Daytex, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1973

201 N.L.R.B. 406 (N.L.R.B. 1973)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daytex, Inc.' and Retail Clerks Union Local No. 31,
Retail Clerks International Association , AFL-CIO,
Petitioner. Case 8-RC-8716
January 24, 1973
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Patricia A.
Gallagher of the National Labor Relations Board.
Following the close of the hearing, the Regional
Director for Region 8 transferred this case to the
Board for decision. Thereafter, the Employer and the
Petitioner filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. 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.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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 Petitioner seeks to represent a unit of
employees at two of the Employer's retail fabric
chain stores located in Mansfield, Ohio. The Em-
ployer contends that the appropriate unit should
include all 15 of its so-called "large-stores" situated
in a three-state area of which type the Mansfield
stores are a part. Both parties agree that the
approximately 74 "small-stores," which extend from
Pennsylvania to Illinois and Michigan, should not be
included in the appropriate unit and that the unit
should comprise all regular full-time and part-time
selling and nonselling employees, excluding all
professional employees, guards, and supervisors as
defined in the Act.
The Employer is an Ohio corporation engaged in
the retail sale of fabrics and related merchandise
with its central office in Dayton, Ohio. The large-
stores are all discount self-service stores and carry a
lower quality of merchandise with a higher inventory
turnover than the small-stores, which serve custom-
ers on a personal basis . The 15 large-stores are
clustered in four widely separated metropolitan areas
in Pennsylvania, Ohio, and Indiana. Five of these
stores are located in the Youngstown, Ohio, area
which includes the Pennsylvania store. Of the other
Ohio large-stores, three are in Dayton, one is in
nearby Springfield, two are in Mansfield, and one is
in Cincinnati . The remaining large-stores are in
Indiana; two in Muncie, and one in Kokomo. (In
addition to these stores, there is another undergoing
construction in Richmond, Indiana, which is not
included in the large-store computations.) There is
no bargaining history for any of the Employer's
employees. extend from Pennsylvania to Illinois and
Michigan, should not be included in the
All policies affecting the large-stores are deter-
mined in Dayton and administration of these stores
is centrally controlled. Merchandise for the large-
stores is purchased through central buying. Advertis-
ing and displays for the large-stores are controlled
out of Dayton and to a great extent prepared there.
The Employer has centralized data processing for
accounts payable, buying control, sales costs, sales
store inventory, and payroll. All records, including
personnel records for the large-stores, are kept in
Dayton and the payroll originates there. Payroll
timesheets are kept on a day-to-day basis and are
mailed by the individual store manager to Dayton
weekly. Personnel policies are determined by the
personnel department in Dayton and are adminis-
tered for the large-stores by District Manager
Kleinhenz and the store managers. Gene Brodie,
general manager of Daytex, testified that Kleinhenz
reports directly to him, as do the eastern small-stores
division manager, the western small-stores division
manager, the buyer, advertising department manag-
er, and Dayton home office personnel. Brodie,
together with Kleinhenz, controls pricing, inventory,
sales promotions, merchandising, and sales cost
maintenance for the large -stores.
When a store opens, sales personnel are initially
hired by Kleinhenz and the personnel manager on a
temporary basis from applicants recruited locally
through newspaper ads. After 4 or 5 weeks, Klein-
henz determines the permanent and/or temporary
employee complement of the new store. He will, if
necessary, make any cutbacks in the number of store
personnel at that time. Once open, Kleinhenz visits
each store once every 2 or 3 weeks and keeps in
telephone contact with the individual stores two or
three times a week. General Manager Brodie testified
I Employer's name appears as amended at the hearing
201 NLRB No. 55
DAYTEX, INC. 407
that a typical store visit by Kleinhenz includes a visit
with the sales personnel, "generally getting their
reaction , happy with the job, unhappy . . . Do they
have calls for merchandise we do not carry, is this
selling, is that selling, try to make them feel a part of
our operation."
In spite of Kleinhenz's involvement in the overall
supervision of the 15 large-stores as described above,
the record shows that store managers are responsible
for the day-to-day store operation. Indeed, the store
manager may, as in the Mansfield, Youngstown,
Dayton, and Muncie situations, oversee the opera-
tions of two or more stores in the immediate
geographical area. He is assisted by an assistant store
manager for each store who, in his absence, has the
same authority and duties as he does. Besides
directing the sales personnel and assigning them
work, the store manager has the authority, once a
store is established, to hire within a budget set by
Brodie, subject to the personnel manager's approval.
Any departure from fixed hiring rates that the store
manager desires to make, however, must be approved
by Kleinhenz or Brodie. The evidence also establish-
es that store managers have the authority to take
"corrective action" for bad performance by employ-
ees and can send an insubordinate employee home.
And in more serious cases, the store managers can
recommend the discharge of an employee but the
final decision rests with either personnel or Klein-
henz. With respect to wage increases, Brodie testified
that they may be initiated by the store manager but
they come to him for final approval and wages are
reviewed annually by the Dayton office. Similarly,
store managers set up the employee vacation sched-
ule subject to final approval by the personnel
department in Dayton, which determines vacation,
holiday, and overtime policies. Store managers can
also grant short periods of time off, approve sick
leave requests, and fix the hours of work and
lunchtime of each store employee, although Klein-
henz or the Dayton office may prescribe the total
number of weekly hours that the large-stores will be
kept open.
In addition to the foregoing duties and responsibil-
ities, store managers and assistant store managers
handle customer complaints, including complaints
about store personnel. They can authorize replace-
ment of merchandise or refunds of money for the
purchase price and can reduce the price of a small
amount of merchandise . They also sell goods and are
responsible for filling out reports and forms.
The two Mansfield stores opened in June or July
1971, with a total of 30 temporary employees for
both stores. They have at present a total of
approximately II permanent employees . There is one
manager for both stores and an assistant manager for
each store . Their authority , duties , and responsibili-
ties , according to the testimony of Brodie, are as
described above and are the same as that of all other
large-store managers and assistant store managers.
Geographically, it appears from a reading of the
Employer's Exhibit I, (a road map of the three-state
area which was introduced into evidence to pinpoint
the locations of the large -stores and the more widely
scattered small-stores) that the two Mansfield stores
are about 100 miles from Youngstown and Spring-
field , the nearest large-store locations to them, about
130 miles from Dayton , and about 200 miles from
Muncie , Indiana , the location of the nearest opera-
tive large-stores in Indiana.
The evidence shows that there are no transfers of
employees among the various large-store metropoli-
tan area clusters , such as Youngstown , Dayton, and
Mansfield. Brodie testified that the Employer would
not expect an employee to accept a transfer to a
different area. Employees are transferred , however,
between the two Mansfield stores , both on a
temporary and permanent basis , and the store
manager has authority to effect such transfers.
The Board has held , with respect to retail chain
operations , that a single-store unit is presumptively
appropriate absent a bargaining history in a more
comprehensive unit or a functional integration so
severe as to negate the identity of a single-store unit.2
The presumption may be rebutted where it is shown
that the day-to -day interests of employees in the
particular store may have merged with those of
employees of other stores . In the instant case,
however , no labor organization seeks to represent a
single-store unit, and thus , the issue presented here is
whether the two-store unit requested by the Petition-
er constitutes "a grouping of employees sharing a
distinct community of interest derived from common
supervision or clearly defined geographic considera-
tion." 3
The Employer contends that any presumption that
the two Mansfield stores constitute an appropriate
unit is rebutted by the facts which show (1) an
extraordinary degree of integration and centralized
control over the operation of the 15 large-store unit it
urges ; (2) the manager's lack of autonomy in day-to-
day operations and personnel matters ; and (3) the
effective uniform supervision exercised by the district
manager over all phases of the Employer 's large-store
group . It argues that the only appropriate unit is a
unit of all employees in the Employer's administra-
tive large-store group.
The Petitioner contends that a chainwide unit of
2 Frisch's Big Boy III-Mar, Inc, 147 NLRB 551
3 Gray Drug Stores, Inc., 197 NLRB No 105.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
large-stores is inappropriate due to the Employer's
plans for additional large -stores, the significant
geographical clustering of such stores with a separate
manager managing the stores in each cluster , such as
one manager for the five Youngstown stores, one for
the two Muncie stores, and one for the two
Mansfield stores, and the lack of interchange of
employees from one geographical area cluster of
stores to another. On the other hand, the Petitioner
contends, the employees in the two Mansfield stores
comprise a homogenous, identifiable, and distinct
group and, as such, share a community of interest
with each other not shared by them with employees
in other areas, in that the employees come from the
Mansfield area, are often interchanged between the
two stores, and have common supervision. These
factors, the Petitioner argues, combined with the
authority exercised by the store managers and their
assistants warrant a finding that the petitioned-for
unit is appropriate. We find merit in the contentions
of the Petitioner.
The facts demonstrate, and we find, that the
employees employed in the two Mansfield large-
stores have a community of interest and that such
community is separate and distinct from employees
at the Employer's remaining large-stores. In so
finding, we rely on (1) the substantial interchange
between the two Mansfield stores, as contrasted with
the absence of interchange with employees outside
Mansfield; (2) the common and immediate supervi-
sion of both Mansfield stores by a single manager;
(3) the 'relatively infrequent visits by the district
manager to the individual stores; (4) the geographical
proximity of the Mansfield stores to each other and
the substantial distance between these two stores and
any other large-store in the three-state area.
We also note that, while there is considerable
centralization , local management over these two
stores is by no means without appreciable responsi-
bility with respect to employment matters . While the
Mansfield store manager cannot initiate major
personnel policies, he does regularly implement such
policies in the day-to-day store operations and guides
and directs employees in their work . Moreover, the
store manager (and/or his assistants) do initiate the
hiring of employees locally; can recommend their
discharge ; assign work to employees, transfer and
discipline them , and recommend wage increases for
them ; handle customer complaints about sales
personnel ; set up tentative vacation schedules for
employees , and establish their hours of work, grant
them time off, and approve sick leave for them. In
these circumstances , we find that these duties and
responsibilities of the Mansfield store manager are
adequate to establish that a substantial degree of
managerial responsibility for employment matters
has been retained by him and his assistant store
manager in the management of the two stores, thus
further demonstrating that the two stores together
constitute an appropriate unit.4
Accordingly, for the reasons enumerated above, we
find that the following employees constitute an
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All regular full-time and part-time selling and
nonselling employees employed at the Employer's
two large-stores located in Mansfield , Ohio, exclud-
ing the store manager, assistant store managers,5
professional employees , guards, and supervisors as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
4 Cf Purity Supreme, Inc 197 NLRB No. 157 managers are supervisors within the meaning of See . 2(11) of the Act
5 The parties stipulated at the hearing , and we find, that assistant store