Buehler's Food Markets Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1977

232 N.L.R.B. 785 (N.L.R.B. 1977)

BUEHLER'S FOOD MARKETS INC.
Buehler's Food Markets, Incorporated and Retail
Clerks International Association, Local No. 698,
AFL-CIO, Petitioner. Case 8-RC-10794
September 30, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On May 6, 1977, the Regional Director for Region
8 issued a Decision and Order in the above-entitled
proceeding in which he found that Petitioner's
requested unit limited to employees in the Employ-
er's Dover, Ohio, store (excluding meat department
employees) was inappropriate. The Regional Direc-
tor dismissed the petition based on his finding that
the presumptive appropriateness of a single-store
unit had been rebutted in this case.' Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, Petitioner filed a timely request for
review of the Regional Director's decision on the
grounds, inter alia, that he made findings of fact
which were clearly erroneous and departed from
officially reported precedent. The Employer filed an
opposition.
The National Labor Relations Board, by telegraph-
ic order dated July 11, 1977, granted the request for
review. Thereafter, the Petitioner filed a brief on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including Petitioner's brief on review, with
respect to the issues under review, and makes the
following findings:
The Employer operates a chain of 8 stores and a
warehouse within the State of Ohio, and employs
approximately 905 employees. The Petitioner seeks a
unit of approximately 100 full-time and regular part-
time employees, excluding the 10 meat department
employees, at the Employer's Dover, Ohio, store. The
Employer contends that the only appropriate unit is
one encompassing the employees of its eight stores,
including the meat department, and the employees at
its warehouse.
The Employer's central headquarters is in Wooster,
Ohio, where it also operates a store and a warehouse.
I Petitioner alternatively stated that it would participate in an election
directed in a two-store unit consisting of the Dover and New Philadelphia
stores if the single location unit sought was found inappropriate.
2 While the department supervisors appears to allot the overtime for a
232 NLRB No. 123
Except for the store in Wooster, the distance between
the various stores and the Wooster headquarters is as
close as 8 miles and as far as 70 miles. Based at the
Wooster headquarters are the Employer's depart-
ment supervisors who devote between 80 to 90
percent of their time visiting each store from I to 2
times a week. During one-half day each week, when
they are located at Wooster, they purchase the goods
for their respective department for all the stores.
After the goods are purchased, they are centrally
priced and delivered by the Wooster headquarters.
The record discloses that the Employer's personnel
and administrative functions are centralized at its
Wooster headquarters. Thus, its central sales and
personnel accounting functions are situated at that
location, as are its advertising and maintenance
operations. All personnel policies, including the
determination of employment levels for its stores, the
allotment of overtime, 2 and the determination of
employee pay scales, are promulgated from the
headquarters location. In addition, employee pay-
checks are distributed from the headquarters loca-
tion. The evidence further establishes that job
classifications and benefits are uniform throughout
the stores and all the employees carry chainwide
seniority.
The local level store managers are responsible for
the day-to-day operations of the stores. They
schedule employees and have the authority to warn
or discipline employees short of discharge. They
interview prospective employees and can recommend
the hiring or firing of an employee. As to hiring, the
Employer testified that Wooster-based department
supervisors usually participate in the hiring inter-
views and all hiring must be approved by the
Employer. The testimony of several Dover employ-
ees regarding the circumstances surrounding their
hiring, however, disclosed that no Wooster-based
supervisor participated in the interview process.
These employees further testified that it was not
apparent to them whether approval beyond the store
manager was necessary prior to their employment. In
addition, store managers may recommend wage
increases.
Regarding interchange, the Employer testified and
the Regional Director found that there are substan-
tial permanent and temporary employee transfers
between the Dover store and the Employer's other
stores. During the hearing, the Employer presented
in evidence a list of interstore transfers showing that
of the 103 employees listed approximately 32
involved the Dover store over a period of 13 years. It
particular department. the determination of which employees would he
selected for overtime is apparently made at the store level Further. there is
record evidence that store department heads have exceeded the overtime
allotments in necessary situattlons
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appears that of these 32 transfers 22 occurred within
the most recent 2-year period. Of this number,
approximately nine related to the addition of a
bakery and flower shop at the Dover store. One
transfer resulted from the opening of a new store, one
purported transfer involved the meat department
which is excluded from the requested unit, infra, and
two more involved local store department heads, an
excluded category. The Employer also testified that
temporary transfers for a day or more, not included
in the above-discussed list, occur on a "regular"
basis. However, employee witnesses stated that they
were unfamiliar with temporary transfers which were
not related to the Dover store's expansion. In our
view, and contrary to the Regional Director's
findings, we are not persuaded that the record
establishes a substantial number of temporary and
permanent transfers affecting the Dover store.
In view of the foregoing and the record as a whole,
we find, contrary to the Regional Director, that the
presumption favoring the appropriateness of the
requested single-store unit has not been rebutted.
Pneumo Corporation, d/b/a P & C, 228 NLRB 1443
(1977). In so finding, we rely particularly on such
factors as the local store manager's degree of
autonomy reflected in the day-to-day direction of the
Dover employees; the lack of substantial interchange
or transfers of employees between the Dover store
and the other stores; and the geographic separation
of such stores. In addition, there is an absence of
bargaining history for any of these employees, and
no labor organization seeks to represent the employ-
ees on a broader basis. Accordingly, we find that a
unit limited to the employees of the Dover store is
appropriate.
In view of our unit finding there remains for
consideration the unit placement of the 10 meat
department employees and the eligibility of head
cashier Katie Seldenright, which the Regional Direc-
tor did not reach in his decision.
Petitioner seeks to exclude the 10 meat department
employees, whereas the Employer would include
them.
The record shows that the Dover meat department
is located in an area separated from other store areas
by a counter. The meat department manager is
responsible for the day-to-day operation of the
department and is responsible for enforcing the
Employer's work policies within it. The local meat
department manager makes recommendations to the
Wooster meat department supervisor as to products
to order for the meat department. With regard to
hiring in the meat department, the local meat
department manager accepts applications, interviews
applicants, and recommends hiring. There is no
evidence of interchange between meat department
employees and other employees of the Dover store.
However, I employee spends approximately 50
percent of her time as a cashier and the remaining
time as a wrapper in the meat department.
In view of the foregoing, and as Petitioner does not
seek to include the meat department in the unit, the
meat department employees are excluded. Mock
Road Super Duper, Inc., 156 NLRB 983, 986 (1966).
Katie Seldenright is the head cashier at the Dover
store. Petitioner would exclude her on the grounds
that she is a supervisor, while the Employer asserts
that she is a nonsupervisory employee.
She is one of four employees in the Dover service
center. The employees in the service center handle
customer complaints, check customers' credit, ap-
prove customers' checks, and fill in for cashiers
during breaks. Like nonsupervisory employees,
Seldenright punches a timeclock and is hourly paid.
In addition, she shares the same terms and condi-
tions of employment as other nonsupervisory em-
ployees. While there was some testimony by a cashier
and a carryout employee that Seldenright schedules
their work and directs them to some degree in their
duties, there is no evidence that she has the authority
to hire, fire, promote, reprimand, discipline, adjust
wages, or effectively recommend the same. We find
that Seldenright is a nonsupervisory employee and is
included in the unit.
We find, therefore, that the following unit is
appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees
employed by the Employer at its Dover, Ohio,
location, excluding meat department employees,
professional employees, guards, and supervisors
as defined by the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
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