Pic-Way Shoe Mart

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 902 (N.L.R.B. 1985)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kobacker Stores , Inc. d/b/a Pic-Way Shoe Mart
and United Food & Commercial Workers Union
Local 880, AFL-CIO, Petitioner . Case 8-RC-
13002
13 March 1985
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 March 1984 the Acting Regional Director
for Region 8 of the National Labor Relations
Board issued a Decision and Direction of Election
in which he found appropriate the unit sought by
the Union, namely, all regularly scheduled part-
time and full-time assistant managers and store as-
sociates at the Employer's' Summit and Portage
County stores, excluding all managers, management
trainees, office clerical employees, and all profes-
sional employees, guards, and supervisors as de-
fined in, the Act.2 In finding a 7-store unit appro-
priate, the Acting Regional Director rejected the
Employer's contention that the only appropriate
unit must also encompass the other 4 stores3 in its
Akron-Canton district and include all management
trainees in the 11 stores. In this connection, the
Acting Regional Director found that (1) the seven
stores in and near Akron constitute "a specific geo-
graphical area relatively separate from [the other
four] stores in the district"; (2) District Supervisor
John Ferguson "rubber stamps" all store manager
decisions; (3) most interchange of personnel within
the district involves management personnel; and (4)
the management trainees do not share a community
of interest with the other employees in the unit.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, the Employer filed a timely request
for review of the Acting Regional Director's deci-
sion.
On 11 April 1984 the Board granted the request
for review and stayed the election.
The Board has reviewed the entire record in this
case and makes the following findings.
The Employer is engaged in the retail sale of
shoes and related items at several hundred stores,
which are grouped for administrative purposes into
regions, which in turn are subdivided into districts.
As indicated above, the Acting Regional Direc-
tor found that the seven stores in the Akron area
are "relatively separate" from the four stores in the
Canton area, which he excluded from the unit.
However, the record shows, contrary to the
Acting Regional Director, that the stores in the
Akron and Canton areas are not significantly dis-
tant from each other and that the driving time be-
tween those areas is comparatively short. Thus, for
example, the Kent store, which the Acting Region-
al Director included in the unit, is about 12 miles
from Akron, while the excluded Canton stores are
about 20 miles from Akron. The record also shows
that the skills, duties, responsibilities, wage struc-
ture, fringe benefits, and disciplinary procedures
are the same for all employees in the district and
that all 11 stores advertise on a districtwide basis.
Regional Vice President Anthony Matteo is re-
sponsible for a seven-district region which includes
the Akron-Canton district. Matteo sets basic policy
for the region and makes on-the-spot visits
throughout his region, which contains about 70
stores located not only in Ohio, but also in Penn-
sylvania and New York. The district supervisors
are under Matteo's overall direction.
Ferguson, who, as noted above, is the district su-
pervisor for the Akron-Canton district, has an
office in the excluded Massillon store located about
25 miles from Akron. He is responsible for direct-
ing all operations of the stores in his district. In this
capacity he keeps abreast of the activities of each
of the stores by telephone calls to the store manag-
er daily or every other day and by weekly visits
which extend from a half hour to 5 or 6 hours.
Ferguson devotes his time to training, developing,
and evaluating store managers; monitoring all
hiring,4 wage increases, transfers,s and termina-
tions; developing personnel and anticipating and
preventing "future problems"; ensuring that em-
ployees perform their duties in a "safe and pleasant
environment"; promoting company policies; hold-
ing district meetings; expediting the movement of
merchandise within the district; receiving weekly
sales reports from each store and transmitting in-
formation about the stores in his district to the Em-
ployer's home office in Columbus, Ohio.
In view of the foregoing evidence, we find in
agreement with the Employer that the appropriate
unit must be districtwide. As indicated above, the
four excluded stores in the Canton area are suffi-
ciently close to the Akron area to be easily accessi-
ble to the district supervisor. Contrary to the
' The name of the Employer appears as amended at the hearing
2 The unit included 7 stores, which are distributed as follows 145, 146,
and 156 in Akron; and 129 (Barberton), 113 (Tallmadge), 114 (Cuyahoga
Falls), and 128 (Kent) in the area surrounding Akron
3 These stores, which are located in the adjoining Stark and Colum-
biana Counties, Ohio, are distributed as follows 120 and 130 in Canton,
51 in Massillon , and 17 in Alliance
4 Although the store managers interview applicants for employment,
Ferguson reviews the applications with the store manager who must
secure his approval before hiring an employee
5 During the past 5-year period, there have been a number of lateral
transfers and promotions of associates , management trainees, and manag-
ers between the Canton and Akron areas
274 NLRB No. 132
PIC-WAY SHOE MART 903
Acting Regional Director, Ferguson does not
"rubber stamp" the decisions of the store managers,
as it is clear that he participates substantially in the
control of the stores within his district.6 Further-
more, the integration of those stores is demonstrat-
ed by the movement of personnel between the
Akron and Canton areas.
We turn now to the unit placement of the man-
agement trainees.
Management trainees are recruited from the
ranks of the store associates and through employ-
ment agencies and colleges for the purpose of pre-
paring them to become store managers . As part of
their training they must become familiar with com-
pany policies and perform the same tasks as the as-
sociates. Thus, they open and close stores, greet
and serve customers, operate the cash registers,
stock shelves, and unload and ticket merchandise.
They and the associates also participate in the same
profit-sharing program and are entitled to the same
holidays, vacations, and medical benefits. Both the
trainees and the associates, unlike the store manag-
ers who are salaried, are paid on an hourly basis
with the rate for the associates ranging from $3.35
to $4.35 and an average rate of about $4 per hour
for the trainees.7 The trainees have no supervisory
authority and therefore do not assign work, handle
grievances, hire, discipline, transfer, or train the as-
sociates.
It appears that approximately half of the trainees
successfully complete the training program." Some
of the unsuccessful trainees remain in the Compa-
ny's employ as associates.
We conclude from the foregoing that the man-
agement trainees have a community of interest
with the associates. Although a substantial portion
of the trainees become managers after about a year
of training, that eventuality is not sufficient to ally
them with management while they are undergoing
training. As already indicated, they possess no su-
pervisory authority, their duties, compensation, and
benefits are similar to those of the associates, and
some of those who fail to become managers remain
in the unit as associates . We therefore find, con-
trary to the Acting Regional Director, that the
management trainees belong in the unit along with
the associates-9
Based on the above factors, we conclude that the
unit found by the Acting Regional Director is inap-
propriate. Instead, we find the following unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:10
All regularly scheduled part-time and full-time
employees of the eleven stores in the Employ-
er's Akron-Canton, Ohio, district, including as-
sistant managers , store associates, and manage-
ment trainees, but excluding all managers,
office clerical employees, and all professional
employees, guards, and supervisors as defined
in the Act.
Accordingly, as the Petitioner has indicated a
willingness to proceed to an election in the unit
found appropriate here,' 1 the case is remanded to
the Regional Director for the purpose of conduct-
ing an election pursuant to the Acting Regional Di-
rector's Decision and Direction of Election, as
modified herein, except that the payroll period for
determining eligibility shall be that immediately
preceding the issuance date of this Decision on
Review and Order.
To ensure that all eligible voters have the oppor-
tunity 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. Excelsior Underwear, 156 NLRB 1236
(1966); NLRB R Wyman-Gordon Co., 394 U.S. 759
(1969). Accordingly, it is directed that a revised
election eligibility list containing the names and ad-
dresses of all the eligible voters must be filed by
the Employer with the Regional Director within 7
days from the date of this Decision on Review and
Order. The list may initially be used by the Re-
gional Director to assist in determining an adequate
showing of interest. The Regional Director shall
make the list available to all parties to the election
when he has determined that an adequate showing
of interest in the unit found appropriate has been
established. No extension of time to file the list
shall be granted by the Regional Director except in
extraordinary circumstances. Failure to comply
6 See Lawson Milk Co Division, 213 NLRB 360 (1974)
7 Although the trainees , unlike the associates who have a 40-hour
week , are required to work 48 hours, they as well as the associates are
paid at the overtime rate for hours in excess of 40
8 The estimates given by Personnel Manager Randall C. Grimes and
District Supervisor Ferguson ranged from 40 to 70 percent
9 Cf Curtis Industries, 218 NLRB 1447 (1975), wherein the manage-
ment trainees were excluded from the unit because , unlike the situation in
the instant case, they were hired solely by virtue of their special educa-
tional background , remained with the employer only if they successfully
completed the training program, their rate of pay was substantially
higher than that of the regular employees, their conditions of employ-
ment were dissimilar from those of the regular employees, and they en-
joyed the same benefits as the supervisors and the managerial employees
10 As the unit we find appropriate is larger than that requested, the
Petitioner is accorded a period of 10 days in which to submit the requi-
s'ie showing of interest to support an election In the event the Petitioner
does not wish to proceed to an election , it may withdraw its petition
without prejudice by notice to the Regional Director within 7 days from
the date of this Decision on Review and Order
i i We find no basis for granting the Petitioner's alternative request that
the Board direct a self-determination election for the four stores in the
Canton area
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with this requirement shall be grounds for setting ORDER
aside the election if proper objections are filed. It is ordered that this case is remanded to the
Regional Director.