Disco Fair Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 456 (N.L.R.B. 1971)

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Disco Fair Stores , Inc; Zale Corporation ; Franklin
Store Corporation ; Unishops, Inc; Denny Shoe
Company ; Shoe Corporation of America; H. E.
Stein ; A. M. Stein ; David Hubbard; and M.
Freidman' and Retail Clerks Union Locals 324,
770, 899, 1428 and 1442 , Retail Clerks Internation-
al Association , AFL-CIO, Joint Petitioners 2
Disco Fair Stores, Inc.; Zale Corporation ; Franklin
Store Corporation ; Unishops, Inc.; Denny Shoe
Company ; Shoe Corporation of America; H. E.
Stein ; A. M. Stein; David Hubbard; and M.
Freidman 3 and General Teamsters, Salesdrivers,
Food Processors, Warehousemen & Helpers Local
871, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, and New Furniture & Appliance Drivers,
Warehousemen & Helpers Local 196, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , Joint Petitioners4
Cases 21-RC-11430, 21-RC-11436,
21-RC-11510, 21-RC-11521, 21-RC-11537,
21-RC-11538, 21-RC-1 1539, 21-RC-11555,
21-RC-11467, 21-RC-11493, 21-RC-11520,
21-RC-11556,21-RC-1 1560, and 21-RC-11561
March 31, 1971
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Theofore B. Horn.
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 State-
ments of Procedure, Series 8, as amended. Thereafter,
the Employers and the Petitioners filed briefs which
have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
I As amended at the hearing
2 As amended at the hearing
3 As amended at the hearing
4 As amended at the hearing
5 The parties stipulated to facts demonstrating that the operations
involved herein satisfy the Board 's jurisdictional standard for retail
enterprises
5 The parties stipulated that individual Local Unions filing the petitions
herein are labor organizations within the meaning of Section 2(5) of the
Act Disco Fair Stores, Inc , contends, however, that, collectively, such
Unions do not constitute labor organizations We find no merit in this
contention
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, the Board finds:
1. The Employers are engaged in commerce
within the meaning of the Act, and it will effectuate
the policies of the Act to assert jurisdiction herein.5
2. The labor organizations involved claim to
represent certain employees of the Employers.6
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employers within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The appropriate unit.
Disco Fair Stores, Inc., hereinafter Disco Fair, is a
wholly owned subsidiary of Beck Industries, Inc.,
operating a chain of 12 discount department stores in
California. In each of the stores, Disco Fair operates
the housewares, hardware, radio-stationery, domes-
tics, major appliances, camera , and sporting goods
departments and a service station. Lessees operate
jewelry, ladies' and children's wear, men's and boys'
wear, shoe, and optometry departments.7 Employees
of the foregoing Employers at 10 of Disco Fair's stores
are the only employees involved in the requests for
recognition forming the basis for the petitions in this
case.8
In addition, some of the stores have a grocery
department (9 stores) operated by Food Fair, a dry
cleaning establishment (4 stores) operated by Califor-
nia Dry Cleaning, and a pharmacy (10 stores)
operated by Daylin, Inc. Testimony indicates that
these departments are operated under leases virtually
identical to the leases under which the other lessees
operate. The record further discloses that the drug
department and grocery department employees work
under collective-bargaining agreements entered into
between the operators of those departments and
certain Locals of the Retail Clerks.
The separate petitions filed by the various Retail
Clerks Locals request separate store units of all selling
employees and office clerical employees employed by
Disco Fair and the other named Employers at the
stores in question. The Separate petitions filed by the
7 Zale Corporation operates the jewelry departments Franklin Stores
Corporation operates the ladies' and children's wear departments
Unishops, Inc, operates the men's and boys' wear departments The shoe
department in one store (Saviers Road ) is operated by Shoe Corporation of
America, the shoe departments in the other nine stores are operated by
Denny Shoe Company, like Disco Fair , a wholly owned subsidiary of Beck
Industries , Inc The optometry departments (four stores ) are operated by
H E Stein , A M Stein , David Hubbard, and M Friedman, respectively
8 Employees at two stores located in Goleta and Oxnard , California,
were the subject of a prior Board proceeding Red-More Corporation, d/b/a
Disco Fair, 164 NLRB 638
189 NLRB No. 61
DISCO FAIR STORES, INC
various Teamsters Locals request separate store units
of nonselling employees and service station employ-
ees employed by Disco Fair at the same locations. At
the hearing, the Teamsters and the Retail Clerks
amended their petitions to point petitions of their
respective Locals, and amended the unit requests to
single 10-store units of selling employees and office
clericals (Retail Clerks) and nonselling employees and
office clericals (Retail Clerks) and nonselling employ-
ees and service station employees of Disco Fair
(Teamsters). Alternatively, the Teamsters stated its
willingness to participate in an election as Joint
Petitioner with the Retail Clerks for a 10-store, all-
employee unit of Disco Fair. The Retail Clerks
indicated that it did not oppose joint representation
on that basis, and stated additionally that it is willing
to participate in elections for any units that the Board
might find appropriate.
There are approximately 450 Disco Fair employees,
50 Zale Corporation employees, 110 Franklin Stores
employees, 70 Unishops employees, and 4-6 optome-
try employees.
The Employers oppose units that would combine
employees of more than one Employer in the same
unit; they also oppose separate units of nonselling and
selling employees. Each Employer appearing herein 9
agrees that a unit of all of its employees employed at
the 10 stores is appropriate.10
The Joint Employer Issue
Each lessee has a separate lease agreement with
Disco Fair. All, however, are basically the same and
provide that Disco Fair can control advertising,
merchandise sold, and prices charged for merchan-
dise. Disco Fair also retains authority to issue rules
and regulations regarding all aspects of operations
within the premises. The leases state in pertinent part:
10. Rules and Regulations.
(a) Further, Tenant shall abide by all rules and
regulations which Landlord may hereafter estab-
lish, and as the same may from time to time be
added to, amended, or altered, which said rules
and regulations are for the mutual protection of
the Landlord and Tenant and for the mutual
welfare of all of the other tenants alike of the
Building and the respective businesses conducted
by them, which in the sole judgment of Landlord
may be necessary for the safety, cleanliness, and
preservation of good order in said building and for
9 Though served with Notice of Hearing, H E Stein , A M Stein, M
Freidman , and David Hubbard did not appear at the hearing Disco Fair,
however , opposes any grouping of Disco Fair employees and employees of
the above-named Employers
10 Zale Corporation contends that an I I-store unit of its employees is
appropriate This variance arises from the fact that , in the previous Disco
Fair case involving the Goleta and Oxnard stores, Zale had not opened its
457
the efficient and harmonious operation of the
Store ; provided, however, that all such rules and
regulations established by the Landlord shall be
reasonable , and shall not be discriminatory to
Tenant' s department , but shall apply alike to all
departments in the Store by whomever operated.
(b) . . . It is agreed that the objectives of this
Sublease Agreement can be defeated unless
Tenant's employees maintain a standard of courte-
sy and efficiency as shall be determined and set
out by Landlord. Tenant will use its best efforts to
insure that each of its employees will at all times
adhere to such standard.
The leases also provide that Disco Fair may
determine the kind, quality, and variety of merchan-
dise which the lessee may sell and limit retail prices
to a level no higher than those charged at other stores
within a specified adjacent geographic area.
Advertising is controlled by Disco Fair and a
percentage of gross rentals is paid directly to Disco
Fair for that purpose. The lessee is required to have a
sufficient number of employees to operate its
department efficiently, must maintain on hand an
adequate supply of merchandise, and must keep
accurate daily records of sales and receipts in the
form designated by Disco Fair for inspection and
audit. Disco Fair is given the authority to investigate
and adjust in its sole discretion all customer
complaints against `the leased department. Leases are
terminable on 90 days' written notice by either party
subject to certain limitations enumerated in section
18 which reserves the right of Disco Fair to reenter
and remove all persons and property from the
premises if, inter alia, the "Tenant should abandon
the Demised Premises (if Tenant's department
remains closed during usual business hours of
Landlord's store for a period of two (2) consecutive
business days within any thirty (30) day period,
except when said department remains closed by
reason of matters resulting in the closing of the entire
store, or the entire store exclusive of the food market
operations, Landlord may deem tenant to have
abondoned Demised Premises), or in the event of
any breach of this Sublease agreement by Tenant
(but if such breach is other than the failure to pay
any sums of money as and when due under the
Sublease agreement, it is not aired within ten (10)
days after written notice given by Landlord to
Tenant) . . . ." Finally, the leases disclaim any
intent to create a partnership or point venture.
