Jim Dandy Fast Foods, Inc.

National Labor Relations Board - Board Decisions

May 1, 1970

182 N.L.R.B. 269 (N.L.R.B. 1970)

JIM DANDY FAST FOODS
Jim Dandy Fast Foods, Inc ' and Los Angeles Joint Execu-
tive Board of Hotel and Restaurant Employees and
Bartenders Unions , AFL-CIO, Petitioner Case
21-RC-11525
May 1, 1970
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Orville S Johnson
Following the hearing and pursuant to Section 102 67
of the National Labor Relations Board's Rules and
Regulations and Statements of Procedure, Series 8, as
amended, this case was transferred to the National
Labor Relations Board for decision The Employer and
the Petitioner filed briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Board
has delegated its powers in connection with this case
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 They are hereby affirmed
Upon the entire record in this case, the Board finds
I 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 organization involved claims to represent
certain employees of the Employer
3 A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Sections 9(c) (1) and 2(6) and (7) of
the Act
4 The Petitioner, in its petition, seeks a unit of
all employees of the Employer at its stores I through
12, inclusive, but excluding warehouse employees, office
clerical employees, professional employees, guards, and
supervisors as defined in the Act However, the Petition-
er at the hearing and in its brief expressed a willingness
to accept a unit composed of all stores in operation
as of the date of the hearing or "even a unit including
all stores in operation at some subsequent date " The
Employer contends that the only appropriate unit is
one composed of all its stores in the Los Angeles
area, and that because of the Employer's rapid expansion
at a certain and predictable rate the number of employees
presently employed is not a substantial and representa-
tive group of the expected total work force The Employ-
er also maintains, contrary to the Petitioner, that the
warehouse employees should be included in the unit,
and the manager and assistant manager of each store
should be excluded because they are supervisors
' The Employer s name appears as amended at the hearing
The Appropriate Unit
269
The Employer, a subsidiary of Host International,
Inc , operates stores selling primarily, fried chicken
to the public throughout the greater Los Angeles area 2
The Employer commenced operations in June 1969,
by opening four stores Additional stores were opened
in succeeding months July, none, August, six, Septem-
ber, one, October, none, November, five, and December,
at the date of hearing, three more had commenced
operations
It appears that from the time that a site is acquired,
approximately 45 days is required before a store is
opened at that location A real estate man is responsible
for the acquisition of sites for stores The general manag-
er estimated that he expected to open another 10 stores
(stores 20-29) before January 1, 1970, and indicated
that the Employer had acquired at that time 6 other
sites (two already designated stores 30 and 31) for build-
ing stores, and there were 30 outstanding offers for
acquisition of other sites The Employer's projected
plans call for the opening of additional stores during
the calendar year 1970 to create a total of from 120
to 150 stores in the greater Los Angeles area
As mentioned above, the Employer's stores specialize
in selling fried chicken and other food items to the
public Each one of these stores is substantially identical
in architecture, equipment, arrangement, and method
of operation The menu and prices are identical in all
stores Stores are supplied from Employer's commissary
(warehouse) and an outside bakery supplier When the
commissary is closed, the commissary being opened
from 6 30 or 7 a in to 5 30 p in , whereas the stores
are opened from I to 9 30 or 11 30 p in , supplies
are interchanged among the stores as required by changes
in business volume at the different stores
The main offices of the Employer are located at
the commissary (warehouse) From this location, the
Employer's general manager, as well as the assistant
manager, visits each store at least once a week The
Employer also employs two quality control supervisors
who inspect the operations of their assigned stores on
a daily basis Almost all administrative functions neces-
sary in operating the Employer's business are performed
at the Employer's main office
At the commissary (warehouse) the Employer employs
a personnel director who does all the hiring for the
stores Advertisements are placed in newspapers for
applicants to apply for employment at this location
Upon hire, an employee is trained at this location as
either a management trainee or cook trainee The training
at the commissary (warehouse) for both positions appears
to be the same Only after the completion of this training
program are the employees assigned to stores
The Employer's policy is to continually transfer
employees among the stores Transfers are made for
the purpose of insuring that all stores have a proper
2 Other subsidiaries of Host operate similar fried chicken carryout
stores in other parts of the United States ( Church s 56 stores
in Houston Texas) but which are not the subject of this proceeding
182 NLRB No 42
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee complement and to provide some experienced
employees in the newly opened stores. Evidence was
presented by the Employer to show that there is consider-
able transfer of employees from one store to another.
Some employees had worked in as many as six different
stores.
At each store, there is a manager, assistant manager,
cook/window men, and trainees. This average comple-
ment per store of five employees varies though, depend-
ing on the store's volume. All employees at the store
are dressed in a similar uniform which is issued to
them at the general offices when they are hired. The
rates of pay and fringe benefits are almost identical
for all store employees. Store employees are paid a
base weekly rate plus a percentage of gross sales, the
manager and assistant manager receiving a higher per-
centage of gross sales.
None of the store managers and assistant store manag-
ers were originally hired as such. Thus, the Employer
maintains a policy, since commencing its operations,
