The M. O'neill Co.

National Labor Relations Board - Board Decisions

Apr 23, 1969

175 N.L.R.B. 514 (N.L.R.B. 1969)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company d/b/a The
M. O'Neil Company' and Retail Clerks
International Association, Local 698, AFL-CIO
Petitioner. Cases 8-RC-7117, 8-RC-7138, and
8-RC-7146
April 23, 1969
DECISION AND DIRECTION OF
ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN 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 John
Vincek. 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. Thereafter, briefs were filed by the
Employer and the Petitioner.
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, including the
briefs, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The appropriate units: In essence, the
Petitioner seeks separate units of the Employer's
Akron, Stow-Kent, and Barberton, Ohio, stores.
The Employer contends that separate units are in
derogation of Section 9(c)(5) of the Act, and that
only a chainwide unit is appropriate.'
The Employer operates 12 department stores and
the Gilchrist Road Distribution Center, a
"hard-goods" warehouse, in Akron and the
surrounding area. The Employer has a central store,
the downtown Akron store, which also houses the
Employer's administrative offices, a "soft-goods"
warehouse, and many services which are provided
for the remaining stores in the chain. Briefly, such
'Employer's name as amended at the heanng
The Employer at the heanng moved to have the petitions dismissed on
the ground that Sec 9(c)(5) of the Act precludes the Board from finding
the requested units appropriate on the basis of extent of organization As
the determination of the appropriate units in this case is based on factors
other than the extent of organization, the Employer's motion is hereby
dismissed
centralized services consist of purchasing,
merchandising , advertising , personnel and labor
relations , laundry, display construction , accounting,
and auditing . In addition, the downtown Akron
store has a maintenance force for use at all stores,
and also operates various customer service
departments (such as an alterations department and
a reupholstering department) for all branches not
having facilities for these services . Approximately 44
percent of the downtown Akron store ' s employees
and about 37 percent of its floorspace are involved,
at least to some extent , in servicing the entire chain
The downtown Akron store is located about 8
miles from the Barberton store and 12 miles from
the Stow-Kent store. The downtown Akron store is
about 8 miles from the Gilchrist Road warehouse
and about 5, 7, 23, 25, 25, 25, 35, 65, and 82 miles
from the remaining stores.
In determining whether a requested unit is
appropriate , the Act provides that the "Board shall
decide in each case whether , in order to assure to
employees the fullest freedom in exercising the
rights guaranteed by this Act, the unit appropriate
for the purpose of collective bargaining shall be the
employer unit . . . plant unit or subdivision thereof." 3
However , in "determining whether a unit is
appropriate for the purpose specified in sub-section
(b), the extent to which the employees have
organized shall not be controlling."'
In Haag Drug Company , Incorporated, 169
NLRB No. 111, we reaffirmed the policy that:
a single store in a retail chain , like single
locations in a multi -location enterprises in other
industries , is presumptively an appropriate unit
for bargaining . . . . The employees in a single
retail outlet form a homogeneous , identifiable,
and distinct group , physically separated from the
employees in the other outlets of the chain; they
generally perform related functions under
immediate supervision apart from employees at
other locations ; and their work functions , though
parallel to, are nonetheless separate from, the
functions of employees in the other outlets, and
thus their problems and grievances are peculiarly
their own and not necessarily shared with
employees in the other outlets.
In the Haag case, we recognized that retail chain
operations nearly always involve a high degree of
centralization , especially in the areas of
recordkeeping , merchandising , administration, and
labor relations policy. However , we found more
significance in the fact that:
the employees perform their day-to-day work
under the immediate supervision of a local store
manager who is involved in rating employee
performance , or in performing a significant
portion of the hiring and firing of the employees,
and is personally involved with the daily matters
'See Sec 9(b) of the Act
'See Sec 9(c)(5) of the Act
175 NLRB No. 97
MAY DEPT. STORES CO.
which make up their grievances and routine
problems.
Clarence Randall, Vice-President and General
Operations Manager, testified that the branch store
managers are "involved in the day-to-day operation
of the (branch) stores." He further testified that
while the stores coordinator (part of the central
administration) is at each branch more than
occasionally, he is not there every day. Indeed, the
record contains repetitive testimony that a branch
store manager, and supervisors subordinate to him,
"guide the day-to-day, hour-to-hour operation of .. .
a branch store" despite the'fact that these branch
store personnel are also responsible to the central
staff.
