them to do so. Personal shoppers work by appointment only. They are expected to pull merchandise from throughout the store and sell to their customers. There are personal shoppers assigned to various floors, including the 2nd, 3rd, 4th, and 5th floors, as well as one in the Men's store. Sales goals are set individually by each department. All sales employees are subject to the same hiring criteria and apply for work using the same application forms. There is no requirement that sales associates have prior retail industry selling experience, although most hires do have such experience. Similarly, there is no requirement that shoe sales employees have prior shoe sales experience. However, it is expected that employees know the particular products that are sold in their departments. All sales and support employees are subject to a sixmonth probationary period and have the same employee handbook. The Employer does the same background and reference check for all hires. All full-time sales associates work 38.75 hours per week and all full-time support associates work 37.5 hours per week. All sales and support associates have the same vacation and holiday benefit and all are covered by the same health plans. All sales associates, exclusive of the shoe sales associates discussed below, earn 3 to 5% commission, depending on the department. All non-shoe sales department associates are paid on a "salary plus commission" basis, meaning they are guaranteed a base salary and the opportunity to earn a commission rate on the merchandise they Assistants are assigned as follows: 4 in main floor accessories, 1 in precious jewelry, 4 to 2nd floor personal shopper, 2 to 2nd floor ready-to-wear, 1 to 3rd floor personal shopper, 1 to solutions, 1 to 3rd floor ready-to-wear, 15 to 4th floor personal shoppers, 5 to 4th floor ready-towear, 5 to 5th floor personal shoppers, 2 to 6th floor ready-to-wear.
sell above the base rate. Sales assistants do not earn commission, and the record is silent regarding the rate of pay for associates in any department. No support
associates earn a commission, with the exception of client services employees who might earn a commission if the employee opens a charge account. All sales associates receive productivity goals, which are tracked on a monthly basis in a "MPS tracking form. ,,6 Employees are evaluated in the following categories: creating a welcoming environment; exceeding customer expectations; and business development/statistics, including out of home base selling percentages. Goals are generally the same for all departments, but can differ by department. For example, Brobston testified that employees are rated on collecting and sending e-mails to customers. The shoe department is known for collecting and sending a high volume of e-mails, whereas the fine apparel department, which has fewer customers, has less opportunity to collect e-mails. At the end of each month, the Employer reviews the MPS tracking forms. Department managers, in turn, meet with sales associates in their departments each month to review their performance. The Employer tracks employees'sales "outside of home base," meaning outside of the department where they work, herein the home department, by quarter. 7 The Employer also tracks sales out of "mega home base," which means an employee sells a product not just in another department, but on another floor. Monthly employee evaluations indicate the percent of "out of home base" sales the employee made. "Out of home base" sales include escorting a customer from one department to another and ringing up their transaction in that other department. They also include situations where Non-sales associates are evaluated annually. Sales assistants have a different evaluation form but there was no information about how frequently they are evaluated. 7 The program has been in place for two years.
a customer picks up a product in one department, wanders to another department, and simply asks a sales associate in that department to ring them up there. The sales associates usually complete a sale in their own department before bringing the customer to another department to ring up their next item. Dominic Sgambellone, a sales associate on the 2nd floor shoe department, however, testified that he often rings up merchandise from other departments at the customer's request. In the Fall of 2011, employees sold approximately the following within their own departments: 1. Contemporary sportswear8: 89%9 2. Decorative home: 99% 3. Fine apparel: 77.5% 4. Beauty: 94.5% 5. Better apparel: 92.9% 6. Handbags and accessories: 94.3% 7. Jewelry: 97% 8. Men's: 99.6% 9. Salon shoes: 97.7% 10. Personal shoppers: 100%10
The contemporary sportswear department includes 5th floor shoes. There was an error in the Fall 2012 numbers in contemporary sportswear. Particularly, one sales associate in contemporary sportswear was shown selling 38.2% of her sales in the 2nd floor shoe department. Brobston testified that this employee was a shoe salon operator who takes shoe orders exclusively by phone and that this number was an error. 10 Personal shoppers by definition have no home base and are expected to sell throughout the store. Inclusion of this category could artificially inflate the total out of home base sales in the store if the personal shopper sales total was a significant number.