of promoting to these positions employees who were
originally hired as cooks or cook/window men.
The Employer contends that the only appropriate
unit is one including all the stores in the Los Angeles
area. The Petitioner has in effect agreed to this, since
it has expressed its willingness to include in the unit
all stores open at either the date of the hearing or
at some subsequent date. In the light of the foregoing
facts and the positions of the parties, we find that
an appropriate unit here includes all the stores in the
Los Angeles area.
However, the Employer contends that the election
should be postponed to some future date, because the
Employer is so rapidly expanding the number of operat-
ing stores in the Los Angeles area as to cause the
present complement of employees to be an unsubstantial
and unrepresentative group of the expected total work
force. As noted above, the Employer states that it
plans to have between 120 and 150 stores in operation
by the end of 1970. But from the record evidence,
such plans seem to be highly speculative in light of
the Employer's present rate of growth. In the course
of the first 6 months of operation, June through Novem-
ber 1969, the Employer had only opened 16 stores.
In 3 months during this period no stores were opened
at all. The Employer's general manager did testify that
it was planned, during December 1969, to open an
additional 13 stores, of which 3 were open at the time
of the hearing, December 10, 1969. He further testified,
though, that the Employer has firm plans to open only
an additional four stores in January 1970, and no definite
plans for store openings in February 1970, or thereafter.
The Employer failed to produce evidence at the hearing
to show that there was a firm and definite plan for
completion of its expansion program within a reasonable
time in the future.3 Consequently, we feel that it would
be improper to refuse to allow the employees to deter-
mine at this time whether they wish to be represented
s See Kellogg Switchboard and Supply Co , 127 NLRB 64, 65
by the Petitioner, and we shall direct an election among
the employees of the Employer presently employed.4 ,
The Employer also contends that the commissary
(warehouse) employees should be included within the
unit. These employees include two chicken-cutters, two
warehousemen, one warehouseman-truckdriver, and one
truckdriver. The record reveals that they work different
hours and are compensated in a different manner from
the store employees. Further, these employees are given
a different type of training and perform completely
different duties from the store employees. There is no
regular interchange or transfer of personnel between
the commissary (warehouse) and the stores, and there
appears to be little or no contact between the two
groups of employees. Accordingly, we conclude that
these employees should not be included in the unit
of store employees.'
Unit Placement and Eligibility
As set forth above, the Petitioner, unlike the Employ-
er, asserts that the store managers and assistant store
managers are not supervisors within the meaning of
the Act, and therefore should be included in the unit.
The general manager in describing the duties of the
store manager specified that the manager had the authori-
ty to schedule the hours of employees at his store;
the authority to call his employees to come in to work
unscheduled hours; the authority to permit employees
to leave before their work schedule ends; to authorize
employees to work overtime; and can effectively recom-
mend the promotion of employees at his store. Managers,
according to the general manager, also have the authority
to fire employees under certain circumstances; i.e., an
employee reporting to work while intoxicated. Although
Dotson, a former manager, testified that he had never
been told that he had the authority to discharge employ-
ees, he did admit that he had never inquired whether
he had such authority nor had a situation arisen in
which he might have had cause to exercise such authori-
ty.
We are of the opinion that the store managers are
supervisors within the meaning of the Act. However,
the present record, in our view, does not present
sufficient evidence to make a determination about the
supervisory status of the assistant store managers.
Accordingly, we do not hereby determine their unit
placement but shall permit the assistant store managers
to vote subject to challenge.
" The Employer seems to make a contention that because of its
rapid expansion and its present policy of promoting present employees
to supervisory positions most of the employees now in the unit will
soon be supervisors and therefore not part of the unit The Employer
therefore suggests that the present employee complement is unrepresenta-
tive of any future complement We disagree Although many of these
employees may some day become supervisors they are currently
employed at those jobs which we find are within the appropriate unit
and are entitled to be represented by a collective-bargaining agent
if they so desire Further, the speed of this change in work force
is far from clear since it is contingent upon the Employer's speculative
growth rate
5 John's Bargain Store, 160 NLRB 1519
JIM DANDY FAST FOODS 271
We find that the following employees of the Employer
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act
All employees of the Employer at its stores
in the Los Angeles area, excluding warehouse
employees, office clerical employees, professional
employees, guards, store managers, and supervisors
as defined in the Act
[Direction of Election' omitted from publication I
' In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote all parties to the election should have access to a list of
voters and their addresses which may be used to communicate with
them Excelsior Undentear Inc 156 NLRB 1236 N L R B v Wyman
Gordon Company 394 U S 759 Accordingly it is hereby directed
that an election eligibility list containing the names and addresses
of all the eligible voters must be filed by the Employer with the
Regional Director for Region 21 within 7 days of the date of this
Decision and Direction of Election The Regional Director shall make
the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement
shall be grounds for setting aside the election whenever proper objections
are filed