Jackson's Liquors

National Labor Relations Board - Board DecisionsJan 30, 1974

208 N.L.R.B. 807 (N.L.R.B. 1974)

JACKSON'S LIQUORS Gourmet, Inc., d/b/a Jackson's Liquors, Jackson's Party Service and Jackson's Wine and Spirits' and Retail Clerks Local 870, and Retall Clerks Local 1179, Affiliated With Retail Clerks - International Association, AFL-CIO, Petitioner.2 Case 20-RC-1 1571 January 30, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officers on Septem- ber 13 and 19, 19.73. The Regional. Director then transferred the case to the Board for decision. Thereafter, the Petitioner and the Employer filed briefs with the Board. 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 reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record' in this case, 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 Petitioner is a labor organization within the meaning of the Act. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Employer, a California corporation with central offices in Berkeley, California, operates a chain of eight retail liquor stores in California, one at 12th Street and one at Broadway Avenue in Oakland, and one each in the cities of Berkeley, Alamo, Lafayette, Hayward, Castro Valley, and Union City. Five of the eight stores are within 15 miles of the central office, and the remainder are 20 to 35 miles from it. The Berkeley and Oakland- Broadway stores are physically connected with warehouses, which supply wines and liquor to all the stores . Petitioner seeks to represent an employerwide unit of store and warehouse employees. The Employ- er contends that separate store units, or store and warehouse units in the cases of the Berkeley and 1 The Employer's name appears as corrected at the hearing. 2 The Petitioner 's name appears as amended at the hearing. 807 Oakland-Broadway stores, would alone be appropri- ate. All of the Employer 's stores vary to a limited degree in hours of operation, size , store decor, and the arrangement and varieties of merchandise. There are delicatessens in two of the stores . Three of the stores devote a considerably larger proportion of their store area to"wines than the other stores do. Three stores operate under the name of "Jackson's Wine and Spirits," three under "Jackson's Party Service," and two under "Jackson 's Liquors." The Employer's central office, which is located above the Berkeley store , performs a variety of services for all the stores . It arranges newspaper advertising for them singly and for multistore groups; orders all the liquor and virtually all the wine they sell; administers uniform health , life insurance, pension, and profit-sharing plans applicable to all store and warehouse employees ; and pays invoices for nonwarehoused items such as beer, snack foods, and magazines which are ordered by the stores directly. The central office also holds the liquor licenses for all the stores, none of which has its own license. The managerial personnel at the central office consist of Jackson , the Employer's president, who handles legal matters involving the corporation and arranges financing for it; General Manager Mike Roberts, who determines major labor relations policies for all the stores, oversees their operations, arranges advertising, and buys liquors ; Ed Roberts, the office manager, who also occasionally advises store managers regarding problems such as employee theft; and Jeff Kenway, the wine buyer, who also is responsible for expediting wine sales and informing store employees about wine varities being carried in the inventory. General Manager Mike Roberts visits each store on the average of once or twice a month, is in frequent telephone contact with each store manager, and regularly reviews store expenditures, including those for wages, to ensure that they are not excessive. The store managers do, however , have significant supervisory authority in the day-to-day operation of their stores. Without need of approval by the central office, the managers hire and fire store clerks, grant wage increases up to $2.75 an hour,3 establish store hours, schedule working hours, determine the brands and quantities of wines and liquors to be ordered from the Employer's inventory, establish credit accounts for customers , set up merchandise displays, order such items as beer , snack foods , and magazines from various driver-salesmen, and place advertising in limited circulation local publications such as 3 Wage increases above $2.75 an hour must be approved by the central office. 208 NLRB No. 103 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD programs for football games or charitable functions. Since the store managers have the power to hire, fire, and grant wage increases , we conclude that they are supervisors within the meaning of the Act. .In training the store managers; the Employer often selects clerks at any of its stores if they exhibit managerial potential and transfers them to the Berkeley store for closer observation . If their mana- gerial potential appears confirmed, the Employer will then "transfer them to a store needing a manager. Five of the eight store managers have previously worked as clerks in other stores, several of them in the Berkeley store. In all, approximately 40 to 50 percent of the store personnel, including managers, have worked in more than one store. The Employer contends that because' the stores are geographically dispersed, differ in name, size, and appearance, have varying' hours, carry varying products, and have only limited interchange of store employees, and because store managers are vested with broad discretion in operating their stores, the only appropriate unit is the single-store unit. While we agree that the factors just cited would support a conclusion that single-store units would be appropri.. ate, "the fact that one type of unit may be appropriate does not preclude a finding that a different unit including all or some of. the same employees is also appropriate." 