U.S. Shoe Retail, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 631 (N.L.R.B. 1972)

KUSHINS AND PAPAGALLO
Kushins and Papagallo Divisions of U.S. Shoe Retail,
Inc.' and Retail Store Employees Union , Local 410,
Retail Clerks International Association, AFL-CIO,
Petitioner. Case 20-RC-10581
October 10, 1972
DECISION ON REVIEW
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On May 12, 1972, the Regional Director for
Region 20 issued a Decision and Direction of Election
in the above-entitled proceeding wherein he found
appropriate a unit of all full-time selling and nonsell-
ing employees of the Employer's Kushins division at
its San Francisco, California, store. Thereafter, in ac-
cordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for re-
view contending, inter alia, that the Regional Direc-
tor, in excluding the employees of the Papagallo
division at the San Francisco store, made findings of
fact which were erroneous and departed from official-
ly reported precedent.
By telegraphic order dated June 8, 1972, the re-
quest for review was granted and the election stayed
pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Involved herein is the Employer's retail store lo-
cated at 255 Geary Street in San Francisco. The store
is divided into four sales areas, three of which are
operated by the Employer's Kushins division and the
other by its Papagallo division.2 Each division main-
tains a separate headquarters elsewhere in California.
The Employer has retail stores at other locations, not
involved herein, some which encompass the opera-
tions of both its Kushins and Papagallo divisions, as
at the San Francisco store, and others which do not.
The Petitioner seeks to represent only the Kush-
ins division employees at the San Francisco store. The
Employer contends, in effect, that only a storewide
unit of employees of both divisions is appropriate
herein because, unlike the typical situation at dis-
count houses, the lessor Kushins and the lessee Papa-
1 For reasons set forth herein , the Employer's name is amended as shown.
2 In February 1971, when the San Francisco store opened , the two divi-
sions were wholly owned corporate subsidanes of U.S. Shoe Retail, Inc., and
Papagallo operated at the San Francisco store as a leased department. How-
ever, at the present time , Kushms and Papagallo no longer exist as separate
corporate entities but are operating divisions of U.S. Shoe Retail, Inc.
631
gallo are both divisions of the same company. We
agree.
The physical layout of the San Francisco store is
as follows: Immediately inside the only customer en-
trance is Kushins ladies' sales area 1. On a floor di-
rectly below this sales area is Kushins men's sales
area. Two more selling areas are at two different levels
to the rear of the store; on the upper level, reached by
a split staircase, is the Papagallo sales area, and on the
level below is Kushins ladies' sales area 2. The Kush-
ins division offers for sale a variety of shoes and relat-
ed accessories. The Papagallo sales area offers dresses
and lines of shoes and accessories different in style
and price from the shoes and accessories sold in the
Kushins division areas . The two divisions share win-
dow display space and conduct combined promotion-
al campaigns. The merchandise of both divisions is
delivered to the store at a central receiving area and
stored primarily in space adjacent to the areas where
it is offered for sale.
The Kushins division sales areas , under the direc-
tion of a single manager, are staffed by approximately
20 employees, including 13 sales clerks, 5 cashiers, a
receiving clerk, and a sales assistant who is primarily
a sales clerk assigned to assist the manager in some of
his more routine duties. The Papagallo sales area, un-
der the direction of a separate manager, employs sev-
en sales clerks and cashiers, a receiving clerk, and a
display clerk. The Kushins division manager estab-
lishes the store hours, holidays, and employee regula-
tions for the entire store and can require the discharge
of objectionable Papagallo division employees. Each
division manager otherwise exercises authority with
respect to the hiring, discharging, directing, and
scheduling of his own employees. There is minimal
interchange of employees between the divisions.
The Kushins division sales employees are paid on
a commission basis. All other employees, including all
Papagallo division employees, are hourly rated. In
addition, the Kushins division employees are provid-
ed health insurance which has not been made avail-
able to the Papagallo division employees at the San
Francisco store. All employees enjoy storewide em-
ployee discounts and share the same employee fa-
cilities.
Despite the several differences in employment
conditions detailed above for the employees of each
division at the San Francisco store, we see no basis for
excluding the Papagallo division employees from the
unit. Here the employees of both divisions are em-
ployed by a single corporate entity, and operations of
the two divisions at the San Francisco store are per-
formed in essentially the same manner as in a tradi-
tional department store. For this reason, consistent
with our unit policy in department store cases, the
unit must be broadened in scope to encompass all
199 NLRB No. 114
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store employees? We find therefore the following em-
ployees constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees of the Employer's retail store lo-
cated at 255 Geary Street, San Francisco, Cali-
fornia, including the selling assistant but
excluding guards and supervisors as defined in
the Act .4
Accordingly, the case is remanded to the Region-
al Director for the purpose of conducting an election
3 Zayre Corp., 170 NLRB 1751 , fn. 10. Cf. Bargain Town USA., 162 NLRB
1145. Member Jenkins concurs in the conclusion , but does not rely on these
cases in reaching it.
4 Some employees at the San Francisco store work only part time . As there
was no evidence concerning the regularity of their employment , the Regional
Director provided the part -time employees would vote by challenged ballot.
Since neither party raised issues at the hearing regarding their eligibility and
the Board normally includes part-time employees unless there is evidence
warranting their exclusion , the part-tune employees shall be permitted to vote
subject only to challenge by the parties for cause.
pursuant to his Decision and Direction of Election, as
modified herein,' except that the payroll period for
determining eligibility shall be that immediately pre-
ceding the date of issuance .6
5 In the event the Petitioner does not wish to proceed to an election in the
unit found appropriate herein, it shall so notify the Regional Director by
written notice within 7 days of the date of issuance . Moreover , as the unit
found appropriate is broader than that originally requested by the Petitioner,
the Regional Director shall determine whether its showing of interest is
sufficient before proceeding with the election.
6 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 Co., 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 20 within 7 days of the date of this Decision
on Review. 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.