V.I.M. Jeans

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1408 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nakash, Inc. a Subsidiary of Famous Horse, Inc.
d/b/a V.I.M. Jeans and United Crafts & Indus-
trial Workers Union, Local 91. Petitioner. Case
29-RC-6018
31 August 1984
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 26 October 1983 the Regional Director for
Region 29 issued his Decision and Direction of
Election in the above-entitled proceeding in which
he found appropriate for collective-bargaining pur-
poses a separate single retail store unit including all
salesclerks, cashiers, stockroom personnel and gen-
eral helpers at the Employer's store located at 436
Knickerbocker Ave., Brooklyn, New York. There-
after in accordance with Section 102.67 of the Na-
tional Labor Relations Board Rules and Regula-
tions, the Employer filed a timely request for
review of the Regional Director's Decision and Di-
rection of Election, on the grounds that the Re-
gional Director made factual errors and departed
from precedent.
On 23 November 1983 by telegraphic order, the
request for review was granted on the issue of
whether the Regional Director erred in finding the
single-store unit to be appropriate.
The Board has considered the entire record in
this case and makes the following findings:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Section 9(c)(1) and 2(6)
and (7) of the Act.
4. The Emnployer, a New York corporation, op-
erates a chain of retail stores selling jeans and
tennis shoes at nine locations in the New York City
metropolitan area, including one in Manhattan, two
in Queens, one in the Bronx, and five in Brooklyn,
New York, including the location involved herein.
The Employer has an office located in Rego Park,
New York. The Employer employs about 300 em-
ployees, although the record does not state how
many work at the Knickerbocker Avenue store.
There is no history of collective bargaining for any
of the Employer's employees. Each store has a
manager and some stores also have an assistant
manager, while all stores employ similar classifica-
tions of hourly employees.
271 NLRB No. 223
The Petitioner seeks an election in one separate
unit at the Knickerbocker Avenue store.' The Em-
ployer contends that the single-store unit is inap-
propriate. The Employer further contends that the
smallest appropriate unit would be one which in-
cluded all nine of the Employer's stores located
within the metropolitan area which are centrally
managed and whose employees together share a
community of interest.
The Employer's stores all attempt to follow the
same physical layout with jeans in the front of the
store, tennis shoes towards the rear, dressing rooms
on the right, and chairs on the left. All nine stores
carry centrally purchased merchandise which is
centrally tagged with labels which carry the words
"VIM Stores." No store may purchase goods, al-
though there may be variations among the store
prices to reflect competition in that store's area.
Any price variations are centrally controlled. For
convenience, price tages are affixed at each store.
The stores advertise on a chainwide basis.
The Employer's management hierarchy is locat-
ed in the Employer's main office in Rego Park,
New York, and is dominated by the president of
Famous Horse, Inc., Yosef Yosef. The record dis-
closes that Yosef algng with two other supervisors,
Yoav Nadav and Stanco Trajan, supervise all the
stores. They shuttle between the stores on a daily
basis and go over payrolls, check orders, and ex-
amine equipment. They observe and discuss the op-
eration of each store with the store manager. They
review personnel matters including the hiring and
firing of employees. Yosef is involved in all deci-
sions concerning final disciplinary warnings and
discharges. In addition to the duties relating to the
store they happen to be in, they may also transact
business on behalf of the entire chain by meeting
with salesmen or planning advertising campaigns.
The record reveals that all nine of the Employ-
er's stores are controlled very closely by Yosef and
the central office. All employees have similar skills,
work classifications, and working conditions. All
wages and benefit plans are centrally set and the
salaries of employees in all nine stores are similar.
The staffing levels and operating hours of each
store are centrally set and are generally uniform
throughout the chain. Payroll and hiring quotas are
controlled from the main office. All personnel
records are located at the office rather than in the
stores.
The unit sought vras:
All sales clerks, cashiers, stockroom personnel and general helpers
employed by the Employer at its store located at 436 Knickerbocker
Avenue, Brooklyn, New York, excluding all other employees, assist-
ant store manager, office clerical employees. guards and supervisors
as defined in the Act.
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V.I.M. JEANS
Additionally, the individual store manager's au-
tonomy is severely circumscribed by the authority
retained by Yosef and the two supervisors as well
as by the centrally determined policies. The record
discloses that the manager of the Knickerbocker
Avenue store, Elly Hirel, receives guidance from
central management as to how many people he
may have on the payroll at any one time. A deci-
sion whether to increase or decrease the staff at a
store is centrally made and implemented by the
manager. Hirel confers daily with a member of the
management team who reviews all decisions re-
garding hiring and firing. He cannot grant a wage
increase or schedule vacation time for employees
without prior approval. Even though he hires indi-
viduals for his store he must adhere to the estab-
lished guidelines. In addition to the nine store man-
agers, a relief manager rotates from store to store
and has exactly the same authority as each store
manager.
After employees are hired they are usually
trained in the store where they work but, on occa-
sion, employees have been trained in one store and
then assigned to work in another. The staff for a
new store is trained in the Employer's existing
stores before the new store opens. There have been
some instances of temporary and permanent trans-
fers of employees between existing stores.
The single plant, or in this case retail store, is a
presumptively appropriate unit for collective-bar-
gaining purposes unless it is established that the
single store has been effectively merged into a
more comprehensive unit so as to have lost its indi-
vidual identity. Frisch's Big Boy Ill-Mar, 147 NLRB
551 (1964); Haag Drug Co., 169 NLRB 877 (1968).
However, the Board "has never held or suggested
that to rebut the presumption a party must proffer
'overwhelming evidence . . . illustrating the com-
plete submersion of the interests of employees at
the single store,' nor is it necessary to show that
'the separate interest' of the employees sought have
been 'obliterated."' Big Y Foods, 238 NLRB 860,
761 fn. 4 (1978).
The Regional Director found the requested
single-store unit appropriate based on the degree of
autonomy possessed by the store managers, the
lack of compelling evidence of substantial employ-
ee interchange between the stores, and the absence
of any history of collective bargaining on an over-
all basis.
In Kirlin's Inc., 227 NLRB 1220 (1977), the
Board, in disagreement with the Regional Director,
found the requested single-store unit inappropriate.
The Board dismissed the petition based on evi-
dence of centralized management of labor relations,
commonality of supervision, interchange of em-
ployees, identical employee functions, terms and
conditions of employment, limited personal author-
ity of each store manager, and the proximity of the
two stores in the same shopping mall. Most of the
factors found determinative in Kirlin's are also
present in the instant case. The nine stores are vir-
tually identical in layout, share a close geographic
proximity (two stores are on the same street in
Brooklyn), are centrally controlled in merchandis-
ing, pricing, and personnel relations, and the man-
agers have limited personal authority. Although
there is no evidence of substantial employee inter-
change, some transfers do occur. Viewed against
the background of the highly centralized adminis-
tration of all nine stores, the daily contact with
Yosef and the other supervisors and the restricted
authority of the store manager, the fact that there
is not substantial employee interchange pales in its
importance to the determination of the issue.
The Board also found inappropriate a requested
single-store unit in Super X Drugs of Illinois, 233
NLRB 1114 (1977). The Board denied the unit
based on the lack of store manager authority, geo-
graphic proximity of the employer's Cook County
stores, and the interchange of employees among
those stores. The autonomy of the store manager
with respect to personnel matters was severely cir-
cumscribed by the authority retained by the district
manager. There the store manager had ready tele-
phonic communication between the store and dis-
trict managers. In the instant case either Yosef or
one of the supervisors actually makes daily visits to
each of the stores. Additionally the relief manager,
who rotates between the stores on the various man-
agers' days off, has the same authority as the store
manager in his absence.
In both Super X and the instant case, the store
manager's limited authority is established in that
the district manager or supervisor (the next level of
management) has the final decision-making author-
ity in disciplinary actions and approval must be re-
ceived from the central management to grant store
employees' leaves, vacations, promotions, and pay
increases.
