Levitz Furniture Corp.

LEVITZ FURNITURE CORP 347 Levitz Furniture Corporation I and Retail, Wholesale and Department Store Union, AFL-CIO, Peti- tioner. Case 26-RC-5155 June 3, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Melvin L Ford Following the hearing and pursuant to Section 102 67 of the National Labor Relations Board Rules and Regulations and Statements of Procedures, Ser- ies 8, as amended, and by direction of the Regional Director for Region 26, this case was transferred to the Board for decision Thereafter, the Employer filed a brief with the Board which has been duly con- sidered 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 rul- ings made at the hearing and finds that they are free from prejudicial error They are hereby affirmed Upon the entire record in these proceedings,' the Board finds 1 The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses 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 Employer operates approximately 60 retail The Employer's name appears as amended at the hearing z At the hearing, the Hearing Officer granted the Employer s motion to incorporate into the record of this case the transcript and exhibits from Levitz Furniture Corporation 223 NLRB 522 (1976) (referred to hereinaf- ter as the Region 12 case), which involved the same parties, the same admin- istrative division of the Employers business operations, and many of the same issues as appear in the case herein Accordingly, the findings made hereinafter rely on the combined record of both sets of cases In its brief, the Employer requests that the instant case be consolidated with the aforementioned Region 12 case on the ground that the record herein is incomplete with respect to the principal unit contentions of the parties and that, therefore, only a joinder with the more lengthy and com- plete record in the Region 12 case will provide a record adequate for deci- sional purposes As the complete record of the Region 12 case hearing has been incorporated herein and fully considered by the Board in connection with this Decision, we find no merit in the Employers request It is hereby denied furniture stores throughout the United States For purposes of administrative control, it has divided these stores into seven groups Group III consists of eight stores situated as follows Tampa, Orlando, Mi- ami, and Fort Lauderdale, Florida, Atlanta and South Atlanta, Georgia, New Orleans, Louisiana, and Memphis, Tennessee The Petitioner seeks to represent a wall-to-wall unit of all employees of the Employer at its Mem- phis, Tennessee, store The Employer contends that the only appropriate unit is one that encompasses all employees at all eight of the group III stores When dealing with a multistore operation, the well-established Board policy is to find a single-store unit presumptively appropriate This presumption can only be overcome by a showing of functional integration so substantial as to negate the separate identity of the single-store unit In making determi- nations on this issue, the Board looks to such factors as prior bargaining history, the geographical proximi- ty to other stores of the same employer, the degree of day-to-day managerial responsibility exercised by branch store management, the frequency of employ- ee interchange, and whether the requested single- store unit constitutes a homogeneous, identifiable, and distinct employee grouping 3 Based on the facts in the record of this case, we are not persuaded that the presumption favoring single-store units has been overcome or that the unit requested by the Petitioner is otherwise inappropriate There are approximately 647 employees employed at the 8 group III stores, 67 of whom work at the Memphis location The distances between Memphis and the other seven stores range from 331 to 1,017 miles There is no collective-bargaining history for the Memphis employees and no union seeks to repre- sent them on a broader basis At each of the branch stores, there is a manage- ment hierarchy of at least seven stipulated supervi- sors-a branch manager, an assistant branch manag- er for operations, an assistant branch manager for merchandise/sales, a front office manager, an acces- sory department (ACD) manager, an electronic data processing department (EDP) manager, and a ware- house manager These supervisors are immediately responsible for the day-to-day operations for their particular stores Advising them and overseeing their performance is the group III administration which consists of the group general manager and a staff of group departmental managers whose respective areas of responsibility roughly correspond to the branch supervisory positions noted above The group general manager retains ultimate con- 3 Allegheny Pepsi Cola Bottling Company, 216 NLRB 616 (1975), Haag Drug Company Incorporated 169 NLRB 877 (1968) 224 NLRB No 4 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trol and authority over almost all aspects of the oper- ations of the individual branch stores including ap- proval of all employee hiring, discharges, wage rates and merit increases, major disciplinary matters, the selection and pricing of merchandise, the transfer of merchandise between stores to provide for inventory adjustment, advertising, and the setting of parame- ters for store budgets 4 The group general manager testified that he tries to pay a 4-day visit to each branch store once every 2 months and the group departmental