In the Spring 2012 quarter, employees sold approximately the following within their own departments: 1. Contemporary sportswear": 88.8% 2. Decorative home: 93.9% 3. Fine apparel: 76.5% 4. Beauty: 94.9% 5. Better apparel: 93.6% 6. Handbags and accessories: 90.7% 7. Jewelry: 97.5% 8. Men's: 99.6% 9. Salon shoes: 97.7% 10. Personal shoppers: 100% The Employer asserts that employees are encouraged to sell outside of their home department, with the exception of bridal, and will take a customer to another department and will work with an associate in that department to make a sale. Brobston testified that personal shoppers and sales associates often have partners in other departments. For example, if a personal shopper brings a customer to the shoe department, the personal shopper will work with the shoe associate to sell the customer a shoe. At that point, the shoe associate can decide whether to split the commission or to keep the entire commission. Associates have the ability to split sales between associates on the cash register. It was unclear from the record whether the shoe associate always gets to choose whether to share the commission, or whether the
Includes 5th floor shoes. 8
associate only chooses when an associate from another department brings the customer to the shoe department. Sgambellone testified that he is encouraged to sell in other departments or on other floors and had never heard the term "mega home base." He said no manager has told him to improve his out of home base sales during his monthly evaluations, nor has any manager discussed a percentage of out of home base sales with him, though he acknowledged the existence of the out of home base sales box on his evaluation form. Sgambellone testified he does not have proper training to sell in other departments and that since his commission in shoes is higher than in other departments, he does not actively try to sell outside his department because it would result in a pay cut. Sgambellone testified that he does sell in other departments, but that he believes those sales make up a small percentage of his sales. The Employer noted on the record that Sgambellone sold 2.5% of his sales outside his home base in the Fall 2011 quarter. Sgambellone testified that the majority of his out of home base sales consists of a customer picking out an item and asking him to ring them up. Sgambellone testified that he has never seen someone from the men's shoe department come to women's shoe department to make a sale. He said he recalls one time over the past three or four years where a women's shoe associate went to the Men's store, but he did not know if the person sold anything. Sgambellone testified that women's shoe employees do not leave their departments to go to the Men's store because they would not know the stock room there, and that they are not trained to sell shoes to men. Sgambellone testified that when he sees sales associates from other departments in 2nd floor shoes, they are usually personal shoppers.
Since in or around 2000 to the present time, there have been approximately 38 transfers between departments, only four of which were into the Women's shoe departments. 12 There are no records of transfers out of the shoe departments. Similarly, there is no evidence that employees in one department substitute for employees in another department. Brobston presented evidence, in the form of a "mystery shop," a form created by an outside service that sends someone into the store to shop and evaluate the customer service provided. The mystery shop evaluation showed that the sales associate took the customer to more than one floor and department to help the customer shop. The evaluation did not mention the shoe department. There was no portion of the mystery shop form that asked shoppers to rate sales associates on their off er to take the customer to another department. The Employer also presented customer service surveys evidencing inter-department selling, however none of those referenced shoes or shoe sales associates. The Employer holds 10 morning meetings each day before the store opens. The purpose of the morning meeting is to enhance product knowledge. All employees are invited to attend the morning meetings, though some of the morning meetings are department-specific. Iftwo meetings are scheduled at the same time and one meeting is specific to the 2nd floor shoe department, the shoe employees would be required to attend the meeting in the shoe department. Such a meeting might be open to employees from other departments. The Employer contends that it encourages The Employer included two statutory supervisors in its transfer list in addition to the four employees mentioned above (a 3rd floor manager and the accessories manager transferred to be floor manager in 2nd floor shoes) in 2010 and 2011. These transfers will not be considered, as transfers by non-unit employees are irrelevant to the inquiry before me.
employees who do not have a morning meeting in their department to attend one in another department. Sgambellone testified that employees who work the late shift generally do not attend morning meetings. Sgambellone, who works the late shift, testified that he attends approximately three meetings every month or two. In addition to the morning meetings, the Employer holds designer and vendor meetings where employees from multiple departments are welcomed to attend. There are also storewide meetings held on a monthly basis for sales and support associates, as well as monthly meetings for sales associates only. Topics covered at store-wide meetings include, but are not limited to, new policies, performance, merchandise strategies, and selling strategies. Topics covered at all-sales meetings are merchandise and store promotions. Generally one employee from each department is in attendance at the store-wide and all-seller meetings and a representative from the Men's store attends all store-wide meetings. Store-wide meetings are mandatory for employees scheduled to work. Brobston testified that all sales associates have stock assignments in the morning where they interact with merchants and occasionally some support associates. No information was provided about whether employees regularly attend these meetings or how frequently employees in different sales departments come into contact with each other on a daily basis, except to say that they are encouraged to sell outside of their departments. The Employer conducts an orientation class for all new employees every other week. The orientation lasts 3 to 5 days. Sales as well as non-sales associates attend
this orientation. After the initial orientation, employees are trained on-the-job in their respective departments. There is no formal job description for employees. Sales associates generally adhere to the same dress code. All associates must appear "presentable and professional and businesslike." Associates in 5th floor shoes, men's sportswear, and designer sportswear have a more relaxed dress code than the rest of the store. All sales associates wear a Bergdorf Goodman pin that is small and round and has a photograph of the building on it. Support associates are not required to wear the pin. All employees have personal lockers in the store and have access to the employee cafeteria located in the Women's store. All employees receive and are trained to use an Phone to aid their selling efforts. WOMEN'S SHOES The Women's store has two shoe departments: Salon Shoes on the 2nd floor, hereinafter "2nd floor shoes" and Contemporary Footwear on the 5th floor, hereinafter "5th floor shoes." There are 35 employees in 2nd floor shoes and 11 employees in 5th floor shoes. There are also two shoe departments in the Men's store. One is on the first floor and the other is located on the third floor. There are a total of 7 sales associates who work in the Men's store shoe departments. Fifteen employees were hired into the women's shoe departments over the past three years, and only one did not have prior shoe sales experience. It appears that the human resources manager in the particular area, the department manager, and "usually the director, 03 make hiring decisions in the department. Second Floor shoe employee It was unclear from the record whether "director' referred to the two sales directors or the human resources director.
Sgambellone had worked previously for retail stores, including Saks Fifth Avenue for seven years, Neiman Marcus for two years, and Lord & Taylor for two years. By the time he joined the Employer, Sgambellone had 15 years of shoe sales experience. Sgambellone testified that shoes are difficult to sell and that he tries to fit shoes correctly to avoid hurting the customer. He cited bunions, knee problems and back problems among injuries that could result from improper shoe fitting. Sgambellone also testified that associates from other departments, who are not trained in shoe sales, sell shoes incorrectly in his department. There is no evidence on the record regarding the frequency of such sales by sales associates from other departments who have sold shoes. The sales employees working in 2nd floor shoes earn a 9% commission; employees in 5th floor shoes earn a 10% commission; and employees in Men's shoes earn a 9% commission. The shoe department associates earn the highest commission in the store. All employees in the shoe departments work on a "draw versus commission basis," meaning that at the end of each week, the associate's sales are calculated, and if they meet their sales goal, they receive their commission rate on their sales; or they receive the draw rate, multiplied by the number of hours they worked that week - whichever is higher. The Employer uses a draw versus commission basis for shoe sales employees because it is the industry standard for shoe departments. Brobston testified that the difference between the two salary structures is that the shoe department employees' commissions are tied to the merchandise in the shoe department, while all other sales associates' commission is tied to the associate. For example, if a sales associate from
jewelry sells shoes, the associate will receive the 3 to 5% commission rate, not the shoe department's 9 to 10% commission rate. Similarly, if a shoe associate sells a handbag, the shoe associate will earn the lower commission rate of 3 to 5%. It appears from the record that there are selling departments in which the average earnings are higher than the average earnings in the 2nd floor shoe department and 5th floor shoe department and that there are employees in the 2nd and 5th floor shoe departments who earn more than associates in other departments. Further the 2nd floor shoe employees earn more on average than 5th floor shoe employees. However, there was no testimony about whether base salaries are higher in non-shoes department due to the lower commission rate, nor was there testimony about the amount or range of the draw rate in the shoe departments, except that the draw rate and base salaries are determined based on when the employee is hired and level of experience. ANALYSIS Based on the foregoing facts, the entire record and careful review and consideration of the arguments of the parties at the hearing and in their briefs, Ifind that the petitioned-for unit is an appropriate unit for purposes of collective bargaining. In Specialty Healthcareand Rehabilitation Centerof Mobile, 357 NLRB No. 83 (Aug. 26, 2011), the Board revisited the standard for finding a unit appropriate where a labor organization petitions for an election in a unit of employees who are readily identifiable as a group, and where that group shares a community of interest under the traditional criteria. In those cases, the Board will find the petitioned-for unit to be appropriate despite a contention that employees in the unit could be placed in a larger
unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit. supra. at *17. In Specialty Healthcare,the Board reiterated that employees "may seek to organize 'a unit'that is 'appropriate,' not necessarily the single most appropriate unit." Specialty, supraat *13 (quoting American HospitalAssn., 499 U.S. 606, 610 (199 1)); Overnite TransportationCo., 322 NLRB 723, 723 (1996) ("It is well-settled then that there is more than one way in which employees of a given employer may be appropriately grouped for purposes of collective bargaining."); J.C. Penney Co., 196 NLRB 708, 709 (1972) (recognizing that though a larger unit could be an appropriate unit, that did not render the petitioned-for unit inappropriate). In determining whether a petitioned-for unit is an appropriate unit, the Board in Specialty Healthcarereverted to the traditional community of interest test. The traditional community of interest test examines: [W]hether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer's other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.
