Dayton-Hudson Corp.Download PDFNational Labor Relations Board - Board DecisionsJan 24, 1977227 N.L.R.B. 1436 (N.L.R.B. 1977) Copy Citation 1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lipman's, a Division of Dayton -Hudson Corporation and Retail Employees Union Local 1092 , Retail Clerks International Association, AFL-CIO, Peti- tioner. Case 36-RC-3654 January 24, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 15, 1976, the Regional Director for Region 19 issued a Decision and Order in the above-entitled proceeding in which he dismissed the petition on the ground that the Petitioner's requested single-store unit of employees at the Employer's store at 521 S.W. Fifth Avenue, Portland, Oregon (also referred to as the downtown store), was inappropriate in view of the highly centralized control of labor relations and significant employee interchange which characterize the Employer's operations. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8 , as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the grounds, inter alia, that he made erroneous findings of fact and departed from officially reported Board precedent.' By telegraphic order dated August 17, 1976, the request for review was granted. Thereafter, the Employer filed a brief on review. 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 considered the entire record in this case with respect to the issues under review, including the Employer's brief on review, and finds that a question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act, for the following reasons: The Petitioner contends that the Regional Director erred in dismissing the petition, on the ground that the record does not support his findings concerning degree of interchange, lack of local autonomy, centralization of labor relations policies, and other factors considered in his decision pointing toward the inappropriateness of a single-location unit. We find merit in the Petitioner's contention. The Employer, a division of Dayton-Hudson Cor- poration, is engaged in the retail sale of specialty I The Petitioner also filed an alternative request for remand for further hearing and production of the "Dayton-Hudson manual" in the event that the Board did not reverse the Regional Director Thereafter , the Employer filed a motion to dismiss Petitioner 's alternative request on the grounds, inter 227 NLRB No. 211 items through a chain of seven stores in the State of Oregon. Its corporate headquarters is located in a 14- story building housing the downtown store. The Employer has over 700 selling employees at its seven stores, of which 200-225 work at the downtown store. The closest branch store, in the Lloyd Center shopping mall, employs around 80 selling employees and is approximately 2 miles from the downtown location; two other branches each employ around 100 selling employees and are within 9 miles of the downtown store, within the Portland metropolitan area; and the other three branches employ 70-80 selling employees each and are located 50, 56, and 106 miles to the south of the downtown store in Salem, Corvallis, and Eugene, respectively. There is no collective-bargaining history for any of the em- ployees in the Employer's chain, and no labor organization seeks to represent them on a broader basis than here sought. The Employer's operations are highly integrated and administratively centralized. For example, such functions as sales audit, payroll, purchasing, accounts payable, advertising, and accounting are handled at the corporate headquarters. There is a central person- nel office. Employee wage and benefit programs are uniform throughout the chain. The central personnel office conducts most of the formal employee training, primarily through training sessions held at each store. The central office may interview and hire job applicants for positions at all stores. However, in many instances prospective employees are directed to appear for interview at the particular store which is seeking them. The corporate headquarters staff is in contact with the stores an estimated 15-20 times per day by telephone in the process of implementing policies and centralized procedures. These contacts may involve, for example, calls by sales personnel to obtain authorizations for extending credit, to report the total sales for each cash register, to correct errors, ask questions about procedures, etc.; or calls by central employees to discuss errors and discrepancies. In addition, written reports are sent in by the stores on a daily, weekly, biweekly, and monthly basis; and frequent memos are sent to store personnel by the central offices. Each store has a salaried manager, and all but the downtown store have a salaried assistant manager. In addition, each store has a "personnel clerical" who is an hourly paid employee reporting directly to the personnel director at the Employer's headquarters. alga, that it was untimely and that there is no provision in Board rules for this request . Because of our decision herein , it is unnecessary to consider Petitioner 's request. LIPMAN'S, A DIVISION OF DAYTON-HUDSON CORP. According to testimony by Personnel Director Hazel Payne, the store manager prepares periodic employee evaluations, issues verbal reprimands, and can recommend that scheduled merit wage increases be withheld or accelerated. Ms. Payne testified that the store manager does not hire or fire employees for his store. She testified that the personnel clerical at the downtown as at other stores has the authority to interview, hire, schedule days off, assign shifts, schedule overtime, effectively recommend leaves of absence, and adjust minor grievances. He also reports disciplinary matters to her if any disciplinary action beyond a verbal warning is warranted. Ms. Payne stated that she determines what, if any, disciplinary action to take, ranging from written reprimand to discharge, based on information she receives from the personnel clerical, the store manager, store security personnel, and central personnel under her supervi- sion who review cash register tapes and sales slips. Ms. Payne's office also schedules vacations and arranges temporary or permanent transfers. In addi- tion, employee grievances may be referred to her by store personnel and have been brought to her directly by grievants. Each store also has approximately eight floor supervisors, who are hourly paid. While there was little evidence in the record as to their duties, Ms. Payne testified that they schedule employee breaks and lunch periods, adjust grievances, resolve routine daily questions, instruct employees in new