operation in the Oxnard store and it argues that its employees at that store
should be included with a unit of the other 10 stores rather than in the 2-
store, all-employee unit found appropriate in the earlier case Disco Fair
stipulated that for purposes of this case Denny Shoe Company and Disco
Fair constitute a single employer, and agreed that Disco Fair and Denny
Shoe employees may appropriately be included in the same unit Counsel
for Denny Shoe Company agreed with that stipulation
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of the hearing no rules or regulations
had been promulgated by Disco Fair pursuant to
Section 10(a). Disco Fair President Moray testified
that if he was an employee of a lessee do something he
did not approve of he "would report [the offender I to
the department manager and suggest action." There
are two instances in the record of attempted interven-
tion by Disco Fair in the relations between a lessee
and its employees. In one, a Disco Fair supervisor
requested Franklin Store Supervisor Weinstein to
reprimand an employee for rudeness to a customer.
Weinstein independently investigated the matter and
discovered it was a simple misunderstanding between
the customer and the employee and did not repri-
mand the employee. On another occasion a Disco
Fair supervisor requested the discharge of two
Franklin employees who were allegedly rude to that
supervisor. Franklin Supervisor Mortinez testified
that he refused to fire the men who were acting under
his orders.
Disco Fair and its lessees each maintain separate
administrative and accounting functions for their
employees. The Disco Fair "director of store opera-
tions" reports to the president. The director, in turn
receives reports from three store supervisors who,
along with roving auditors, regularly visit the various
stores. The store supervisors perform the task of
directly supervising the respective store managers and
attempt to ensure conformity to overall company
policy. Disco Fair has a central personnel office which
administers wages, benefits, and other personnel
functions. Hiring and firing of employees are usually
performed locally at each store essentially as the need
or situation requires. Disco Fair regularly employes
between 8 and 12 employees who interchange among
the various stores as roving clerks or cashiers.
Employees who are permanently transferred from one
store to another do so without loss of seniority. There
is no interchange of employees between Disco Fair
and its lessees. the individual lessees, however, do
transfer employees between their respective depart-
ments in the different locations.
The ladies' and children's departments operated by
Franklin Stores Corp. at each of the 10 stores are
under the supervision of an "operation manager" who
recieves reports from three supervisors who visit the
stores assigned them at least once week. Wages and
employee benefits for franklin employees are estab-
lished in the Company's long Beach central office.
Payroll and personnel records are also maintained at
the central office.
Thejewelry departments operated by Zale Corpora-
tion are under the supervision of a regional manager
who maintains an office at the Culver City store but
11 The food store, pharmacy, and dry cleaning establishments appear to
have separate entrances The Unions do not seek to represent their
who spends most of his time traveling to the different
stores. Shoe Corporation of america operates in only
one of the stores (Saviers Road). The department is
under the supervision of a district manager who
determines the number of employees to be hired, their
rates of pay, and the scheduling of hours of work and
vacations.
The record is silent as to the operations of Denny
Shoe Co. (shoe departments in 9 stores), Unishops,
Inc. (men's and boys' departments in all 10 stores),
and the optometry departments at the Culver City,
Santa Fe Springs, Long Beach, and Norwalk stores.
In each store, Disco Fair and its lessees operate
under one roof and utilize common facilities such as
entrance areas, parking lots, and restrooms and enjoy
the same security protection. Store hours are set by
Disco Fair and all lessees, unless they have separate
entrances,ii must comply with these hours. The
employees of Disco Fair and some, but not all,
employees of lessees wear the same uniforms and
Disco Fair name tags. Zale employees do not wear
uniforms or badges. Central checkstands operated by
Disco Fair are used to check out merchandise for all
departments except food, camera, jewelry, and motor
appliances. Customers are furnished with shopping
carts bearing a "Disco" label. Disco Fair does not
maintain a central switchboard. A few of the leased
departments have their own listed phones.
Disco Fair operates a service station at each store.
All are located outside the store premises and are
subdivided into two sections: (1) the gas pumpers and
(2) the repair shop. Each section has three employees
and one manager. There have been some permanent
transfers of gas pumpers to other higher paying
departments inside the stores. Automotive repairmen,
who work on commission, do not transfer into the
store.
Each store has a warehouse area in back of the
selling floor area which is supervised by a warehouse
manager. The area is segregated for the use of Disco
Fair and the individual lessees . Disco Fair warehouse
employees receive and handle only merchandise for
Disco Fair departments.
The Board has long recognized the unique character
of discount department store operations conducted
by several employers at one location with the
participants, although retaining their separate corpo-
rate indentities, cooperating to present the appear-
ance of a single integrated enterprise in order to
obtain the mutual business advantages deriving from
such operations. The Board has recognized that in
such endeavor the dominant entrepreneur will of
necessity retain sufficient control over the operations
of the constitutent departments so that it will be in a
employees
DISCO FAIR STORES, INC.
position to take action required to remove any causes
for disruption in store operations. The existence of
such control, however, has not in and of itself been
sufficient justification for finding that the licensor or
lessor is a joint employer of employees of its licensees
or lessees. Generally a joint employer finding is
justified where it has been demonstrated that the
lessor is in a position to control the lessee's labor
relations.12 Where the lessor explicitly reserves such
control in its lease agreements, the problem is of
course easy to resolve.13 The Board has not, however,
limited such a finding to those cases of explicit
reservation of such control over labor relations. Thus
in Thriftown, Inc., d/b/a Value Village, etc.,14 the
Board held that the licensor's right to dissolve the
relationship entirely, its retention of overall manageri-
al control, and the extent to which it retained the right
to establish the manner and method of work perform-
ance put it in a position to influence the lessee's labor
policies whether or not such power had ever been
exercised. In United Mercantile, Inc., d/b/a Globe
Discount City,15 the Board stated the proposition this
way, "While we would not postulate the existence of a
joint-employer relationship merely on the basis of
such a need [to control the operations and labor
relations of the licensees]-and so stated in Thriftown
-we will make such a finding where the license
arrangements objectively demonstrate a response to
that need."
We turn therefore to a consideration of whether the
lease agreements involved herein objectively demon-
strate a response to the need of Disco Fair, the
predominant entrepreneur in the enterprise before us,
"to control the operations and labor relations" of its
lessees. We find no such response.
The lease agreements do clearly set forth the
obligation of the lessees to "abide by all rules and
regulations" which Disco Fair may promulgate. Such
rules and regulations are declared to be "for the
mutual welfare of all of the other tenants alike of the
Building and the respective businesses conducted by
them, which in the solejudgment of the Landlord may
be necessary for the safety, cleanliness, and preserva-
tion of good order in said building, and for the
efficient and harmonious operation of the Store." It is
also agreed that the "objectives of this Sublease
Agreement can be defeated unless tenants' employees
maintain a standard of courtesy and efficiency as
shall be determined and set out by the Landlord.
Tenant will use its best efforts to insure that each of its
employees will at all times adhere to such standard."
12 See, e g ,SAGE, Inc of Houston, 146 NLRB 325
13 See , e g, K-Mart Division of S S Kresge Company, 161 NLRB 1127,
Jewel Tea Co Inc, 162 NLRB 508
14 161 NLRB 603
15 171 NLRB No 103
459
The agreement also states that " it is understood that
this sub-lease agreement is in no way to be construed
nor interpreted as creating a partnership, joint
venture, or any other relationship other than Land-
lord and Tenant."
In addition the lease agreement contains many and
detailed provisions relating to the parties' rights in
case of financial difficulties, conditions under which
lessees may sublet, and Disco Fair's rights with
respect to control of pricing, quality of merchandise,
hours the store is to be open, access to records, and
other operational matters.
Finally the lease gives either party the right of
termination without cause upon the giving of 90 days'
written notice, provided the termination date pur-
suant to such notice does not fall in the months of
October, November, or December.
Although the lease agreements clearly accord Disco
Fair sufficient authority over operational matters to
permit the efficient operation of the store and to give
the appearance of an integrated retail operation, there
is lacking any provision which explicitly or implicitly
gives Disco Fair control specifically over the labor
relations of lessees. To be sure, the lessees are
obligated to use their best efforts to insure that their
employees measure up to standards of courtesy
established by Disco Fair, but the lease, unlike the
leases involved in the United Mercantile and Thriftown
cases, contains no provision denominating the lessees
as in default of their obligations for failure to follow
or conform to such rules and regulations as Disco Fair
may promulgate concerning personnel. Nor does the
mutual right of lessor and lessees to terminate the
agreement without cause on 90-day notice provided
the termination date does not fall in October,
November, or December lead, in our opinion, to
control by Disco Fair over the labor relations of its
lessees. In these circumstances, we find that the lease
agreements do not give Disco Fair sufficiently specific
control over labor relations of the lessees to warrant a
joint employer finding. 16
This conclusion is borne out by the experience of
operation under the lease agreements. Thus, even on
the issue of apparent unitary operation, Disco Fair
has not required uniformity of dress or badges, or
even telephonic communication with the public. As to
labor relations, each lessee independently establishes
wages, fringe benefits, and work schedules for its
employees. Two lessees not involved in this
proceeding-though operating under similar
agreements-have entered into collective-bargaining
16 Red-More Corporation, d/b/a Disco Fair, supra, is not controlling, as
there have been changes in the lease agreements utilized by Disco Fair
This record, unlike the record involved in Red-More Corporation , does not
permit a finding that Disco Fair controls the labor relations of its lessees
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements without notice to, consultation with, or
remonstrance from Disco Fair. On the two occasions
in which Disco Fair managers have attempted to
require tenants to discipline employees they have
been rebuffed.
Accordingly, we reject the Petitioners' contention
that Disco Fair and its lessees are joint employe s.
The Scope of the Individual
Employer Bargaining Units
As indicated earlier, the petitions filed herein sought
individual store units, but at the hearing the petition-
ing Unions amended their petitions to seek single, 10-
store units of selling (Retail Clerks) and Disco Fair
nonselling (Teamsters) employees. The Employers,
apart from objecting to units combining employees of
all employers and to units of separate selling and
nonselling emplcyees, indicated that either separate
single-store units or multistore units are agreeable to
them.
The 10 stores involved lie in geographic proximity
across the southern part of California. The operations
of Disco Fair and its lessees are characterized by a
high degree of centralized control. Disco Fair has
three store supervisors who regularly visit the various
stores and directly supervise the respective store
managers in an attempt to ensure conformity to
overall company policy. Company President Moray
testified that store managers exercise little direct
supervision over the employees in the individual
stores. The record indicates, however, that the store
managers and department heads have the power to
hire and fire. The Company maintains a central
personnel office which administers wages, benefits,
and other personnel functions. Employees receive
automatic wage increases based on tenure. Wages and
benefits are uniform among all the stores. There is an
interchange of employees on a permanent and
temporary basis between Disco Fair departments
within stores and between stores. The record does not
indicate the frequency of such interchanges. In
addition, there are from 8 to 12 employees who
constantly interchange among the various stores as
roving clerks or cashiers. The record also indicates
that lessees Franklin Store and Zale Corporation have
a similar centralized administrative setup resulting in
uniformity of wages, hours, and working conditions
of employees and interchange of employees between
stores. The other lessees did not participate in the
hearing.
All the stores are laid out in the same basic manner,
17 See Sav-On Drugs, Inc, 138 NLRB 1032
18 Haag Drug Company, Inc., 169 NLRB No I11.
19 See , e.g, Allied Stores of New York, Inc, d/ b/a Stern 's, Paramus, 150
NLRB 799
are open the same days and hours, and display the
same merchandise at the same prices. There is no
bargaining history among any of the employees in the
unit sought.
Though the Board regards bargaining units limited
to employees of individual retail stores as presump-
tively appropriate,17 it is clear that multistore units
may also be appropriate. 18 We are satisfied that the
factors of geographical proximity, uniformity of
wages, hours, working conditions, common supervi-
sion, the instances of interchange of employees
between stores, and the centralized administration of
the Disco Fair, Zale Corporation, and Franklin Store
operations give employees at each store a basic
community of interest with their fellow employees in
other stores. Accordingly, on the basis of such
community of interests, the Petitioners' request for
multistore units, and the Employers' agreement that
such units may be appropriate, we find that multistore
rather than single-store units are appropriate in this
case.
Combined Selling and Nonselling Employee
Units
The Employers contend that only a unit combining
selling and nonselling employees is appropriate. The
Retail Clerks Locals seek to represent selling employ-
ees and the Teamsters Locals seek to represent
nonselling employees. However, all the petitioning
Unions have indicated willingness to appear on the
ballot as Joint Petitioners in the event the Board finds
that selling and nonselling employees of Disco Fair
belong together. The parties appear to agree that the
lessees do not have employees performing only
nonselling functions, and the Teamsters does not seek
to represent employees of the lessees.
In general, the Board has found there is a separabili-
ty for unit purposes between selling and nonselling
employees in the retail store industry where such
employees are under separate immediate supervision,
perform different functions, utilize different skills,
work in a separate area, and have limited interchange
and minimal contacts with other employees.19 The
Board has also noted the distinctive nature of self-
service discount department stores as opposed to
traditional department stores20 and found that, where
all employees are unskilled, working conditions,
including wage rates, are the same for all employees,
and there is considerable overlap of duties among the
20 "We perceive a great difference between a retail store, like the
Employer, that employs salespeople to serve the public and one where the
public serves itself without the aid of sales personnel " Stern's, Paramus,
supra
DISCO FAIR STORES, INC.
various employees, a separate unit of nonselling
employees would be inappropriate.21
In the instant case, the record reveals that the Disco
Fair operation is essentially a self-service operation
and that, although some employees primarily perform
nonselling tasks in the stockrooms or warehouse
areas, they spend a substantial portion of their time on
the selling floor. Further the record reveals that
employees engaged in selling perform many of the
same tasks, including marking and stocking shelves,
and o n occasion go to the warehouse areas to help out.
There appears to be essential uniformity in wages,
benefits, and working conditions, although selling
employees on occasion receive a form of commission
for pushing certain products. We conclude that there
has not been shown here a sufficient distinction in the
functions, duties, wages, and working conditions of
the employees whose primary responsibility may be
the performance of nonselling functions and those
whose primary functions may be more appropriately
described as selling functions to warrant separate
bargaining units. Accordingly, we find that separate
units of all employees of Disco Fair, except for service
station employees, and all employees of the lessees are
appropriate for purposes of collective bargaining.
The Service Station Employees
As indicated above, Disco Fair operates automobile
service stations at each of the stores. Each service
station operation is divided into a repair shop section
and a gas pump section. Each section has three
employees and a supervisor. On occasion a gas
pumper with the proper aptitude and attitude may
transfer into a storejob. Repairmen do not transfer.
The Teamsters initially sought to represent these
employees in a separate unit . At the hearing Team-
sters amended its petitions to include these employees
in a unit with other nonselling employees. The Retail
Clerks does not seek to represent these employees.
The Board has recognized the separate community
of interests of automotive service departments in
retail store operations.22 The automotive service
department employees perform distinctively different
work, in separate outside surroundings under separate
supervision. There is no interchange between them
and store employees. The Retail Clerks has evinced
21 White Front San Diego, Inc, 159 NLRB 684, White Front San
Francisco, Inc, 159 NLRB 681
22 Montgomery Ward & Co, Inc, 150 NLRB 598, J C Penney
Company, Store No 139, 151 NLRB 53
23 The parties stipulated that security guards are guards within the
meaning of the Act
24 The parties stipulated that Disco Fair' s store managers and
department managers are supervisors as defined in the Act
25 We include the Wagon Wheel-Oxnard store in the unit for the
following reasons Though employees in that store have heretofore been
found to constitute and appropriate unit with employees of the Goleta,
California, store operated by Disco Fair, Red-More Corporation, supra, Zale
461
little or no interest in representing them; the Team-
sters wishes to represent them. We are satisfied that
the automotive service department employees do have
community of interests separate and distinct from
that of other Disco Fair employees, and, accordingly,
we find that they constitute a unit appropriate for
purposes of collective bargaining.
In summary, we have found that Disco Fair and its
lessees are not Joint Employers, that multistore rather
than single-store units are appropriate, that selling
and nonselling employees of Disco Fair should be
grouped together, and that service station employees
constitute a separate appropriate unit.
