Short Stop, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1260 (N.L.R.B. 1971)

1260 DECISIONS aOFNATIONAL LABORRELATIONS BOARD
Short Stop, Inc.'aitd Retail Store=Employees Union,
Local 373, RetaBiCler`ks-Internatton""al"Association;
AFL-CIO,-' Petitioner and Retail°`Clerki' Local'°'
1288, Retail Clerks International Association,,
AFL-CIO,2 Petitioner and, National `Service Sta-
tion Employees Union, IUPdW, Siuna,,AFL=CIO,3
Petitioner
Short Stop, Inc.,: Employer-Petitioner and National
Service Station Employees Union , IUPW,' Siuna,
AFL-CIO.. Cases 20-RC 9897, 20-RC-9889, 20-
RC-9831 through 20-RC-9857, 20-RC-9874
through 20-RC-9882, -20-RC-9888, and 20-RM-
1355
August, , 27, 1971
DECISION AND DIRECTION OF
ELECTIONS
BY MEMBERS -FANNING, BROWN, AND
KENNEDY
Upon petitions duly filed under Section 9(c) of-the
National Labor Relations Act, `, as amended, a,
hearing was' held before -' Hearing Officer John, H.'
Imme1 on' April 1, - 1971. 'Following the hearing and
pursuant to Section z 102:67_ of ''the Natio'nalLabor
Relations Board ,Rules and Regulations, the above-
entitled matter was , titransferred by the Regional
Director for. Region. 2D, to the Board for considera-,
tion. Briefs have been=filed on behalf of NSSEU-and
Locals 1288 and 373.
Pursuant to the -provisions of -Section 3(b) of the
National Labor Relations' Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the.,-Hearing, Officer's
rulings - made, at the. hearing and finds that they are,'
free' from prejudicial' error. The' rulings are 'hereby
affirmed.
Upon the entire record in this proceeding, includ-
ing the briefs filed by the parties, the Board finds:
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 labor organizations involved4 claim to
represent certain employees of the Employer.
3. The Employer operates some 73 retail stores
(each designated by number) at various locations
throughout the State of California.
1 Herein referred to as Local 373 individually or collectively as a
Retail Clerks Local.
2 Hereinafter referred to individually as Local 1288 or collectively as a
Retail Clerks Local.
3 Hereinafter referred to as NSSEU.
4 Retail Clerks Union Local No. 775, Retail Clerks International
Association , AFL-CIO, intervened in Cases 20-RM-1355 and
20-RC-9889 . Retail Clerks Union Local No. 1179, Retail Clerks Interna-
tional Association, AFL-CIO, intervened in Cases 20-RM-1355,
The "Employer, €filed a .,, petition seeking an overall
unit consisting of all its employees .5 In the alterna-
tive, the- Employer, would accept- each '§tore,as •a
single-",separate appropriate unit.'-' The ,Regional
Director, however ,- dismissed so much of"the petition k
as ,refers 'to.store number 65 which ^ at that time was
subject to an unfairplabor , practiice .charge, and no.,
appeal,was taken .froriiFthat action. Complaint issued
alleging that the employees-of , store 65 .constitute,a
single - appropriate unit for , purposes ,,of collective
bargaining. '.
NSSEU contends' that employees -'-iif' all -of,t1fe
Employer's stores (excluding stOres 12, 34, 45, and
65,)'onstitute ` an overall appropriate unit: It states, '
however, that if 'the Board' does not find _'this - unit
appropriate , it, is willing ffto represent, in separate
appropriate units 6 ally employees. instores . 1, 2, 3, ,4,; 6,
8,9, to, 19 ,23 , 27, 28,, 30,-32,33 ;,,35,,36, , 39, ,39, 41;,42,
43,_48 , 49, ^50,, 51, 58;;,-59, • 60, " 62,-, and,,- 63,
Local 1288£ takes- the -position that stores }14,1 20; 27,
28, 301, -,35,'46, 47,`49, ^64, 70, and 74, all'of which are
in its geographical jurisdiction, together constitute
one ,appropriate 'unit: '-Local' 1288 ` would; however,
participate In'elections in separate-store units inthe
above group should only single=store 'units " be found
appropriate., ,.z
Local 373, , seeks , a amultistore -unit consisting of
stores 7 , 10, ' 11 , 25, 26, 29, 3&, 42,43, 56, and 37.1. In „
the event only separate units are appropriate, pit,
would participate invelections involving employees at
stores 10, 25,26 ,` 42, and 7.1.-
The °Employer'sIchain of small convenience stores
distributes, gasoline, food, and some'iio'nfood'items ',,
throughout the State of California . Each ,. store
'a manager trainee;, bothr andhas a -`managtypicall
y eof ^ whom are full time, and from;four to eight part--t
time r-employees. In'' "alh 'i^ista ces,' the Employer` `
requires that each employee -classed as ° part time
either hold a job elsewhere or be enrolled in college
or high school. Although referred to as part-time
employees, they are in fact regular employees of the
Employer. It reserved its position as to whether it
would participate in elections at stores 7, 11, 29, 38,
43, and 56. In a subsequent motion it requested
elections at stores 7 and 56.
