Fairfax Family Fund, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 1972

195 N.L.R.B. 306 (N.L.R.B. 1972)

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fairfax Family Fund , Inc., a wholly owned subsidiary
of Spiegel, Inc.` and Retail Clerks Local Union No.
445, chartered by Retail Clerks International As-
sociation , AFL-CIO,' Petitioner. Case 9-RC-9192
February 2, 1972
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer William C. Mittendorf.
Thereafter, pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, the
Regional Director for Region 9 transferred this pro-
ceeding to the National Labor Relations Board for
decision. The Employer subsequently filed a brief.
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. The rulings are hereby affirmed.
On the entire record in this proceeding, including the
Employer's brief, 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 repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
4. The Employer, Fairfax Family Fund, Inc., a
wholly owned subsidiary of Spiegel, Inc., has an office
at Louisville, Kentucky, from which it operates a di-
rect-mail consumer loan business. It there employs
about 140 full-time and about 6 part-time employees.
There is no bargaining history for any of the employees.
The Petitioner seeks to represent all the full-time and
part-time employees at this location, excluding confi-
dential employees, guards, professional employees, and
supervisors.3 The unit is composed of about 120 full-
The name of the Employer appears as amended at the hearing
= The name of Petitioner appears as amended at the hearing
The parties stipulated that the followisZg were supervisory or confiden-
tial employees who should be excluded from any unit found appropnate the
vice president and general manager, the operating manager, and their re-
spective secretaries , customer accounts manager , computer operator pro-
gramming supervisor, bookkeeping services department manager, bank-
ruptcy department manager, correspondence department manager,
telephone solicitation section supervisor , collection department manager,
time and about 6 part-time employees.
The Employer agrees that an officewide unit of the
full-time rank-and-file clerical employees sought could
be established, but contends that only about one-half of
the full-time employees sought are rank-and-file cleri-
cals." It claims that the remaining full-time employees
in the proposed unit are either managerial or confiden-
tial employees with interests unrelated to those whose
functions are purely clerical in nature; and it opposes
their representation in the same unit and/or by the
same labor organization. The Employer would also at-
tribute supervisory status to some employees among
this latter group. Finally, the Employer would exclude
the part-time employees in any event on grounds either
that they perform functions different from those of the
full-time employees, or that their employment is casual
in nature.
A. The full-time employees in dispute, their depart-
mental location, and the functions they perform are as
follows:
1. Credit department employees: Nine of the em-
ployees in dispute are located in the credit department.
They compose part of a total departmental complement
of about 23 employees who perform the various duties
involved in passing upon customer applications for
loans. Of the nine disputed credit department em-
ployees, five are classified as final credit analysts, three
as initial credit screeners, and one as activities super-
visor of loan processing.
The Employer alleges that final credit analysts and
the initial credit screeners are managerial or confiden-
tial employees and that the activities supervisor of loan
processing is a supervisor.
Initial credit screeners review and process customer
loan applications in the initial stages to determine
whether the applicants are creditworthy. If the answers
given by applicants to standard questions concerning
their employement, salary, and related matters fail to
meet certain established confidential guidelines for-
mulated by the Employer, the initial credit screeners
reject the application without further ado. In cases
where the answers given by the applicants meet the
Employer's standards, and if the Employer has no
previous file on the applicant, the applications are usu-
ally referred to independent credit agencies for investi-
gation and report. If the reports are favorable, the ini-
tial credit screeners pass the applications on for final
processing to the final credit analysts.
collection supervisors; one month collection supervisors, legal account coor-
dinator, credit department manager, credit passing section supervisor, and
an employee identified as "statistical clerk typist "
The Employer would limit the unit to employees classified as corre-
spondent, credit, file, mail, record, and telephone clerks, keypunch and
offset operators , mailers ; programmers, programmer- trainees , sales-follow-
up employees, and typists
195 NLRB No. 56
FAIRFAX FAMILY FUND, INC. 307
Final credit analysts review the loan applications in
the light of the credit information passed on to them by
the initial credit screeners. They decide whether or not
a loan request should be granted and if so in what
amount up to $600, this being the maximum which the
Employer makes available to any individual applicant
under established confidential business policies.
The Employer's claim that the initial credit screeners
are managerial employees is based on the fact that the
credit reports such employees authorize may cost the
Employer as much as $500,000 a year. We find no merit
in this claim.
