Big "N," Department Store No 307

National Labor Relations Board - Board Decisions

Dec 15, 1972

200 N.L.R.B. 935 (N.L.R.B. 1972)

BIG "N," DEPARTMENT STORE NO 307 935
Big "N," Department Store No 307, Big "N," a
Division of Neisner Bros, Inc i and Central Penn
Joint Board, Textile2 Workers Union of America,
AFL-CIO, Petitioner Case 4-RC-9773
December 15, 1972
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Anthony D
DaDalt of the National Labor Relations Board
Following the close of the hearing the Acting
Regional Director for Region 4 transferred this case
to the National Labor Relations Board for decision
Thereafter, the Employer filed a brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error They are hereby affirmed
Upon the entire record in this proceeding, the
Board finds
1 The Employer is engaged in commerce within
the meaning of Section 2(5) of the Act, and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein
2 We find that Petitioner is a labor organization
within the meaning of the Act 3 Petitioner claims to
represent certain employees of the Employer
3 A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act
4 The appropriate unit
Petitioner seeks to represent a unit of about 70
sales and service employees at the Employer's
i The name of the Employer appears as amended at the hearing
2 The name of the Petitioner appears as amended at the hearing
3 The Employer contends that Petitioner is not a labor organization
under the statutory definition because it asserts employees do not hold
direct membership in it Petitioner does not negotiate collective-bargaining
contracts in its own name and the constitution and bylaws of the
International Textile Workers Union limit organization to the textile
manufacturing industry
The record shows that the Joint Board is an amalgamation of four locals
and that employees with membership in the constituent locals are also
members of the Joint Board In any event the employees participate in the
Joint Board by virtue of the election of delegates to that Board from the
several constituent locals Space Services International Corporation 156
NLRB 1227 1229 Halliburton Company 142 NLRB 644, 645
Contrary to Respondents assertion, Petitioner does negotiate contracts
in its own name together with those of its constituent locals Apart from
discount department store at Williamsport, Pennsyl-
vania The Employer contends that the one-store unit
requested is inappropriate It argues that an appro-
priate unit should encompass all 15 stores in the
Employer's eastern district or, alternatively, 7 of
them which are under the supervision of an assistant
district manager There is no history of collective
bargaining for any of the Employer's employees
The Employer, Big N, is a division of Neisner
Bros, Inc, a Pennsylvania corporation with head-
quarters in Rochester, New York The Employer
operates 34 stores in six States It has divided the
stores, for purposes of administration, into three
districts Each operates under the direction of a
district manager The eastern district, in which the
Williamsport, Pennsylvania, store is located, includes
14 other stores located in Pennsylvania, New York,
New Jersey, Connecticut, and Massachusetts The
record does not show the city location of all stores in
the eastern district It does show the city location of
the seven stores in the Employer's proposed alterna-
tive unit In addition to the Williamsport, Pennsylva-
nia, store, the six others are located at Lock Haven,
Shamokin, and Stroudsburg, all in Pennsylvania, and
at Wellsville and Hornell, New York, and Newton,
New Jersey The Lock Haven and Shamokin stores
are within 50 miles from the Williamsport, Pennsyl-
vania, store The other stores are all more than 100
miles from Williamsport 4 The distance between
some stores exceeds 200 miles 5
The eastern district is directed by a district
manager, an assistant manager is responsible for the
seven stores in the locations referred to above The
district manager visits the Williamsport store once
every 2 weeks and the assistant district manager
about twice a week
The headquarters office at Rochester performs
centrally such functions for a new store as purchas-
ing, distribution of merchandise, and hiring Other
services performed by the Rochester office for all
stores include major purchasing and pricing of
goods, payment of bills, recordkeeping, inventory
whether Petitioner is a signatory to collective bargaining agreements as a
body which handles administrative details for its constituent locals it exists
in part to deal with or negotiate with employers respecting conditions of
work See cases cited above
Further the International Union s constitutional limitations on its own
jurisdiction cannot serve to detract from the statutory definition in Sec 2(5)
of the Act Petitioners willingness to represent employees is the controlling
factor Mayfair Industries Incorporated, 126 NLRB 223 224
4 The record shows that Lock Haven is 28 miles from Williamsport
Pennsylvania and that Shamokin is 50 miles distant from Williamsport The
third Pennsylvania location Stroudsburg is 114 miles from Williamsport
Standard Highway Mileage Guide Rand McNally & Company (1966 Ed) at
p 187 Hornell, New York is Ill miles from Williamsport Id at p 125
Wellsville New York, is 107 miles from Williamsport Id at p 190
5 Hornell New York is more than 200 miles distant from Stroudsburg
Pennsylvania and Newton New Jersey Id at pp 125 and 298
200 NLRB No 137
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control, and establishment of employee policies and
benefits
The record shows, however, that the individual
store manager has day-to-day control of store
operation He has authority to hire, layoff, recall
from layoff, and discharge employees He may also
reprimand employees or grant increases He submits
a recommended budget to the central office He has
authority to purchase about 40 percent in value of
replacement merchandise as well as to purchase
nonsaleable staples necessary for store operation
Competitive pricing and a limited percentage of
markdowns are also done at the individual store
level
There is no showing of a substantial number of
transfers between stores A list submitted by the
Employer showed 17 transfers in the 24-month
period preceding the hearing Nine of these were
between stores in the 7-store unit proposed by the
Employer 6 Three were transfers into Williamsport
-one of these from Iowa, outside the eastern
district There were three transfers out of Williams-
port, all manager trainees who, the record shows,
train in more than one store
There is no clear showing whether the majority of
transfers were of a permanent or temporary nature
An Employer official testified that employees have
transferred from the Williamsport store to assist in
new store openings at Shamokin and Lock Haven 7
Three others mentioned by name as transferring
from Williamsport for other new store openings are
not included on the record exhibit of transfers in the
past 24 months
The facts demonstrate the autonomy of individual
store operations and an absence of substantial
interchange of employees among the 15-store eastern
district or a lesser 7-store area We note particularly
the long geographic distances separating the seven
stores On these facts we find that the presumptive
appropriateness of a single-store unit has not been
rebutted, and that the single-store unit sought by the
Petitioner is appropriate 8
Certain unit issues remain The parties have
stipulated to the inclusion in the sales and service
unit of six department heads and four sales employ-
ees in two leased departments 9 They have stipulated
to the exclusion of the head cashier as a supervisor
and to the exclusion of the personnel service center
employee as a confidential employee Additionally,
the Employer would include, and the Union exclude,
6 This statement assumes that the Mill Hall store location referred to in
the Employer s Exh I is the same as the Lock Haven Pennsylvania store
within the eastern district The Employer states in its brief that the two
names identify the same store
7 The three transfers from the Williamsport store in the last 2 years as
shown in Employer Exh 1, were to Mill Hall and Newton
8 Big N Department Store No 333 199 NLRB No 28
three office clerical employees, two manager trainees,
and two leased department heads
The office clerical employees collect money and
tapes from cash registers, process invoices listing
merchandise, prepare payroll entries, and perform
other recordkeeping duties At times they assist in
marking merchandise They work in an office on the
mezzanine above the restaurant Their work, howev-
er, takes them to the sales floor when collecting
money, marking merchandise, or performing relief
duties at the customer service center They are in
regular contact with sales employees who come to
the office to receive petty cash, mail records, forms,
or advertising information The office clericals are
hourly paid, receive the same wage and fringe
benefits as sales employees, work the same hours,
and are subject to the same personnel procedures On
these facts we find that the office clerical employees
have a like community of interest with sales
employees and we shall include them in the unit 10
The Union contends that the manager trainees
should be excluded from the unit as supervisors The
trainees function as department heads, a group
which the Union has agreed to include because they
are not supervisors The trainees' training program
ranges from 3 to 6 years, a period when they learn all
store duties They have no authority to hire,
discharge, adjust grievances, discipline employees, or
make effective recommendations as to such actions
Nor can they assign employees in accord with their
own independent judgment The manager trainees
are hourly paid, receive time and one-half for
overtime work, receive the same fringe benefits, and
have the same working conditions as other employ-
ees The record thus shows that the manager trainees
lack the statutory indicia of supervisors We shall
therefore include them in the unit 11
The Union contends that the heads of the two
leased departments are supervisors and should be
excluded from the unit It has stipulated to include
four other department heads, directly employed by
the Employer, who it agrees are not supervisors One
leased department sells shoes , the other, paint,
hardware, and automotive equipment Each has two
sales employees in addition to the department head
The store manager exercises primary control over the
personnel of the leased departments He advertises
for their sales position, supplies the applications to
prospective employees, and makes a security check
on new employees Hiring for the leased department
9 After the hearing the lessees of the two leased departments advised the
Board by letter of their attorney dated October 11, 1972 of their position
that employees in the leased departments should be included in the unit
The letter is hereby made a part of the record
10 Big N Department Store No 333 supra
11 Big N Department Store No 333 supra
BIG "N," DEPARTMENT STORE NO 307 937
requires the approval of the Employer The store
manager can hire, discharge, and discipline leased
department employees as well as transfer them to
other departments in the store as needed The store
manager can also discharge the leased department
head The leased department heads exercise some
control over the sales employees in the way of
discipline, scheduling work, or granting time off
Such authority is limited however, by store regula-
tions, schedules, wage scale, and fringe benefits
which are applicable to the leased department
employees We find that the leased department heads
are not supervisors and we shall therefore include
them in the unit 12
We find that the following employees of the
Employer constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act
All sales and service employees, including
leased department employees, employed at
Big N Department Store No 307, located at
Williamsport, Pennsylvania, excluding con-
fidential employees,13 supervisors14 and
guards as defined in the Act
[Direction of Election and Excelsior footnote
omitted from publication I
12 Big N Department Store No 333 supra
13 The parties have agreed to exclude the personnel service center
employee as a confidential employee
14 The parties have agreed to exclude the head cashier because she is a
supervisor