In Gray Drug Stores, 197 NLRB 924 (1972), the
Board, in holding that fingle-store units were inap-
propriate, found significant the lack of autonomy at
the singe-store level reflected by strict limitations
of the store manager's authority in personnel, labor
relations, merchandising, and the extensive role of
the district manager in the day-to-day operation of
the stores. The Board concluded that "the store
manager's authority is shared with the district man-
ager to a degree negating any conclusion that the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single stores are separate economic units."2 Where
the local manager's authority is highly circum-
scribed and there is a large degree of centralization
of administrative functions, the Board has found
the presumption of the appropriateness of the
single-store unit has been rebutted. 3 The facts in
the instant case establish that the Employer's nine
stores similarly experience a high degree of central-
ization and that the store manager's authority is
similarly tightly circumscribed.
Upon these facts we find, in disagreement with
the Regional Director, that the requested single-
store unit is inappropriate. As the Petitioner has
made no alternative unit request, we shall dismiss
the petition.
ORDER
It is ordered that the instant petition is dismissed.
MEMBER ZIMMERMAN, dissenting.
I dissent from my colleagues' dismissal of the
election petition in this case because they believe
that the petitioned-for single-store unit is inappro-
priate. I find, rather, that the record fully supports
the findings of the Regional Director in his Deci-
sion and Direction of Election, and I agree with
his conclusion that the Employer has not effective-
ly rebutted the presumptive appropriateness of the
requested single retail store unit.
My disagreement relates, specifically, to the
degree of autonomy enjoyed by the individual
store manager. While the majority finds the store
manager's autonomy severely circumscribed by the
authority retained by the Employer's top manage-
ment, to a degree negating any conclusion that the
single stores are separate economic units, I disagree
and find the record to show that the store manager
retains major control over labor relations in his
store.
Thus, the Regional Director found and the
record indicates that Elly Hirel, store manager of
the Knickerbocker Avenue store, at issue herein,
hires and fires employees, assigns work schedules,
rates employee performance and decides who will
get wage increases, and handles the day-to-day
problems of the store, including employee griev-
ances. While my colleagues place great emphasis
2 Id. at 925.
3 Purity Supreme, Inc., 197 NLRB 915 (1972), and Petrie Stores Corp.,
266 NLRB 75 (1983).
on the fact that the Employer's president, Yosef
Yosef, tells Hirel how many employees may be
hired, as well as when he wants employees laid off,
Yosef testified that it is Hirel who makes the deci-
sions as to whether to hire a specific individual and
who exactly will be laid off. Yosef further testified
that, even though Hirel cannot grant a raise with-
out consulting him, it is Hirel who rates employees'
performance and recommends who should get
raises, as Yosef does not know individual employ-
ees. Hirel also has the authority to independently
discipline employees, without speaking with Yosef
or getting his approval to do so. 1
Additionally, though Yosef testified that he and
two other top management supervisors working at
the Employer's main office shuttle between the
Employer's nine New York City stores, nowhere
does the record indicate that one of them is in the
Knickerbocker Avenue store every day. Rather,
when asked at the hearing how often these three
supervisors go to the individual stores, Yosef re-
plied: "I'm working 6 days a week and every day
I'm at the stores. Again, it depends on how much
work there is to do." Even the Employer in its re-
quest for review of the Regional Director's deci-
sion does not claim that either Yosef or one of the
two other control management supervisors actually
make daily visits to each of the stores, as the ma-
jority finds, but asserts only that "Control Manage-
ment shuttle between stores on a daily basis."
Three individuals who shuttle between nine stores
located throughout the New York City metropoli-
tan area, in addition to ordering merchandise, han-
dling payrolls, checking orders and equipment, and
transacting business such as planning advertising
campaigns on behalf of the entire chain, do not, in
my view, constitute such circumscription of Hirel's
admittedly unfettered hiring, firing, and grievance
resolution authorities as to negate his control over
labor relations in his store. I find nothing in the
record relating to the Employer's centralized rec-
ordkeeping, merchandising, and oversight of its
stores which outweighs the fact that the store man-
ager is vested with the authority to run his store
and control the employees in it.
Accordingly, I dissent from my colleague's deci-
sion and would adopt the Regional Director's deci-
sion and direct an election.
All of the above is based on Yosefs uncontradicted testimony, as he
was the only witness at the hearing.
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