Bud's Thrift-T-Wise

National Labor Relations Board - Board Decisions

Jun 28, 1978

236 N.L.R.B. 1203 (N.L.R.B. 1978)

BUD'S THRIFT-T-WISE
Bud's Food Stores, Inc., d/b/a Bud's Thrift-T-Wise
and Retail Clerks Union, Local No. 73, affiliated
with Retail Clerks International Association, AFL-
CIO-CLC, Petitioner. Case 16-RC-7543
June 28, 1978
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MlrRPHY
On August 19, 1977, the Acting Regional Director
for Region 16 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
found appropriate the Petitioner's requested single-
store units, two of the Employer's five stores in Tul-
sa, Oklahoma. Thereafter, in accordance with Sec-
tion 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 Act-
ing Regional Director's decision on the grounds, inter
alia, that, in concluding that the requested units are
appropriate, he made erroneous findings of fact and
departed from officially reported precedent. The Pe-
titioner filed opposition thereto.
By telegraphic order dated September 13, 1977, the
request for review was granted (Chairman Fanning
dissenting). Pursuant to the Board's procedures, the
election was held on September 13 and the ballots
were impounded, pending the Board's decision on
review. The Petitioner filed a brief on review and
request for oral argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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, includ-
ing the brief on review,' and makes the following
findings:
The Employer in its request for review contends
that the Acting Regional Director departed from
precedent, asserting particularly that he erred in find-
ing that there is no significant employee interchange
between the stores and that there is substantial au-
tonomy in the control of day-to-day labor relations
matters at the local store level.2
'The Petitioner's request for oral argument is hereby denied as the rec-
ord, the request for review, and the briefs adequately present the issues and
the positions of the parties.
2 The Employer also asserts that the Acting Regional Director failed to
decide the unit placement of "backroom men" (social securits annuitants)
The Employer would include these employees in the unit. The Petitioner in
its brief on review states that it does not oppose the inclusion of the "back-
room men" in the bargaining units. Therefore, as the record indicates that
The Employer is engaged in a family-owned and
operated retail grocery business in Tulsa, Oklahoma,
with five stores located within 3 to 8 miles of each
other. As indicated, the Acting Regional Director
found, in accord with the Petitioner's request, that
two single-store units are appropriate, Stores 5 and 6.
The Employer employs approximately 80 full-time
and regular part-time employees, exclusive of. meat
department employees, of which approximately 45
are assigned to Stores 5 and 6.3 There is no collective-
bargaining history for any of the employees in the
Employer's chain, and no labor organization seeks to
represent them on a broader basis than here sought.
All five of the Employer's stores are under central-
ized management and administrative control. The
executive office is located in the same building as
Store 5.
The employees at all five stores are subject to the
same wage scale and benefits established by the Em-
ployer's president. Richard Dixon. Employees at
each store have the same job skills, functions, and
classifications as their counterparts in other stores.
All five stores are open 7 days a week during hours
established by Dixon and they sell the same products
at the same prices. Dixon visits each store daily in
order to "converse with the managers and check on
the business and see how everything is running."
Dixon also holds weekly managers' meetings to dis-
cuss advertising and any problems or needs a partic-
ular store manager may have.
Each store has a salaried store manager and one or
more assistant store managers.4 According to the tes-
timony of President Dixon, the store managers prob-
ably hire one-half to 75 percent of the "package
boys," who are part time, and they sometimes inter-
view applicants for full-time jobs and may make rec-
ommendations. It appears that most applicants, al-
though seeking full-time employment, are hired for
part-time work, as the Employer considers it to be a
promotion when a part-time employee becomes a
full-time employee. Dixon and the store managers
evaluate part-time employees and the latter make
recommendations as to their advancement to full-
time status. As to terminations, the testimony of Dix-
on is that "store managers do have the authority to
fire an employee" but "nearly always" check before
these "hbackroom men" share a community of interest with unit emplo)ees,
we find. in agreement with the parties, that the "backroom men" should be
included in the units found appropriate.
Stores 5 and 6 were acquired bh the Employer on August I. 1976. Prior
to that time thes were owned and operated by Sam Meisel and were known
as "Sam's Thrift-T-Wise"
4 The parties stipulated that store managers are supervisors. The Acting
Regional Director found that the assistant store managers are supermisors
No review of this finding was sought. The record shows that, while some
assistant store managers are hourly rated and punch a timeclock, the four
assistant store managers assigned to Stores 5 and 6 are paid a salary
236 NLRB No. 149
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they do so. Dixon further testified that, when a store
manager does "check" prior to firing, the decision is
often reached solely on the basis of the store
