Colorfax Laboratories, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1980

248 N.L.R.B. 439 (N.L.R.B. 1980)

COLORFAX LABORATORIES, INC. 439
Colorfax Laboratories, Inc. and Retail Store Em-
ployees Union, Local 400, United Food and
Commercial Workers, AFL-CIO, Petitioner.
Case 5-RC-11013
March 13, 1980
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBER
JENKINS AND PENELLO
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on November 1, 1979, before
Hearing Officer Zoe E. Mavridis. On November
27, 1979, the Regional Director for Region 5 issued
a Decision and Direction of Election in which he
found that the following was an appropriate unit
for collective bargaining within the meaning of
Section 9(c) of the Act: "All full-time and regular
part-time retail store employees employed by the
Employer in the Washington-Baltimore area, in-
cluding store managers, assistant managers, store
assistant personnel, store decor and assistant store
decor coordinator, training manager and customer
service manager, but excluding all other employ-
ees, guards and supervisors as defined in the Act."
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended, the Employer filed a timely request
for review of the Regional Director's decision. In
its request for review, the Employer contends that
the Regional Director made factual findings which
were clearly erroneous, and that he departed from
officially reported Board precedent.
By telegraphic order dated December 20, 1979,
as amended by telegraphic order dated December
27, 1979, the Board granted the Employer's request
for review "with respect to the supervisory status
of the individual store managers with employees
under them," denied the request for review in all
other respects, and ordered that the election be
stayed pending Decision on Review. On January 7,
1980, Petitioner filed a brief in support of the Re-
gional Director's decision.
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 considered the entire record in
this proceeding with respect to the issue under
review, including the briefs of the parties, and
makes the following findings:
The Employer is engaged in providing photo-
graphic processing, printing, and related services,
248 NLRB No. 68
primarily to professional photographers, through its
17 retail outlets in the Washington, D.C./Balti-
more, Maryland, metropolitan areas. It also main-
tains a film processing laboratory in Silver Spring,
Maryland, which is not directly involved in this
proceeding. The only issue presented in this case is
whether those store managers having employees
under them are supervisors within the meaning of
Section 2(11) of the Act. For the reasons stated
below we find, in agreement with the Employer,
that such managers are supervisors within the
meaning of the Act and should therefore be ex-
cluded from the petitioned-for unit.
The record reveals that the Employer's store
managers have sole discretion in setting their
store's hours of operation, conditioned only upon
meeting certain minimum hours prescribed by the
Employer. The store managers do not hire the em-
ployees assigned to their store. Rather, these "assis-
tants" are hired directly by the Employer's sales
manager and only thereafter are they assigned to a
particular store. Once so assigned, however, the
store manager provides the assistant with all requi-
site training, directs the assistant in his or her
duties, and sets the assistant's hours of work. The
store managers may, without prior approval and at
their own discretion, instruct assistants to work
overtime.
While the store managers do not appear to have
the authority to hire, fire, discipline, or reward as-
sistants working at their store, the record reveals
that the managers can and do effectively recom-
mend disciplinary actions and pay raises. The Em-
ployer's sales manager, who was the only witness
at the hearing, testified that on every occasion he
could remember that a store manager recommend-
ed an assistant for a pay increase, that recommen-
dation was followed. He further testified that store
managers' disciplinary recommendations are fol-
lowed "virtually all the time."
Based on the foregoing evidence, we find and
conclude that the Employer's store managers who
have employees under them are statutory supervi-
sors. Section 2(11) of the Act provides that a su-
pervisor is any individual who has authority on
behalf of his employer "to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effec-
tively to recommend such action, if in connection
with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but re-
quires the use of independent judgment." The facts
recited above establish that the Employer's store
managers in issue were clothed with and exercised
such independent authority. Accordingly. we shall
COLORFAX LABORATORIES INC.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclude them from the petitioned-for unit and shall
direct an election in the following unit which we
find to be appropriate:
All full-time and regular part-time retail store
employees employed by the Employer in the
Washington-Baltimore area, including store
managers without employees under them, as-
sistant store managers, store assistant person-
nel, store decor and assistant store decor coor-
dinator, training manager and customer service
manager, but excluding all other employees,
guards and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]