Dayton-Hudson Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1977

227 N.L.R.B. 1436 (N.L.R.B. 1977)

1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lipman's, a Division of Dayton -Hudson Corporation
and Retail Employees Union Local 1092 , Retail
Clerks International Association, AFL-CIO, Peti-
tioner. Case 36-RC-3654
January 24, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 15, 1976, the Regional Director for Region
19 issued a Decision and Order in the above-entitled
proceeding in which he dismissed the petition on the
ground that the Petitioner's requested single-store
unit of employees at the Employer's store at 521 S.W.
Fifth Avenue, Portland, Oregon (also referred to as
the downtown store), was inappropriate in view of the
highly centralized control of labor relations and
significant employee interchange which characterize
the Employer's operations. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8 , as amended,
the Petitioner filed a timely request for review of the
Regional Director's decision on the grounds, inter
alia, that he made erroneous findings of fact and
departed from officially reported Board precedent.'
By telegraphic order dated August 17, 1976, the
request for review was granted. Thereafter, the
Employer filed a brief on review.
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 considered the entire record in this
case with respect to the issues under review, including
the Employer's brief on review, and finds that 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, for the following reasons:
The Petitioner contends that the Regional Director
erred in dismissing the petition, on the ground that
the record does not support his findings concerning
degree of interchange, lack of local autonomy,
centralization of labor relations policies, and other
factors considered in his decision pointing toward the
inappropriateness of a single-location unit. We find
merit in the Petitioner's contention.
The Employer, a division of Dayton-Hudson Cor-
poration, is engaged in the retail sale of specialty
I The Petitioner also filed an alternative request for remand for further
hearing and production of the "Dayton-Hudson manual" in the event that
the Board did not reverse the Regional Director Thereafter , the Employer
filed a motion to dismiss Petitioner 's alternative request on the grounds, inter
227 NLRB No. 211
items through a chain of seven stores in the State of
Oregon. Its corporate headquarters is located in a 14-
story building housing the downtown store. The
Employer has over 700 selling employees at its seven
stores, of which 200-225 work at the downtown store.
The closest branch store, in the Lloyd Center
shopping mall, employs around 80 selling employees
and is approximately 2 miles from the downtown
location; two other branches each employ around
100 selling employees and are within 9 miles of the
downtown store, within the Portland metropolitan
area; and the other three branches employ 70-80
selling employees each and are located 50, 56, and
106 miles to the south of the downtown store in
Salem, Corvallis, and Eugene, respectively. There is
no collective-bargaining history for any of the em-
ployees in the Employer's chain, and no labor
organization seeks to represent them on a broader
basis than here sought.
The Employer's operations are highly integrated
and administratively centralized. For example, such
functions as sales audit, payroll, purchasing, accounts
payable, advertising, and accounting are handled at
the corporate headquarters. There is a central person-
nel office. Employee wage and benefit programs are
uniform throughout the chain.
The central personnel office conducts most of the
formal employee training, primarily through training
sessions held at each store. The central office may
interview and hire job applicants for positions at all
stores. However, in many instances prospective
employees are directed to appear for interview at the
particular store which is seeking them.
The corporate headquarters staff is in contact with
the stores an estimated 15-20 times per day by
telephone in the process of implementing policies and
centralized procedures. These contacts may involve,
for example, calls by sales personnel to obtain
authorizations for extending credit, to report the total
sales for each cash register, to correct errors, ask
questions about procedures, etc.; or calls by central
employees to discuss errors and discrepancies. In
addition, written reports are sent in by the stores on a
daily, weekly, biweekly, and monthly basis; and
frequent memos are sent to store personnel by the
central offices.
Each store has a salaried manager, and all but the
downtown store have a salaried assistant manager. In
addition, each store has a "personnel clerical" who is
an hourly paid employee reporting directly to the
personnel director at the Employer's headquarters.
alga, that it was untimely and that there is no provision in Board rules for this
request . Because of our decision herein , it is unnecessary to consider
Petitioner 's request.
LIPMAN'S, A DIVISION OF DAYTON-HUDSON CORP.
According to testimony by Personnel Director
Hazel Payne, the store manager prepares periodic
employee evaluations, issues verbal reprimands, and
can recommend that scheduled merit wage increases
be withheld or accelerated. Ms. Payne testified that
the store manager does not hire or fire employees for
his store. She testified that the personnel clerical at
the downtown as at other stores has the authority to
interview, hire, schedule days off, assign shifts,
schedule overtime, effectively recommend leaves of
absence, and adjust minor grievances. He also reports
disciplinary matters to her if any disciplinary action
beyond a verbal warning is warranted. Ms. Payne
stated that she determines what, if any, disciplinary
action to take, ranging from written reprimand to
discharge, based on information she receives from the
personnel clerical, the store manager, store security
personnel, and central personnel under her supervi-
sion who review cash register tapes and sales slips.
Ms. Payne's office also schedules vacations and
arranges temporary or permanent transfers. In addi-
tion, employee grievances may be referred to her by
store personnel and have been brought to her directly
by grievants.
Each store also has approximately eight floor
supervisors, who are hourly paid. While there was
little evidence in the record as to their duties, Ms.