For the reasons stated above we find that the units
described below constitute units appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
(a) All retail store employees, including selling
employees, nonselling employees, and office clerical
employees, employed by Disco Fair Stores, Inc., and
Denny Shoe Company at the following stores: Disco
Fair Alhambra, Disco Fair Culver City, Disco Fair
Miranda, Disco Fair Long Beach, Disco Fair Man-
hattan Beach, Disco Fair Northridge, Disco Fair
Norwalk, Disco Fair Pomona, Disco Fair Whittier,
and Disco Fair Oxnard-Saviers Road, all in Califor-
nia, excluding automotive service department em-
ployees, security guards,23 supervisors as defined in
the Act,24 and all employees of employers operating
departments under lease agreements with Disco Fair.
(b) All automotive service department employees,
including gas pumpers and repairmen, employed by
Disco Fair Stores, Inc., at the stores listed in 1(a),
above, excluding all other employees, security guards,
supervisors as defined in the Act, and all employees of
employers operating departments under lease agree-
ments with Disco Fair.
2. All employees of Zale Corporation employed at
Disco Fair stores listed in 1(a), above, and at Disco
Fair Wagon Wheel in Oxnard, California,25 excluding
guards, supervisors as defined in the Act, and all
employees of other employers operating at said stores.
3. All employees of Franklin Store Corporation,
employed at the Disco Fair stores listed in 1(a), above,
excluding guards, supervisors as defined in the Act,
Corporation did not operate a jewelry department at the time of the
election in such unit Zale Corporation operates thejewelry department in
that store under the terms of a lease agreement identical to the lease
agreements governing its operation of departments in the 10 stores
primarily involved in this proceeding. Its internal policies and procedures
concerning supervision, wages , benefits , hours of work , and working
conditions apply in the same manner to this store as to its departments at
the other stores As we have found that the lease agreement does not
permit a finding of a joint employer relationship between Disco Fair and
Zale Corporation for the 10 other stores , we can not find that such a
relationship exists as to Zale Corporation's employees at the Wagon Wheel
store
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all employees of other employers operating at
said stores.
4. All employees of Unishops, Inc., employed at
the Disco Fair stores listed in 1(a), above, excluding
guards, supervisors as defined in the Act, and all
employees of other employers operating at said stores.
5. All employees of Shoe Corporation of America
employed at the Disco Fair stores listed in 1(a), above,
excluding guards, supervisors as defined in the Act,
and all employees of other employers operating at
said stores.
We find that units of employees of H. E. Stein, A.
M. Stein, David Hubbard, and M. Friedman em-
ployed at the Disco Fair stores involved herein are not
appropriate for purposes of collective bargaining. The
record reveals that each of the above-named Employ-
ers operates an optometry department in one of Disco
Fair's stores. The record further reveals that each
optometry department utilizes only one employee. It
has long been established that one-employee units are
not appropriate for purposes of collective bargaining.
Accordingly we shall not direct elections among the
employees of these Employers.
In accordance with the requests of the petitioning
Unions, all of the petitioning Unions shall appear on
26 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 elections 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 Co, 394 U S
759 Accordingly, it is hereby directed that election eligibility lists,
containing the names and addresses of all the elibibie voters, must be filed
the ballot in the election for unit 1 (a) as point
representatives for we find no merit in Disco Fair's
contention that such representation does not accord
with the policies of the Act . Should a certification
issue to the Unions as joint representatives, Disco
Fair may insist that the Unions involved bargain as
point representatives.
In the election in unit 1 (b), the three Teamsters
Locals shall appear on the ballot as point representa-
tives. As the Retail Clerks Locals did not evince an
interest in representing the employees involved in this
unit, we shall not place their names on the ballot.
In the elections in units 2, 3, 4, and 5, the Retail
Clerks Locals shall appear on the ballot as point
representatives . The Teamsters indicated they are not
seeking to represent employees of the lessees involved
in these elections ; accordingly, we shall not place their
names on the ballots.
[Direction of Elections26 omitted from publication.]
MEMBER JENKINS , dissenting:
For the reasons expressed in the Board 's decision in
Thriftown, Inc., 161 NLRB 603 , I would find that
Disco Fair and its lessees are joint employers, and
would not establish separate units for Disco Fair and
each of its lessees.
by the Employers with the Regional Director for Region 21 within 7 days
of the date of this Decision and Direction of Elections The Regional
Director shall make the lists available to all parties to the elections No
extension of time to file these lists shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the elections whenever
proper objections are filed