R. H. Macy & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1970

185 N.L.R.B. 21 (N.L.R.B. 1970)

DAVISON-PAXON COMPANY
Davison-Paxon Company , a Division of R. H. Macy
& Co., Inc . and Retail Clerks International Asso-
ciation , Local 1063 , AFL-CIO, Petitioner. Case
10-RC-8097
August 20, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Clyde R.
Ray. 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. There-
after, the Employer and the Petitioner filed briefs.
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, 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 repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer with-
in 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 all
regular and part-time selling and nonselling employees
at the Employer's store located at 180 Peachtree
Street, Atlanta, (downtown store) including employees
of certain leased departments. The Employer contends
that the appropriate unit must include, in addition
to employees at its Peachtree store, employees at
two other stores in the Atlanta metropolitan area
at Lennox Square and Columbia Mall.
The Employer operates, as part of the Davison-
Paxon Division, a total of 10 retail department stores
throughout Georgia and South Carolina. The 3 stores
in the greater Atlanta area are approximately 8 to
9 miles apart, and are some 75 to 225 miles distant
from each of the other Davison branches. As the
largest store in the Davison chain, the Peachtree
21
store has 1700 employees, whereas the Lenox Square
store has 700, and the Columbia Mall store 400.
There is a considerable degree of centralization
over administrative matters for all 10 Davison stores.
Thus, the corporate officers, headquartered in the
Peachtree store, oversee the operations of the entire
chain. All general policy determinations with regard
to purchasing, merchandising, sales promotion, adver-
tising, and employment practices issue from the
Employer's central offices. Further, records relating
to accounts, audits, and payroll are centrally main-
tained.
Because of their geographic proximity, a substantial
degree of control is possible over the business and
marketing operations of the three Atlanta stores. For
example, buyers based in the Peachtree store are
responsible for purchasing merchandise and maintain-
ing sufficient quantities of stock for all 10 stores.
Yet, the incidence of their visits to and contacts
with the Atlanta suburban stores is much more fre-
quent than with the out-of-town branches. Again,
advertising, sales promotion, and window displays
are all initially designed at the Peachtree store. Howev-
er, advertisements appearing in the Atlanta newspa-
pers apply to only the three in-town stores. Newspaper
advertisements for the remaining seven stores are
run on an individual basis. Similarly, window displays
for the three Atlanta stores are closely coordinated
whereas the out-of-town stores have greater discretion
in such displays. Further, merchandise is frequently
shifted among the 10 Davison stores, but the amount
transferred between the Atlanta stores is 8 to 10
times greater than that shifted between them and
the out-of town stores.
It is evident that the administrative operations of
the Davison chain in general and the Atlanta stores
in particular are highly centralized. Nevertheless, as
we noted in Haag Drug Company, Incorporated,' cen-
tralized administrative control is characteristic of the
retail chain business and is not in itself sufficient
to rebut the presumptive appropriateness of a single-
store unit. Rather, we recognized in that case that
it is more significant if
the employees perform their day-to-day work
under the immediate supervision of a local store
manager who is involved in rating employee per-
formance, 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 prob-
lems.
In determining whether the presumption favoring
the single-store unit has been rebutted, we also consid-
' 169 NLRB No 111
185 NLRB No. 5
22 DECISIONS
OF NATIONAL LABOR RELATIONS BOARD
er such factors as the geographic distance between
the stores, the degree of employee interchange, and
the employer's prior bargaining history.
In reviewing the entire record, we are convinced
that the Employer has not overcome the presumptive
appropriateness of the single-store unit.
There is ample evidence that, on a day-to-day
basis, each store functions as a separate entity. Thus,
each Davison branch has its own store manager,
personnel manager, and department heads. Personnel
policies, while centrally established, are implemented
by the personnel office in each of the respective
stores.' Hiring, too, is for the most part accomplished
at the particular store where the applicant will be
employed, although occasionally an applicant may
be sent to another store where there is a 'known
vacancy. Training is provided at the individual stores
with some special training seminars held at the down-
town store for groups of employees from each of
the Atlanta branches. Employees are subject to disci-
pline and discharge by their local supervisors. Only
after the initial action has been taken does an employee
have the right to appeal to the downtown personnel
office. Employees with less than 5 years' employment
with Davison may be discharged without prior approv-
al of the division personnel director. Work and vaca-
tion schedules as well as arrangements for sick leave
are scheduled and coordinated at the local level.
An employee's work performance is evaluated by
personnel at the individual store. Subsequently, the
evaluation forms are reviewed by the central personnel
office and returned to the appropriate branch. Merit
raises may be granted on the basis of these evaluations.
Employee interchange is not extensive. On a short-
term basis, a few employees are temporarily assigned
from one of the Atlanta stores to another when
special sales are scheduled, when assistance is needed
to arrange displays, to help with inventory, update
personnel records, take audits, or repair faulty equip-
ment. On a permanent basis, among a total of 2,800
employees in the 3 Atlanta stores, only 54 permanent
transfers were effected in a 15-month period.
In light of the factors discussed above, it is clear
that there is substantial autonomy exercised at the
individual store level and that the local store officials
are integrally involved in those matters which affect
the employees' working conditions. Therefore, in the
absence of any bargaining history and in order to
accord to employees the fullest freedom in exercising
those rights guaranteed by the Act, we hereby find
' The vice president in charge of personnel for all Davison stores,
also serves as personnel director for the Peachtree Store
that a unit limited to the employees of the Peachtree
store is appropriate.'
The parties entered into a number of eligibility
stipulations pertaining to the employees working at
the Peachtree store. They also agreed that the employ-
ees of all leased departments except for those in
the Ski Shop, the Optical Department, and Santa
Claus should be included in the unit because of
the degree of control exercised by the Employer over
these employees. They further stipulated that certain
other employees are to be excluded as confidential
employees, professional employees, guards, and super-
visors. We find no reason to disturb the agreement
of the parties as to any of these categories.
The following job classifications are in dispute:
(a) The Employer contends that employees in 10
positions which are titled supervisor or foreman, do
.not, in fact, exercise any meaningful supervisory con-
trol over other employees and should not be excluded
from the unit. Petitioner takes a contrary position.
The disputed classifications are as follows: foreman
carpenter, foreman painter, gift wrap supervisor, mail
order supervisor, platform receiving supervisors,
supervisor of the employees' cafeteria, candy room
supervisor, marking supervisor, and working supervi-
sor porter.
In each case, the foreman or supervisor spends
the bulk of the working day performing precisely
the same tasks as the other employees in the depart-
ment . They may relay routine instructions from the
managers of their respective sections and oversee dis-
tribution of the work. In most cases, they receive
pay in excess of that received by their coworkers,
but information is lacking as to exact sums.
None of these employees makes recommendations
as to wage increases for other employees. They are
not authorized to hire, discharge, suspend, transfer,
or discipline others. They all punch a timeclock,
are hourly paid, and receive overtime.
It is clear that the employees in the positions
listed above do not exercise independent authority.
What little discretion they have is of the most routine
nature. Accordingly, we find that they are not supervi-
sors within the meaning of Section 2(2) of the Act
and include them in the unit.
(b) The Employer further argues that the members
of the teen board should be included in the unit.
The teen board is composed of approximately 80
students selected from high schools in the Atlanta
area to serve a 1-year term. After a training period
which includes modeling instruction in July, they
work in all three in-town stores as both saleswomen
and models. Their peak activity occurs prior to the
3 The May Department Stores Company , 175 NLRB No 97
DAVISON-PAXON COMPANY
opening of the school year and during Christmas
and Easter vacations. They may also work on a
intermittent basis on evenings and weekends but are
not required to work a specific number of hours
and are not discharged if unavailable to work when
called.
They wear a costume and are concentrated primarily
in the teen and women 's fashion departments.
Throughout their term on the teen board, they receive
the minimum starting wage for sales people with
no expectation of an increase. They do not earn
vacation pay, do not receive paid holidays, and are
not entitled to fringe benefits available to regular
employees, other than discount privileges.
The record clearly establishes that the teen board
members work on a intermittent , sporadic basis for
a temporary period of time of fixed duration. Under
these circumstances , we find that they do not share
a sufficient community of interests with other sales
personnel and therefore exclude them from the unit.'
(c) There are 8 employees in the salary office
including 4 salary clerks, 1 budget clerk, and 3
machine operators, all of whom the Employer main-
tains should be excluded from the unit as confidential
employees.
All eight employees are under the supervision of
the salary office manager. Their duties primarily
involve maintaining time and pay records and prepar-
ing paychecks and W-2 forms for all Davison employ-
ees. They also keep production records for sales per-
sonnel which are used both to determine if wage
increases are merited and to provide statistical infor-
mation for studies relating to labor relations policies.
It is well settled that employees who handle business
and financial records, including those which concern
labor relations, are not confidential employees where
they act in a relatively minor clerical capacity, have
a minimum of discretion, and do not assist or act
in a confidential capacity to persons who determine
and effectuate labor relations policies.' Applying these
standards to the present case, we find that these
employees have no more than routine discretion.
Although they may indirectly supply raw data used
subsequently by the Employer's officers in formulating
labor relations policies , they are not consulted nor
do they assist in shaping the policies. Accordingly
we find that they are not confidential employees
and include them in the unit.
(d) The Employer, in contradistinction to Petitioner,
takes the position that three employees classified as
accountants are neither supervisory, confidential, nor
'See Crest Wine and Spirits, Ltd, 168 NLRB No 99
' See Columbia Steel and Shafting Company, 132 NLRB 1536, Vulcan-
ized Rubber and Plastics Company, Inc, 129 NLRB 1256
23
professional employees and should be included in
the unit.
The three employees in dispute do general account-
ing work involving profit and loss statements; they
reconcile bank accounts and review and study budgets,
expense accounts , and bills of vendors. If questions
arise with regard to their work, they refer these
to their supervisor. None of them is a certified public
accountant, and the Employer does not require that
they have a college degree or specialized training.
They have executive classification numbers, attend
meetings of supervisors , are paid biweekly, and do
not punch a timeclock. However, testimony was sub-
mitted that they do not have authority and cannot
effectively recommend that any employee be hired,
discharged, rewarded, or disciplined, nor do they
transmit instructions or direct other employees in
the performance of their work.
Based on all of the above, we find that the employee
accountants do not exercise supervisory functions nor
are they professionals as defined by the Act. We
also cannot find they are confidential employees; for
the information to which they have access, some
of which may be of a confidential nature, relates
to business matters rather than to labor relations
policies.' As the accountants share a community of
interests with other clerical employees stipulated by
the parties to be included in the unit, we find that
they too should be included.
(e) The Employer contends that certain employees
who work on an irregular basis should also be included
in the unit. There are 2 categories of such employees:
seasonal employees who work 90 days or less a year,
generally during peak selling seasons ; and extra (non-
selling) and contingent (selling) employees who are
on call to work for indefinite periods of time. Employ-
ees in these latter categories may work as little as
71/2 hours in a 6-month period and still be carried
as contingents or extras . They perform the same
work as regular employees and are under the same
supervision. They may be eligible for certain fringe
benefits such as paid holidays , meal allowances, dis-
count privileges, and leaves of absence. They are
not eligible , however, for disability and life insurance,
paid vacations, or the profit-sharing plan.
The Employer was unable to furnish precise infor-
mation as to the work schedules of employees in
these categories. Therefore, in accordance with a for-
mula applied by the Board in recent cases,' we find
that, with the exception of certain employees whose
exclusion is required by established Board policy such
See, e g , Swift and Company, 129 NLRB 1391
The May Department Stores Company, 175 NLRB No 97, Allied
Stores of Ohio, Inc., 175 NLRB No 168
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as temporary or seasonal employees , any contingent
or extra 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 and may vote in the election.
Accordingly, we find that the following employees
of the Employer at its store at 180 Peachtree Street,
Atlanta , Georgia , constitute an appropriate unit for
collective bargaining within the meaning of Section
9(b) of the Act:
All regular full-time and part -time selling and
nonselling employees of the Employer at its store
located at 180 Peachtree Street, Atlanta , Georgia,'
including lease departments whose employees are
controlled by the Employer for the purposes
of the Act,9 salary clerks , budget clerk , machine
operators, accountants , and qualified contingent
and extra employees , but excluding professional
employees , seasonal employees , casual employees,
Teen Board members , guards , confidential
employees , and supervisors as defined in the
Act.
[Direction of election10 omitted from publication.]
Included are the foreman carpenter, foreman painter, gift wrap supervi-
sor, mail order supervisor, platform receiving supervisors, supervisor of
the employees' cafeteria, candy room supervisor, marking supervisor,
and working supervisor porter As we have found above, the individuals
having these titles are not supervisors as defined in the Act
' Except for the beauty salon, the parties stipulated as to which
leased departments should be included in the unit Subsequently, in
its brief to the Board, the Petitioner expressed agreement with the Employ-
er that the beauty salon should be included in the unit Accordingly,
the employees of this leased department will be deemed so included
and eligible to vote
10 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, NLRB. v Wyman-Gordon
Company, 394 U S 759 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 10 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