Parkwood IGA Foodliner

National Labor Relations Board - Board DecisionsApr 29, 1974

210 N.L.R.B. 349 (N.L.R.B. 1974)

PARKWOOD IGA FOODLINER Dorance J. Benzschawel and Terrence D. Swingen Co-Partners, d/b/a Parkwood IGA Foodliner and Retail Clerks Union , Local No. 1401 , Chartered by Retail Clerks International Association, AFL- CIIO, Petitioner. Case 30-RC-2190 April 29, 1974 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On December 11, 1973, the Regional Director for Region 30 issued a Decision and Direction of Election in the above-entitled proceeding, finding a unit of all full-time and part-time employees em- ployed by the Employer at its Middleton, Wisconsin, location, excluding meat department employees, but including, inter alia, two high school students, the produce manager, and the Sunday afternoon store manager . Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds that the inclusion in the unit of the above-mentioned four individuals, as well as two other employees, was a departure from officially reported precedent. By telegraphic order dated January 7, 1974, the National Labor Relations Board granted the request for review with respect to the above-mentioned individuals, denied it with respect to the remaining two, and stayed the election pending decision 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 and makes the following findings: The Employer is a partnership engaged in the retail food business at Middleton, Wisconsin. The Petition- er seeks to represent an all employee unit excluding the meat department. As indicated above, the issue on review is the Regional Director's inclusion in said unit of high school students James Richgels and Dean Ziegler, Produce Manager Jerome Bentzler, and Sunday Afternoon Store Manager Richard Richgels. The Employer contends that the two high school students be excluded because they have a different communi- ty of interest and that the remaining two should be excluded as supervisors. 349 Students-James Richgels and Dean Ziegler: Both are high school students. Ziegler was hired to work part time for the Employer in the fall of 1972. Richgels has been employed on a full-time basis since late May 1973. On or about August 20, 1973, they enrolled in the Madison Distributive Education Program, in which the Employer participates. Under this program they receive school credits for practical work experience performed at the Employer 's store during school hours which is coordinated with a schedule of regular classroom work. While these students are learning all aspects of the grocery business, it was never understood that this program would lead to a management position in the store. The record indicates that these students are an integral part of the store's work force , having substantially the same duties, wages, and working conditions as other unit employees. Although the program is completed at the end of the school year, there is no evidence in the record to indicate that their employment will terminate at that time. On the above facts, and the record as a whole, we find that these students share a sufficient community of interest with other unit employees to warrant their inclusion in the unit. Therefore, we affirm the Regional Director and include them in the unit.' Sunday Afternoon Store Manager Robert Richgels: Richgels, during the week, normally works by himself and is responsible for ordering , pricing, displaying, and rotating frozen foods and dairy products. He normally works 40 hours a week and earns $2.75 per hour. During the last 3 or 4 months, he has been designated store manager on Sundays from noon to 6 p.m., when the copartners and the regular assistant store manager are not present. When acting as store manager he is described as having full responsibility for operating the store. This involves routinely making out work lists, being responsible for getting the work done, cashing checks, and seeing that the store is secure when he leaves at night. Although he may accept applications for employment, he does not, however, have authori- ty to hire, fire, or recommend raises and should any problems arise, he testified that he would contact one of the copartners or the assistant store manager. We find, in agreement with the Regional Director, that Richgels' duties on Sundays are of a routine nature and do not involve the exercise of independ ent judgment and, as it is clear that his duties during the week are of a nonsupervisory nature , we shall include him in the unit as eligible to vote. Produce Manager Jerome Bentzler: Bentzler is in complete charge of the produce department. He is assisted four mornings a week by a part-time I Gruber 's Super Market, Inc., 201 NLRB 612. 210 NLRB No. 57 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee. He does all the purchasing of produce including negotiating the price with the suppliers; he establishes the retail price and marks down prices for quick sale. In addition to his hourly wage of $4.05 per hour, which is substantially higher than that paid unit employees, he receives 1-1/2 percent of gross profit of the department provided the department shows an average gross profit of 28 percent for the period. He also receives certain fringe benefits which are provided only for supervisory and managerial employees. While he does punch a clock, he sets his own hours of work normally arriving at the store at 6 a.m., before anyone else arrives. He checks in produce and bakery products which suppliers deliver early in the morning. Based on the foregoing facts , we find that his wages, hours, and working conditions are substan- tially different from those of unit employees and that his interests are more allied with those of manage- ment than with the unit employees.2 Therefore, contrary to the Regional Director , we shall exclude him from the unit. Accordingly, we shall remand the case to the Regional Director for the purpose of conducting an election pursuant to his Decision and Direction of Election , as modified herein, except that the payroll period for determining eligibility shall be that immediately preceding the issuance date of this Decision.3 2 In view of this finding, it is unnecessary to pass upon his supervisory status. s 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 Underwear Inc., 156 NLRB 1236; NLRB. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that a revised 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 30 within 7 days of the date of this Decision on Review . 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.