Allied Stores of Ohio, Inc.

National Labor Relations Board - Board Decisions

May 13, 1969

175 N.L.R.B. 966 (N.L.R.B. 1969)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Stores of Ohio , Inc. and Retail Clerks
International Association , Local No. 698,
AFL-CIO Petitioner. Case 8-RC-7156
May 13, 1969
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer John
Vincek. Following the hearing, this case was
transferred to the National Labor Relations Board
in Washington, D.C., pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended. Thereafter, briefs were filed by the
Employer and the Petitioner.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board finds:
1. The Employer' is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning 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 appropriate unit: The Petitioner seeks to
represent a unit consisting of all regular selling and
nonselling employees at the Employer's downtown
Akron, Ohio, store and attached service building,
including employees of leased departments.
However, the Petitioner would be willing to
participate in an election in separate units of the
downtown Akron store and service building, should
the Board find such units appropriate. The
Employer contends that a unit limited to the Akron
location is inappropriate and that the unit should
include all the Employer's locations in Ohio, or in
the alternative, all of its locations in Summit
County, Ohio. However, in the event the Board
finds the single Akron store unit to be appropriate,
the Employer urges that such unit should not
include the service building.
The Employer operates five retail stores in Ohio.
The main store, a full line department store, is
located in Akron, Ohio, and houses the Employer's
'The name of the Employer appears as amended at the hearing. The
Employer is also known as "The A. Polsky Company" or "Polsky's."
central administrative offices. The Employer's
service building, a combination parking garage, and
warehouse, customer service and repair center, is
physically connected to the main store by a covered
bridge that is used by customers and employees
alike. Three of the Employer's stores are located in
Stark County, Ohio, and two, including the Akron
store, are in Summit County, Ohio. The three stores
in Stark County are located in Canton, Ohio, and
are 25 miles from the Akron store. The remaining
store in Summit County is located in Fairlawn,
Ohio, and is 5 miles from Akron and 31 miles from
Canton.
The Employer's operation is marked by a high
degree of central control and administration. Thus,
sales promotion and advertising, billing and credit,
purchasing and merchandising are all controlled
from the central administrative offices located in the
Akron store. The service building serves as a central
warehouse for the five stores. Buyers located in
Akron purchase merchandise for all stores, and
when necessary transfer merchandise from store to
store. They also establish prices and markdowns at
each store and are required to visit each store at
least twice a month. Frequent meetings of
departmental sales personnel are held on a
companywide basis. Accounting, auditing, payroll,
and personnel relations are centrally controlled, and
there are common conditions of employment in all
stores. Wages, fringe benefits and seniority are
determined centrally and in the same manner
regardless of employee location. Major
maintenance, security and most repair services are
handled from Akron.
The above factors indicate that the Employer's
operation is characterized by the high degree of
centralization and uniformity commonly found in
retail chains. However, it is well established that
such factors are insufficient in themselves to rebut
the presumption that a single store in a retail chain
is an appropriate unit. In Haag Drug Company,
Incorporated,' we stated:
. though chainwide uniformity may be
advantageous to the employer administratively, it
is not a sufficient reason in itself for denying the
right of a separate, homogeneous group of
employees, possessing a clear community of
interest, to express their wishes concerning
collective representation.
As pointed out, more significant than centralized
administrative control is "whether or not the
employees perform their day-to-day work under the
immediate supervision of a local store manager who
is involved in rating employee performance, or in
performing a significant portion of the hiring and
firing of the employees, and is personally involved
with the daily matters which make up their
grievances and routine problems." Other factors
considered in determining whether or not the
'169 NLRB No. I l l
175 NLRB No. 162
ALLIED STORES OF OHIO, INC.
presumptive appropriateness of a single-store unit
has been overcome;,include, inter alia, geographic
separation of the stores, . employee interchange and
the employer's past bargaining history.
Upon a consideration of the entire record, we are
not persuaded that the factors necessary to rebut the
presumptive appropriateness of a single-store unit
are present in this case.