Specialty Healthcare,357 NLRB at *14; United Operations,Inc., 338 NLRB 123, 123 (2002). In DTG Operations, Inc., 357 NLRB No. 175 (Dec. 30, 2011) the Board reversed a Regional Director's finding that a petitioned-for unit of rental service agents and lead rental service agents was not an appropriate unit. The Board held that the petitioned-for unit possessed the same distinct functions and interests from the other employees. While noting that the petitioned-for employees shared some of the same benefits as other employees, there was little evidence of interchange between them and other employees. Similarly here, this record reflects only the most minimal crossover of shoe sales associates with other sales associates. In Northrop Grumman Shipbuilding, Inc., 357 NLRB No. 163 (December 30, 2011), the Board upheld a Regional Director's finding that a petitioned-for unit of radiological control technicians (RCTs), calibration technicians, laboratory technicians, and RCT trainees in the E85 RADCON Department was an appropriate unit, even though it excluded other technical employees employed by the employer. The Board noted that the petitioned-for employees shared a unique function by providing independent oversight of radiation exposure. While the employer in that case contended that there were other technicians who shared the same benefits, personnel policies, and break facilities, the petitioned-for unit of employees shared a common work function and constituted a separate department. Here, the employees in the 2nd and 5th floor shoe departments at 754 Fifth Avenue clearly share a community of interest. The shoe sales associates occupy the same job classification and sell the same product, which requires a distinct skill set from
other sales associates due to the unique nature of the product they are selling. Ifa shoe is not sized appropriately for a customer, discomfort and possible knee, back and other physical injuries could result. The record establishes that the 2nd floor shoe department sales associates have been given distinct training and possess experience in fitting customers properly for shoes. Similarly, there was evidence that the shoe sales associates had little to no training in selling products other than shoes, and therefore, had negligible sales of products that originated outside their department. Sales associates in the two shoe departments have a significantly different salary structure from the other sales personnel in other departments. They receive higher commission rates than any other employees in the store and are subject to a draw versus commission wage structure different than non-shoe sales associates. It should be noted that shoe departments have been determined by the Board to be appropriate units. See Allied Stores of New York, Inc. d1bla Stem's, Paramus,150 NLRB 799, 803 (1965) (noting sales employees in Saks Fifth Avenue's New York City shoe department were voluntarily recognized by that employer and constituted an appropriate unit). Thus based upon the above facts, and the industry history, I conclude that the employees in the petitioned-for unit form a readily identifiable group that shares a community of interest as required by Specialty Healthcare.I also find that the Employer has failed to establish that the other sales associates in the Women's store and/or the Men's Store share an overwhelming community of interest. The Employer contends that the petitioned-for unit is fractured, and that the other employees in the store share an overwhelming community of interest with the petitionedfor unit, such that there "is no legitimate basis upon which to exclude certain employees"
from the unit. Specialty Healthcare,357 NLRB at *16 (quoting Blue Man Vegas LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008). Employees share an overwhelming community of interest when the community of interest factors "overlap almost completely." Blue Man Vegas, 529 F.3d at 422. See, e.g., Lundy Packing Co., 314 NLRB 1042, 1043 (1994). Here, the Employer has not met its burden of showing that all other employees in the store share an overwhelming community of interest with the petitioned-for unit. First, the Employer argues a wall-to-wall unit is an appropriate unit, with the exclusion of the following employees: visual, loss prevention, alterations, restaurant, carpenters, housekeeping, guards, painters, and supervisors. The Employer would include in its wall-to-wall unit all other support and sales associates. However, these support associates perform no sales functions and share few community of interest factors with the petitioned-for unit. The support associates do not earn commission, they are not evaluated monthly, they do not perform the same job functions nor are they called upon to fill in for sales associates, they are separately supervised, and have little to no interaction with the petitioned-for unit. Second, the Employer argues that in the absence of a wall-to-wall unit, all sales associates, including selling assistants, must be included because they share an overwhelming community of interest with the petitioned-for unit. I cannot agree with this position. As stated above, an overwhelming community of interest exists where almost every factor overlaps, and that does not exist between the petitioned-for unit and the other sales associates and assistants in the store. The sales assistants do not perform a sales function, unless asked to do so by the sales associates. For the most part, assistants merely pull merchandise together at the sales associate's request.