managers, col- lectively, visit stores quite often, but on what appears to be an irregular basis Exhibits submitted into evi- dence show that at the Memphis branch there are frequent periods of 4 to 8 weeks when the store oper- ates without any group management official being present When visiting the stores, it appears that the group departmental managers largely confine them- selves to assisting and advising the particular branch department for which they have responsibility (e g, EDP, ACD, or front office) However, their overall experience has been such that, if it should arise, they would probably recognize and help with a problem emanating from another area of the store involved In addition to the store visits, there is also frequent daily telephone contact between branch and group officials Record testimony shows that in recent years Levitz rapidly expanded the number of its stores and, as a result thereof, was forced to hire many store managers it regards as lacking the background and experience necessary to professionally manage a large retail outlet Because of this, in 1974 Levitz in- stituted, through its group management teams, some- what tighter procedures for monitoring branch store operations, and providing advice and instructions to the store managers Despite the overall control retained by group man- agement, the record shows that the branch managers, and the store supervisors working under them, exer- cise a substantial degree of authority over the day-to- day operations of their stores, particularly in those areas which have immediate impact upon employees With respect to hiring, various supervisors at each branch interview, check the references of, and inves- tigate all job applicants-separate interviews being conducted by both the concerned department man- ager and by either the branch manager or his assis- tant manager for operations The branch then sub- mits its recommendations to group management for 4 The Employer revised some of its administrative structures and proce- dures effective about October 1974 In setting forth herein the facts relating to the authority and activity of the various managers and supervisors both branch and group, where it appears that functional changes may have re- sulted from the altered administrative setup we have relied solely on evi- dence pertaining to the period commencing October 1974 final approval Testimony at the hearing affirms that Levitz officials view the stipulated branch supervi- sors as having the authority to effectively recom- mend the hiring and firing of employees and to su- pervise the day-to-day operation of their stores While the group determines the economic need to lay off and recall employees, branch management ap- pears to have substantial input into the selection of which specific employees will be affected Branch management also has effective control over employee shift assignments and days off from work 5 Wage and fringe benefits are closely regulated by Levitz' comprehensive policies A national wage ad- ministration plan sets forth three separate and com- plete wage schedules, one of which must be selected by the group for implementation at each branch store in accordance with prevailing wage rates in the locality The same wage schedule is currently in ef- fect at all group III stores 6 A wide range of nation- ally established fringe benefits are uniformly applied and, with minor exceptions, neither branch nor group management can deviate therefrom Branch managers and assistant managers participate in a bo- nus plan which is based upon the profit registered by their particular store Semiannual evaluations are made of every Levitz employee These appraisals are initially made by an employee's immediate supervisor and are then passed on for approval to the assistant branch man- ager for operations These evaluations are not rou- tinely forwarded to the group office, but, rather, are placed in the personnel folders of the employees in- volved It appears from the record that the group managers only review the reports when problems concerning employees must be dealt with or in con- nection with the granting of employee pay raises, all of which are subject to the final approval of the group operations manager With respect to discipline, companywide Levitz policy sets forth specific rules of conduct with which all employees must comply On major rule infrac- tions (those for which the penalty can be discharge on the first offense), the employee's immediate super- visor investigates and makes a recommendation to the branch manager and the assistant manager who, in turn, communicates the facts and their recommen- 5 National Levitz policy requires that all newly hired employees have a 60 day training period While both national policy and group input contri- bute to the content of such training it is directly administered to the em- ployees by branch supervisors who have the authority to determine the degree to which employees will be instructed in more than one job classifi- cation 6 Employee time and payroll records are kept only at the branches with information needed for the processing of wage payments being transmitted directly from the branches to Levitz national accounting office Prior to transmittal to the national office the payroll must be approved by an asses tant branch manager The group III office plays no role in this functional area LEVITZ FURNITURE CORP 349 dation to the group operations manager for the final decision Lesser rule infractions' may be dealt with entirely by branch supervisors who, depending on the circumstances, will give oral or written warnings and conduct corrective interviews Where the rule in- fraction alleged, or the facts of the case, are ambigu- ous, branch managers will contact the group opera- tions manager for advice Otherwise, the matter will be dealt with entirely by branch supervision, unless the possibility of discharge arises For, when an em- ployee commits a lesser infraction for the third time, he becomes subject to dismissal by the branch man- ager But before effectuating such a discharge, the branch must notify the group and secure approval for its contemplated action 8 When employees are discharged, it is the branch manager who conducts the termination interview It appears that employee grievances are mostly handled at the branch store level While employees may contact the group operations manager concern- ing problems not resolved locally, the Levitz employ- ee manual sets forth the Company's view that virtual- ly all problems can be worked out satisfactorily with an employee's immediate supervisor or his branch manager 9 When present at a branch, group officials will informally discuss problems with employees and, on occasion, a branch employee will telephone a group manager for the same purpose The Employer introduced an exhibit which indi- cates three permanent transfers between Memphis and the other group III branch stores during the I1- month period ending November 1975, some of whom may have been supervisors rather than unit employ- ees As to temporary employee interchange,10 the evi- dence shows six incidents in and out of Memphis during the same period and more than half of those involved supervisors or other managerial personnel 11 7 Lesser infractions include such conduct as absence without notification gambling, habitual tardiness, improper use of company property, abusive or threatening language to a supervisor , and discourtesy to customers 8 It appears from the record that , under some circumstances, group ap- proval may be pro forma The Orlando branch manager testified that if certain employees who reported late for work had not been sober, I would have made a phone call [to the group office ] and fired them on the spot ' See Levitz Furniture Company of the Eastern Region Inc , 223 NLRB 47 (1976) 10 Branch store warehousemen participate in the delivery of merchandise to other branches as part of an inventory control procedure Although they come into some contact with employees of the recipient branches , we do not regard their activities there as constituting temporary employee interchange "The exhibits setting forth the Employers interchange records do not specify the employment status of the individuals whose names appear there Considering all the above facts and circumstances, we find that the degree of employee interchange shown is not sufficient to render a single-branch unit inappropriate Allegheny Pepsi-Cola Bottling Compa- ny, 216 NLRB 616 (1975) 12 On the basis of the facts set forth above, particu- larly the substantial day-to-day authority exercised by local branch management in the areas most di- rectly affecting employees," we find that the pre- sumptive appropriateness of a single-store unit has not been rebutted and the unit sought herein by the Petitioner is appropraite Levitz Furniture Company of the Eastern Region, Inc, supra, Levitz Furniture Cor- poration, 223 NLRB 522 (1976) With respect to the unit placement of the logistical rebuyers employed at the Memphis store, the parties stipulated that they would be bound by the Board's Decision in the aforementioned Region 12 case (su- pra, fn 2) involving the Employer's Tampa and Or- lando, Florida, stores We find that in both cases the record evidence pertaining to logistical rebuyers was insufficient for a determination to be made as to their supervisory or managerial status Therefore, they will be permitted to vote subject to challenge Accordingly, and for the reasons stated above, we find that the following unit is appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act All regular full-time and part-time employees employed by the Employer at its Memphis, Ten- nessee, location, excluding all watchmen, guards, and supervisors as defined in the Act [Direction of Election and Excelsior footnote omit- ted from publication I on However, through questions asked on cross examination it became clear that a majority of them were managerial personnel and few , if any, were working at regular in-store nonsupervisory jobs during the period of their alleged interchange i See also Walgreen Co 198 NLRB 1138 (1972 ), where the Board, in granting a unit confined to a single -branch store employing 32 employees, found that the temporary transfer of 10 employees (during a 28-week peri- od^ showed that there was an absence of substantial interchange a In view of the real, although limited, authority of the branch managers with respect to the day-to-day operations of their stores and the working conditions of their employees , we do not regard the central authority exer- cised by the group general manager and the national Levitz organization as precluding a single store unit determination herein N L R B v Lerner Stores Corporation, 506 F 2d 706 (C A 9, 1974) Banco Credito y Ahorro Ponceno v N L R B 390 F 2d 110 (C A 1, 1968), cert denied 393 U S 832 (1968)