298 N.L.R.B. 288 (N.L.R.B. 1990)

Globe Furniture Rentals, Inc.

National Labor Relations Board - Board DecisionsApr 25, 1990

298 N.L.R.B. 288 (N.L.R.B. 1990)

288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Globe Furniture Rentals, Inc., and Local Union 243, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO, Petitioner. Case 7-RC-18771 April 25, 1990 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 6, 1989, the Regional Director for Region 7 issued a Decision and Direction of Elec- tion in the above-entitled proceeding in which he found appropriate for collective bargaining a unit of all full-time and regular part-time warehouse employees, truckdrivers, helpers, inside and outside sales employees, and plant and sales clerical em- ployees employed by the Employer at its 33300 Van Dyke Road, Sterling Heights, Michigan show- room and warehouse; but excluding all office cleri- cal employees, professional employees, guards, and supervisors as defined in the Act. In so finding, the Regional Director rejected the Petitioner's peti- tioned-for unit of drivers and warehouse employees located solely at the Employer's Sterling Heights warehouse,' and the Employer's contention that the appropriate unit must encompass a unit of all its 75 employees employed at all 5 of the Employ- er's Detroit area facilities, excluding guards and su- pervisors as defined in the Act. In accordance with Section 102.67 of the Board's Rules and Regulations, the Petitioner and the Em- ployer filed timely requests for review of the Re- gional Director's decision.2 The Employer argued that a unit limited to the Sterling Heights facility is not appropriate because of lack of local autonomy, substantial employee interchange, centralized oper- ations, and geographic proximity among the five facilities. The Petitioner argued first that the Re- gional Director erred in including the sales and store employees in the petitioned-for unit of ware- house employees at the Sterling Heights location and second, in opposition to the Employer's re- quest for review, that the Employer failed to dem- onstrate that store managers did not possess sub- stantial autonomy and that employee interchange is 1 The petitioned-for unit consists of all full-time and regular part-time drivers, helpers, warehouse employees, and finisher repairers located solely at the Employer's Sterling Heights warehouse 2 The Regional Director also found that 10 corporate clerical employ- ees and 2 warehouse leadpersons (Herman Hook and Dave Clark) should be excluded from the unit; that 2 store clerical employees and 1 ware- house leadperson (Mike Pick) should be included in the unit, and that lead salespersons M. Leebove and M. Leadbetter are supervisors pursuant to Sec . 2(11) of the Act. The parties filed requests for review concerning these findings . The Board denied review, except for allowing Hook, Clark, and Pick to vote subject to challenge These findings are not at issue. substantial. On May 31, 1989, the Board, by tele- graphic order, granted review regarding the issue whether the single facility unit (Sterling Heights), found appropriate by the Regional Director, is an appropriate unit for bargaining. Pursuant to the Board's Rules and Regulations, the election was held on March 8, 1989, in the unit found appropri- ate by the Regional Director, and the ballots were impounded pending the Board's Decision on Review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case and has decided to reverse the Regional Director's finding that the Sterling Heights unit is an appropriate unit for bargaining. The Employer is a Michigan corporation en- gaged in the sale and leasing of residential and commercial furniture to apartment complexes and businesses. The Employer operates five stores in Detroit, Troy, Southfield, Sterling Heights, and Farmington Hills. Each facility includes a show- room for displaying the furniture, and the Sterling Heights and Farmington Hills facilities also include warehouses for maintaining inventory. The furthest distance between any two stores is 25 miles (Ster- ling Heights and Farmington Mills), and the short- est distance is 5 miles (Sterling Heights and Troy). There is no history of collective bargaining at any of the stores. It is well established that, when considering a multifacility operation, a single-facility unit is pre- sumptively appropriate for collective bargaining.3 This presumption can be overcome by showing a functional integration so substantial as to negate the separate identity of the single-facility unit. In making findings on this issue, the Board considers such factors as centralized control over daily oper- ations and labor relations, skills and functions of the employees, general working conditions, bar- gaining history, employee interchange, and geo- graphical location of the facilities in relation to each other.4 The record shows that the Employer's oper- ations are highly integrated and administratively centralized. Each store sells and leases the same in- ventory at the same prices. The Employer's corpo- rate headquarters are located at the Sterling Heights facility, but its principal officers and direc- 8 See Y.I.M. Jeans, 271 NLRB 1408, 1409 (1984); Dayton Transport Corp., 270 NLRB 1114 (1984), Haag Drug Co, 169 NLRB 877, 878 (1968). 4 See Eastman West, 273 NLRB 610, 613 (1984); Sol's, 272 NLRB 621 (1984). 298 NLRB No. 38 GLOBE FURNITURE RENTALS 289 tors are located in Cincinnati, Ohio.5 Larry Weiss, the Employer's vice president, works out of the Sterling Heights facility and oversees the oper- ations of the five Michigan stores. Weiss' duties in- clude hiring, firing, and disciplining employees and, along with the Employer's executive board, setting wages, hours, and conditions of employment.6 Below Weiss in the corporate structure are M. Skocnick, head of purchasing/stock; R. Hammill, head of marketing/sales; B. Haertel, head of oper- ations; and L. Kantor, the Employer's comptroller. Below these four men are the store managers. All major decisions related to,the operation and administration of the five Michigan stores are made by Weiss or some other member of upper manage- ment . For example, Weiss sets the inventory levels at each store, and Skocnick, who is based in Cin- cinnati, works with Weiss in selecting vendors that supply the stores with the inventory that is leased or sold, and in purchasing the inventory that is paid for by corporate headquarters. Hammill in- sures that the Employer's sales force is following proper procedures. Kantor controls the daily finan- cial transactions. This includes approving accounts receivable, accounts payable, leases , and c.o.d.'s. Kantor also prepares financial statements on a cor- poratewide basis . Haertel is responsible for all warehouse and trucking operations, including re- sponsibility for building maintenance , and distribu- tion of merchandise among the stores.' Other cen- trally administered functions include advertising and sales promotions, administered by Hoguet and Weiss; maintenance' for all five stores, including se- curity, cleaning, heating and cooling, and a lawn service; and insurance. There is one policy cover- ing buildings, business operations, and vehicles pur- chased through the Sterling Heights office. 5 David Houget, the Employer's president, George Stewart, one of the Employer's owners, and Alvin Meisel , another of the Employer's offi- cers, live in Cincinnati . These three men compose the Employer 's execu- tive board. Cincinnati is also the corporate headquarters for three stores operating in Ohio as a separate corporate entity from the five Michigan stores. 6 Weiss testified that he visits each store at least once a week and usu- ally several times a week . Weiss also indicated that he contacts each store by phone and fax machine. 7 The Regional Director acknowledged Haertel's responsibility for all the warehouse operations . He went on to find however , that "in actual practice, direct supervision, hiring and firing, and disciplinary decisions at the Farmington Hills warehouse are left to the store manager, Ed Ma- licke, and to Gary Penny, the warehouse manager." With the exception of supervision , the record does not support these findings and we do not adopt , them. Neither Malicke nor Penny testified at the hearing Weiss testified that either Malicke or Penny decide which employee performs certain day-to- day warehouse duties at Farmington Hills, such as loading or unloading the trucks or pulling stock . Haertel testified on cross-examination that he thought that Weiss and Malicke handled written evaluations and changes in scheduling and that Weiss handled discipline at that facility We do not find that this evidence demonstrates that Malicke and Penny have the au- thority to hire, fire, or discipline employees. Nor does it establish that they exercise substantial autonomy in performing their duties. The Regional Director found that there is "some centralized control" over the five Michigan stores, but concluded that the separate Sterling Heights unit is appropriate because the local store managers possess a considerable degree of autonomy in the day-to-day operations of each store and because there is a lack of interchange among the employ- ees. The Regional Director found specifically that the store managers may reject unqualified job ap- plicants without Weiss' approval and that the bulk of the transfers were the result of the closing of a warehouse (Troy's) or the opening of a new store (Detroit). We find that the record does not support the Regional Director's conclusions. The record shows that the local store managers possess authority over routine day-to-day oper- ations of the facilities they manage, but that they lack substantial autonomy regarding labor relations and personnel policies and procedures. All policies concerning wages, hours, and terms and conditions of employment and other personnel rules and poli- cies are formulated by Weiss and the executive board and are uniform throughout the five stores, with Weiss possessing final authority on almost all personnel actions.8 Although store managers can recommend certain action be taken, i.e., discharge, promotion, or discipline, such action is not imple- mented without Weiss' own investigation into the matter and final approval. Moreover, the Regional Director's finding that store managers have author- ity to reject prospective employees they deem un- qualified without Weiss' approval is not accurate. The record shows that in such circumstances the store manager must still forward the rejected appli- cant's resume and/or application form to Weiss for review and possible additional action. That Weiss may agree with the store manager's recommenda- tion not to hire the applicant does not detract from the fact that he oversees the hiring process. Thus, these facts do not demonstrate, as the Regional Di- rector found, that store managers have the unfet- tered right to reject job' applicants.9 Indeed; at 8 Weiss testified that he has sole authority to hire employees , but the record shows that Haertel has hired employees without Weiss ' approval and that Houget can hire employees on his own authority. We find it un- necessary to resolve any possible inconsistency in Weiss' testimony in this regard because both Haertel and Houget are upper management officials, and whether they can hire employees without Weiss' approval does not change the fact that store managers do not possess authority to hire em- ployees. 9 We note that at the time of the hearing Weiss was acting store man- ager of the Sterling Heights store, and Haertel was acting warehouse manager of the Sterling Heights warehouse. In its opposition to the Em- ployer's request for review, the Petitioner argues that in determining the degree of autonomy vested with the store/warehouse managers, it is un- portant to distinguish between Weiss' permanent role as vice president and his temporary role as acting store manager , and Haertel's role as vice president of operations and his temporary position as acting warehouse Continued 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD best, the facts demonstrate that the store managers are statutory supervisors under Section 2(11) of the Act. We also find that the record does not support the Regional Director's finding that there is a lack of substantial employee interchange among the five Michigan stores. At the hearing, the Employer in- troduced a list of 77 permanent and temporary transfers between May 1986 and September 1988. According to the Regional Director, a bulk of the transfers resulted from the closing of the Troy warehouse in late 1986 or the opening of the De- troit retail store in July 1987, and therefore, are not entitled to much weight in determining the scope of the unit.' 0 The Regional Director also noted that the other transfers involved promotions to su- pervisory or sales positions, employee-requested transfers, or transfers among sales employees at the Employer's four smaller stores-excluding Sterling Heights. The Employer argues, and the Petitioner ac- knowledges, that only five employees were trans- ferred as a result of the closing of the Troy ware- house. The Employer also contends that only three employees were transferred as a result of the open- ing of the Detroit store. The Petitioner does not dispute this contention and the record supports it. Thus, the Regional Director's conclusion that em- ployee interchange was not significant because a bulk of the transfers involved the closing of the Troy warehouse and the opening of the Detroit store is not accurate." Instead, we find that the record evidence shows a substantial and significant amount of employee interchange. More than half of the 77 transfers documented in the record involve unit employees- sales , sales/- clerical, or warehouse employees-transferred from one facility to another at the request of the Em- manager. However, the Petitioner does not allege or refer to specific in- stances when Weiss and Haertel, as store and warehouse manager at the Sterling Heights facility , rather than as company vice presidents, con- ducted labor relations at the facility Moreover, the record does not show that they acted in other than their corporate capacities in conducting labor relations , or that their store and warehouse managerial positions were intended to be permanent rather than temporary . Indeed, Weiss tes- tified that, as of the hearing, he was involved in interviewing candidates for the Sterling Heights store-manager job. Accordingly , Weiss' and Haertel 's dual roles , in and of themselves, do not support the Petitioner's claim that store and warehouse managers possess substantial autonomy over labor relations at the Michigan facilities 10 See Renzetti's Market, 238 NLRB 174 fn. 8 (1978). 11 The Regional Director's conclusion concerning the bulk of the transfers was made in the "Analysis and Conclusions " section of his deci- sion. However, in the "Facts" section of his decision , the Regional Direc- tor also stated that the bulk of the transfers involved sales employees moving among the Employer 's four smaller stores (excluding Sterling Heights). Thus, it is unclear from reading the Regional Director 's deci- sion in what group , if any, he deemed the bulk of the transfers to have occurred. ployer.12 Although the Employer characterized almost all these transfers as permanent, the record shows that 20 of the transfers involve employees who, during the 28-month period, either trans- ferred back to the store they originally transferred from, or to another store shortly after the original transfer was made. 113 Moreover, Weiss testified that the list of 77 transfers did not include "'a lot of [temporary] transfers" made during the same period that did not cross over payroll periods and, therefore, were not recorded by the computer.14 Thus, we fmd that the degree of Employer-request- ed interchange, temporary as well as permanent, among unit employees at all five Michigan facilities supports the Employer's contention that a unit lim- ited to the Sterling Heights store and warehouse is not an appropriate unit.' 5 This interchange, the ge- ographic proximity among the five Michigan stores, the highly interdependent nature of the Em- ployer's operational structure, the lack of auton- omy of the store managers , and the absence of any bargaining history lead us to conclude that the em- ployees at the Sterling Heights facility do not con- stitute a distinct and separate unit from the employ- ees at the Employer's other four Michigan facilities so as to warrant the establishment of a separate unit. Accordingly, we fmd, contrary to the Regional Director, that the only appropriate unit must in- clude employees employed at all five of the Em- ployer's Michigan stores and the two warehouses. Because the unit we have found appropriate is sub- stantially larger than the single-facility unit found by the Regional Director, the election conducted on March 8, 1989, must be vacated. Further, be- cause the Petitioner has not indicated a willingness 12 Approximately 25 of the transfers were to and from the Sterling Heights facility. 18 Some of these transfers lasted 5, 7, or 14 days before the employee was transferred again. One employee was transferred three times in less than 1 month and another employee was transferred four times in 2 months. In these circumstances , we find these transfers to have been tem- porary in nature. 14 According to Weiss, the computer will record only those transfers that cross payroll periods, and the unrecorded temporary transfers lasted only I to 3 days. Because those employees who were temporarily trans- ferred continued to be paid at the facility from which they transferred, instead of the new facility, the computer did not record the temporary move We note, however , that Weiss was able to recall the names of sev- eral Farmington Hills warehouse employees who were transferred tempo- rarily to the Southfield store to help with a tent sale during the 6 months preceding the hearing . Weiss' testimony concerning temporary transfers is uncontroverted. Finally, although temporary transfers due to the opening or closing of a facility are generally not entitled to as much weight as temporary trans- fers between regularly operating facilities in determining the scope of the appropriate unit, Renzetti's Market, supra at fn 8, other evidence of fre- quent permanent and temporary employee interchange supports the find- ing that employee interchange is substantial . See, e g., Eastman West, 273 NLRB at 611, 614. 15 See Sol's, 272 NLRB at 623 GLOBE FURNITURE RENTALS 291 to proceed to an election in the broader unit found ORDER appropriate , we shall dismiss the petition. The election conducted on March 8, 1989, is va- cated and the petition is dismissed.