P & C

National Labor Relations Board - Board Decisions

Apr 13, 1977

228 N.L.R.B. 1443 (N.L.R.B. 1977)

P & C (CROSS CO) 1443
Pneumo Corporation, d/b/a P & C (Cross Co.) and
Local Union No. 33, Amalgamated Meat Cutters,
Food Store and Allied Workers of North America,
AFL-CIO, Petitioner. Case I-RC-14617
April 13, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTIONS
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On September 3, 1976, the Regional Director of
Region 1 issued a Decision and Order in the above-
entitled proceeding in which he found that Petition-
er's requested units limited to the employees in each
of four of the Employer's retail grocery stores located
at Depot Street, Bennington, Vermont; Route 30,
Manchester, Vermont; Shelburne Road, Burlington,
Vermont; and North Avenue, Burlington, Vermont,
were inappropriate and dismissed the petition,
inasmuch as Petitioner did not seek a larger unit,
based on his finding that the presumptive appropri-
ateness 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, the Petitioner
filed a timely request for review of the Regional
Director's decision on the grounds that, in reaching
his unit determination, he made findings of fact
which were clearly erroneous and departed from
officially reported precedent.
The National Labor Relations Board by telegraph-
ic order dated October 13, 1976, granted the request
for review. Thereafter, the Employer 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 with respect to the issues under review,
including the brief on review, and makes the
following findings:
Contrary to the Regional Director's findings and
conclusions, which are attached hereto as an Appen-
dix, the Petitioner contends that the record facts
concerning the authority of the district manager in
the areas of hiring, firing, discipline, and promotion
do not rebut the presumption favoring the appropri-
ateness for bargaining purposes of its requested unit
confined to employees of the four separate stores
listed above. We agree.
As more fully detailed by the Regional Director,
the New England division is administered from a
central office located in White River Junction,
228 NLRB No. 185
Vermont, and is made up of 23 stores. Merchandis-
ing, purchasing, distribution, and personnel policies
are centrally controlled by a general manager, sales
manager, the two district managers, buyers, depart-
ment supervisors, personnel, and warehousing offi-
cials, all of whom work out of the central office. All
employees share a uniform wage structure, vacations,
fringe benefits, and a companywide seniority system.
The New England division is divided administra-
tively into two districts, one north and the other
south of White River Junction, composed of 13 and
10 stores, respectively. Each district has a manager
whose office is maintained in White River Junction,
but spends most of his time traveling to and visiting
the stores in his district. District managers attempt to
visit each store weekly to insure that central policies
are being followed.
With respect to hiring, advertisements for job
openings in a store are placed by the district manager
or central office in local newspapers. Usually an
applicant will fill out an application form at the local
store and be interviewed by the store manager and
the district manager or department supervisor. While
final approval for all full-time employees is made at
the central level and the district manager can
approve hiring of part-time employees, the store
manager can screen out any applicant who he
determines is unqualified.
The store manager recommends discharge of an
employee. The final decision on discharges is made
at the central office level, subject to investigation by
the district manager or the central office. The store
manager also has the authority to suspend an
employee in situations requiring immediate action,
until the district manager can be contacted. The store
manager has authority to impose lesser disciplinary
action after obtaining the district manager's consent.
With respect to wage increases and promotions, it
is clear that the store manager initiates such actions
through his recommendations. As in the other areas
discussed, final approval must come from the central
office to effectuate these recommendations, and the
record also supports the Regional Director's findings
that the district manager investigates recommenda-
tions for promotions, but not for merit increases.
Insofar as the other areas of managerial authority
affecting local stores is shown by the record herein, it
appears that the store manager deposits funds in a
local bank which are then transferred to a central
account, and he has no authority to draw against
these funds. Thus repairs and bills are handled at the
central level.
The record shows only 2 employees have been
permanently transferred from and 10 to the 4 stores
requested by Petitioner during the year preceding the
hearing and that there AFL-CIO, approximately 35
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporary transfers from and approximately 41 to
these 4 stores during that same period.
In view of the foregoing and our review of the
entire record in this case , we conclude that the
presumption favoring the appropriateness of the
requested single-store units has not been rebutted.
