Dean & Deluca New York, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 2003

338 N.L.R.B. 1046 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
Dean & Deluca New York, Inc. and District 6,
IUISTHE, Petitioner and United Food & Com-
mercial Workers, Locals 1500 & 342-50, AFL–
CIO–CLC, Intervenor. Case 2–RC–22427
April 28, 2003
DECISION, DIRECTION, AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held September 7, 2001, and Administra-
tive Law Judge Raymond P. Green’s decision, which is
attached, recommending disposition of them.1 The tally
of ballots shows 1 for the Petitioner, 57 for the Interve-
nor, 53 against the participating labor organizations, and
32 challenged ballots, a sufficient number to affect the
results.2
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the judge’s recom-
mendations only to the extent consistent with this Deci-
sion, Direction, and Order.
The Employer has excepted, inter alia, to the judge’s
findings that Michael Scibilia and Mustafizer Kahn are
statutory supervisors and that therefore the Intervenor’s
challenges to their ballots should be sustained.3 For the
reasons set out below, we find merit in these exceptions.

1 On September 13, 2001, the Intervenor filed timely objections to
the election. The Region is holding those objections in abeyance pend-
ing resolution of the challenges at issue here.
2 Contrary to the judge’s finding, the parties did not enter into a
stipulation at the hearing as to the eligibility status of Lori Nelson.
Indeed, the judge subsequently overruled the Intervenor’s challenge to
Nelson’s ballot, a ruling to which the Intervenor did not except, and it
is on this basis that we adopt the judge’s recommendation to open and
count Nelson’s ballot.
3 The Employer has also excepted to the judge’s recommendations to
sustain the challenges to the ballots of the individuals who work in the
sushi and flower departments located on the Employer’s premises. The
Employer contends that the judge erred by finding that the individuals
who work in the sushi and flower departments are solely the employees
of the companies which contracted with the Employer to operate those
departments and by excluding these individuals from the bargaining
unit of the Employer’s employees on that basis. The Employer con-
tends that it (the Employer) and the companies which operate, respec-
tively, the sushi and flower departments are the joint employers of the
individuals who work in these departments and that these individuals
should therefore be included in the bargaining unit and the challenges
to their ballots overruled. We find the Employer’s exceptions without
merit. We agree with the judge, for the reasons stated by him, that the
companies which operate the sushi and flower departments are solely
the employers of the individuals who work in those departments and we
therefore adopt his recommendation to sustain the Intervenor’s chal-
lenges to the ballots of Soe Hzun, Myint Aung, Oo Maung Than, and
Maung Cho (sushi department), and to the ballots of Kahn Mohammed,
Mohammed Lasker, and Mohammed Ali Hossain (flower department).
As to Scibilia, the Intervenor challenged his ballot on
the grounds that he was a statutory supervisor and/or a
buyer, a classification specifically excluded from the
bargaining unit.4 In finding that Scibilia was a statutory
supervisor, the judge relied on the testimony of the Inter-
venor’s witness, Xavier Lopez, an individual who had
been employed in the store’s gift department for about 1
year before being laid off on September 20, 2001. Lopez
testified that Scibilia acted as the store manager on Sat-
urdays, and that on those days, Scibilia was the person to
go to if problems arose. Lopez further testified that he
had heard from Joseph Reda, the store’s assistant general
manager, that Scibilia had fired employee Jude Wa-
terston.
While conceding that “there [was] not that much to go
on with respect to Scibilia,” the judge nevertheless found
that the Intervenor had made out “a prima facie showing”
that Scibilia exercised “some of the powers listed i[n]
Section 2(11) of the Act,[5] including the power to dis-
charge employees.”6 In reaching this conclusion, the
judge apparently also relied on a personnel review that
Scibilia had filled out for Waterston (Intervenor Exh. 11)
and on the fact that Scibilia attended periodically held
management meetings. Finding “that the Employer ha[d]
not adequately overcome this prima facie showing,”7 the
judge recommended that the challenge to Scibilia’s ballot
be sustained.