The Employer has a central office in Concord from
which policy regarding the operation of all stores is
formulated. Thus, rates of pay for employees are
20-RC-9889 , 20-RC-9837, 20-RC-9832, 20-RC-9852, 20-RC-9850,
20-RC-9854, 20-RC-9836, 20-RC-9831, 20-RC-9851 and 20-RC-9888.
Each sought geographical multistore or, alternatively, separate store units
different from those requested by Locals 373 and 1288.
5 The most recently numbered store as of the time of the hearing was
number 76. Stores numbers 34 and 45 were closed and number 12 had been
sold.
6 NSSEU filed a number of petitions for single-store units and a petition
for an employerwide unit.
192 NLRB No. 184
SHORT STOP, INC.
fixed by the central office and are the same for all
employees, with equal periods of employment. Fringe
benefits are also the same for all employees and all
payroll checks are made up in the central office.
Store managers order locally such, items as bread,
milk, beer, wine, cigarets, and typical grocery and
delicatessen items, but the Employer maintains a
central warehouse in Concord from which nonfood
items - and _ candies are shipped to each of the stores.
Such shipments are by company truck, driven by the
Company's truckdriver. The central office maintains
a running record of the gasoline balance at each store
and at certain points, it orders the gasoline necessary
to keep the tanks full at each store. The store
manager is furnished an auto guide and decides
which items he will carry in his store. The record
shows, that, in- those instances where the stores use
items not =available from the central warehouse, the
selection of a -supplier is either by the store manager,
subject to the final, approval of John F, Roscoe, the
Employer's president and chief executive officer, or
by Mr. Roscoe himself. Invoices for goods bought by
a manager from a vendor are sent directly to the
central office and paid from there. Although each
store has its own bank account, the manager can
only make deposits and cannot make withdrawals.
The store managers are in charge of the day-to-day
operation of their respective stores, with full authori-
ty to hire and fire employees, and each has discretion
over such matters as deciding the hours the store is to
be open and the hours employees work. Each has
great operational discretion within his store but is
accountable financially to the controller at the
central office. Area supervisors who work out of the
central office are assigned to particular areas and
may visit the stores to which they are assigned as
frequently as several times a day or as infrequently as
every 2 weeks. They hold meetings with the store
managers and monitor each store's individual overall
performance. There is no interchange of employees
and no bargaining history.
From the foregoing it is clear that a number of
7 The Retail Clerks Locals initially seek geographical units. As there is no
history of any of these employees having been represented on a
geographical basis and as there is no evidence to show that geographical
units are appropriate on grounds other than their territorial jurisdiction, we
find that, on the facts of this case, the geographical units sought are not
appropriate for purposes of collective bargaining.
8 Haag Drug Company, Incorporated, 169 NLRB 877, 878.
9 Haag Drug Company, Incorporated, supra, Market Co. d/b/a Dan's Star
Market, 172 NLRB No. 130.
10 Locals 1288 and 373 initially requested geographic units. Each has
indicated, however, a willingness to participate in elections in those stores in
single separate units should the Board find the units originally requested
inappropriate . Although Locals 1288 and 373 demonstrated a showing of
interest by employees in the geographic unit, the record before us does not
indicate the extent to which the unions have showings of interest at the
individual stores. Accordingly, the Regional Director is instructed not to
permit Local 1288 and 373 to appear on the ballots until they have
demonstrated an adequate showing of interest among the employees at
1261
factors support an appropriate, unit .consisting of all
the Employer's stores.? The Employer and NSSEU
seek an overall unit, and such a unit is presumptively
appropriate. Although the stores are separated by
geography, the evidence indicates a': similarity of
operation and the usual high degree ;of actual central
control found in this industry.8°
Other factors, however, indicate that-the various
stores have sufficient autonomy to be appropriate on
a single-store basis. Thus, individual store managers
may hire and fire, decide hours the store should be
open, and may, and- to, a degree do, vary from the
dictates of the training manuals and order, guides.
Furthermore, the stores are geographically separate
and there is no interchange of-personnel from one
store- to another. It is well established that a single-
store unit is presumptively appropriate although such
presumption may be,; overcome.9 That has not- been
done here. r -
In light of all the' above, we conclude that ,either
separate-store units at each store or a single overall
unit may be appropriate. ' As noted earlier, the
Employer and NSSEU agree to the appropriateness
of an overall unit but do not oppose single units, and
the other parties involved are willing, alternatively, to
represent employees in certain single-store units. In
these circumstances, we consider the desires of the
employees as a factor relevant to our determination
and shall not make a final unit determination at this
time. Rather, we shall conduct elections among the
employees in individual stores , as set forth hereinaf-
ter, to ascertain whether they desire representation
separate from that of the overall unit.10
We shall therefore direct separate elections in the
following voting groups of employees, excluding
from each guards and supervisors" as described in
the Act:
Voting group A: All regular full and part-time
employees at all stores of the Employer other than
store 65 and those stores included in Voting group B,
C, D, and E.
Voting group B: All regular full- and part-time
individual stores in the voting groups.
11 The Employer and NSSEU contend the manager trainees should be
excluded from any unit found appropriate; Locals 1288 and 373 contend
they should be included. The record reveals that, although manager trainees
are not authorized to discharge employees, they have the authority to hire.
While they are in the process of being trained they enjoy the same fringe
benefits enjoyed by the store managers , and they are expected to become
store managers eventually. Further, even though they come from the ranks
of the part-time employees, they do not achieve manager-trainee status and
full-tune status until such time as they have expressed a desire to become a
store manager. Upon completion of the training period which normally runs
for 6 months , they either become manager of another of the Employer's
stores or, in some instances , become manager of the store at which the
training was received . On these facts, we are persuaded that the manager
trainees' interests are more closely identified with management than with the
other employees. Accordingly, we exclude them from the unit. Also,
consistent with the agreement of the parties, we shall exclude store
managers and the truckdriver from the voting groups.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at each of the -storesrnumbered 14, 20, 27,
28,30,-35,46,47,49,64,70,,and74.^'-
Voting group -C.- , All regular full- and part-time
employees at each of, the stores, numbered 10, 25, 26,
42, 71,=7,.and 56.
,Voting group ,D: All regular full- and part-time-
employees at stores numbered 44 and 54.
, Voting group E: All regular full- and part-time
employees atstore=33.
If,,.,,a- majority of the employees at any store in
voting groups- B,, C, D. °,and-.E selects Locals 1288,
373; 1479, or 775, respectively, such employees will
be deemedto have indicated their, desire for separate
representation„by the, respective Local at such, store,
which- the- Board, under the circumstances, finds an
appropriate unit for the- purposes of collective bar-
12 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise oftheir statutory right to vote, all
parties to the elections should have access to a list of voters and their
addresses which may be used to communicate with them.' Excelsior
Underwear Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co., 394 U.S.
759, Accordingly, it is hereby directed that election eligibility lists,
containing the names and addresses of all the eligible voters, must be filed
gaining, and the Regional Director is instructed to
issue a certification of representative for such unit.,<^
However, if a majority of employees at -any store,
listed in voting groups : B, C, D,, and E does not vote,
for Locals 1288, 373, 1179, or. Local 775, respectively,
the employees at such store,shall be included in the
unit with the employees in voting group A and their
votes will' be pooled with , those of voting group A.
The Regional Director conducting , the election is
instructed to issue a certification of representative to
NSSEU, if selectedby-a majority of the employees in
the pooled group, which the Board in such circum-
finds-to. be appropriate for the-purposes ofstances
collective bargaining.
[Direction , of Elections 12 omitted from
publication.]
by the Employer with the Regional Director for Region 20, within 7 days of
the date of this Decision and Direction of Elections. The Regional,Director
shall make the lists available to all parties to the elections- No extension, of,
time to file these lists shall be granted by the Regional Director except in
extraordinary circumstances . Failure to -comply= with this requirement ' shall "
be grounds for setting aside an election whenever proper objections are
filed.,,