Randall further testified that most hiring occurs
at the branch stores. Generally the prospective
employee applies to a branch employment manager
and is interviewed by a branch store department
manager. Carl Caligiuri, Vice-President and
Personnel Director, testified that a branch store
employment manager "approve(s) the opening (for
the basic staff) and based on that they would
approve, they would hire persons on the basic staff."
In some cases a branch store employment manager
might also hire for supervisory positions. We note
that Caligiuri testified that final approval in the
above hiring procedure is the responsibility of the
central personnel staff. But it is clear that branch
personnel have substantial authority in the hiring
process; and while final approval in most instances
comes from the central staff, the decision to hire
generally is effective at the branch level.'
The performance of selling employees is evaluated
on the Employer's standard forms' by the supervisor
at the employee's location. It appears that a branch
store manager personally evaluates the performance
of the nonselling employees, although he may also
evaluate selling employees. Again we are cognizant
that William Fischer, the Performance Review
Director, assimilates and corrects these performance
evaluations. However, Fischer's job does not detract
substantially from the position of branch store
personnel in making the initial evaluations, which
serve as an important factor in the granting of merit
increases and promotions.'
The record indicates that while the Employer's
Executive Committee sets the overall labor relations
policy for the chain, it is the responsibility of each
branch store manager to implement such policy, and
to exercise discretion within the basic guidelines. For
example, he may effectively discharge an employee
for repeated tardiness, and he may discipline
employees in certain situations . While there appear
'The Stow- Kent store manager estimated that his recommendations on
hiring are about 75 percent effective
'While it is the Employer 's policy to use the standard forms for
performance evaluation , the Stow -Kent store manager , as a matter of
discretion, has decided not to use the standard form
'We note that the Stow -Kent store manager testified that his
recommendations as to pay increases are effective in the majority of cases.
515
to be few problems concerning coffeebreaks and
vacations, a branch store manager may be called
upon to settle employee problems unless they
involve major deviations from company policy.
A store manager has certain responsibility in what
may be broadly termed "the merchandising
function." He supervises the balancing and
recording of stock. Indeed, a letter by Donald
Mangold, a central buyer, to branch store managers
suggests that the branch store managers or sales
personnel make periodic trips to the downtown
Akron store for the purpose of selecting any
merchandise required to solve branch store
merchandise problems. Mangold testified that on
one occasion a young men's pants merchandising
program was based on the desires of the branch
store managers. The above facts indicate that while
central office buyers and assistant buyers control the
various sales departments at the branch stores, the
branch store managers play an important role in the
operation of this function!
The branch store managers or personnel managers
train most new employees, although they use a
training packet put together by the central personnel
staff. There is testimony that the branch store
personnel managers decide which, when, and how
many part-time or "pink card" employees to use in
their stores.
The branch store managers determine the hours
to be worked by employees in the branch store
credit department, although the basic guidelines are
decided by the central credit manager; and the
branch store office managers are responsible for the
work assignments of the office employees.
Although the central merchandising staff has the
basic responsibility for determining inventory levels,
as part of the decisional process the store managers
are consulted and asked for suggestions.
It is clear from the above discussion that each
petitioned-for store constitutes an entity subject to
substantial control by the store manager and his
supervisory staff. Although this control is not
complete, and the central Executive Committee also
has considerable control over the branch store
employees, the store managers as the day-to-day
supervisors are vital to employee welfare and
working conditions. Therefore, it is our opinion that
the circumstances here present a situation suitable
'The Employer has attempted to show that actual supervision of branch
selling departments is performed by the centrally located buyers and
assistant buyers Although the above -mentioned central staff personnel visit
the branch stores periodically to help with problems, merchandising, and
some sales training, these visits are relatively infrequent . An exhibit
submitted by the Employer shows that they may occur as seldom as once
every four to six months In addition, a selling department employee
testified that about 12 visits per year is a reasonable estimate Perhaps the
most critical testimony concerning supervision by the buyers is Donald
Mangold 's statement that he, as a buyer , is not a supervisor of branch
store selling employees We note, however , that various merchandising
decisions , such as those concerning sales and markdowns, are centrally
determined , and that telephone communication between the central store
and the branch stores is frequent However, there is no testimony about the
percentage of calls which relate to supervisory decisions.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for allowing the employees of each petitioned-for
store to have the opportunity to decide whether or
not they desire to be represented by the Union as
their exclusive collective-bargaining representative.
As pointed out in the Haag case, supra, in retail
store chains there may be factors which militate
against the appropriateness of a single-store unit.