As to Kahn, the Intervenor challenged his ballot on the
ground that he was the manager of the maintenance de-
partment and a statutory supervisor. In finding that Kahn
was a statutory supervisor, the judge again relied on Lo-
pez’ testimony. Lopez testified that Kahn was in charge
of about 8 to 10 maintenance employees, that Kahn made
out the schedule for the maintenance employees, and that
4 The Employer, on the other hand, contended that Scibilia was a
merchandiser, a category specifically included in the bargaining unit.
At p. 8 of its Brief in Opposition to the Employer’s Exceptions, the
Intervenor concedes, in effect, that Scibilia is a merchandiser.
5 Sec. 2(11) of the Act states:
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their griev-
ances, or effectively 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 requires the use of inde-
pendent judgment.
6 Judge’s decision, “Supervisors” sec., par. 12 (fn. omitted).
7 Id. The Employer’s witness, Emil Grosso, the Employer’s vice
president of retail operations, testified that on Saturdays, Scibilia’s
primary responsibility was customer service and that Scibilia had no
responsibility for the operation of the store on Saturdays or on any
other days. Grosso further testified that he had heard that Waterston
had had an argument with Scibilia, but he denied that Scibilia had fired
her.
338 NLRB No. 159
DEAN & DELUCA NEW YORK, INC. 1047
on 5 nights a week he closed the store and set the alarm
code. “More importantly,” according to the judge, Lopez
testified that he once witnessed Kahn scream at a main-
tenance man and fire him, and, “[l]ess persuasively,” that
he had heard that Kahn had fired a woman who worked
in the maintenance department. Finding that the Interve-
nor had established “a prima facie showing” that Kahn
was a statutory supervisor,8 and that the Employer had
not “adequately overcome the Intervenor’s prima facie
showing,”9 the judge recommended that the challenge to
Kahn’s ballot be sustained.
As an initial matter, we find that the judge applied the
wrong evidentiary standard in finding that the Intervenor
satisfied its burden of establishing that Scibilia and Kahn
were statutory supervisors. That is, by analyzing the
supervisory issue in terms of the Intervenor’s having
established a prima facie case that Scibilia and Kahn
were statutory supervisors, and then determining that the
Employer had failed to rebut that prima facie case, the
judge incorrectly used a burden-shifting evidentiary
standard in reaching his conclusion that Scibilia and
Kahn were statutory supervisors. The Board does not
apply a burden-shifting standard in its analysis of
whether employees are statutory supervisors under the
Act. Rather, “[i]t is well settled that the burden of prov-
ing supervisory status rests on the party asserting that
such status exists.” Freeman Decorating Co., 330
NLRB 1143, 1143 (2000), citing Ohio Masonic Home,
295 NLRB 390, 393 (1989). The party asserting such
status must establish it by a preponderance of the evi-
dence. Bethany Medical Center, 328 NLRB 1094, 1103
(1999); Volt Information Sciences, 274 NLRB 308, 330
(1985).
Thus, as relevant here, the burden is on the Intervenor
to establish that Scibilia and Kahn have the authority to
exercise at least one of the powers enumerated in Section
2(11) of the Act and that the use of that authority in-
volves a degree of discretion that rises to the level of
“supervisory independent judgment.” See Elmhurst Ex-
tended Care Facilities, 329 NLRB 535, 536 fn. 8 (1999).
Applying the correct evidentiary standard, and even
assuming that Lopez’ testimony is credited, we find that
the Intervenor has not met its burden of establishing that
Scibilia and Kahn are statutory supervisors. As to Sci-
bilia, the judge found, in effect, that Scibilia had dis-

8 Id. at “Supervisors” sec., par. 17.
9 Id. The Employer’s witness, Grosso, testified that Kahn was a util-
ity maintenance person who performed minor repairs. Grosso further
testified that at the time of the election Kahn did not supervise anyone
and that, to his knowledge, Kahn did not prepare schedules for other
maintenance employees. Grosso also testified that to his knowledge
Kahn had never fired anyone.
charged employee Jude Waterston, and it was primarily
on this basis that he concluded that Scibilia’s power to
discharge employees evidenced his supervisory status.
In so finding, the judge erred.
