Gensler Lee, Inc.

I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD Gensler Lee, Inc. and Retail Clerks Union, Local 1179 affiliated with Retail Clerks' International Union, AFL-CIO, Petitioner and Retail Store Employees Union, Local 428, Retail Clerks International Union, AFL-CIO,2 Petitioner. Cases 32 RC-412 and 32-RC 416 April 2, 1979 DECISION ON REVIEW AND DIRECTION OF ELECTIONS BY CHAIRMAN FANNING ANI) MEMBERS MURPHY AND TRUEISI)ALE On July 3, 1978, Local 1179 of the Retail Clerks International Union filed a petition in Case 32-RC 412 seeking to represent certain employees at the Em- ployer's Concord, California, store. On July 7, 1978, Local 428 of the same international union filed a peti- tion in Case 32-RC 416 seeking to represent certain employees at the Employer's San Jose, Palo Alto, and Sunnyvale, California, stores. On October 27, 1978, the Regional Director for Region 32 issued a Deci- sion and direction of election in the above-entitled proceedings in which he found sales managers were supervisors and managerial employees, while credit managers were not supervisors. The Regional Direc- tor directed separate elections in single-store units3 at the Concord, Palo Alto, and San Jose stores, but he did not direct an election at the Sunnyvale store be- cause his finding that sales managers were supervisors and managerial employees left a unit of only one em- ployee at the Sunnyvale store, the credit manager. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regu- lations, Series 8, as amended, Local 1179 filed a timely request for review of the Regional Director's finding that the sales managers were supervisors and managerial employees, 4 and the Employer filed a timely request for review of the Regional Director's finding that the credit managers were not supervisors. By telegraphic order dated November 27, 1978, we granted the requests for review and stayed the elec- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- I Hereinafter referred to as Local 1179. 2 Hereinafter referred to as Local 428. The parties stipulated the single-store units were appropriate. 4Although Local 428 did not file a request for review of the Regional Director's findings concerning the sales managers at the San Jose. Palo Alto. and Sunnyvale stores covered by its petition, we find the request for review of Local 1179. as worded, raises an issue with respect to the status of the sales managers at all four stores involved here, We note also that the Re- gional Director's decision did not separately address each sales manager but rather collectively discussed and decided their status If Local 428 does not desire to go to elections in units including the sales managers, it may file a request to withdraw its petition. tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Employer operates 27 retail jewelry stores throughout California, including the 4 stores peti- tioned for here. All of the stores are divided into a sales department and a credit department. Each de- partment has its own personnel performing its respec- tive functions. The Employer has two vice presidents for sales who responsibly direct and supervise the sales managers and salesmen at the stores and three credit supervisors who responsibly direct and super- vise the credit personnel at the stores. The vice presi- dents for sales and the credit supervisors periodically visit the stores, with the frequency of their visits re- lated to problems at the stores and changes in sales or credit personnel. The personnel records of the indi- viduals employed in the stores are maintained at the Employer's home office in San Francisco, and all pay- checks or commission checks are issued from that of- fice. At the time of the hearing herein, each of the four stores had a staff of two to four persons: the Concord store had a manager/trainee who was temporarily taking the place of a sales manager, a credit manager, and a credit clerk; the San Jose store had a sales man- ager, a credit manager, and a credit clerk; the Palo Alto store had a sales manager, a credit manager, and two credit clerks; and the Sunnyvale store had a sales manager and a credit manager. None of the four stores employed a salesperson in addition to the sales manager. Sales Managers The sales managers are responsible for the protec- tion and sale of the diamonds and jewelry in the stores. They attend sales meetings with sales manag- ers and salesmen from other stores. The sales man- ager has no authority to approve or disapprove credit for a customer, as that determination is made exclu- sively by the credit manager and/or credit clerk.' The credit manager and credit clerk do not sell except when they assist customers while the sales manager is busy. The sales manager is paid entirely by commis- sion on net sales and may earn three times the salary of a credit manager or credit clerk. When the assist- ance of a credit manager or credit clerk contributes to an increase in sales, and, therefore, to an increase in the commission of the sales manager, sales managers have occasionally given a portion of the commission to the credit personnel. The sales manager is on duty during all store hours without receiving overtime. In fact, he normally does not leave the store for lunch. The sales managers sug- 'I he credit clerk is sometimes referred to as the assistant credit manager. 241 NLRB No. 103 682 GENSLER LEE. INC. gest changes in the store hours for the Christmas sea- son or for security reasons. The credit personnel (i.e.. credit manager and credit clerk) work 5 days a week and receive overtime. The sales manager and the credit personnel record their time each month on a timesheet. It is the responsibility of the sales manager to sign all timesheets before they are forwarded to the home office, but this is not always done. The sales manager and the credit personnel participate in the same profit-sharing plan and have the same life insur- ance and health insurance coverage, although the amount of life insurance coverage varies according to individual earnings. The credit personnel, unlike the sales manager, receive a Christmas bonus and are eli- gible fobr an incentive bonus called "tokes." The sales manager. credit manager, and credit clerk all have keys to the store and know the combination of the store's safe. Sales managers have recommended other individ- uals for employment who were, following interviews with one of the vice presidents for sales, employed as manager/trainees or salesmen. In fact, the Employer encourages all employees to recommend persons for employment. The sales managers do not make formal evaluations of other employees, hut their opinions as to the progress of credit personnel, manager/trainees. or other salesmen may be requested by admitted su- pervisors. such as a vice president for sales or a credit supervisor. The sales managers are responsible for the security of the stores' inventory, for the general appearance of the stores, fior opening and closing the stores, and for carrying out promotional mailings provided by the home office. They have at time selected a relative, a student or some other temporary, part-time employee to do the promotional mailings. The students received school credit for their work, while the temporary part-time employees were paid from the sales manag- ers' commissions. Sales managers have also selected a new janitor after being authorized to do so. A vice president for sales testified for the Employer that sales managers have authority to hire employees and, at other stores not involved in these petitions, have hired manager/trainees or salesmen.6 For the Petitioners, the sales managers at the San Jose and Palo Alto stores and the most recent sales manager at the Concord store testified that, except with respect to casual employees hired temporarily for promotional mailings, they do not have the authority to hire or discharge, to discipline, to assign hours, or to grant time off tfrom work. The Employer offered no tangible evidence that the sales managers at the four stores I The record contailns only one nstance of an alleged hire (other than of casuals) by a sales manager at the tfur stores involved herein In that case. the credit supcrv-lsor authorized a sales manager to select a new credit clerk It is undisputed that sles managers generally" do not hire credit personnel here involved were ever informed that they had the authority alleged by the Employer. An eight-page list of written instructions for sales managers titled "Lay- ing It On The Line" simply describes the minutiae of their selling duties and care of the stores. The sales managers have no authority to sign checks, handle petty cash, or pledge the Employer's credit. In view of the foregoing and the record as a whole, we find the sales managers are actually what the Board considers salesmen, working solely on commis- sion, with no supervisory authority over other em- ployees within the meaning of Section 2(11) of the Act. See Tucker Enterprises, Inc., d/b/la Tucker's Minit Markets. 238 NLRB 1188 (1978), and Diamond Parking, Inc., 198 NLRB 239 (1972). where "manag- ers" were found to be employees. We further find that sales managers, despite their titles, are not managerial employees. They do not for- mulate and effectuate management policies and are without significant discretion in the performance of their selling jobs independent of the Employer's es- tablished policies.7 Accordingly, we shall include the sales managers in the units found appropriate at the four stores involved here and direct elections at those locations, including Sunnyvale. Credit Managers The Employer contends that the Regional Director erroneously found that credit managers were neither supervisors nor managerial employees. Although the Employer called one of its credit supervisors as a wit- ness, it did not, at the hearing, urge the unit exclusion of credit managers. The Employer now contends the record evidence requires a finding that credit manag- ers are supervisors and/or managerial employees. The credit managers obtain credit information from customers and then, apply ing specific guidelines established by the Employer, determine what credit, if any, a customer may receive. They have no discre- tion to exceed the guidelines, a result that requires the approval of the credit supervisors. Credit managers also handle the petty cash at the stores. Credit managers do not have authority to grant credit employees a day off or approve vacations, as those decisions are made by the credit supervisors. One of the Employer's vice presidents for sales testi- fied that a credit manager could let credit employees off work a couple of hours for a doctor's appoint- ment, but there is no evidence that credit managers were ever so advised or have done so. The credit man- 7See General Dynamics Cioirpolrulion. (onair ,4.rospace Division, San Diego Operarions. 213 NL.RB 851. 857 (1974. citing Palace laundn Dri Cleaning C(;rporrtion. 75 NLRB 320 (1947), and Eastern Camera and Photo (Corp. 140 NlIRB 569 (1963) See also :'1. R B \. Re, IA.4erlspace (ompanh. Dvirsion of Textron. Inc. 416 U.S 267 1974) 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ager and credit clerks mutually work out a schedule for days off which is equitable for all. Credit managers are salaried and also receive a 1- percent commission of net sales, which they may re- tain or share with other credit personnel. The ques- tion of sharing a commission is sometimes discussed with the sales manager. The credit manager may rec- ommend a credit clerk for a raise or an incentive bo- nus referred to as "tokes" but the effectiveness, if any, of such recommendations is unclear. A credit man- ager at the Palo Alto store, rather than a credit clerk, was the only individual whom the credit supervisor recalled as having received "tokes" during the past 2 years at the four stores involved here. While there is generalized testimony that a credit manager is "re- sponsible for" credit personnel and that credit person- nel work "under the supervision" of the credit man- ager, it is unsupported by specific examples. They do not hire or discharge employees, as such decisions are left to the credit supervisors. Additionally, there is no tangible evidence that credit managers have authority to discipline employees, responsibly direct their work, or exercise any of the statutory indicia of supervisory authority. On the basis of the record before us, we find credit managers are not supervisors or manageri- al employees. We note that their duties are of a rou- tine nature and that the Employer's established credit guidelines preclude the exercise of any independent judgment. Accordingly, we shall include the credit managers in the units found appropriate herein. In view of the above, we find that the following employees constitute units appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: In Case 32-RC-412: All selling and non-selling employees including sales manager, credit man- ager and credit department employees at the Employer's 1657 Willow Pass Road, Concord, California, location, excluding guards and super- visors as defined in the Act. In Case 32-RC-4]6. All selling and non-selling employees including sales manager, credit man- ager and credit department employees at the Employer's 641 Town and Country Village, San Jose, California, location, excluding guards and supervisors as defined in the Act. All selling and non-selling employees including sales manager, credit manager and credit depart- ment employees at the Employer's 382 Univer- sity Avenue, Palo Alto, California, location, ex- cluding guards and supervisors as defined in the Act. All selling and non-selling employees including sales manager, credit manager and credit depart- ment employees at the Employer's 229 S. Taffe, Sunnyvale, California, location, excluding guards and supervisors as defined in the Act. [Direction of Elections and Excelsior footnote omitted from publication.] 684