However, we do not believe that such factors
preponderate in the present case. The Employer's
bargaining history indicates neither a pattern of
chainwide bargaining nor that its established
bargaining relationships would be disturbed by
finding that the separate, petitioned-for stores are
appropriate. The bargaining history consists of a
contract with a labor organization covering tailors
at the Employer's stores in Summit County, Ohio,
including the downtown Akron store. Another labor
organization represents a unit of mechanics at the
Gilchrist Road warehouse and a separate unit of
maintenance employees operating primarily out of
the downtown Akron store. We note that the
Petitioner's unit request specifically excludes all
employees represented by these other labor
organizations.
Employee interchange is insubstantial. Such
interchange involves a few employees in the display
function who occasionally help at other stores for
short periods of time. In addition, the interchange
for semiannual inventory purposes and for special
sales involves few employees and, again, is for short
periods of time. Employee transfers are minimal;
about 100 employees were transferred over a 2-year
period in a chain consisting of about 3,800
employees. This interchange is in no way destructive
of the homogeneity of the single-store units.
The dependency of branch stores on the two
warehouses for merchandise and supplies again does
not destroy the individual identity of each branch.
Such dependency exists in most chain store
operations and does not destroy the basic economic
identity of each branch. As we said in Capital
Bakers, Inc., 168 NLRB No. 119:
There are, concededly, a number of factors which
would appear to militate in favor of the
appropriateness of a multiplant unit. Thus, there
is a degree of functional integration between the
central office and the various plants operated by
the Employer, as evidenced by the fact that the
central office determines policy for all plants
respecting production and sales as well as
employment practices, including rates of pay,
hours of work, insurance benefits, and other
fringes; by the fact that all personnel, payroll, and
Social Security records are maintained by the
central office; and by the fact that all purchasing
is done by the central office. In addition, there is
a supply integration among the plants ....
However, we went on to find that each plant
maintained considerable autonomy based essentially
on the substantial control exercised by the local
plant manager. Therefore, the single-plant unit
assured to employees the fullest freedom in
exercising their rights guaranteed under the Act.
The parties stipulated that employees of all leased
departments, except those of Audiophone Company
of Akron, Incorporated,' be excluded from the unit.
The parties further agreed that certain other
workers are to be excluded as confidential
employees, employees presently covered by
collective-bargaining agreements, guards, or
supervisors under the Act.'" They also stipulated
that certain other workers, including Audiophone's
employees, are to be included in the unit. In
addition, the Petitioner in its brief agrees with the
Employer that various leadmen, whom it had
previously sought to exclude, should be included.
We find no reason to disturb the agreement of the
parties as to any of these categories.
As to the status of leadmen remaining in issue,"
we find as follows:
(1) Lead Porter-Housekeeping: This employee
spends about 95 percent of his time performing
manual work. While he also directs some of the 30
porters and maids, this generally occurs only if
another porter or maid is absent, and consists of
nothing more than making sure that someone cleans
the area of the store assigned to the absent porter or
maid. He does no scheduling of employees. He may
recommend employees for advancement, but these
recommendations appear to be given little or no
special weight, and have no more effect than if a
fellow worker made the recommendation. This
employee testified that on occasion he allowed
others to go home if they were ill; this, however, is
only in the case of emergency, when there is nobody
of greater authority to grant leave. Under the above
circumstances, which we find inconclusive as to
supervisory indicia, this employee shall be allowed
to vote subject to challenge.
(2) Branch Store Lead-Stock and Housekeeping.-
Of the petitioned-for stores, only Stow-Kent
presently has an employee in this category. The
record indicates that this leadman spends about 80
percent of his time performing manual work. The
record further indicates that this leadman directs the
people under him; however, the evidence is
inconclusive as to whether such direction is routine
and pursuant to orders from superiors. There is also
testimony that this leadman attends certain
supervisory meetings and makes various
recommendations concerning employees under him;
'The Board 's Order Consolidating Cases and Notice of Representation
Hearing was duly served on Audiophone Company of Akron,
Incorporated We note that Audiophone did not appear at the hearing
"The parties stipulated that Mrs. Paul Bell , the wife of the Barberton
store manager , should be excluded as not having a community of interest
with other employees
"Several lead positions , unoccupied at the time of the hearing , involve
duties which would be determined only when filled Such lead positions
apse through a combination of seniority , experience , and functions actually
performed , and we find the testimony as to the unoccupied positions too
inconclusive or hypothetical for a determination of whether future
incumbents would have supervisory status Accordingly , we do not pass on
these lead positions.
MAY DEPT. STORES CO.
but again the record is inconclusive as to whether
these activities are merely routine. Accordingly, we
shall allow this leadman to vote subject to challenge.
(3) Accounts Receivable Lead: The only function
this employee performs which differs from that of
the others working in his section is to pass upon
questionable cases of customers exceeding general
credit limits. Final authority in this area rests with
the Credit Manager. We include this employee in
the unit.
(4) Credit Lead: The only difference between this
employee and others working in her department is
that she appears in court as a witness on bad-checks
cases. As we find no indicia of supervision, we
include this employee in the unit.
(5) Display Coordinator Lead: The occupant of
this position can request an employee to bring
certain sales items, such as purses, shoes, and
gloves, necessary for a display. This leadman spends
his time in various of the Employer's stores; he is at
the Akron store approximately 20-25 percent of the
time, at the Stow-Kent store about 5-10 percent of
the time, and at several non-petitioned-for stores the
remainder. Under the above circumstances, we
include him in the Akron unit. We note that the
average time he spends at Stow-Kent is less than the
standard we have used for part-time or "pink card"
employees (discussed below) and he therefore does
not have a sufficient community of interest with the
employees at Stow-Kent.
(6) Management Trainees: These employees are
given broad experience in the Employer's operation
with the hope that they will eventually qualify for
positions as supervisors, management personnel, or
administrative personnel. Generally those who do
not so graduate generally leave the Company. As
these employees have a community of interest
different than that of regular employees, we exclude
them from the unit.
(7) Packer-Wrapper Lead: This employee spends
about 95 percent of his time on normal production,
which consists of wrapping and packing merchandise
for delivery to customers. The remaining 5 percent
of his time is spent checking the work of the other
16 employees in the section, and distributing work
and supplies to these other employees. Although this
employee may make various recommendations
regarding discharge, discipline, and promotions, it
appears that these recommendations are not given
effective weight in management's final determination
of these matters. As the record does not disclose
sufficient indicia of supervisory status, we find that
this leadman is to be included in the unit.
(8) Area managers, section managers, and section
heads (Interchangeable terms): These positions
appear to exist only in the branches, where they are
not formal titles as much as terminology of common
parlance,': and require separate investigation of the
duties performed by each individual in issue. These
517
employees appear to have more responsibility than
department managers, stipulated by the parties as
nonsupervisory, but less than divisional merchandise
managers, stipulated by the parties as supervisory.
The record is inconclusive as to their supervisory
status, and we shall allow them to vote subject to
challenge.
Pink card employees
"Pink card" employees work less than 20 hours
per week. Included in this category are students,
Social Security annuitants, regular employees still in
their probationary period, and all other employees
who are essentially in an "on-call" status. The
record is inconclusive as to the precise work
schedules of many of these employees. It appears
that some are regularly scheduled for at least 4
hours a week; others work only during certain busy
retail seasons, such as the Christmas season; and
still others work irregularly, when the Employer
needs them. Except for those whose exclusion is
required by established Board policy, such as
temporary, casual employees, we find that any
"pink card" 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. Accordingly, any
employee meeting this requirement shall be eligible
to vote.
Accordingly, we find that the following employees
of the Employer, at its separate stores in Akron,
Barberton and Stow-Kent, Ohio, constitute units
appropriate for the purposes of collective bargaining
within the meaning of the Act: All regular selling
and non-selling employees, including employees of
Audiophone Company of Akron, Incorporated, and
all qualified "pink card" employees, but excluding
professional employees, casual employees,
temporary employees, seasonal employees, guards,
confidential employees, supervisors as defined by the
Act, and employees represented by other labor
organizations.
[Direction of Elections"'" omitted from
publication.]
"An organization chart supplied by the Employer lists "Area
supervisors" and "Section managers " However, it is not clear if these
titles correspond to the categories in issue
"As it is clear that "The May Company " is not part of the Employer's
name, and as inclusion on the ballot may be misleading or confusing, the
Employer 's name on the ballot shall appear as The M O'Neil Company
We note the parties have agreed to the above
"Election eligibility lists, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 8 within 7 days after the date of this Decision and Direction of
Elections The Regional Director shall make the lists available to all
parties to the respective 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 , as to any election,
shall be grounds for setting aside that election whenever proper objections
are filed Excelsior Underwear , Inc, 156 NLRB 1236