Initially, we observe that the election was held on Sep-
tember 7, 2001, and that Lopez testified that the “inci-
dent” with Jude Waterston “probably did happen after
the election.” (Tr. 63.) Since, “[a]s a general rule, the
Board does not determine voter eligibility based on evi-
dence of events that occurred after the election,”10 the
judge should not have relied on Lopez’ testimony to find
that Scibilia had the authority to discharge employees.
Further, even if the Waterston “incident” had occurred
prior to the election, Lopez’ bare testimony to the effect
that he had heard that Scibilia had fired Waterston fails
to establish that Scibilia’s action involved the use of in-
dependent judgment as required under Section 2(11).
For it is unclear from the record whether Scibilia fired
Waterston on his own authority, or whether he fired her
at the direction of management. In the latter circum-
stance, Scibilia’s termination of Waterston would not
evidence the use of independent judgment.11 Similarly,
the fact that Scibilia may have been in charge of the store
on Saturdays, or that he may have filled out a personnel
review for Waterston,12 does not establish that he exer-
cised supervisory authority in the absence of any evi-
dence that Scibilia’s actions involved the use of “super-
visory independent judgment.”13 Finally, although Sci-
10 Freeman Decorating Co., 330 NLRB at 1144, citing Georgia-
Pacific Corp., 201 NLRB 831, 832 (1973).
11 If the decision to discharge Waterston was made by someone other
than Scibilia, and Scibilia then terminated Waterston because he was
told to do so, Scibilia’s termination of Waterston would not establish
that he was a statutory supervisor. See Wilson Tree Co., 312 NLRB
883, 885 (1993) (crew leader Lester found not to be statutory supervi-
sor where, in discharging employee Arnett, he informed Arnett, “I was
told to let you go.”).
12 The Employer contends that although the Intervenor introduced at
the hearing a performance appraisal prepared by Scibilia (Intervenor
Exh. 11), the appraisal is for an unidentified employee. We find merit
in the Employer’s contention to the following extent. Although Inter-
venor Exh. 11 begins at p. 2 of the performance appraisal and therefore
does not include the name of the employee being reviewed, the fax
information at the top of each page of Intervenor Exh. 11 includes the
words “Janet Waterston.” From this description of the document, we
infer that Scibilia filled out Intervenor Exh. 11 for an employee identi-
fied as “Janet Waterston.” However, in the absence of record evidence
that would establish that “Janet Waterston” and “Jude Waterston” are
the same person, we cannot find that Intervenor Exh. 11 refers to Jude
Waterston and we therefore do not rely on this document in determin-
ing Scibilia’s supervisory status. For the reason set out at fn. 13 below,
however, even if we were to assume that Scibilia did fill out Intervenor
Exh. 11 for Jude Waterston, this would not, by itself, establish that
Scibilia was a statutory supervisor.
13 The mere fact that Scibilia was in charge of the store on Saturdays
would not establish that Scibilia exercised supervisory authority during
that time. See Billows Electric Supply, 311 NLRB 878, 879 (1993)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
bilia may have attended certain management meetings,
such attendance does not establish that Scibilia is a statu-
tory supervisor.14 In sum, applying the proper eviden-
tiary standard here, and construing, as we must, any lack
of evidence against the Intervenor, we find that the Inter-
venor has failed to establish that Scibilia is a statutory
supervisor. We therefore overrule the Intervenor’s chal-
lenge to Scibilia’s ballot and shall direct that it be opened
and counted.
We reach the same result as to Kahn for similar rea-
sons. Even assuming that Lopez’ testimony is credited,
that testimony does not establish that Kahn exercised any
of the powers enumerated in Section 2(11) of the Act
with the requisite independent judgment necessary to
establish supervisory status. Again, Lopez’ testimony,
this time to the effect that Kahn was in charge of the
maintenance employees, that he made out their sched-
ules, and that he closed the store 5 nights a week, does
not establish that Kahn used “supervisory independent
judgment” in carrying out these duties.15 Lopez’ further
testimony to the effect that he had seen Kahn fire an em-
ployee, and that he had heard that Kahn had fired another
employee, lacks any evidentiary basis from which to find
that Kahn exercised independent judgment in firing the
employee(s) in question.16 Since, as explained above,
any lack of specific evidence that would support a find-
ing of supervisory status must be construed against the
Intervenor, as the party asserting supervisory status, we
find that the Intervenor has not established that Kahn is a

(fact that individual was in charge of operations on alternating Satur-
days not sufficient to establish supervisory status since no evidence that
individual “exercised authority requiring independent judgment as
required by Sec. 2(11) of the Act”). Further, even assuming that Sci-
bilia did fill out Intervenor Exh. 11 for Jude Waterston, this fact, stand-
ing alone, would not provide evidence of supervisory status. See
Hausner Hard-Chrome of KY, Inc., 326 NLRB 426, 427 (1998) (Board
declined to find supervisory status where no evidence that evaluations
filled out by alleged supervisors directly affected the other employees’
job status.)
14 See, e.g., McClatchy Newspapers, 307 NLRB 773, 779 (1992)
(secondary criteria such as attendance at management meetings “do not
establish supervisory status by themselves”).
15 An individual’s direction and scheduling of employees does not
necessarily establish that the individual is a statutory supervisor. See
Jordan Marsh Stores Corp., 317 NLRB 460, 467 (1995) (Stock Super-
visor Stone, who was in charge of the soft goods end of the receiving
department, and whose duties included directing, assigning, and mak-
ing up the work schedules of employees working there, found not to be
statutory supervisor in the absence of evidence that she possessed any
of the “statutory attributes of supervisory authority”). As to Kahn’s
closing the store 5 nights a week, such responsibility, while it may be
evidence of trustworthiness, does not evidence supervisory status. See
Hexacomb Corp., 313 NLRB 983, 984 (1994) (foremen/assistant su-
pervisors, who, inter alia, had access to employer’s keys and codes,
found not to be statutory supervisors).
16 See fn. 11, supra.
statutory supervisor. We therefore overrule the challenge
to his ballot and shall direct that his ballot be opened and
counted.
DIRECTION
It is directed that the Regional Director for Region 2
shall, within 14 days from the date of this Decision, Di-
rection, and Order, open and count the ballots of Byron
Andres, Luis Fraticelli, Herbert Harris, Stanley Hatzakis,
Terrance Huggins, Mustafizer Kahn, Vincent Kirsch,
Michelle Lambert, Anna Lombardi, Renee Maynard,
Lori Nelson, Jessica Randall, Ava Riccardi, Charles Rob-
inson, Cindy Sato, Michael Scibilia, Ghislaine Taho,
Mathew Woran, and Jacques Zrimba, and thereafter pre-
pare and caused to be served on the parties a revised tally
of ballots. In the event that the revised tally of ballots
shows that the Intervenor has received a majority of the
valid votes cast, the Regional Director is directed to cer-
tify the Intervenor as the exclusive collective-bargaining
representative of the unit employees. In the event that
the revised tally of ballots shows that the Intervenor has
not received a majority of the valid votes cast, the Re-
gional Director is directed to take further appropriate
action not inconsistent with this Decision.
ORDER
It is ordered that this matter is referred to the Regional
Director for Region 2 for further processing.

Craig S. Schwartz, Esq., for the Employer.
Nephty Cruz, Vice President, for the Petitioner.
Patricia McConnell, Esq., for the Intervenor.
DECISION ON CHALLENGES
RAYMOND P. GREEN, Administrative Law Judge. I heard this
matter on December 3 and 4, 2001. Based on the evidence as a
whole, including my observation of the demeanor of the wit-
nesses and after consideration of the briefs filed by the Em-
ployer and the Intervenor, I make the following findings and
conclusions.
The Petition in this matter was filed on July 20, 2001. Pur-
suant to a Stipulated Election Agreement, entered into and ap-
proved on August 7, 2001, a secret-ballot election was con-
ducted on September 7, 2001. The Election Agreement con-
tains the following stipulation regarding the voting unit.

Included: All full-time and regular part-time employees, in-
cluding catering department employees, catering sales em-
ployees, housewares department employees, gift/services de-
partment employees, candy-coffee-fruits and nuts department
employees, packaged food employees, produce department
employees, cheese department employees, prepared food de-
partment employees, commissary department employees,
sous chefs, chefs, fresh meat department employees, fresh fish
department employees, charcuterie department employees,
bread department employees, pastry department employees,
front-end department employees, cashiers, assistant head
DEAN & DELUCA NEW YORK, INC. 1049
cashiers, head cashiers, janitorial department employees, re-
ceiving department employees, maintenance department em-
ployees, merchandisers, graphic artists, department managers
in the housewares, fresh meat, fresh fish, charcuterie, bread,
pastry and espresso bar departments and espresso bar em-
ployees employed by the Employer at its facilities located at
560 Broadway and 575 Broadway, New York, New York.

Excluded: All other employees, including individuals not em-
ployed by the Employer, the General Manager, Assistant
General Managers, Executive Chef, Director of Catering,
Front End Manager, Candy-Coffee-Fruits and Nuts Depart-
ment Manager, Cheese Manager, Produce Manager, Prepared
Foods Managers, Packaged Foods Manager, the Buyer, Assis-
tant Buyers and guards, professional employees and supervi-
sors as defined by the Act.

In addition, the parties specifically agreed to disagree regard-
ing the sushi and flower departments. In this respect, the Em-
ployer at the time of executing the Stipulated Election Agree-
ment, took the position that employees in those two depart-
ments, who also were on the payroll of two other companies,
were jointly employed by Dean & Deluca and therefore eligible
to vote. The Unions took the contrary position and maintained
that they are not eligible voters.
The tally of ballots showed that there was 1 vote cast for the
Petitioner (District 6), 57 votes cast for the Intervenor, and 53
votes cast against the participating labor organizations. There
also were 32 challenged ballots, some of which were chal-
lenged by the Intervenor and some by the Board agent. The
Board agent made challenges because certain names did not
appear on the Employer’s proposed eligibility list which was
submitted to the Board before the election.1
At the hearing certain of the challenged ballots were resolved
either by way of stipulation or by the Intervenor withdrawing
certain of its challenges.2 Accordingly, I conclude that the fol-
lowing individuals should have their ballots opened and
counted: Lori Nelson, Renee Maynard, Stanley Hatzakis, Her-
bert Harris, Ava Riccardi, Ghislaine Taho, and Charles Robin-
son.
Based on stipulations made at the hearing, I also conclude
that the following employees are not eligible voters and that
their ballots shall remain unopened: Leona Bronson, Muham-
mad Bass, Isavro Marin, Carlos Bermudez, Jose Rodriguez, and
Muhammad Mijin.
Supervisors
There were eight people who were challenged by the Inter-
venor on the grounds that they were supervisors within the
meaning of Section 2(11) of the Act. Two others, Vincent

1 Although the parties to an election may agree ahead of time as to
who is and who is not eligible to vote, typically they agree, as in this
case, on the job categories that are in the voting unit. In the latter in-
stance, an employer submits, prior to the election, a list of names who
fit those categories and who were employed on the eligibility date,
which ordinarily is the payroll date prior to the execution of a Stipu-
lated Election Agreement. Therefore, as the list is generated unilater-
ally by the employer, it is not the last word on who is an eligible voter.
2 The Petitioner neither objected nor opposed any of the stipulations.
Kirsch and Michael Scibilia, were also contended to be super-
visors at the hearing. Of this group, there were six individuals
whose status, the Employer contends were resolved when the
parties entered into the Stipulated Election Agreement on Au-
gust 7, 2001. Although the Intervenor concurs that the parties
agreed to include certain individuals who were department
managers, it argues that they should nevertheless be excluded
because their actual supervisory status should trump the Stipu-
lated Election Agreement.
The Stipulated Election Agreement specifically includes cer-
tain department managers and excludes others.3 Included in the
unit were the department managers in the house wares, fresh
meat, fresh fish, charcuterie, bread, pastry, and espresso bar
departments. At the time the agreement was entered, there is
no doubt that the parties knew who occupied these respective
positions as well as the identities of the persons who were the
managers of the departments who were agreed to be ineligible
voters. That the parties understood what they were doing when
they entered into the agreement is also indicated by the fact that
in the Stipulated Election Agreement, they specifically indi-
cated that they continued to disagree as the unit placement of
people in the flower and sushi departments. One must, there-
fore, assume that at the time of the election agreement the par-
ties had sufficient knowledge to know or have a good idea as to
which department managers had supervisory authority and
which did not.
In my opinion, the whole purpose of an election agreement is
to resolve, to the extent practicable, unit and eligibility issues.
This is done to avoid the necessity of holding a hearing either
before or after the election is conducted to resolve issues which
have been agreed upon. Thus, unless a stipulation, by its terms,
violates some public policy, there would be no purpose served
in permitting parties to make agreements, while at the same
time permitting either side to withdraw from the stipulation
when events didn’t go their way. In Premier Living Center,
331 NLRB 123 (2000), the Board held that an employer who
had stipulated to the inclusion of LPNs in the unit, but later
withdrew recognition on the grounds that it had “reconsidered”
and now believed the LPNs to be supervisors, was barred from
raising the supervisory issue as a defense to a refusal to bargain
allegation. The Board also noted that in I.O.O.F. Home of
Ohio, Inc., 322 NLRB 921, 922 fn. 7 (1997), it had overruled
McAlester General Hospital, 233 NLRB 589 (1977), in which
an employer who had stipulated to the inclusion of certain em-
ployees, was permitted to litigate their supervisory status in a
subsequent unit clarification proceeding.
To the extent that evidence was taken in this case regarding
the supervisory status of department managers who were cov-
ered by the Stipulated Election Agreement, one can only say
that their supervisory authority is borderline at best. The Stipu-
lated Election Agreement was freely entered into at a time
when the parties must have had sufficient knowledge of rele-
vant facts to make a reasoned judgment regarding their ultimate
status. A stipulation that certain department managers should
be excluded while others should included in the unit, does not
3 Excluding the floral and sushi departments, which are operated by
outside concessionaires, there are 18 departments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
strike me as violating some public policy.4 Rather, it should be
construed as a mechanism whereby parties can resolve other-
wise litigable issues before an election is held, so as to make
the entire election process more efficient and expeditious.
Accordingly, I conclude that the following employees are in-
cluded in the unit by virtue of the unambiguous terms of the
Stipulated Election Agreement and that their ballots should be
opened and counted: Cindy Sato (bread department manager),
Jessica Randall (pastry department manager), Mathew Woron
(fresh meat department manager), Jacques Zrimba (fish de-
partment manager), Terrance Huggins (charcuterie department
manager), and Byron Andres (espresso bar manager).
The Intervenor challenged the ballot of Anna Lombardi, al-
leging that she was a supervisor at the time of the election. It is
agreed that at some point she became the manager of the pre-
pared foods department, a category that the parties stipulated
was a supervisory position. The only question is when she was
promoted into this job.
The testimony of both side’s witnesses were equally equivo-
cal. The Union’s witness, Xavier Lopez, testified that he
thought that Lombardi became the prepared foods manager
sometime in late August or early September 2001. The Com-
pany’s witness, Emil Grosso, while not certain as to the date
when Lombardi was promoted, asserted that it was after the
election. Neither side called Lombardi to testify and neither
produced any records to indicate when she was promoted. (The
Union subpoenaed company records and therefore was not
without means to find and offer company documents regarding
this subject).
Because the party asserting a challenge has the burden of
proving that the individual is not eligible to vote, I shall con-
clude that the Intervenor has not met its burden of proof and
recommend that the ballot of Lombardi be opened and counted.
The Intervenor challenged the votes of Michael Scibilia and
Vincent Kirsch on the alternate grounds that they are supervi-
sors and/or buyers. The Employer claims that both were em-
ployed as “merchandisers,” a category included in the unit by
the Stipulated Election Agreement.
Lopez testified that from his observation, Scibilia helps run
the houseware’s department and that he orders some of the
baskets for that department. He also testified that Scibilia picks
out products for the store manager. According to Lopez, Sci-
bilia acts as the store manager on Saturdays and that on those
days, he is the person to go to for any kinds of problems. Lo-
pez also testified that he heard from another supervisor, Joe
Reda, that on one occasion, Scibilia fired an employee named
Jude Waterston.5
The Employer’s witness, Emil Grosso, testified that Scibilia
works on Saturdays from 1 to 8 p.m. and that on Saturdays his
primary responsibility is to provide customer service. Grosso
testified that other than that, Scibilia has no responsibility for

4 This is not a situation where parties agree that certain individuals
are in fact supervisors, but nevertheless include them in the unit as
eligible voters.
5 Inasmuch as the declarant was a supervisor, the testimony of Lopez
to the effect that Reda told him that Scibilia had fired Waterston, would
not be considered hearsay under Rule 801(d)(2) of the Fed.R.Evid.
the operation of the store on Saturdays or any other days; those
responsibilities belong to the store manager or assistant store
managers. Grosso testified that Scibilia, who reports directly to
him, is responsible for the look and feel of the store and is, in a
sense, an artist.6 Gross testified that although he heard that
Waterston had an argument with Scibilia, he denied that Sci-
bilia had fired her. (He could not, however, be more specific as
to who fired Waterston or under what circumstances she was
fired.) Intervenor’s Exhibit 11 is a company document which is
a personnel review that Scibilia made of Waterston. Also, it is
acknowledged that Scibilia attends periodically held manage-
ment meetings.
Frankly there is not that much to go on with respect to Sci-
bilia. Nevertheless, it is my opinion that the Intervenor has
made out a prima facie showing, through credible evidence,
that Scibilia exercised some of the powers listed in Section
2(11) of the Act, including the power to discharge employees.7
As it is my conclusion that the Employer has not adequately
overcome this prima facie showing, I shall recommend that the
ballot of Scibilia remain unopened and uncounted.8
As to Vincent Kirsch, there was no evidence to indicate that
he had any of the attributes of supervisory authority. Also as
the evidence shows that he was not part of the buying depart-
ment, I shall recommend that his vote be opened and counted.
The Intervenor challenged the vote of Mustafizer Kahn as-
serting that he is the manager of the maintenance department
and therefore a supervisor.
Lopez testified that Kahn is in charge of about 8 to 10 main-
tenance employees; making sure that they clean and “stuff like
that.” He asserts that Kahn makes the schedule for the mainte-
nance employees, and that on 5 nights a week he closes the
store and sets the alarm code. More importantly, Lopez testi-
fied that on one occasion he witnessed Kahn scream at another
maintenance man and fire him. Less persuasively, Lopez also
testified that in April or May 2001, he heard that Kahn had
fired a woman who worked in the department.
6 I note that Dean & Deluca is a boutique grocer, whose stores are, in
fact, quite amazing to look at if you like food. There is no doubt that
the design of the store and the selection and display of its merchandise
are key components of its business plan.
7 Sec. 2(11) of the Act has generally been construed as meaning that
an individual will be deemed to be a supervisor if he or she possesses
any one of the authorities listed in that section of the Act. Ohio Power
Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899
(1949); Pepsi-Cola Co., 327 NLRB 1062 (1999); Allen Services Co.,
314 NLRB 1060 (1994); and Queen Mary, 317 NLRB 1303 (1995).
8 This situation, is to my mind, somewhat different from the situation
involving the department heads. As to the latter, the statements of
counsel and the evidence at this hearing, make it clear that at the time
that the parties entered into the Stipulated Election Agreement, they
knew which individuals occupied the respective department head posi-
tions. There is no such evidence that this also applied to the category
of “merchandisers.” I do not know from this record if the merchandis-
ers were identified by name at the time that the Stipulated Election
Agreement was executed. Thus, unlike the situation involving the
department heads where there is no question but that there was mutual
agreement as to who was to be included and who was to be excluded
from the unit, I do not find the evidence equally compelling with re-
spect to the category of “merchandisers.”
DEAN & DELUCA NEW YORK, INC. 1051
Grosso testified that Kahn is a utility maintenance person
who does minor repairs in the store. He testified that at the
time of the election Kahn did not supervise anyone and that to
his knowledge, Kahn did not prepare schedules for other main-
tenance employees. Gross also testified that to his knowledge,
Kahn never fired anyone. Kahn was not asked to testify by
either side.
In my opinion, the Intervenor has made out a prima facie
showing, through credible testimony, that Mustafizur Kahn is a
supervisor within the meaning of the Act. As I don’t think that
the Company has adequately overcome the Intervenor’s prima
facie showing, I shall conclude that Kahn’s ballot should re-
main unopened and uncounted.
Catering
Pursuant to the terms of the Stipulated Election Agreement,
employees in the catering department, including sales people,
are included in the unit. At the election, the Intervenor chal-
lenged the ballots of Michelle Lambert and Lori Nelson on the
grounds that they were professional employees.
The evidence shows that these two individuals are sales em-
ployees in the catering department and are paid on a salary plus
commission basis. They solicit sales from corporate and other
prospective customer. There is no evidence to suggest that ei-
ther person could be classified as a professional employee as
defined in Section 2(12) of the Act. And as their job categories
are specifically included in the Stipulated Election Agreement,
I find that they are eligible voters whose ballots should be
opened and counted.
Guards
The Intervenor challenged the votes of Herbert Harris and
Luis Fraticelli on the grounds that they were guards within the
meaning of the Act. At the hearing, the Intervenor withdrew its
challenge to Harris but continued to maintain its position with
respect to Fraticelli.
The evidence shows that both of these employees worked in
the receiving department. They work primarily at the back
entrance to the store where they receive and check in products
from the Employer’s vendors. There is simply no evidence that
Fraticelli enforces, against employees and other persons, rules
to protect the property of the Employer’s premises. At most, he
sometimes locks up at night, arms the alarm system, and works
in an area where there are security cameras that are used to
record events in the receiving area.
As the evidence does not support the contention that Frati-
celli is a guard I conclude that he is an eligible voter whose
ballot should be opened and counted.
Concessionaires
The employer contracts with two independent companies,
one for the preparation and sale of sushi on its premises and the
other for the preparation and sale of flowers. Both of these
companies are completely separate from Dean & Deluca; there
being no common ownership or control.
The employees of each company are situated on the premises
of Dean & Deluca where they prepare and sell the products.
Each concessionaire, which also provides similar services at
other retail establishments, deals with its own vendors and is
solely responsible for negotiating the price for its own supplies.
Basically, all items are sold through Dean & Deluca’s cash
registers, but the concessionaires get more than a majority per-
centage of the gross retail price. (Dean & Deluca absorbs the
sale tax.)
The concessionaires are responsible for the hiring of their re-
spective employees and they determine the wages and benefits
without any input by Dean & Deluca.9 The flower and sushi
department employees are not supervised by the managers at
Dean & Deluca and they do not interchange with any of the
store’s other employees. They do not participate in any of the
employee benefits that are accorded to the employees of Dean
& Deluca such as the 401(k) plan, medical insurance, sick pay,
or vacation pay.
On the basis of this record, I cannot conclude that the em-
ployees who are employed by the concessionaires are jointly
employed by Dean & Deluca or that they otherwise should be
part of the bargaining unit. Cf. Interstate Warehousing of Ohio,
333 NLRB 682 (2001). Accordingly, I find that the sushi de-
partment persons, Soe Hzun, Myint Aung, Oo Maung Than,
and Maung Cho are not eligible voters and that their ballots
should remain closed and uncounted. I further find that the
flower department persons, Kahn Mohammed, Mohammed
Lasker, and Mohammed Ali Hossain, are not eligible voters and
that their ballots should remain closed and uncounted.
Conclusion
In the manner more fully described above, I recommend that
certain ballots be opened and counted and that certain others
remain closed and uncounted.10

9 Although there was testimony that Dean & Deluca could require
the concessionaire to remove a particular employee from its store, it
cannot make the concessionaire fire the employee, who can be moved
to another location.
10 Any party may, within 14 days from the date of issuance of this
recommended decision, file with the Board in Washington, D.C., an
original and eight copies of exceptions thereto. Immediately upon the
filing of such exceptions, the party filing the same shall serve a copy
thereof on the other parties and shall file a copy with the Regional
Director for Region 2. If no exceptions are filed, the Board will adopt
the recommendations set forth herein.