4 Here, we find that a number of factors establish that the eimployerwide unit is also appropriate: There are common fringe benefits for all employees, major labor relations policies are centrally determined, a substantial percentage of store inventory is centrally purchased, wage increases above $2.75 an hour must be approved by the central office, there is central bookkeeping and a central payroll for all stores, all the stores are grouped for purposes of advertising, which is centrally arranged, there is in practice a "line of progression from less to more responsible posi.. tions extending between stores, all stores are subject to the same corporate direction, and all are within the general area of Berkeley, California.5 In addition, we note that the employerwide unit, being one of the units listed in the Act as appropriate for bargaining, is presumptively appropriates The Employer contends that the assistant manager at each of its stores is a supervisor within 'the meaning of the Act, and should be excluded from the unit. The record reveals only one store employee who 4 Drexel Enterprises, Inc., 180 NLRB 475. ' Drexel Enterprises, Inc.,. supra; Tryon Trucking Inc., 192 NLRB 764, and cases cited; compare Raymond's Inc., 161 NLRB 838, 841, and Groendyke Transport, Inc., 171 NLRB 997, in which the Board noted the existence of factors that might make an employerwide unit appropriate, but found that other factors also made a single location unit appropriate. 8 Beaumont Forging Company, 110 NLRB 2200. 7 This store is run by a husband-wife team , Aldo and Josephine Feretti. is actually entitled assistant manager, Jeff McIntyre of the Oakland-Broadway store,:and he has not been informed that he .possesses any:supervisory authority. The remaining -alleged "assistant ; managers". are apparently either entitled "wine.consultane' or have no title. Further, the record does not support the Employer's contention that there is an employee functioning as assistant manager at all stores. The witness who identified the persons allegedly func- tioning as assistant managers, namely, the Employ- er's general manager, Mike Roberts, while at first stating that all stores except possibly one, the Oakland-12th Street store,7 had assistant managers, later stated that the Alamo, Union City, and Oakland-Broadway stores might also have no assist- ant manager. (In the case of the Alamo store, he stated his anticipation that a certain recently hired employee would in the future ' begin acting as assistant manager.) - In five of the Employer's stores, the alleged assistant manager is the only full-time store employ- ee other than the manager; each' of these stores also has two part-time employees. In the other stores, in addition to the manager and alleged assistant manager, there are one or two other full- and part- time employees. Were the alleged assistant managers to be considered supervisors, there would be a ratio of two supervisors to two part-time employees in five of the stores, and two supervisors to two to three full- and part-time employees in the remainder. There is no evidence of any need for such a high supervisor- employee ratio, since the work at each store involves such essentially routine matters as ordering merchan- dise from the ' Employer's' warehouse, stocking shelves, making cash sales, and filling out reports. The routine nature ' of the work at each store is emphasized by the fact that part-time employees are solely in charge of each store for periods ranging from 8 to 20 hours a week. Roberts' testimony as to the supervisory authority of the persons he identified as assistant managers varied considerably. Initially he stated that each assistant manager was a full-time employee who acted in a consultative role in hiring and firing store employees8 and took over the manager's responsibil- ities when the latter was ill or on vacation. He later indicated that, rather than having any inherent authority from the Employer, the assistant manager's authority was wholly dependent on the authority Roberts was unsure whether Josephine Feretti would be called a comanager or assistant manager, whether she had been informed she had the authority to hire and fire, or whether she had ever exercised such authority. s For example, Roberts testified that the assistant manager would "play a part" in the decision-whether to hire employees and would have a "heavy voice" in the decision whether to discharge them; and that if he recommended discharge, "the chances are excellent that the man is going to have to be let go." JACKSON'S LIQUORS each store manager chose to give him and on the size of the store 's wine department. Also, when asked how an assistant