It is undisputed that in referring loan applications to
credit agencies for check, initial credit screeners oper-
ate under established credit standards or guidelines as
formulated by employer officials. Their actions are sub-
ject to final audit. They have no control over the
charges made by the credit-reporting agencies; and
there is no showing that they select such agencies from
other than a list approved by the Employer. Further-
more, any judgment they make in approving or disap-
proving loan applications in the initial stages is subject
to higher review by the final credit analysts.
In seeking to attribute managerial status to final
credit analysts, the Employer relies on their authority
to approve or deny loans. It claims that their exercise
of independent judgment is akin to that possessed by
buyers whom the Board has found to be managerial
employees because of evidence that they may pledge an
employer's credit in substantial amounts. We do not
agree.
It is undisputed that the authority of final credit
analysts to grant or deny credit is limited to amounts
not exceeding $600 in any individual case. Their discre-
tion is, in any event, circumscribed by official policies
and guidelines that they are required to follow. These
official guidelines outline the Employer's credit stan-
dards in detail and provide, for example, that extension
of credit is conditioned both on the answers supplied by
applicants to specific questions and on the earnings of
the applicant. Any authority or discretion they may
exercise therefore fails far short of that envisaged by the
Board's definition of a "managerial" employee;
namely, one who formulates, determines, and oversees,
or effectuates company policy.'
' We find little difference between the character of the duties performed
by final credit analysts and that of the duties performed by employees
engaged as security brokers, insurance claims adjusters, bank tellers, and
note collectors , whom we have found to be nonmanagerial employees See,
e g., Dun and Bradstreet, Inc, 194 NLRB No 2 (brokers), The Ohio Casu-
alty Insurance Company, 175 NLRB 860 (insurance adjusters), Banco
Credito y Ahorro Ponceno, 160 NLRB 1504 (bank collectors , loan officers,
loan adjustors) On the other hand, we find the jobs of final credit analysts
to be significantly different from those buyers who pledge large amounts of
the Employer 's credit based on their judgments about the quality and the
saleability of products they are entrusted to select for the Employer See,
e g, Western Gear Corporation , 160 NLRB 272, 275, The Grocers Supply
Company, Inc, 160 NLRB 485, 488 But see Tower Records, 182 NLRB
The Employer's additional claim as to the confiden-
tial status of the above and other employees it would
here exclude is based solely on the fact that such em-
ployees have access to vital internal business informa-
tion as contained in interoffice memos describing loan
and loan-collection policies, and the lists of customer
accounts. The Board has not, however, deemed the
mere possession of access to confidential business infor-
mation by employees sufficient reason for denying such
employees representation as part of any appropriate
unit of work-related employees. It has, rather, limited
its exclusionary definition of "confidential" employees
to those who have a confidential relationship to officials
charged with the responsibility of formulating, deter-
mining, and effectuating labor relations policies."
None of the above or any other of the nonsupervisory
employees here involved fall within the Board's defini-
tion of "confidential" employees.
As initial credit screeners and final credit analysts
work in the same area as other employees in the unit,
are under common supervision, and perform work
closely integrated with the work of others in the unit,
we find that they have a community of interest with
such other employees. Therefore we shall include them
in the unit.
The Employer would also exclude one other em-
ployee in the same department, Karen Lynn Barker, on
grounds that she is a supervisor. This employee is clas-
sified as the activities supervisor of loan processing. She
is the senior of three clericals employed in the credit
department and in general performs the same clerical
duties as her coworkers. Barker is responsible for con-
trolling the flow of the clerical work so that the same
is equally distributed and, by reason of her senior
status, answers questions addressed to her about office
routines and related matters. There is no evidence that
she possesses or exercises any indicia of supervisory
authority. We find that, at best, she is a nonsupervisory
leadgirl. We shall therefore include Karen Lynn Barker
in the unit.
2. Collections department employees: About 47 of the
full-time employees in dispute are employed in the col-
lections department. They compose part of a total de-
partmental complement of approximately 55 em-
ployees who perform various duties relating to the
collection of customer accounts delinquent for periods
from 1 to 4 months. Of the disputed employees, 3 are
classified as area accounts managers, 12 as collectors,
10 to 12 as junior collectors, 18 as 1-month collectors,
1 as assistant legal account coordinator, and 1 as collec-
tion department instructor.
382, 384
' See cases cited supra, fn 5, particularly Dun and Bradstreet, Inc.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Area accounts managers are responsible for dealing
with debtors whose accounts are 5 months overdue.
They are each assigned accounts on the basis of geo-
graphic areas within the United States, and are respon-
sible for all past due accounts in their assigned geo-
graphic areas. Each reports to one of two collections
supervisors. They immediately oversee the work of the
collectors and junior collectors who, respectively, han-
dle 3- to 4-month and 2-month delinquent accounts of
customers located within specified geographic areas in
the United States. They possess and exercise authority
to effectively recommend the transfer, promotion, dis-
charge, and discipline of employees under them, for
absenteeism. Accordingly we find, consistent with the
Employer's position, that they are supervisors. We
shall exclude them from the unit.
Collectors, junior collectors, and 1-month collectors
have no supervisory responsibilities. Their major func-
tions are to communicate by phone or letter with delin-
quent customers assigned to them and to collect or to
arrange for payment of the accounts due to the Em-
ployer. The Employer claims that the accounts they
process involve about $4 million per year; that these
employees exercise a high degree of independent judg-
ment and initiative in collecting and settling such ac-
counts; and that they have authority to settle or vary
the terms of the loan contract by extending the time of
payment. The Employer accordingly alleges that all of
the collectors aforedescribed are managerial em-
ployees. We find this allegation unsupported.
The undisputed evidence shows that, in performing
their collection tasks, collectors must follow and abide
by established collection policies and procedures as de-
veloped and formulated by the Employer's officials and
as described in intraoffice manuals or memos. These
policies limit the action that the collectors may take in
seeidng to process delinquent accounts. Collectors may
not deviate therefrom in offering or accepting proposed
settlements or time extensions for delinquent accounts
without obtaining specific authority from their super-
visors. The duties of collectors thus appear to be similar
in nature to those of employees who are engaged as
collectors for banks, claims adjusters for insurance
companies, or investigators for credit companies, all of
whom have been found to be nonmanagerial and non-
confidential employees.' We shall include collectors,
junior collectors, and 1-month collectors in the unit.
The assistant to the legal accounts coordinator: This
position is occupied by Donald Gresham and, as his
title implies, he assists the legal accounts coordinator.
The latter is admittedly a supervisor. The Employer
contends that Gresham performs the supervisory du-
ties involved when his superior is absent. The Employer
also claims that, in any event, Gresham is a managerial
employee.
Gresham, like his superior, normally performs the
work involved in arranging legal action against any
delinquent customers. He engages lawyers from a list
furnished by the Company and negotiates their fees. He
also approves settlements. As the record shows in tak-
ing these actions, he must obtain prior approval by
company officials, we find that his duties in engaging
lawyers, negotiating fees, and approving settlements
are ministerial, rather than managerial , in nature.
There is some question as to Gresham's supervisory
status. The record shows, or claimed by the Employer,
that he substitutes for his superior in the latter's ab-
sence and acts on such occasions as a supervisor over
the several employees in the legal collections section.
There is no evidence as to the frequency or regularity
of his assumption of supervisory tasks. We shall permit
Gresham to vote subject to challenge.
Collection department instructor: This position was
newly created and is occupied by Donald Acken, a
former collector. The Employer contends that Acken is
either a supervisory or managerial employee. We find
no merit in either contention.
Acken's assigned duties involve the classroom in-
struction of inexperienced collectors and others en-
gaged in collection work who may require orientation
or instruction in the Employer's loan and collection
policies and particular collection techniques. He re-
ports to and is supervised by the collection department
manager.
The Employer claims that Acken will be called on to
assist in the formulation and development of the Em-
ployer's collection policies, but it adduced no affirma-
tive evidence to support this claim. Nor was any show-
ing made that Acken possesses or is expected to
exercise any supervisory responsibilities with respect to
the employees assigned to him for training purposes. In
these circumstances, his duties as a trainer or instructor
do not, under established precedent, disqualify him
from representation as part of the unit composed, in
part, of the rank-and-file employees he instructs! We
shall include Acken in the unit.
3. Data processing department employees: Three of
the full-time employees in dispute are employed in the
data processing department. They compose a part of
the total departmental complement of approximately
six employees who perform various duties relating to
the Employer's data processing operations. Two of
these employees are classified as computer operators
and one as a computer operator-trainee. The Employer
claims that they should be excluded as confidential or
' See Banco Credito y Ahorro Ponceno, supra fn 5, Continental Insur-
ance Company, 169 NLRB 600, 602, fn 4, Dun and Bradstreet, Inc, supra.
fn 5
Petroleum Helicopters, Inc, 184 NLRB No 8 Cf The Ohio Casualty
Insurance Co supra fn 5
FAIRFAX FAMILY FUND, INC 309
managerial employees . This claim rests wholly on the
fact that these employees work with and have access to
highly confidential business information about cus-
tomer accounts , which the Employer keeps in locked
vaults.
For the reasons set forth above, evidence that em-
ployees have access to restricted business information,
albeit vital to the Employer , does not establish the
"confidential" or "managerial" status of such em-
ployees within the meaning of the Board 's applicable
definition . As there is no contention and no evidence
that computer operators participate in any way in for-
mulating , establishing , or determining any manage-
ment or labor relations policies, we find that they are
not managerial or confidential employees .' We shall
include them in the unit.
4. Bookkeeping services department employees: The
Employer would exclude a single employee located
within this department , Wanda Roderer , on grounds
that she is a supervisor.
Roderer occupies a newly created job classified as
adjustment and irregularities accounts supervisor. She
was undergoing training for her new duties as of the
date of the hearing . According to undisputed evidence,
the duties she will assume on completion of her training
will require her supervision and responsible direction of
8 to 10 of the 35 employees in her department. Her
authority will extend to such matters as recommending
the hiring , promotion , and transfer of the employees
assigned to her and the taking of disciplinary action.
We find these facts sufficient to warrant Roderer's ex-
clusion from this unit.
B. There remains for consideration disputed issues
involving the following part -time employees, all of
whom the Employer would exclude from the unit:
1. Financial service representatives : Six employees in
this category are regularly employed from 4:30 to 9:40
p.m.10 Their major work assignment is to contact prior
customers of the Employer, primarily by telephone, for
purpose of soliciting loan-renewal business . The Em-
ployer claims that the financial service representatives
are managerial employees , and that they should be ex-
cluded in any event because they lack a community of
interest with other unit employees . We find no merit in
either of these contentions.
The functions which financial service representatives
perform are essentially sales functions and involve no
managerial responsibility . Their work tasks are similar
in nature to those of collectors and other employees
The Ohio Casualty Insurance Co, supra, In 5
° Most of the remaining unit employees work from 8 30 a in to 5 10 p in
whom we have included in the unit. They do work on
a different time schedule than other unit employees,
and it appears they are compensated on a different
basis. However , these distinctions do not warrant ex-
cluding them from the proposed overall unit. We shall
include financial service representatives in the unit.
2. Night telephone operators: There are two em-
ployees performing the functions suggested by the job
title. Because both of them were college students at the
date of the hearing, the Employer contends that they
are "casual" employees . We disagree . Each of the two
employees works on alternate weekend evenings from
5 to 8:40 p . m., for 10 hours on one weekend and 15 on
the other , and performs duties regularly required by the
Employer during these hours. We find , contrary to the
Employer 's contention , that they are regular part-time
employees . We shall include them in the unit.
3. Matron : There is one employee so classified who
works on a regular 32 -hour-per-week schedule. She
cleans the employee canteen and the women 's lounge.
Although her work tasks are dissimilar to those of
other unit employees , her exclusion from the unit as
requested by the Employer would have the practical
effect of denying her representation. In these circum-
stances, and as the unit here found appropriate is coex-
tensive with the Employer 's operation at Louisville,
Kentucky , we shall include the matron in the unit.
In accordance with all the foregoing , we find that the
following employees constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time employees of
Fairfax Family Fund, Inc., a wholly owned subsidiary
of Spiegel , Inc., at its office at Louisville, Kentucky,
excluding confidential employees , guards, professional
employees, the adjustment irregularity supervisor, the
area account managers , and all other supervisors as
defined in the Act.
[Direction of Election" omitted from publication.]
" In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Under-
wear, Inc, 156 NLRB 1236, NL R B v Wyman-Gordon Co, 394 U S 759
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters , must be filed by the
Employer with the Regional Director for Region 9 within 7 days of the date
of this Decision and Direction of Election The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in extraordi-
nary circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed