Emporium-Capwell

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 621 (N.L.R.B. 1984)

CARTER HAWLEY HALE STORES 621
Emporium-Capwell, a Division of Carter Hawley
Hale Stores Inc.; Seligman & Latz, Inc.; and
Kree Institute of Electrology, Inc. and Depart-
ment Store Employees Union Local 1100, affili-
ated with United Food and Commercial Work-
ers International Union, AFL-CIO-CLC, Peti-
tioner. Case 207RC-15594
14 DeCember 1984
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 27 September 1983 the Acting Regional Di-
rector for Region 20 issued his Decision and Direc-
tion of Election finding appropriate two single-
store units consisting of beauty salon employees of
the Employers at stores located in downtown San
Francisco, California, and in the Stonestown shop-
ping center in San Francisco, California. The Em-
ployers filed timely requests for review and sup-
porting briefs contending, among other things, that
the only appropriate unit would . include beauty
salon employees in 21 Emporium-Capwell stores
located in the San Francisco Bay area. The Peti-
tioner filed a statement in opposition. . •
By telegraphic order dated 28 October 1983, the
Board granted the Employers' requet for review
with respect to the appropriateness of the two
single-store units.' That same date, the Regional
Office conducted - elections in the two single-store
units and impounded the ballots.
The National Labor Relations Board has delegat-
ed its authority in thii proceeding to a three-
member panel.
The Board has , reviewed the record in light of
the requests for review and supporting briefs and
has decided to affirm the Acting Regional Direc-
tor's findings and conclusions as modified.
EmporiuM-Capwell operates 21 retail stores in
the San Francisco Bay area, where it provides
beauty 'salon services in conjunction with its lessees
Seligman & Latz and Kree - InstitUte of Electrology.
The Union petitioned to repre'sent in a single unit
the beauty salon employees at Emporium-Capwell's
stores in downtown San Francisco and in the Ston-
estown shopping center in San Francisco, Califor-
The requests for review were denied with respect to the Acting Re-
gional Director's findings (1) that Emporium-Capwell, Seligman & Latz,•
and Kree Institute of Electrology are Joint employers of the beauty salon
employees here involved, and (2) that the Union is not disqualified from
representing these employees because it admits to membership owner-op-
erators of beauty shops who are in CompetitiOn with the Employers and
who may be elected to the Union's executive board On this latter point,
the Acting Regional Director found that the record does not establish
that any of the owner-operators with whom the Union has collective-bar-
gaining agreements are' on the Union's executive board or have any role
in determining the Union's bargaining strategy
ma. Alternatively, the Uniori indicated that it
would represent the beauty salon employees in two
separate single-store units. The Employers contend-
ed that the only appropriate unit would include the
beauty .salon employees at all 21 Emporium-Cap-
well stores in the San Francisco Bay area. As
noted, the .Acting Regional :Director found appro-
priate the two single-store units alternatively re-
quested by the Union, and we affirm.
There are a total of about 190 beauty salon em-
ployees in the 21 store unit sought by the Employ-
ers. The greatest distance between any two of
these stores is about 170 miles. Downtown San
Francisco and Stonestown, the two closest stores,
are located only about 8 miles apart. 2 Nonsupervi-
sory employees in the beauty salons at the down-
town San Francisco store - total about 30 (including
employees in the Soul Scissors salon) and nonsu-
pervisory employees in the Stonestown salon total
about 20.
There 'is no history of collective bargaining
among the Employers' beauty salon employees in
the units here involved. But the Union has long
had collective-bargaining agreements with Empori-
um-Capwell covering retail employees in the
downtown San Francisco and Stonestown stores.
The Employers proffered evidence of some
transfers among beauty salon employees in the 21
stores. However, there is no evidence of temporary
transfers among nonsupervisory employees, and the
only . reason shown in the record for permanent
'transfers of nonsupervisory employees was the per-
sonal convenience of the employees involved.3
Management does not encourage transfers because
employees are eXpected to establish their own cli-
entele and the salons , would lose business if em-
ployees shifted frequently from salon to salon. The
Acting Regional Director found that the record
disclosed about 35 instances where employees at
one of the Employers' beauty . salons transferred to
another over a period of almost 20 years. But in
many instances , the record merely shows that em-
ployees who worked in one of the Employers'
salons had also worked in one or more other
salons. 4 The record also shows that at the time of
2 The average distance between the downtown San Francisco and
Stonestown stores and the other stores is 35 or 40 miles, and the greatest
distance between the downtown San Francisco/Stonestown stores and
any of the other stores is a little over 100 miles
3 The Employers do not contest the Acting Regional Director's find-
ing that "[w]ith the exception of supervisory and managerial personnel,
the redord discloses no Instance of a temporary assignment or transfer of
a'n einployee" (Decision and Direction of Election, p 6) Nor do the Em-
ployers contest the Acting Regional Director's finding that "[w]here rea-
sons [for transfers] were given the record reflects that the transfers
were fof the personal convenience of the employee involved" Id
• 4 The Employers' evidence on this point consisted of the testimony of
Seligman & Latz Account Executive Barry Kinder who named about 40
Continued
273 NLRB No. 89
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing 3_ ,of approximately 190 employees in
the 21 salons worked part time in .2 , or more of the
salons. 5 •
Salon employees in all 21 stores are -"subject to
the same, general work _rules and employment prac-
tices and are paid . aceording to a uniform wage
scale, but some emOloyment benefits differ. Salon
employees at Capwell stores receive vacation bene-
fits based on average pay; thoie • at Emporium
stores receive benefits based on base pay. Employ-
ees at the downtown San Francisco and Stones-
town salons pay less for ben'efit' coverage than do
employees at other salOns. • Account Executive
Barry Kinder testified that the lower benefit cost to
these employee's is probably ielated-te the Union's
collective-bargaining agreement covering retail em-
ployees at the downtown San Francisco and Ston-
estown salons. • • '
All salons in the 21 stores are under the central
management of Account Executive Kinder. 6 He
, makes final decisions , on whether employees are
hired, fired, transferred, or promoted. He also ap-
proves wage increases and vacation schedules and
may consult With local salon managers on , vacation
schedules or scheduling changes. Kinder inay
a salon, once a month or once every other ' niOnth.7
of the Employers' beauty salon employees, past and present, who had
also worked at done or more other beauty salons Kinder acknowledged
that in some instances there may have been gaps between the periods of
employment at the different salons, and he included in the employment
histones work in beauty salons in stores outside the 21-store unit . sought
by the Employers In many instances, Kinder did not specify the times
when the employees worked in different salons, but he testified, that one
of the instances occurred in'the 1960s and another about 12 years before
the hearing Fewer than 10 of the cited employment histories involved
nonsupervisory employees who worked in the downtown San Francisco
or Stonestown salons and in another salon within the 21-store unit sought
by the Employers Some of these employees were no longer employed at
downtown San Francisco or Stonestown, others have had uninterrupted
service at downtown San Francisco or Stonestown since the 1960s or
early 1970s
Emporium-Capwell _contests the Acting Regional Director's finding
that 15 of the transferees were supervisors, urging that no more than 13
of the transferees were supervisors and that not all were permanent su-
pervisors We accept the truth of this assertion, but do not view it as al-
tenng the overall picture of insubstantial interchange of unit employees
5 One of these three employees had recently 'Moved to San Francisco
and was apparently attempting to build up-a clientele there before termi-
nating work in his old salon Another employee supervised electrolysis in
salons providing that service • The third did not work in the dovintown
San Francisco or Stonestown salons ' A fourth employee is erroneously
listed in the Acting Regional Director's decision as currently working a
split week in three salons That employee was a salon manager at -the
time of the hearing She had previously worked as a cosmetician, divid-
ing her time among three salons, but had never worked at downtown San
Francisco or Stimestown
6 Kinder also has responsibility for nine other salons at Liberty House
stores But he testified that his involvement in those salons is not as de-
tailed as his involvement in the 23 salons (including the 2 Soul Scissors
facilities) at the 21 Emporium-Capwell stores
Kinder testified that he visits the Stonestown salon at least once a
month and that his visit might be brief or might last half a day An em-
ployee at the Stonestown salon testified that he saw Kinder at the store
maybe every other month and that Kinder or his assistant occasionally
watches the salon function
He or his assistant is in daily telephone- contact
with almost all the-salons.
Each , salon is supervised on a daily basis by the
cal. manager. 5 Salon managers' may recruit and
intervieW -applicants for employmenf:and make rec-
ommendations regarding hiring. After' Kinder has
authorized the hiring of an eniployee for a given
number of hours a weelc,-the salon manager sched-
ules the hours the employee will work. Salon man-
agers are 'also responsible for training and develop-
ing new staff. They are , required to keep accurate
personnel records and io evaluate' employees
monthly. Salon managers counsel 'employees on
their work performance and may sign reprimands
called counseling memos. According to the manag-
er's manual, an employee 'may be discharged after
three counseling memos. But, as noted, Kinder has
authority to make the final decision-to discharge.
" Employees at each salon-have basically the same
work rules and employment practices. Kinder testi-
fied ' that salon managers are -expected to see that
°employees live up t 6 rules, but that some man-
agers are tougher in policing' therules than others.5
Salon managers deal with employee conflicts
within the salon and normally* handle first-step em-
ployee grievances. They authorize ,employees time
off for sick leave and may approire scheduling
changes. Additional responsibilities listed in the
sample job description for salon managers in the
manager'S' - manual include "[m]ak[ing] decisions!-
recommendations on personnel changes," establish-
ing rapport with the manager of ,the store where
the salon is located, attending 'store management
meetings, and ensuring that the salon meets its as-
signed sales goals. With Kinder's api)roval, salon
managers may offer specials during slow time in
their salons and the timing of these gpecials is
largely uto the salon manager.
Despite the centralized administration of the Em-
ployer's beauty salons, we find that'the:single-store
units at downtown' San Francisco arid Stonestown,
California, are appropriate. See NLRB. v.' Lerner
.Stores, 506 F.2d 706, .708 (9th Cir.. 1974); Spring
City Knitting Co. V. NLRB,: 647 r.2d 1011, 1014
,(9th Cir. 1981); Renzetti's Market, .238 ISTLIO 174,
175 (1978)._ In our view, the local salon manager
exercises a sufficient degree of auionomy in day-to-
day supervision of the salon employees to support
the single-store units. See B. 'Siegel Co. v. NLRB,
In four salons (including the main San Francisco and Stonestown
salons), the manager performs only supervisory duties In , other salons,
the manager is a working manager who also performs hair care services
for customers
9 The record shows, for example, that one salon manager told employ-
ees they need not wear ties despite published dress guidelines thaLat the
tithe required men to wear ties
' CARTER HAWLEY HALE STORES 623
670 F.2d 64, 65 (6th Cir. 1982); Renzetti'i Market,
supra, 238 NLRB at '175-176. The Employers have
not shown that the day-to-day supervision of unit
employees is "done solely by central office offi-
cials." NLRB v. Lerner Stores, supra, 506 F.2d at
708. On the contrary, day-to-day supervision is
necessarily performed, in large measure, by the
local salon managers. Nor have the Employers
shown a sufficient degree of employee interchange
involving the downtown San Francisco/-
Stonestown salons so as to destroy their status as
"identifiable units." Id. Rather, there were no tem-
porary transfers among unit employees and such
permanent transfers as occurred within the unit
were not shown to be for any reason other than
the personal convenience of the employees in-
volved. See Friendly Ice Cream Corp. v. NLRB, 705
F.2d 570, 578-579 (1st Cir. 1983); NLRB v. Pan
American Petroleum Corp., 444 F.2d 328, 578-579
(10th Cir. 1971), cert. denied 404 U.S. 941 (1971);
Buehler's Food Markets, 232 NLRB 785, 786
(1977). 1 ° The significant distances among the
stores, although not conclusive, provide further
support for single-store units. See Victoria Station v.
NLRB, 586 F.2d 672, 675 (9th Cir. 1978); Buehler's
Food Markets, supra, 232 NLRB at 786. Finally,
there is an absence of any bargaining history on a
broader basis or any request for representation on a
broader basis. See NLRB v. Lerner Stores Corp.,
supra, 506 F.2d at 708; Renzetti's Market, supra,
238 NLRB at 176. •
Cases cited by the Employer where single-facili-
ty units were rejected are factually distinguish-
able." For example, in Super X Drugs of Illinois,
233 NLRB 1114 (1977), the 5 stores were much
closer than the 21 stores here involved, the store
managers could not reprimand employees without
prior approval of the district manager, the latter
spent more time in the individual Stores than does
1 ° Emporium-Capwell expresses concern that if employees in the
downtown San Francisco and Stonestown salons are permitted to orga-
nize, the employees could no longer work part time in two or more
salons because continuation of that practice would pose "some virtually
unresolvable issues concerning Union jurisdiction over individual .em-
ployees " (Br 16) This concern seems unwarranted since out of the ap-
proximately 50 salon employees at downtown San Francisco and Stones-
town only I employee was performing nonsupervisory work in another
salon at the time of the heanng and he was apparently attempting to
build up a sufficient clientele in San Francisco so that he could stop work
at his old location In any event, no serious issue of union jurisdiction
would be presented by employees' continuing to work part time in two
or more salons Regular part-time or dual-function employees would be
in the unit and covered by any collective-bargaining agreement only
when performing a substantial amount of unit work See Ocala Star
Banner, 97 NLRB 384, 385-386 (1951), Berea Publishing Co, 140 NLRB
516, 519 (1963), Marine Petroleum Go, 238 NLRB 931, 932 (1978) They
would be out of the unit when performing nonunit work
11 Unit determinations, by their nature, are highly fact specific See
NLRB WKRG TV, 470 F 2d 1302, 1311 (5th Or 1973) ("determination
of a unit's appropriateness will invariably involve factual situations pecu-
liar to the employees and unit at issue")
the account executive:here, and there was signifi-
cant temporary employee interchange.
In Petrie , Stores ,Corp., 2'66 NLRB 75 . (1983), the
union had petitioned for 10 single-store units and
had excluded other stores of the employer's that
were located in the same shopping malls with the
petitioned-for stores. The closeness of these stores
was reflected in a substantial interchange of em-
ployees on a temporary basis, local managers were
not involved in scheduling, branch supervisors vis-
ited each store at least once every 2 weeks, and the
employees had companywide seniority.' 2
In short, the employers in the cited cases made a
persuasive rebuttal to the presumptive appropriate-
ness of a single-facility unit that was not made by
the Employers here.
Accordingly, on the facts presented here, we
find the following units appropriate for collective
bargaining:
All receptionists, electrologists, cosmetologists,
manicurists and cosmeticians employed by the
Employers at the Emporium-Capwell facility
located in downtown San Francisco, Califor-
nia, including the Soul Scissors department,
excluding all other employees, guards and su-
pervisors as defined in the Act.
All receptionists, electrologists, cosmetologists,
manicurists, and cosmeticians employed by the
Employers at the Emporium-Capwell facility
located in the Stonestown Shopping Center,
San Francisco, California; excluding all other
employees, guards and supervisors as defined
in the Act.
Accordingly, we shall remand the case to the
Regional Director with directions to open and
count the impounded ballots, to issue tallys of bal-
lots, and to take further appropriate action.
" Similarly, in White Castle System, 264 NLRB 267 (1982), district su-
pervisors made daily visits to each restaurant to check on the employees'
performance, there were hundreds of temporary transfers in a year, and
there was a history of collective bargaining in a Detroit-area unit The
district supervisor in Kirhn's Inc. 227 NLRB 1220 (1977), visited each of
the six stores on a weekly or biweekly basis, handling any problems that
might occur in day-to-day operations, there were temporary and perma-
nent transfers to meet management's needs, hourly scheduling of employ-
ees was performed by the home office, and two of the six stores were
located only 100 yards apart in the same shopping mall In ITT Continen-
tal Baking Cc, 231 NLRB 326 (1977), the local store managers were so
lacking in authority that they were found not to be statutory supervisors
and in Second Federal Savings, 266 NLRB 204 (1983), the local branch
offices did not have managers Finally, in NLRB v Chicago Health &
Tennis Clubs, 567 F 2d 331, 337-338 (7th Cm 1977), cert denied 437 U S
904 (1978), the court rejected the Board's approval of a single-store unit
on the grounds that the union had previously sought representation in the
Chicago metropolitan area unit urged by the employer, there were tem-
porary transfers on almost a daily basis, as well as significant permanent
transfers, and the store managers lacked authority to perform many func-
tions, including authority to handle gnevances or post weekly work
schedules without prior approval by the district manager
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is ordered that this case be remanded to the
Regional Director for Region 20 to open and count
the ballots cast in the elections conducted in this
proceeding on 28 October 1983, to issue tally of
ballots thereon, and to take further appropriate
action.