Gimbels Midwest, Inc.

GIMBELS MIDWEST, INC. 891 Gimbels Midwest, Inc. and Retail Store Employees Union Local No. 444 as chartered by Retail Clerks International Association, AFL-CIO, Petitioner. Case 30-RC-2872 November 10, 1976 DECISION AND DIRECTION OF ELECTION BY MEMBERS JENKINS, PENELLO, 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 James E. Ford. Following the hearing and pursuant to Section 102.67 of the Board Rules and Regulations, Series 8, as amended, this case was transferred to the Board for decision. Thereafter, the Petitioner and the Em- ployer filed briefs.' 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 they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this proceeding, includ- ing the briefs filed by the parties, 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of 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 presently unrepresented regular and part-time selling and nonselling employees at the Employer's store lo- cated at 1030 West Mitchell Street, Milwaukee, Wis- consin, including employees of certain leased depart- ments. The Employer contends that only a chainwide unit including all of its eight Milwaukee stores is ap- propriate. The Employer is a Wisconsin corporation engaged in the operation of eight retail department stores in the Milwaukee area. All of the eight stores are locat- ed within a radius of about 20 miles and the Mitchell street store is 2 or 3 miles from the downtown store. The entire chain employs over 5,000 people; the Mit- chell Street store has approximately 300 employees. 1 As the record adequately presents the positions of the parties, the Employer's request for oral argument is hereby denied The downtown store maintains total control of the business and marketing operation. Purchasing, pric- ing, accounting, and advertising are all centralized. The budget is proposed, developed, and adopted cen- trally. The payroll records and processing are cen- tralized and wage rates and employee benefits are uniform throughout the chain. The timing of employ- ee evaluations and wage increases is centrally de- termined and seniority is on a companywide basis. Nevertheless, as we recognized in Haag Drug Com- pany, Incorporated,' centralized administrative con- trol is characteristic of the retail chain business and is not alone sufficient to rebut the presumptive appro- priateness of a single-store unit. In determining whether the presumption favoring the single-store unit has been rebutted, we also con- sider such factors as the geographic distance between the stores, the degree of employee interchange, and any prior bargaining history. On the basis of the entire record in this case, we are convinced that the Employer has not overcome the presumptive appropriateness of the single-store unit. The record reveals that substantial day-to-day au- thority is exercised by the local branch management. The employees perform their day-to-day work under the immediate supervision of the local store manager. Personnel policies and procedures are determined by the Employer's central management but are imple- mented locally. The hiring process, including taking of applications, interviewing, and decisionmaking, is handled almost exclusively at the local store level. Harold Schneider, the acting store manager at the Mitchell Street store, testified that generally he only consults the central office regarding hiring matters when the nature of the job to be filled requires that he have some guidelines or counseling; examples of such jobs would be security and maintenance and some sales positions. In addition to initial hiring the local management makes recommendations regard- ing applicants for supervisory positions. Individual store managers have substantial discre- tion in disciplining employees, including the authori- ty to issue corrective oral warnings and to discharge employees for admitted theft or other security viola- tions. Schneider testified that during his 8 years as assistant manager and acting manager at Mitchell Street he has terminated approximately 20 employees and in only some of those cases did he consult with central management. Burnett Danoko, the Employ- er's vice president of personnel, testified that he rare- ly disciplines employees directly and, although he may occasionally consult on a particular matter, he directs the local store management personnel to con- 2 169 NLRB 877 (1968) 226 NLRB No. 135 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fer with the employees and work out the problem. The supervisory personnel of the individual stores play a controlling role in the evaluation of employees and in wage reviews. Once a year the supervisors re- view the performance of each individual employee and send those evaluations to the personnel manager in the local store or to whichever local management officer is handling the personnel function. Then rec- ommendations are made based on centrally de- termined guidelines and these are forwarded to the downtown office for final approval. Interim merit re- views are sometimes recommended by the individual store managers. Other day-to-day personnel matters such as prob- lems relating to hours of work, sick leave, leaves of absence, vacation scheduling, and vacation pay cal- culation are handled on the local store level. Employ- ees are not advised of any right of appeal to the cen- tral office. In fact, if an employee should first bring a problem to the central office, he would be referred back to his local store. Local store management plays a significant role in handling transfer requests. Upon request by an em- ployee, they contact the other store and arrange an interview for the employee wishing to be transferred. The downtown store may or may not be contacted in this process. Employee interchange in this case is not, in our view, so extensive as to be destructive of the homo- geneity of the single-store units. The record reveals that, as in most department store chains, employees are temporarily assigned to other stores for special large volume sales and for special training. However, there is no evidence as to the number and frequency of such temporary transfers. The Employer contends that there are substantial amounts of temporary transfers in connection with its warehouse sale operation conducted at the Mit- chell Street store on Friday evenings and Saturdays. These sales are conducted with special merchandise on the fourth floor of the Mitchell Street store and the floor is not open the rest of the week. The floor is usually manned by three or four Mitchell Street em- ployees on a regular basis, but during occasional peak periods salespersons from other stores are as- signed to the sale. The warehousing sale is separate and distinct from the normal operations of the Mit- chell Street store and employee interaction is limited to those few Mitchell Street employees who actually work at the sale. Hence, the effects of this operation on the homogeneity and separate identity of the Mit- chell Street store are minimal. The only other forms of employee contact are longevity clubs, an annual golf tournament, a "one day tour" organization, and company publications. With respect to permanent transfers, the testimony given by the Employer's witnesses is conflicting and vague. On the other hand, employee witnesses testi- fied that the Mitchell Street store has a stable work force and that, except for the times that one store closed and two new ones opened, transfers in and out of Mitchell Street have been few. Employees are gen- erally not transferred unless they request it and job openings in other stores are not posted. There is no prior bargaining history for the em- ployees in either of the proposed units. Further, there is no indication that any of its other bargaining rela- tionships would be disturbed by finding that the peti- tioned-for employees constitute an appropriate unit. The tailors, carpenters, and electrical workers bar- gain with the employer on a chainwide basis. Each of the two warehouse service centers is covered by a separate collective-bargaining agreement. We note that the Petitioner's unit request specifically excludes all employees represented by these other labor orga- nizations. As mentioned previously, the Employer's depart- ment stores are located within a radius of about 20 miles from each other. The Employer contends that a single-store unit would create the potential for conflict with its affir- mative action duties by interfering with the free transfer of employees from store to store which it contends is necessary for employee progression in ac- cord with those duties. While separate units may create the possibility of subtle barriers to free trans- fer and thus possibly have an effect on affirmative action duties, the Employer herein has not shown that no other accommodations can be made between the rights of employees to organize collectively and the rights of employees to be free from employment discrimination. In light of the factors discussed above, it is clear that substantial autonomy exists in the individual stores and that local store management is integrally involved in those matters which affect employee working conditions. Therefore we find that a unit limited to the employees of the Mitchell Street store is appropriate as it constitutes a homogeneous, iden- tifiable, and distinct employee grouping and accords to employees the fullest freedom in exercising the rights guaranteed by the Act.' Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 3 Davison-Paxon Company, a Division of R H Macy & Co, Inc, 185 NLRB 21 (1970), The May Department Stores d/b/a The M O'Net! Compa- ny, 175 NLRB 514 (1969) GIMBELS MIDWEST, INC 893 All selling and nonselling employees of Gimbels Midwest, Inc. at its Mitchell Street location, 1030 West Mitchell Street, Milwaukee, Wiscon- sin, 53204, including regular full-time, regular part-time and regular extra employees of leased departments, excluding seasonal and casual em- ployees, confidential employees, office clerical employees, guards, professional employees, buy- ers, assistant buyers and supervisors as defined in the Act; employees of the following leased departments; Home Improvement Center and Edison Brothers Stores, Inc.; and employees presently represented by any other labor organi- zation. [Direction of Election and Excelsior footnote omit- ted from publication.]