Here , in our opinion , the record does not establish
such a degree of centralized control over personnel
and labor relations matters at the local store level as
to preclude a finding that a single-store unit is
appropriate. Contrary to the Regional Director, we
find that the store manager exercises significant
authority over store employees in areas affecting
their status. As indicated, he initiates all actions with
respect to hiring , discharging, and disciplining
employees at the local level, and can , on his own,
preclude an applicant from obtaining employment
with the Employer by rejecting the application. We
also find, in accord with the Regional Director, that
there is no significant interchange of employees
among the stores. In our opinion, these factors,
together with the absence of any bargaining history,
and the fact that no labor organization seeks to
represent a broader unit, amply support the appro-
priateness of the requested units.' We find, therefore,
that the following units are appropriate for purposes
of collective bargaining within the meaning of
Section 9(b) of the Act:
Unit 1: All full-time and part-time employees
employed by the Employer at its Bennington,
Vermont, Depot St. location, excluding store
manager, professional employees, guards and
supervisors as defined in the Act.
Unit 2: All full-time and part-time employees
employed in the Employer's Manchester, Ver-
mont , Route 30 location , excluding store manag-
er, professional employees, guards and supervi-
sors as defined in the Act.
Unit 3: All full-time and part-time employees
employed in the Employer's Burlington No. I
Vermont, Shelburne Road location, excluding
store manager , professional employees, guards
and supervisors as defined in the Act.
Unit 4: All full-time and part-time employees
employed in the Employer's Burlington No. 2
Vermont, North Avenue location, excluding store
manager, professional employees, guards and
supervisors as defined in the Act.
At the hearing a question was raised as to the
supervisory status of the assistant store managers.
The Regional Director found them not to be
supervisors. Inasmuch as neither party has specifical-
ly objected to this conclusion and since the record
supports the Regional Director's findings that these
individuals do not effectively recommend hiring or
disciplining of employees nor do they exercise other
authority except in a routine manner, we find they
are not supervisors within the meaning of Section
2(11) of the Act.
Accordingly, we shall direct the Regional Director
to conduct elections in the units herein found
appropriate.
[Direction of Elections and Excelsior footnote
omitted from publication.)
1 Erickson Barron Company, Holiday Station Stores , Inc, Holiday Village,
Inc, Lyn Hale Terminal Company, d/b/a Holiday Village, 226 NLRB 1305
(1976)
APPENDIX
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The Employer declined to stipulate the Petitioner is a
labor organization within the meaning of the Act. The
Petitioner exists , in whole or in part , for the purpose of
dealing with employers concerning wages , hours, and
working conditions. On the basis of this fact, Local Union
No. 33, Amalgamated Meat Cutters, Food Store and Allied
Workers of North America, AFL-CIO, is found to be a
labor organization within the meaning of the Act. Alto
Plastics Manufacturing Corporation, 136 NLRB 850. This
labor organization claims to represent certain employees of
the Employer.
3. No question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act for the following reasons:
The Petitioner , through the petition as amended at the
hearing, seeks separate single store units for four of the
Employer's stores located at Depot Street , Bennington,
Vermont; Route 30 , Manchester, Vermont ; Shelburne
Road, Burlington , Vermont ; and North Avenue , Burling-
ton, Vermont. The units are composed of all full-time and
part-time employees, excluding store managers , profession-
al employees , guards and supervisors as defined in the Act.
The Petitioner seeks no alternate unit . The Employer
contends the single store units are inappropriate. There is
no history of collective bargaining.
The Employer is a Delaware corporation which operates
a New England Division of 23 retail food stores located in
Vermont, New Hampshire, and Massachusetts . There are
700 employees in the Division as a whole. There are about
45 employees at the Bennington store , 35 at Manchester, 45
at the first Burlington store , and 30 at the second
Burlington store.