proce- dures, and otherwise perform the direct day-to-day supervision of employees.2 After the third day of hearing, an overnight adjournment was granted the Employer to enable it to prepare statistics as to employee interchange, and when the hearing was reconvened the Employer's Exhibit 45 was admitted into evidence over Petition- er's objection.3 The exhibit purports to be based on the Employer's records of employee transfers from 1973 to mid-1976. Ms. Payne's testimony concerning this exhibit shows that some of the transfers listed involved supervisory personnel. The exhibit distin- guishes only between employees who are paid hourly (including some who may be supervisors) and "execu- 2 The parties agreed that supervisory issues would be deferred for resolution through the challenge procedure . However , at least with regard to the store manager and the personnel clerical at the downtown store , we find, on the basis of record evidence as above noted, that they are supervisors as defined in the Act 3 Petitioner objected on the grounds , inter aim, that the exhibit was incomplete , inaccurate , and not the best evidence 4 Those employees are Ruby Bowen (transferred into and out of the downtown store from Eastport Plaza within I month), Delores Bennett (transferred from Lloyd Center to downtown , back to Lloyd Center 5 weeks later, and back downtown 2 weeks later ), Kathy Dixon (transferred from downtown to Lloyd Center and back within 2 weeks), B Lynn Noble (transferred from Corvallis to downtown and back in 3 months), Betty Greene ( transferred from downtown to Lloyd Center and back in 1-1/2 weeks), Nancy Hankins (transferred from downtown to Washington Square 1437 tive" or management employees paid a monthly salary. Furthermore, Ms. Payne testified that as many as 10 percent of those listed on the exhibit, without identification as such, may be employees who would be excluded from the unit (e.g., culinary employees or others stipulated by the parties as excluded). Of the 203 instances of transfers listed in the exhibit, 175 involved transfers into or out of the downtown store; of that number, 62 were clearly designated as "temporary" involving "hourly" employees, 97 were clearly designated as "permanent" involving hourly employees, 5 involved "supervisors," and 11 were ambiguous or omitted specification of the nature of the transfer. We have carefully examined the exhibit and conclude that, of the 62 transfers involving hourly employees labeled as temporary, at most only 8 can be viewed as such.4 With regard to permanent transfers of hourly employees, at most 141 transfers can be considered as permanent, and this figure is highly suspect.5 On the basis of the foregoing and the record as a whole, we are unable to agree with the Regional Director that the degree of employee interchange affecting the downtown store is so substantial, or that the amount of local autonomy with regard to supervision of employees is so limited, as to rebut the presumption favoring the requested unit confined to the downtown store .6 With regard to local autonomy, we find that supervisory personnel at the store level exercise considerable authority in personnel matters. While the personnel director makes final decisions as to discipline, schedules vacations, arranges for transfers, and handles grievances brought to her, in our opinion, the store manager and the personnel clerical at the downtown store also have and exercise substantial authority in the personnel area, in that the store manager evaluates and reprimands employees and the personnel clerical interviews, hires, schedules employee shifts, vacations, and overtime, and adjusts grievances. Likewise, with regard to employee interchange, we find that the evidence introduced, as above discussed, does not establish that the extent of temporary or and back in 3 months), Debra Turnquist (transferred from downtown to Lloyd Center and back in 1-1/2 months ), and Carol Janssen (transferred from Lloyd Center to downtown , then from downtown to Washington Square 2-1/2 months later). Many other instances of "temporary" transfer give only the date of the transfer out; others are of such a duration as to raise a question concerning their designation as temporary (e g , listed instances of transfer which vaned from 7 months to 3 years in duration); and some are simply incomplete 5 This figure is reached by adding instances of transfer for which only the transfer out is listed and instances of transfer of over 6 months to the 97 transfers marked "permanent." There was record evidence that some of these may have involved promotions , transfers of employees outside the urn t, or supervisors, as previously discussed 6 Haag Drug Company, Incorporated 169 NLRB 877 (1968); Levitz Furniture Corporation, 224 NLRB 347 (1976) 1438 DECISIONS OF NATIONAL permanent transfers has a significant impact on the community of interest shared by downtown store employees. The eight instances of employee transfer identified herein as temporary, over the 3-1/3 years covered by the Employer's exhibit, indicate that temporary interchange is insignificant. While there were 141 permanent transfers, as indicated supra, they are not relevant in determining employee interchange. Such transfers are frequently made for the convenience of the employee concerned and cannot be said to contribute to all-store cohesiveness. Also supportive of the appropriateness of the downtown store as a separate bargaining unit is its geographic separation from other stores in the chain,7 the fact that there is no bargaining history for any of these employees, and the fact that no labor organiza- r Although the store located in the Lloyd Center shopping mall is only 2 miles from the downtown store , it appears from the record that each store has its own identity as a distinct economic unit by virtue of the fact that one is known as the downtown store and the other is located in a shopping mall LABOR RELATIONS BOARD tion seeks to represent the employees on a broader basis. We therefore find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer at 521 SW. Fifth Avenue, Portland, Oregon (commonly known as the "downtown" store), excluding culinary em- ployees, office clerical employees, security em- ployees, guards, the store manager, the personnel clerical, and all other supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] Also, although five of the eight instances of temporary transfer above discussed involved the Lloyd Center store , that degree of interchange, over a 3-1/3-year period , is insignificant. Copy with citationCopy as parenthetical citation