Assistants have an entirely different wage scale, as they do not earn commissions. Additionally, there are no assistants that work in the petitioned-for unit departments. Further, although all sales associates in the store work toward a common goal of selling merchandise, the women's shoe department associates have the unique goal of selling shoes in particular. The sales associates in other departments do not have the same background and experience in selling shoes. Though the Employer testified that it does not require shoe department employees to have prior shoe sales experience, the evidence reflected that all but one shoe department employee had such prior experience. Sales associates in other departments, on the other hand, do not have prior shoe sales experience, and as a result, have been observed selling shoes incorrectly on the rare occasion they sell outside their departments. There is little evidence of functional integration in the store. The evidence did not establish that employees work in other departments when needed or substitute for employees in other departments. Though the Employer encourages employees to attend store-wide meetings and vendor and designer meetings, women's shoe sales associates rarely attend meetings with sales associates from other departments. The Employer argues that employees are evaluated on their "out of home base" sales and that this is evidence of integration. However, the record indicates that employees generally sold within their own departments. In particular, 2nd floor shoe employees sold about 97.7% within their own department in both quarters and 5th floor shoe employees sold about 92% within their department. There was testimony from a 2nd floor women's shoe department associate that he does not feel qualified to sell in other departments and that he would lose money by selling in other departments because he
would earn less commission there. Rather, he explained that his out of home base sales are likely from ringing up merchandise from other departments at a customer's request. There was no evidence employees go into other departments with any frequency or regularity. The Employer also relies on evidence of transfers to bolster its contention that the store employees are integrated. However, evidence of transfers to the shoe department was negligible. The record establishes that out of about 42 transfers in the past 13 years, only four employees transferred into the petitioned-for unit and there were no transfers out of the petitioned-for unit into other departments in the store. Thus, transfers were insufficient to demonstrate integration between employees in the petitioned-for unit and other sales associates. Most notably, the employees in the petitioned-for unit are paid on a different wage scale than all other sales employees in the store. Specifically, as noted above, the petitioned-for unit is paid on a draw versus commission basis as opposed to the base plus commission basis applicable to all other sales associates. Though the Board has never held that method of payment alone would create a unique unit, the Board certainly considers method of payment as a factor in determining whether a unit is appropriate. See, e.g., Sears, Roebuck and Co., 178 NLRB 577 (1969) and J.C. Penney Co., 196 NLRB 708 (1972). Thus, the distinct method of payment in this case, coupled with other common community of interest factors, make employees in the petitioned-for unit similar and distinguishable from other sales associates in the store. All sales employees are subject to the same health benefits, vacation and holiday policies, evaluation forms, and probationary periods, and all have access to a common
cafeteria. Despite these similarities, however, the above-mentioned facts distinguishing the employees in the petitioned-for unit outweigh these similar personnel policies and shared break facilities. See, e.g., Northrop Grumman Shipbuilding, Inc., supra, at p. *4 (2011) (finding similar salary structure, personnel policies, shared break facilities and benefits were outweighed by facts distinguishing employees in petitioned-for unit). The Employer relies heavily on Bullock's, Inc. d1bla L Magnin & Co., 119 NLRB 642 (1957) in support of its contention that the petitioned-for unit is inappropriate. In that case, the Board found that the petitioned-for unit of shoe sales employees in the employer's retail store was an inappropriate unit. There, the evidence established that all salespeople received the same benefits, the employer did not require prior experience of shoe department personnel, and employees in other departments had been assigned to work as shoe salesmen. Thus, despite the different pay scale for shoe salesmen, the Board concluded that the shoe employees were not sufficiently different from other employees to warrant a separate unit. Id. at 643. L Magnin, however, is distinguishable from the instant case. Particularly, the shoe employees in L Magnin did not have skills separate from other salespeople and other salespeople were assigned to work as shoe salesmen. By contrast, the record showed that almost all shoe department employees at issue herein had prior experience in retail sales, and shoe sales in particular. Moreover, there is no evidence that employees in other departments are assigned to shoe sales, or that shoe sales employees are assigned to other departments. Therefore, in the instant case, the necessary evidence of interchange that might lead to a conclusion that the groups should be together as it did in L Magnin, is not present.