Payne testified that they schedule employee breaks
and lunch periods, adjust grievances, resolve routine
daily questions, instruct employees in new proce-
dures, and otherwise perform the direct day-to-day
supervision of employees.2
After the third day of hearing, an overnight
adjournment was granted the Employer to enable it
to prepare statistics as to employee interchange, and
when the hearing was reconvened the Employer's
Exhibit 45 was admitted into evidence over Petition-
er's objection.3 The exhibit purports to be based on
the Employer's records of employee transfers from
1973 to mid-1976. Ms. Payne's testimony concerning
this exhibit shows that some of the transfers listed
involved supervisory personnel. The exhibit distin-
guishes only between employees who are paid hourly
(including some who may be supervisors) and "execu-
2 The parties agreed that supervisory issues would be deferred for
resolution through the challenge procedure . However , at least with regard to
the store manager and the personnel clerical at the downtown store , we find,
on the basis of record evidence as above noted, that they are supervisors as
defined in the Act
3 Petitioner objected on the grounds , inter aim, that the exhibit was
incomplete , inaccurate , and not the best evidence
4 Those employees are Ruby Bowen (transferred into and out of the
downtown store from Eastport Plaza within I month), Delores Bennett
(transferred from Lloyd Center to downtown , back to Lloyd Center 5 weeks
later, and back downtown 2 weeks later ), Kathy Dixon (transferred from
downtown to Lloyd Center and back within 2 weeks), B Lynn Noble
(transferred from Corvallis to downtown and back in 3 months), Betty
Greene ( transferred from downtown to Lloyd Center and back in 1-1/2
weeks), Nancy Hankins (transferred from downtown to Washington Square
1437
tive" or management employees paid a monthly
salary. Furthermore, Ms. Payne testified that as many
as 10 percent of those listed on the exhibit, without
identification as such, may be employees who would
be excluded from the unit (e.g., culinary employees or
others stipulated by the parties as excluded). Of the
203 instances of transfers listed in the exhibit, 175
involved transfers into or out of the downtown store;
of that number, 62 were clearly designated as
"temporary" involving "hourly" employees, 97 were
clearly designated as "permanent" involving hourly
employees, 5 involved "supervisors," and 11 were
ambiguous or omitted specification of the nature of
the transfer. We have carefully examined the exhibit
and conclude that, of the 62 transfers involving
hourly employees labeled as temporary, at most only
8 can be viewed as such.4 With regard to permanent
transfers of hourly employees, at most 141 transfers
can be considered as permanent, and this figure is
highly suspect.5
On the basis of the foregoing and the record as a
whole, we are unable to agree with the Regional
Director that the degree of employee interchange
affecting the downtown store is so substantial, or that
the amount of local autonomy with regard to
supervision of employees is so limited, as to rebut the
presumption favoring the requested unit confined to
the downtown store .6
With regard to local autonomy, we find that
supervisory personnel at the store level exercise
considerable authority in personnel matters. While
the personnel director makes final decisions as to
discipline, schedules vacations, arranges for transfers,
and handles grievances brought to her, in our
opinion, the store manager and the personnel clerical
at the downtown store also have and exercise
substantial authority in the personnel area, in that the
store manager evaluates and reprimands employees
and the personnel clerical interviews, hires, schedules
employee shifts, vacations, and overtime, and adjusts
grievances.
Likewise, with regard to employee interchange, we
find that the evidence introduced, as above discussed,
does not establish that the extent of temporary or
and back in 3 months), Debra Turnquist (transferred from downtown to
Lloyd Center and back in 1-1/2 months ), and Carol Janssen (transferred
from Lloyd Center to downtown , then from downtown to Washington
Square 2-1/2 months later).
Many other instances of "temporary" transfer give only the date of the
transfer out; others are of such a duration as to raise a question concerning
their designation as temporary (e g , listed instances of transfer which vaned
from 7 months to 3 years in duration); and some are simply incomplete
5 This figure is reached by adding instances of transfer for which only the
transfer out is listed and instances of transfer of over 6 months to the 97
transfers marked "permanent." There was record evidence that some of these
may have involved promotions , transfers of employees outside the urn t, or
supervisors, as previously discussed
6 Haag Drug Company, Incorporated 169 NLRB 877 (1968); Levitz
Furniture Corporation, 224 NLRB 347 (1976)
1438 DECISIONS OF NATIONAL
permanent transfers has a significant impact on the
community of interest shared by downtown store
employees. The eight instances of employee transfer
identified herein as temporary, over the 3-1/3 years
covered by the Employer's exhibit, indicate that
temporary interchange is insignificant. While there
were 141 permanent transfers, as indicated supra,
they are not relevant in determining employee
interchange. Such transfers are frequently made for
the convenience of the employee concerned and
cannot be said to contribute to all-store cohesiveness.
Also supportive of the appropriateness of the
downtown store as a separate bargaining unit is its
geographic separation from other stores in the chain,7
the fact that there is no bargaining history for any of
these employees, and the fact that no labor organiza-
r Although the store located in the Lloyd Center shopping mall is only 2
miles from the downtown store , it appears from the record that each store has
its own identity as a distinct economic unit by virtue of the fact that one is
known as the downtown store and the other is located in a shopping mall
LABOR RELATIONS BOARD
tion seeks to represent the employees on a broader
basis.
We therefore find that the following employees of
the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All employees of the Employer at 521 SW. Fifth
Avenue, Portland, Oregon (commonly known as
the "downtown" store), excluding culinary em-
ployees, office clerical employees, security em-
ployees, guards, the store manager, the personnel
clerical, and all other supervisors as defined in the
Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
Also, although five of the eight instances of temporary transfer above
discussed involved the Lloyd Center store , that degree of interchange, over a
3-1/3-year period , is insignificant.