Emporium-Capwell

CARTER HAWLEY HALE STORES 621 Emporium-Capwell, a Division of Carter Hawley Hale Stores Inc.; Seligman & Latz, Inc.; and Kree Institute of Electrology, Inc. and Depart- ment Store Employees Union Local 1100, affili- ated with United Food and Commercial Work- ers International Union, AFL-CIO-CLC, Peti- tioner. Case 207RC-15594 14 DeCember 1984 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 27 September 1983 the Acting Regional Di- rector for Region 20 issued his Decision and Direc- tion of Election finding appropriate two single- store units consisting of beauty salon employees of the Employers at stores located in downtown San Francisco, California, and in the Stonestown shop- ping center in San Francisco, California. The Em- ployers filed timely requests for review and sup- porting briefs contending, among other things, that the only appropriate unit would . include beauty salon employees in 21 Emporium-Capwell stores located in the San Francisco Bay area. The Peti- tioner filed a statement in opposition. . • By telegraphic order dated 28 October 1983, the Board granted the Employers' requet for review with respect to the appropriateness of the two single-store units.' That same date, the Regional Office conducted - elections in the two single-store units and impounded the ballots. The National Labor Relations Board has delegat- ed its authority in thii proceeding to a three- member panel. The Board has ,reviewed the record in light of the requests for review and supporting briefs and has decided to affirm the Acting Regional Direc- tor's findings and conclusions as modified. EmporiuM-Capwell operates 21 retail stores in the San Francisco Bay area, where it provides beauty 'salon services in conjunction with its lessees Seligman & Latz and Kree - InstitUte of Electrology. The Union petitioned to repre'sent in a single unit the beauty salon employees at Emporium-Capwell's stores in downtown San Francisco and in the Ston- estown shopping center in San Francisco, Califor- The requests for review were denied with respect to the Acting Re- gional Director's findings (1) that Emporium-Capwell, Seligman & Latz,• and Kree Institute of Electrology are Joint employers of the beauty salon employees here involved, and (2) that the Union is not disqualified from representing these employees because it admits to membership owner-op- erators of beauty shops who are in CompetitiOn with the Employers and who may be elected to the Union's executive board On this latter point, the Acting Regional Director found that the record does not establish that any of the owner-operators with whom the Union has collective-bar- gaining agreements are' on the Union's executive board or have any role in determining the Union's bargaining strategy ma. Alternatively, the Uniori indicated that it would represent the beauty salon employees in two separate single-store units. The Employers contend- ed that the only appropriate unit would include the beauty .salon employees at all 21 Emporium-Cap- well stores in the San Francisco Bay area. As noted, the .Acting Regional :Director found appro- priate the two single-store units alternatively re- quested by the Union, and we affirm. There are a total of about 190 beauty salon em- ployees in the 21 store unit sought by the Employ- ers. The greatest distance between any two of these stores is about 170 miles. Downtown San Francisco and Stonestown, the two closest stores, are located only about 8 miles apart. 2 Nonsupervi- sory employees in the beauty salons at the down- town San Francisco store - total about 30 (including employees in the Soul Scissors salon) and nonsu- pervisory employees in the Stonestown salon total about 20. There 'is no history of collective bargaining among the Employers' beauty salon employees in the units here involved. But the Union has long had collective-bargaining agreements with Empori- um-Capwell covering retail employees in the downtown San Francisco and Stonestown stores. The Employers proffered evidence of some transfers among beauty salon employees in the 21 stores. However, there is no evidence of temporary transfers among nonsupervisory employees, and the only . reason shown in the record for permanent 'transfers of nonsupervisory employees was the per- sonal convenience of the employees involved.3 Management does not encourage transfers because employees are eXpected to establish their own cli- entele and the salons , would lose business if em- ployees shifted frequently from salon to salon. The Acting Regional Director found that the record disclosed about 35 instances where employees at one of the Employers' beauty . salons transferred to another over a period of almost 20 years. But in many instances ,the record merely shows that em- ployees who worked in one of the Employers' salons had also worked in one or more other salons. 4 The record also shows that at the time of 2 The average distance between the downtown San Francisco and Stonestown stores and the other stores is 35 or 40 miles, and the greatest distance between the downtown San Francisco/Stonestown stores and any of the other stores is a little over 100 miles 3 The Employers do not contest the Acting Regional Director's find- ing that "[w]ith the exception of supervisory and managerial personnel, the redord discloses no Instance of a temporary assignment or transfer of a'n einployee" (Decision and Direction of Election, p 6) Nor do the Em- ployers contest the Acting Regional Director's finding that "[w]here rea- sons [for transfers] were given the record reflects that the transfers were fof the personal convenience of the employee involved" Id • 4 The Employers' evidence on this point consisted of the testimony of Seligman & Latz Account Executive Barry Kinder who named about 40 Continued 273 NLRB No. 89 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing 3_ ,of approximately 190 employees in the 21 salons worked part time in .2 , or more of the salons. 5 • Salon employees in all 21 stores are -"subject to the same, general work _rules and employment prac- tices and are paid . aceording to a uniform wage scale, but some emOloyment benefits differ. Salon employees at Capwell stores receive vacation bene- fits based on average pay; thoie • at Emporium stores receive benefits based on base pay. Employ- ees at the downtown San Francisco and Stones- town salons pay less for ben'efit' coverage than do employees at other salOns. • Account Executive Barry Kinder testified that the lower benefit cost to these employee's is probably ielated-te the Union's collective-bargaining agreement covering retail em- ployees at the downtown San Francisco and Ston- estown salons. • • ' All salons in the 21 stores are under the central management of Account Executive Kinder. 6 He , makes final decisions , on whether employees are hired, fired, transferred, or promoted. He also ap- proves wage increases and vacation schedules and may consult With local salon managers on , vacation schedules or scheduling changes. Kinder inay a salon, once a month or once every other ' niOnth.7 of the Employers' beauty salon employees, past and present, who had also worked at done or more other beauty salons Kinder acknowledged that in some instances there may have been gaps between the periods of employment at the different salons, and he included in the employment histones work in beauty salons in stores outside the 21-store unit . sought by the Employers In many instances, Kinder did not specify the times when the employees worked in different salons, but he testified, that one of the instances occurred in'the 1960s and another about 12 years before the hearing Fewer than 10 of the cited employment histories involved nonsupervisory employees who worked in the downtown San Francisco or Stonestown salons and in another salon within the 21-store unit sought by the Employers Some of these employees were no longer employed at downtown San Francisco or Stonestown, others have had uninterrupted service at downtown San Francisco or Stonestown since the 1960s or early 1970s Emporium-Capwell _contests the Acting Regional Director's finding that 15 of the transferees were supervisors, urging that no more than 13 of the transferees were supervisors and that not all were permanent su- pervisors We accept the truth of this assertion, but do not view it as al- tenng the overall picture of insubstantial interchange of unit employees 5 One of these three employees had recently 'Moved to San Francisco and was apparently attempting to build up-a clientele there before termi- nating work in his old salon Another employee supervised electrolysis in salons providing that service • The third did not work in the dovintown San Francisco or Stonestown salons ' A fourth employee is erroneously listed in the Acting Regional Director's decision as currently working a split week in three salons That employee was a salon manager at -the time of the hearing She had previously worked as a cosmetician, divid- ing her time among three salons, but had never worked at downtown San Francisco or Stimestown 6 Kinder also has responsibility for nine other salons at Liberty House stores But he testified that his involvement in those salons is not as de- tailed as his involvement in the 23 salons (including the 2 Soul Scissors facilities) at the 21 Emporium-Capwell stores Kinder testified that he visits the Stonestown salon at least once a month and that his visit might be brief or might last half a day An em- ployee at the Stonestown salon testified that he saw Kinder at the store maybe every other month and that Kinder or his assistant occasionally watches the salon function He or his assistant is in daily telephone- contact with almost all the-salons. Each , salon is supervised on a daily basis by the cal. manager. 5 Salon managers' may recruit and intervieW -applicants for employmenf:and make rec- ommendations regarding hiring. After' Kinder has authorized the hiring of an eniployee for a given number of hours a weelc,-the salon manager sched- ules the hours the employee will work. Salon man- agers are 'also responsible for training and develop- ing new staff. They are , required to keep accurate personnel records and io evaluate' employees monthly. Salon managers counsel 'employees on their work performance and may sign reprimands called counseling memos. According to the manag- er's manual, an employee 'may be discharged after three counseling memos. But, as noted, Kinder has authority to make the final decision-to discharge. " Employees at each salon-have basically the same work rules and employment practices. Kinder testi- fied ' that salon managers are -expected to see that °employees live up t 6 rules, but that some man- agers are tougher in policing' therules than others.5 Salon managers deal with employee conflicts within the salon and normally* handle first-step em- ployee grievances. They authorize ,employees time off for sick leave and may approire scheduling changes. Additional responsibilities listed in the sample job description for salon managers in the manager'S' - manual include "[m]ak[ing] decisions!- recommendations on personnel changes," establish- ing rapport with the manager of ,the store where the salon is located, attending 'store management meetings, and ensuring that the salon meets its as- signed sales goals. With Kinder's api)roval, salon managers may offer specials during slow time in their salons and the timing of these gpecials is largely uto the salon manager. Despite the centralized administration of the Em- ployer's beauty salons, we find that'the:single-store units at downtown' San Francisco arid Stonestown, California, are appropriate. See NLRB. v.' Lerner .Stores, 506 F.2d 706, .708 (9th Cir.. 1974); Spring City Knitting Co. V. NLRB,: 647 r.2d 1011, 1014 ,(9th Cir. 1981); Renzetti's Market, .238 ISTLIO 174, 175 (1978)._ In our view, the local salon manager exercises a sufficient degree of auionomy in day-to- day supervision of the salon employees to support the single-store units. See B. 'Siegel Co. v. NLRB, In four salons (including the main San Francisco and Stonestown salons), the manager performs only supervisory duties In , other salons, the manager is a working manager who also performs hair care services for customers 9 The record shows, for example, that one salon manager told employ- ees they need not wear ties despite published dress guidelines thaLat the tithe required men to wear ties ' CARTER HAWLEY HALE STORES 623 670 F.2d 64, 65 (6th Cir. 1982); Renzetti'i Market, supra, 238 NLRB at '175-176. The Employers have not shown that the day-to-day supervision of unit employees is "done solely by central office offi- cials." NLRB v. Lerner Stores, supra, 506 F.2d at 708. On the contrary, day-to-day supervision is necessarily performed, in large measure, by the local salon managers. Nor have the Employers shown a sufficient degree of employee interchange involving the downtown San Francisco/- Stonestown salons so as to destroy their status as "identifiable units." Id. Rather, there were no tem- porary transfers among unit employees and such permanent transfers as occurred within the unit were not shown to be for any reason other than the personal convenience of the employees in- volved. See Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570, 578-579 (1st Cir. 1983); NLRB v. Pan American Petroleum Corp., 444 F.2d 328, 578-579 (10th Cir. 1971), cert. denied 404 U.S. 941 (1971); Buehler's Food Markets, 232 NLRB 785, 786 (1977). 1° The significant distances among the stores, although not conclusive, provide further support for single-store units. See Victoria Station v. NLRB, 586 F.2d 672, 675 (9th Cir. 1978); Buehler's Food Markets, supra, 232 NLRB at 786. Finally, there is an absence of any bargaining history on a broader basis or any request for representation on a broader basis. See NLRB v. Lerner Stores Corp., supra, 506 F.2d at 708; Renzetti's Market, supra, 238 NLRB at 176. • Cases cited by the Employer where single-facili- ty units were rejected are factually distinguish- able." For example, in Super X Drugs of Illinois, 233 NLRB 1114 (1977), the 5 stores were much closer than the 21 stores here involved, the store managers could not reprimand employees without prior approval of the district manager, the latter spent more time in the individual Stores than does 1 ° Emporium-Capwell expresses concern that if employees in the downtown San Francisco and Stonestown salons are permitted to orga- nize, the employees could no longer work part time in two or more salons because continuation of that practice would pose "some virtually unresolvable issues concerning Union jurisdiction over individual .em- ployees " (Br 16) This concern seems unwarranted since out of the ap- proximately 50 salon employees at downtown San Francisco and Stones- town only I employee was performing nonsupervisory work in another salon at the time of the heanng and he was apparently attempting to build up a sufficient clientele in San Francisco so that he could stop work at his old location In any event, no serious issue of union jurisdiction would be presented by employees' continuing to work part time in two or more salons Regular part-time or dual-function employees would be in the unit and covered by any collective-bargaining agreement only when performing a substantial amount of unit work See Ocala Star Banner, 97 NLRB 384, 385-386 (1951), Berea Publishing Co, 140 NLRB 516, 519 (1963), Marine Petroleum Go, 238 NLRB 931, 932 (1978) They would be out of the unit when performing nonunit work 11 Unit determinations, by their nature, are highly fact specific See NLRB WKRG TV, 470 F 2d 1302, 1311 (5th Or 1973) ("determination of a unit's appropriateness will invariably involve factual situations pecu- liar to the employees and unit at issue") the account executive:here, and there was signifi- cant temporary employee interchange. In Petrie ,Stores ,Corp., 2'66 NLRB 75 .(1983), the union had petitioned for 10 single-store units and had excluded other stores of the employer's that were located in the same shopping malls with the petitioned-for stores. The closeness of these stores was reflected in a substantial interchange of em- ployees on a temporary basis, local managers were not involved in scheduling, branch supervisors vis- ited each store at least once every 2 weeks, and the employees had companywide seniority.' 2 In short, the employers in the cited cases made a persuasive rebuttal to the presumptive appropriate- ness of a single-facility unit that was not made by the Employers here. Accordingly, on the facts presented here, we find the following units appropriate for collective bargaining: All receptionists, electrologists, cosmetologists, manicurists and cosmeticians employed by the Employers at the Emporium-Capwell facility located in downtown San Francisco, Califor- nia, including the Soul Scissors department, excluding all other employees, guards and su- pervisors as defined in the Act. All receptionists, electrologists, cosmetologists, manicurists, and cosmeticians employed by the Employers at the Emporium-Capwell facility located in the Stonestown Shopping Center, San Francisco, California; excluding all other employees, guards and supervisors as defined in the Act. Accordingly, we shall remand the case to the Regional Director with directions to open and count the impounded ballots, to issue tallys of bal- lots, and to take further appropriate action. " Similarly, in White Castle System, 264 NLRB 267 (1982), district su- pervisors made daily visits to each restaurant to check on the employees' performance, there were hundreds of temporary transfers in a year, and there was a history of collective bargaining in a Detroit-area unit The district supervisor in Kirhn's Inc. 227 NLRB 1220 (1977), visited each of the six stores on a weekly or biweekly basis, handling any problems that might occur in day-to-day operations, there were temporary and perma- nent transfers to meet management's needs, hourly scheduling of employ- ees was performed by the home office, and two of the six stores were located only 100 yards apart in the same shopping mall In ITT Continen- tal Baking Cc, 231 NLRB 326 (1977), the local store managers were so lacking in authority that they were found not to be statutory supervisors and in Second Federal Savings, 266 NLRB 204 (1983), the local branch offices did not have managers Finally, in NLRB v Chicago Health & Tennis Clubs, 567 F 2d 331, 337-338 (7th Cm 1977), cert denied 437 U S 904 (1978), the court rejected the Board's approval of a single-store unit on the grounds that the union had previously sought representation in the Chicago metropolitan area unit urged by the employer, there were tem- porary transfers on almost a daily basis, as well as significant permanent transfers, and the store managers lacked authority to perform many func- tions, including authority to handle gnevances or post weekly work schedules without prior approval by the district manager 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is ordered that this case be remanded to the Regional Director for Region 20 to open and count the ballots cast in the elections conducted in this proceeding on 28 October 1983, to issue tally of ballots thereon, and to take further appropriate action.