Finally, the Employer asserts that Specialty's footnote 29 cannot be ignored and that traditional retail industry presumptions must prevail. The Employer asserts that the Board in Specialty Healthcarenoted that its ruling was not meant to disturb special industry and occupation rules, and that thus, we must follow retail industry presumptions despite Specialty Healthcare.See Specialty Healthcare,357 NLRB at *17 n.29 (stating holding was not meant to disturb any rules applicable "only in specific industries" other than in the non-acute healthcare setting). Relying on footnote 29, the Employer argues that the presumption in a retail setting is for a store-wide unit of all selling and non-selling employees. See, e.g., Bullock's Inc., 119 NLRB 642, 643 (1957); see also Levitz FurnitureCo., 192 NLRB 61 (1971); A. Harris& Co., 116 NLRB 1628 (1956); May DepartmentStores Co., 97 NLRB 1007, 1008 (1951). Even if the Specialty Healthcareruling was not meant to disturb established industry presumptions, exceptions to the wall-to-wall unit have been recognized in the retail industry, and thus, under both Specialty Healthcarerules and traditional retail industry rules, the petitioned-for unit is appropriate. For example, in Allied Stores of New York, Inc. d1bla Stem's, Paramus,150 NLRB 799 (1965), the Board rejected the presumption of a store-wide unit, finding a unit of all salespersons to be appropriate. There, the Board noted alternative units in the retail setting, including the shoe sales employees at Saks Fifth Avenue, alterations employees, display department employees, and decorators. /d at 803 (noting different units in voluntary recognition settings); see also Wickes Furniture,231 NLRB 154 (1977). Thus, though the presumption of a store-wide unit exists, the presumption can and has been rebutted in this case.
Since Specialty, the Board has shed more light on footnote 29. Particularly, in Northrop Grumman, the Board referenced footnote 29 and found it could reach the same conclusion under Specialty as it could under existing presumptions for technical industry employees. There, the employer argued that a wall-to-wall unit of technical employees was a presumptively appropriate unit. Id. at *5. The Board, however, noted that subsets of technical employees who share a community of interest "sufficiently distinct" from other technical employees could also be an appropriate unit and identified cases where such smaller units were found appropriate. Id. Perhaps more importantly, the Board in Northrop Grumman questioned whether a general preference for combining all technical employees into a single unit was justifiable given the enormous diversity of technical classifications. Id. at *6. The Board's approach to Specialty's footnote 29 in Northrop Grumman is instructive. First, it is clear from that case that subsets of a larger unit can comprise an appropriate unit. Second, the Board expressed its reservation at creating generalizations about appropriate industry units. In this instant case, there are more than 20 departments and 15 support classifications which exist. As stated above, since a smaller department of shoe employees has been found to be an appropriate unit, and since the Board has recognized exceptions to the wall-to-wall retail presumption, I find that under those lines of cases, as well as under Specialty, the petitioned-for unit is appropriate. I similarly reject the contention that the Men's store should be included in the unit, despite the Employer's claim that the Men's and Women's stores are a single facility. Notably, there is a presumption for single-store units in the retail industry, which
can be overcome by a showing of substantial functional integration. CharretteDrafting Supplies Corp., 275 NLRB 1294,1296-97 (1985). Here, there was little evidence of interchange between the two stores. While the associates in the Men's store have access to the employee cafeteria at 754 Fifth Avenue, and at least one representative from the Men's store has attended monthly store-wide meetings, the record establishes that the Men's store employees rarely associate with employees in the Women's store. As the two stores are on opposite sides of Fifth Avenue, employees at the two store locations seldom have the opportunity to interact with each other. There is nd evidence that employees in one store fill in for employees in the other. There was scant evidence that the Women's store employees go into the Men's store to complete sales, with the exception of personal shoppers. Moreover, the "out of home base" sales report indicated that Men's store employees sell 99.6% of their products in the Men's store. Additionally, the Men's store has a different human resources manager and sales director than the Women's store. Based on the foregoing, the Men's store is properly excluded from the petitioned-for unit under rules governing single-store units in the retail industry. Based on the foregoing, though an overall unit including all the Employer's sales associates in might constitute an appropriate unit, it does not necessarily follow that the petitioned-for unit is inappropriate. Moreover, the Employer has failed to meet its burden of showing that other employees in the store share an overwhelming community of interest with the petitioned-for unit or that the petitioned-for unit is a fractured unit. In view of the foregoing, Ifind that the following constitutes a unit that is appropriate for the purposes of collective bargaining:
INCLUDED: All full-time and regular part-time women's shoes associates in the 2nd Floor Designer Shoes Department and in the 5th Floor Contemporary Shoes Department employed in the Employer's retail store located at 754 Fifth Avenue, New York, New York.
EXLUDED: All other employees, off ice clerical employees, guards, and supervisors as defined by the Act.
DECISION AND DIRECTION OF ELECTION An election by secret ballot shall be conducted by the Regional Director, Region 2, among the employees in the unit found appropriate at the time 14 and place set forth in the notice of election 15 to be issued subsequently, subject to the Board's Rules and Regulations. Eligible to vote are those in the units who were employed
during the payroll period ending immediately preceding the notice of intent to conduct election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. In addition, in an economic strike which commenced less than 12 months before the election date, employees engaged in such strike who have retained their status as strikers but who have been permanently replaced, as well as their replacements are eligible to vote. Those in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the designated payroll period, Pursuant to Section 101.21 (d) of the Board's Statements of Procedure, absent a waiver, an election will normally be scheduled for a date or dates between the 25 1h and 30th day after the date of this decision.
The Board has adopted a rule requiring that election notices be posted by an employer "at least 3 full working days prior to 12:01 a.m. of the day of the election." Section 103.20(a) of the Board's Rules. In addition, the Board has held that Section 103.20 (c) of the Board's Rules requires that an employer notify the Regional Office at least five full working days prior to 12:01 a.m. of the day of the election, if it has not received copies of the election notice. Club DemonstrationServices, 317 NLRB No. 52 (1995).
employees engaged in a strike who have been discharged for cause since the commencement thereof and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently replaced. 16 Those eligible shall vote whether or not they desire to be represented for collective bargaining purposes by Local 1142, Retail, Wholesale Department Store Unit.
Dated at New York, New York, This 4th day of May 2012 Kard'Hy-Fernbach Regional Director, Region 2 National Labor Relations Board 26 Federal Plaza, Room 3614 New York, New York, 10278
In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. North Macon Health Care Facility, 315 NLRB 359 (1994); Excelsior Underwear, Inc., 156 NLRB 1236 (1966); NLRB v. Wyman Gordon Company, 394 U.S. 759 (1969). Accordingly, it is hereby directed that within seven days of the date of this Decision, three copies of an election eligibility list, containing the full names and addresses of all eligible voters, shall be filed by the Employer with the Acting Regional Director, Region 2, who shall make the list available to all parties to the election. In order to be timely filed, such list must be received in the Regional Office at the address below, on or before May 11, 2012. No extension of time to file this list may be granted, nor shall the filing of a request for review operate to stay the filing of such list, except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.
Under the provisions of Section 102.67 of the Board's Rules and Regulations, a request for review of this Decision may be filed with the National Labor Relations Board, addressed to the Executive Secretary, 1099 14th, NW, Washington, D.C. 20570-0001. This request must be received by the Board in Washington by no later than May 18, 2012.
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