manager knew what authority he possessed, Roberts first stated that he would tell the assistant, but then stated that "the store manager would be the one . . . really. " Don Mills, whom Roberts identified as an assistant manager of the Berkeley store , contradicted Roberts' testimony in a number of respects . Mills stated that he was a part-time employee, that he was never told he had the authority to hire or fire employees , that he was only in charge of the store at night if he was the senior clerk present , while other clerks would be in charge on other nights , and that his responsibility exceeded that of other store clerks only insofar as he was able , because of his greater experience , to order merchandise from the warehouse and arrange store displays. The testimony of Larry Roberts , identified as a former assistant manager and now the manager of the Lafayette store, upon which the Employer relies heavily, does not establish that assistant managers possess supervisory authority . Roberts' testimony related entirely to the authority he had formerly exercised, authority which was granted by the then store manager , Shell Byers , and thus is not indicative of authority possessed by any other alleged assistant manager elsewhere . This conclusion is reinforced by the fact that Roberts did not inform his replacement, Jeff McIntyre , that the latter possessed any supervi- sory authority . Moreover, there is no evidence that Roberts , while assistant manager , ever exercised supervisory authority. The only responsibility be- yond that of an ordinary clerk Byers gave him was that of filling out certain store reports when Byers was absent . Indeed, Roberts was self-contradictory regarding whether Byers told him that he was assistant manager ; he stated Byers both did and did not do so. At any rate , Roberts indicated that his being "sort of second in command" was not a result even of a specific authorization by Byers, but rather was his own conclusion after working at the store 6 months . Generally, Roberts' testimony indicates that he played at most a consultative role at the store and that his authority of a supervisory type was nonexis- tent or at least severely limited . Although stating that he and Byers "tried to work together" in hiring employees , he admitted Byers sometimes rejected his suggestion that additional part -time help be hired. While asserting that he would at times without consulting Byers ask part-time employees to come to work, he admitted uncertainty as to whether other clerks also did so. He stated that in one case he was involved in the firing of an employee ; upon further explanation, it developed that although the employee had been directly insubordinate to him. on a Saturday , he had waited until Byers returned to the store on the following Monday to inform him of the matter. Byers then merely instructed the employee as to his duties, whereupon the employee quit . Roberts identified one instance in which he had hired a new stock boy, but it developed that he did so because he "assumed" that Byers , who was on vacation , wanted it done . On the day of the hire Roberts was informed he was the new Lafayette store manager, and the propriety of this exercise of authority was never questioned. Roberts also indicated that for about half of the time he and Byers worked they were the only employees in the store ; both worked roughly the same hours , except on Saturdays, and thus there was little need or occasion for Roberts to exercise supervisory authority. Based on the above facts and the record as a whole, we conclude that those employees who allegedly function as assistant managers are not supervisors within the meaning of the Act. In so concluding, we rely particularly on the following facts: Were the alleged assistant managers to be considered supervi- sors, there would be an extremely high supervisor- employee ratio at each store, a ratio lacking any apparent foundation in the exigencies of store operations ; there is no evidence that any alleged assistant managers have been informed that they possess supervisory authority ; one individual identi- fied as an assistant manager denied he had superviso- ry authority; the only person actually entitled assistant manager was not informed he possessed any supervisory authority ; and there is no evidence in the record of any supervisory authority exercised by any alleged assistant manager. Since there is some inconclusive evidence that Josephine Feretti of the Oakland - 12th Street store shares supervisory authority with her husband, we shall permit her to vote subject to challenge. The Employer also contends that the two ware- house managers and the two delicatessen managers are supervisors . As the record evidence regarding their supervisory authority is inconclusive , we shall permit them to vote subject to challenge. Accordingly, we find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and part-time employees, including assistant store managers , working in all the stores and warehouses of the Employer in Oakland, Berkeley, Alamo, Lafayette , Hayward, Castro 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley, and Union City, California, but excluding [Direction of Election and Excelsior footnote store managers, guards and supervisors as defined omitted from publication.] in the Act.