The record reveals that the day-to-day operation
of the branch stores is the responsibility of the
branch store manager and his staff. Fred Brenner,
the Fairlawn store manager and former store
manager at Canton, testified that his job consists of
"supervising the personnel assigned to this location,
and the accomplishment of their designated
functions, and in so doing in achieving planned
objectives which have been designated by the
management of the Company."' Brenner testified
further that it is the store manager's duty to
determine whether certain company standards of
performance are being maintained; to issue formal
warnings if, they are not; and that failing, to
recommend discharge or transfer to a lesser
position." Store managers can also suspend
employees for cause-and make recommendations as
to whether they should be retained or discharged.
Thus, it is quite clear that although the final
determination with respect to discharge is vested in
the central organization, the branch store manager
plays a significant role in such determinations.
In addition, the' record indicates that branch store
managers are required to train all new employees,
although in performing this function training
material provided, by the central organization is
used. The store manager and his staff are also
directly involved in the handling of employee
grievances. Brenner. stated that employees are
encouraged to and do bring their grievances to him.
Branch store personnel have substantial authority
in the hiring process. In hiring for the basic staff,
the initial interview and decision to hire is made by
the branch store personnel representative, although
new employees are considered probationary
employees for the first 60 days and do not achieve
'The Employer attempted to establish that direct supervision over the
branch store sales personnel is exercised by the buyers who are part of the
central organization . The record indicates that the buyers are required to
visit the stores at least twice a month and during these visits they do have
contact with sales personnel . However, according to Brenner's testimony,
the buyer's primary function is to provide the sales personnel with the
merchandise and the information necessary to sell it effectively. Brenner
specifically pointed out that the day-to-day supervision of the sales
personnel is handled by the branch store sales manager and that any
changes or improvements that the buyer deems necessary must be directed
through the sales manager. Richard Missbach , the senior vice president of
merchandising and sales promotion also testified that the day-to-day
supervision of the sales personnel is the sales manager 's responsibility.
'Brenner testified that his recommendations are not necessarily followed
and that on occasion although he has recommended discharge , the central
organization has advised him to use the particular person in a lesser
position. However such testimony does not serve to support the Employer's
contention that Brenner's recommendations are ineffective but shows
conversely that they are effective because some disciplinary action is taken
as a result of Brenner 's recommendations.
967
permanent status until central personnel check their
references and job performances. Further, it appears
that branch store personnel have complete authority
to hire "status three" employees (extras who are not
part of the basic staff) so long as such hiring is
within the store's budget allowance.
Branch store personnel also have the
responsibility to evaluate employee performance.
Specifically, these evaluations are made by the
employee's immediate supervisor on standard forms
provided by the Employer. The branch store
personnel representative then utilizes these
evaluations in making recommendations as to wage
increases to Janet Marks, the vice president of
personnel. Marks will then discuss each
recommendation with the branch store's personnel
representative before deciding whether to approve
the wage increase. Thus, while the final
determination with respect to wage increases must
come from central personnel, the branch store
personnel play an important role in these
determinations.
In addition to' the substantial amount of local
authority vested in the branch store manager and his
staff, there are other factors which support the
presumption that a unit limited to the employees at
the Akron store is appropriate. Thus, the Akron
store is geographically separated from the other
stores, serves a different economic area and
maintains different store hours. The record also
indicates that employee interchange among the
stores has been minimal. During a 3-year period
there have been only 123 permanent transfers
among the 5 stores and service building which have
a total complement of approximately 1,560
employees.' Moreover, although temporary transfers
have occurred during special sales events, it appears
that such sales are held infrequently and only
involve two or three employees at a time." Further,
no established bargaining relationship would be
disturbed by finding the petitioned-for store
appropriate.'
Upon consideration of the entire record, including
particularly the substantial degree of authority
exercised by the store manager and his supervisory
staff in the day-to-day operations; the minimal
amount of employee interchange, the geographic
separation of the stores, and the absence of any
conclusive bargaining history, we conclude that a
unit confined to the employees of the Akron store is
appropriate herein.
'Of these 123 transfers, 50 occurred when the Fairlawn store was opened
in 1965.
'Although there was testimony to the effect that employees have also
been temporarily transferred for specialized training , the record is
inconclusive as to the frequency of such transfers.