The Division is administered from a central office in
White River Junction , Vermont . The 23 stores are grouped
geographically into two districts , each under the direction
of a district manager. One district consists of all stores
north of White River Junction. The other district consists
of all stores south of that city . One district has 10 stores;
the other has 13 . The administrative structure of the central
office includes a general manager , sales manager , the two
district managers , buyers, department supervisors , person-
P & C (CROSS CO.) 1445
nel and warehousing officials. The central office controls
merchandising, purchasing, distribution and personnel
policies. Prices, advertising, sales and window and shelf
displays are all uniform. Eighty percent of the merchandise
is shipped directly to the stores from the White River
Junction warehouse. The remaining 20 percent is supplied
by local vendors approved by the central office. All
employees share uniform wage structure, vacations, and
fringe benefits. The payroll is printed at the central office
and personnel records are also kept there. Seniority is
companywide.
The two district managers maintain offices in White
River Junction but spend most of their time traveling to
and visiting the stores in their districts. Each store is visited
by its district manager once a week. The district managers
closely supervise the store managers. They tour the store to
insure that merchandising and other policies are being
followed. They review payroll and scheduling records with
the store manager. If there are job openings in a store,
either the district manager or the central office personnel
department places job advertisements in the local newspa-
per. The store manager can conduct the initial interview of
an applicant and screen out the unqualified. However,
before being hired, an applicant must have a second
interview with either the district manager or the area
supervisor. They then pass on their recommendation along
with that of the store manager to the Director of Retail
Operations at the central office who makes the final hiring
decision for the full-time employees. The district manager
can hire part time employees without the approval of the
central office.
The store manager can recommend discharge of an
employee. However, such recommendations are investi-
gated by the district manager and the central office. The
central office makes the final decision. In cases requiring
immediate action, a store manager has the authority to
suspend an employee until he can contact the district
manager . The store manager has the authority to impose
lesser disciplinary action after obtaining the district
manager's consent.
The store manager can recommend merit increases and
promotions. These recommendations are investigated by
the district manager. Final approval must be made by the
central office for the changes to be effective. Leaves of
absence, permanent and temporary transfers are all
approved through the district manager.
The store managers deposit the store's funds in local
banks. However, the money is then transferred to a central
bank. The store manager has no authority to draw on the
funds. In addition, store repairs and some bills are handled
by the central office. If there are overstocked items in a
store, the district manager arranges for transfer of the
surplus back to the warehouse.
There have been a number of employee transfers
between the stores in question and other stores in the
Division over the past year. The record shows about 32
different employees have permanently transferred and
about 96 employees have transferred temporarily for up to
three months. Some of these employees have transferred
more than once. This averages to less than one permanent
transfer per week and less than two temporary transfers per
week. Therefore, only a small percentage of employees in
the Division have been involved in these transfers.
It is well established that single store units are presump-
tively appropriate. Haag Drug Company, Inc., 169 NLRB
877. However, the presumption is rebutted by a showing of
lack of autonomy at the store level in the day-to-day
operations. On the basis of the extensive role of the district
manager in the day-to-day operations of the Employer's
stores, especially in the areas of hiring, firing, discipline
and promotion as well as the strict limitations of store
managers' authority in other areas, I find the presumption
of the appropriateness of the single store unit has been
rebutted in this case . Food Marts, Inc., 200 NLRB 18;
Purity Supreme, Inc., 197 NLRB 915; Gray Drug Stores,
Inc., 197 NLRB 924. Since the Petitioner does not seek a
larger unit, the petition is dismissed.
The remaining issue raised at the hearing concerns the
question of the supervisory status of the assistant manag-
ers. The assistant managers maintain the stores in the
absence of the managers. They are hourly paid although at
a higher rate than other employees. The store managers are
salaried. They have keys to open the store and they carry
receipts to the bank. However, both are done also by
admitted nonsupervisory employees. The assistant manag-
ers can permit employees to leave early and participate in
training new employees. There is some evidence in the
record that an assistant manager participated in the hiring
of an employee and another participated in the disciplining
of another. However, considering the limited authority of
the store managers in such matters and the record as a
whole , it does not appear that the assistant store manager
effectively recommends the hiring or disciplining of
employees or exercises authority in anything other than a
routine manner . I find the assistant managers are not
supervisors within the meaning of Section 2(11) of the Act.