Fairfax Family Fund, Inc.

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