'We do not deem of any controlling significance the fact that the
Employer has recognized two small groups of employees ; one unit limited
to employees located at the Akron and Fairlawn stores, and another unit
limited to employees located in the service building , and furthermore we
note that the Petitioner 's unit request specifically excludes such employees.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously noted, the Petitioner included in its
unit request those employees employed in the service
building who are not presently represented by
another labor organization. The Employer objects to
including the service building employees. It argues
that their inclusion would be based solely on extent
of organization. In this connection, it contends that
there is no difference between the community of
interest shared among the service building
employees and Akron store employees and that
which exists between the service building employees
and those working at the other stores. We do not
agree.
In terms of geographic location, the service
building is connected to the Akron store by a
two-level bridge. The upper level is used to transfer
goods between the buildings by means of a conveyor
system; the lower level is used by both customers
and employees to cross between the buildings.
Included among the employees who regularly use
this bridge are the mail girl, the display department
employees, the mechanics, furniture preparation
men, radio and television repair men, markers, the
appliance repair man, and sales employees needing
merchandise from the service building for waiting
customers. The record also shows that service
building employees use the Akron store cafeteria;
that personnel problems relating to the service
building are handled by the personnel representative
located in the Akron store; and that the service
building employees employed in the addressograph
department are supervised by the credit manager
who has his office in the Akron store. Although for
the most part service building employees perform
jobs which relate to the entire chain, this is not true
of the service performed by the parking attendants
which relates solely to the Akron store. In addition,
the Employer maintains warehousing facilities in
both buildings, and part of the Akron store's retail
operation is housed in the service building by the
maintenance of a lawn and garden shop for part of
the year and on those occasions when special
warehouse sales are held.
In light of the foregoing considerations and the
record as a whole, it is our view that the service
building employees have a greater community of
interest with the Akron store employees than with
the employees located at the other stores and as
such, we shall include these employees in the Akron
store unit.
The Petitioner and Employer entered into a
number of eligibility stipulations pertaining to the
employees working in the Akron store and the
service building. They agreed that the degree of
control exercised by the Employer over the
employees of three leased departments, Selegman &
Latz of Akron, Inc., Joseph Cirino, and Poly-Foto,e
is such that these employees should be included in
the unit. They also agreed that the employees of all
other leased departments should be excluded. They
stipulated further that certain other employees are
to be excluded as confidential employees,
professional employees, employees presently covered
by collective-bargaining agreements, guards and
supervisors; and that certain other employees are to
be included in the unit. Upon examination, we find
no reason to disturb the agreement of the parties as
to any of these categories.
The Employer contends that the following
employees are not supervisors and should be
included in the unit, the Petitioner takes the
contrary position.
(1) Head PBX operator: The PBX department is
the Employer's central telephone system. Five
telephone operators including the head PBX
operator work in this department. The head PBX
operator spends about 90 percent of her time
working alongside the other operators on the
automatic switchboard. The remainder of her time is
spent checking phone bills, observing other
operators and relieving them during rest periods. It
is her function to see that the work of the
department is being performed pursuant to the
instructions she receives from the vice president of
operations, Joseph Marks. She has no authority to
reward or discipline any operator. Although she has
trained operators, generally this function is
performed by a representative of the telephone
company. On occasion, she might express her
opinion to Marks concerning an operator's
performance; however Marks will always investigate
the situation himself independently before making
any decision. As the record fails to disclose that the
head PBX operator exercises any discretion in
performing her duties, we find that she is not a
supervisor within the meaning of the Act.
Accordingly, we shall include her in the unit.
(2) The billing controller: The occupant of this
position spends 80 percent of her time performing
the routine work of the billing department. The
remainder of her time is spent as the department's
manager . There are approximately 15 employees in
the department. As department manager, she
reviews the time records of employees, consults with
her immediate supervisor in the adjustment of
employee grievances, and aids in the scheduling of
employee vacations. The record further shows that
she can grant a change in an employee's working
schedule; that she maintains a list of "on call"
employees and can decide independently which "on
call" employee will be given available work; that on
occasion she has made independent decisions as to
the need for "on call" employees; and that she is in
charge of the day-to-day operation of the
department. In view of these facts, we find that the
billing controller in the performance of her duties
exercises independent judgment and responsibility
directs the employees in her department, and is
'Selegman & Latz of Akron , Inc , appeared at the hearing and joined in
the stipulation as to its employees . Joseph Cinno and Poly-Foto were duly
served with the Board 's Notice of Representation Hearing and Order
Rescheduling Hearing but did not appear.
ALLIED STORES OF OHIO, INC. 969
therefore a supervisor within the meaning of the
Act; we shall accordingly exclude her from the unit.
(3) Auditing controller: The sales audit
department audits the sales figures from each store
department. The department includes three or four,
regular employees and a number of part-time
employees that varies depending on the time of the
year. The auditing controller spends approximately
80 percent of her time performing the routine work
of the department. The remainder of her time is
spent scheduling hours, training, and checking the
work of the employees. While the record shows that
her recommendations as to hiring, discharge, and
pay increases are independently reviewed by her
immediate supervisor, it shows further that she has
the authority to adjust minor grievances and
disciplinary problems; to assign work; to schedule
vacations subject to review; and upon receipt of the
authorization for extra help, to select the particular
"on call" employee that will work. Moreover, she is
the only on-the-scene person with any authority in
the department and she attends supervisory meetings
together with stipulated supervisors. In the above
circumstances, we find that the auditing controller
possesses sufficient authority to be considered a
supervisor within the meaning of the Act;
accordingly we shall exclude her from the unit.
(4) Head housekeeper: This individual spends 60
to 70 percent of his time cleaning the store. The
remainder of his time is spent assisting his
immediate supervisor, the supervisor of
housekeeping, in checking on the quality and
performance of the work performed by the 17
porters and maids who work in the housekeeping
department. In performing these latter duties, the
head housekeeper orders work redone, assigns work
to others, and makes reports to the supervisor of
housekeeping concerning employee performance and
infractions of company rules. He receives
approximately 50 cents an hour more than the next
highest paid person in the department. Each
Saturday and during 4 weeks of the year when the
supervisor of housekeeping is on vacation, the head
housekeeper is the sole person in charge of the
housekeeping department. In view of the foregoing
and particularly in view of the fact that the head
housekeeper regularly is in sole charge of the
department, we find that he is a supervisor within
the meaning of the Act; and shall exclude him from
the unit.
(5) Assistant display manager.- There are
approximately 12 employees working in the display
department. It is their job to construct displays of
merchandise in the sales areas and windows of the
store. The assistant display manager spends
approximately 70 percent of his time performing
this work. He spends the remainder of his time
assisting the display manager in directing the work
of the department, a function which the Petitioner
claims is sufficient to make him a supervisor.
However, as the record does not clearly indicate the
extent and nature of such direction, we shall allow
the assistant display manager to vote subject to
challenge.
Status Three Employees
The Employer considers "Status three" employees
as "extras" and not a part of the basic staff.
Included in this category are probationary
employees, students, Social Security annuitants,
regular part time employees working less than 10
hours a week and all other employees who are on an
"on call" basis. Although the parties are in
agreement that some "Status three" employees
should be included in the unit, they are in
disagreement as to the standard to be applied for
eligibility of these employees. Upon examination we
find that, except for those whose exclusion is
required by established Board policy, such as
temporary and casual employees, any "Status three"
employee who regularly averages 4 hours or more
per week for the last quarter prior to the eligibility
date has a sufficient community of interest for
inclusion in the unit. Accordingly, any employee
meeting this requirement shall be eligible to vote.
Accordingly, we find that the following employees
of the Employer constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of the Act: All regular selling and
nonselling employees at the Employer's Akron,
Ohio store and service building, including employees
of Selegman & Latz of Akron, Inc., Joseph Cirino,
and Poly-Foto, and all qualified "Status three"
employees, but excluding professional employees,
casual employees, temporary employees, seasonal
employees, guards, confidential - employees,
supervisors as defined by the Act, and employees
represented by other labor organizations.
[Direction of Election' omitted from publication.]
'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 which may be used to communicate with them. Excelsior
Underwear Inc.. 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Company,
394 U.S. 759, decided April 23, 1969. Accordingly , it is hereby directed
that an election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 8 within 7 days of the date of this Decision and
Direction of Election. The Regional Director shall make the list available
to all parties to the election . No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed.