Big N Department Store No. 333

National Labor Relations Board - Board Decisions

Sep 20, 1972

199 N.L.R.B. 174 (N.L.R.B. 1972)

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big N Department Store No . 333' and Retail Store
Employees Union, Local 345, Retail Clerks Interna-
tional Association, AFL-CIO, Petitioner. Case
3-RC-5391
September 20, 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 Bruce D.
Rosenstein of the National Labor Relations Board.
Following the close of the hearing the Regional Direc-
tor for Region 3 transferred this case to the Board for
decision. Thereafter, the Employer filed a brief with
the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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 the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
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 certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all
employees in Big N Department Store No. 333, locat-
ed in Rochester, New York. The unit which the Peti-
tioner seeks to represent consists of approximately 70
employees, of which approximately 30 are part-time
employees. The Employer contends that a single-store
unit is inappropriate and that one of two other units
would be appropriate: one unit would encompass the
three stores, including Store No. 333, in the Roches-
ter, New York, area; the other unit would encompass
the 14 stores within the Employer's Central District,
which includes the 3 Rochester area stores and 11
other stores in the western part of the State of New
1 The Employer's name appears as amended at the hearing.
2 In view of our ultimate determination in this case, the Hearing Officer's
ruling denying the Employer's motion to strike the direct testimony of Head
Cashier Gail Gahch , on the grounds that she became unavailable for cross-
examination by the Employer , is not prejudicial error.
York. There is no history of collective bargaining for
any of the Employer's employees.
The Employer is owned by Neisner Bros ., Inc., a
New York corporation whose corporate offices are in
Rochester, New York, Neisner Bros., Inc., operates
approximately 34 stores known as Big N and adminis-
tratively divides them into three groups, the Eastern
District, the Central District, and the Western Dis-
trict. The Eastern District is composed of 15 stores
located in Connecticut, Massachusetts, New Jersey,
Pennsylvania, and the eastern part of New York
State. The Central District, as stated above, is com-
posed of 14 stores in the western part of New York
State. The Western District is composed of 5 stores in
Ohio.
In support of its contention that a single-store
unit is not appropriate, the Employer points out that
there is supervision on a districtwide basis, and a store
manager has only limited authority because of such
supervision. The Employer also points out that mer-
chandise pricing, display, advertising, and sales are
centrally determined and administered on a district-
wide basis. The Employer further points out that store
budgets are centrally authorized, inventory control
and cash receipts are centrally maintained, govern-
ment rules and regulations are centrally interpreted
and implemented, and all personnel policies and pro-
grams are centrally determined and administered.
Moreover, the Employer argues that substantial inter-
chan a occurs on a districtwide basis .3 Finally, the
Employer points to the,geographic proximity of all the
stores in the Central District, including those stores
in the Rochester area.
Accordingly, the Employer argues that only a
Central District unit is appropriate, and a single-store
unit lacks sufficient autonomy in view of the integrat-
ed nature of the district organization 4 and the ge-
ographic proximity of the stores within the Central
District.
The Employer then argues that, a three-store
Rochester-area unit would also be appropriate be-
cause these three stores are also subject to separate
common supervision apart from the districtwide su-
pervision above mentioned; they service the same
customer area; they engage in the joint implementa-
tion of competitive pricing and joint advertising; and
they have the same licensed departments, the same
hours of business, and the same structural layout.'
The record shows, however, that the individual
3 The Employer introduced into evidence 31 transfers over a 12-month
period in the Central District The record shows, however, that only 14 of the
transfers are properly classified as interchanges , being of a temporary nature,
and that 9 of these were of managerial personnel , not employees in the
statutory sense.
4 The Employer points out that the Central District manager visits each
store within the Central District once every 2 weeks
s The Employer points out that each of the Rochester area stores is visited
by the assistant district manager once a week
199 NLRB No. 28
BIG N DEPARTMENT STORE NO. 333 175
store managers have considerable autonomy. They
are authorized to correct inventory imbalances, super-
vise physical inventory, hire or fire any employee,
recommend promotions, authorize merit increases in
pay, submit recommended budgets, discipline and
transfer employees, redress grievances, and imple-
ment the Employer's policies and procedures. In
short, the individual store managers are charged with
the day-to-day operations of each store. In addition,
the store managers receive yearly bonuses on the basis
of their store's performance. The only limitations on
the store managers' authority are that they cannot
initiate any new procedure without clearance from
their district manager, they cannot initiate advertis-
ing, they cannot draw on the individual store's cash
receipts, they cannot determine store budgets on their
own, and they cannot establish new personnel poli-
cies.6
Moreover, the record shows that, with regard to
districtwide transfers to and from Store No. 333, there
were only five temporary transfers, of which three
were of managerial personnel; with regard to transfers
between Store No. 333 and the other two Rochester
area stores, the record shows that there was only one
temporary transfer.
On the basis of the whole record, and particularly
in view of the relatively infrequent visits by Central
District management to the individual stores, the sub-
stantial autonomy of the individual store managers,
and the absence of substantial interchange, we find
that the presumptive appropriateness of a single-store
unit has not been rebutted and that the single-store
unit sought herein by the Petitioner is appropriate?
Turning now to placement of employees in the
unit, pursuant to the parties' stipulation the following
personnel will be included: the department heads, the
restaurant department head,' the personnel service
center girl, the relief head cashier, the assistant head
of the Glidden leased department, and the sales clerks
of the leased departments?
The parties are in disagreement as to the unit
placement of the personnel who are discussed below.
The Petitioner would include, and the Employer
would exclude, the merchandise associate . The task of
this individual is basically to explain the store's adver-
tising to the department heads, to see that the mer-
6 The assistant store managers, also called merchandise managers , relieve
their store managers and exercise basically the same authority as the store
managers.
r See Walgreen Co, 198 NLRB No. 158
8 The record is devoid of any facts that would indicate that the department
heads or the restaurant department head possess any of the indicia of supervi-
soiy status as set forth in Section 2(11) of the Act
At Store No 333, there are two leased departments-the Glidden depart-
ment, which includes the Glidden department head, the assistant department
head , and a sales clerk, and the J S. Baker department , which includes the
department head and two sales clerks.
chandise is on sale when an ad appears in the newspa-
per, and to follow up after the ad has been run to find
out how much of the advertised item has been sold.
This individual also handles price revisions and mar-
kups and sees that they are properly implemented.
The Employer argues that the merchandise associate
is a supervisor. The merchandise associate does have
authority to specify which individuals are to work on
certain jobs and to reassign the work if an individual
is not doing it properly. However, the merchandise
associate has no power to hire, suspend, or discharge,
lay off or recall, promote, reward, discipline, adjust
grievances, or transfer. In view of the routine manner
in which he can assign and reassign work and his lack
of the other supervisory indicia as set forth in Section
2(11) of the Act, we find that the merchandise associ-
ate is an employee and should be included in the unit.
The Petitioner also seeks to include, and the Em-
ployer would exclude as supervisors, the stockroom
manager and the head cashier. As the record facts are
not sufficient to enable us at this time to determine the
issue raised as to the supervisory status of the head
cashier and the stockroom manager, we shall permit
them to cast challenged ballots.
The Petitioner would exclude, and the Employer
would include, two full-time and one part-time office
clericals, three manager trainees, two leased depart-
ment heads, and the relief restaurant head.
With respect to the office clericals , the record
shows that these employees are engaged in counting
the money from the registers, processing invoices, pre-
paring payroll entries, and performing various other
recordkeeping functions. They are not involved with
the handling of personnel records of the store's em-
ployees. The office clericals regularly perform relief
work at the service center desk, handling credit, tele-
phones, petty cash, refunds, and exchanges. The of-
fice clericals also have occasion to read registers on
the sales floor and make pickups of money at the
registers. Sales employees continuously have occasion
to come to the area where the office clericals function,
during which time they discuss store matters with
these personnel: such visits are normally made to de-
liver cash receipts, to inquire about inventory, to
check into proper receipt of merchandise, and to
reorder new merchandise. The office clericals have
the same wages and fringe benefits, hours, and fa-
cilities, are subject to the same personnel policies, and
abide by the same rules and regulations as the sales
employees. In consideration of the substantial com-
munity of interest the office clericals have with the
employees included within the unit sought by the Peti-
tioner, we include them in the unit.
The three manager trainees are in a 3- to 6-year
program, wherein they may spend 6 months to 3 years
in a given store. Not all manager trainees go on to
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory positions . The management trainees, in
substance , function as department heads over the dif-
ferent departments in the store . They have the same
benefits , wages , and working conditions as other em-
ployees . They are paid hourly and they earn a rate
comparable to department heads , who were stipulated
to be included in the unit . In addition , like other
employees , they are paid overtime . The management
trainees have no authority to grant time off, to correct
or adjust timecards , to establish or adjust working
schedules , or to discipline, promote , recommend for
promotion , adjust grievances , hire, transfer , suspend,
discharge , or lay off and recall . In view of their lack
of supervisory authority and of the inclusion of the
department heads in the unit sought by the Petitioner,
the manager trainees are also included.
The leased department heads operate the two
departments assigned to licensees of Neisner Bros.,
Inc., who treats -them as regular employees of the
Employer . The only item over which the leased de-
partment heads have independent control is the initial
pricing policy of items within their department. The
leased department heads do not exercise any supervi-
sory authority; they share the same wages , hours, and
benefits as other employees . The leased department
heads use the same timeclock as their fellow employ-
ees and have no final authority as to who may be hired
for their department. In view of their lack of supervi-
sory authority and the fact that they perform virtually
the same functions as those performed by the
Employer's own department heads , we include them
in the unit.
The relief restaurant department head serves as
a replacement for the restaurant department head
during the latter's day off. He performs the same du-
ties that the restaurant department head performs and
works one 8-hour day each week at Store No . 333. In
view of the fact that the restaurant department head
is included by stipulation of the parties , and since this
individual functions as a regular part -time employee
when substituting for the restaurant department head,
we include him in the unit.
Accordingly , we find that the following employ-
ees constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part -time employ-
ees employed at Big N Department Store No.
333, located in Rochester, New York , excluding
the store manager and the assistant store manag-
er and guards , professional employees , and su-
pervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]