manager's "word."
Furthermore, it is clear, from Dixon's testimony,
that store managers also have authority to suspend
employees for disciplinary reasons, grant time off,
prepare work schedules for employees in their re-
spective stores, approve changes therein, authorize
overtime, and adjust employee grievances and comp-
laints. Store managers evaluate their employees for
purposes of wage increases and they advise Dixon
concerning staffing needs which may involve em-
ployee transfers. Employees are informed by the
store managers of any changes in their status.
The Employer listed 11 employees who were in-
volved in transfers between the various stores. A
careful examination of the record reveals that, of
these transfers, three were admittedly permanent
transfers and two involved former employees who,
when rehired, were assigned to a different store. 5
Only six transfers involving four employees were
clearly temporary in nature.
On the basis of the foregoing and our review of the
entire record, we find, contrary to the Employer, that
employee interchange is not so substantial or that the
degree of local autonomy with regard to labor rela-
tions matters so limited as to rebut the presumption
favoring the requested single-store units.
With regard to local autonomy, we find that the
individual store managers exercise considerable au-
thority in personnel matters. While the Employer's
president establishes labor relations policies and em-
ployee benefits, the record discloses that the individ-
ual store managers also have and exercise substantial
authority and play a direct role in the implementa-
tion of labor relations policies affecting the employ-
ees in their respective stores. In reaching this conclu-
sion, we are pursuaded by the facts that store
managers interview prospective employees for hire
and either directly hire part-time employees or make
effective recommendations with respect thereto; that
they have and exercise the authority to discharge em-
ployees or effectively recommend such actions; and
that they may suspend employees for disciplinary
'Another eniployee, Wallace, was employed in Store 5 and was Ira.isfcr-
red to Store 4. where he worked for 4 or 5 months and then was transferred
back to Store 5. When asked, on cross-examination, if this transfer was
temporary, Dixon replied, "No."
Also, employee Wright had worked in Store 4 for approximately 3 scars
when he was "permanently" transferred to Store 5 where he worked for 4 or
5 months. In January 1977, he was transferred to Store I where he worked
for 4 or 5 months. In May 1977, he was "permanently" transferred to Store
4. Contrary to our dissenting colleague, we do not characterize these indi-
viduals as being involved in transfers of a temporary nature. Since there are.
as indicated, 80( employees in the five stores, we do not view the fact that 4
employees were involved in temporary transfers to he significant
reasons, grant time off, schedule employee shifts, va-
cations, and overtime, adjust employee grievances,
evaluate employees for purposes of wage increases,
participate in the determination as to the promotion
of employees from part-time to full-time status, and
advise the Employer concerning staffing needs which
may involve employee transfers.
Likewise, with regard to employee interchange, the
evidence, in our view, does not establish that the few
cited instances of temporary or permanent transfers
have a significant impact on continuing identity of
the work force at each store, or the separate commu-
nity of interest shared by the employees in the indi-
vidual stores. Four instances of temporary inter-
change among a chainwide complement of grocery
employees are clearly minimal.6 The Acting Regional
Director's unit findings are therefore affirmed.7
Accordingly, we shall remand the case to the Re-
gional Director in order that he may, consistent here-
with, open and count the impounded ballots and
thereafter take further appropriate action.
ME MBEiR JENKINS. dissenting:
Contrary to my colleagues, I find that the pre-
sumptive appropriateness of the petitioned-for sin-
gle-store units has been rebutted here. As I would
find the requested units to be inappropriate, and as
the Petitioner has made no alternative unit request, I
would dismiss the petition.
The record shows that the Employer operates a
retail grocer), business in Tulsa, Oklahoma. All five
of the Employer's stores are located within 3 to 8
miles of each other. The Employer's executive offices
are located in the same building as one of the two
requested units. All five stores are under centralized
management and administrative control. All five
stores operate on a 7-day schedule. The stores sell the
same products at the same prices. Employees at all
five stores are subject to the same wage scale and
benefits. Employees at each store have the same job
skills, functions, and classifications as their counter-
parts in the other stores. There is both transfer of
merchandise and interchange of employees among
the stores. There is no history of bargaining for any
of these stores. Although such evidence is present in
substantial part in cases where the presumptive ap-
propriateness of a single store has been found to be
Ihe remaining instances. since thes itnolNe permanent transfers. are
entitled to much less weight in our determinations as Io unit scope. ina,-
much as it cannot be said that they contribute significanll? to the cohesise-
ness of a multilocation unit.
See L.pnlans. a Division of Daiion-Hudson ( orporaion, 227 N LRB 1436
(1977). Waiakanilo (Corporaion, d bha MIcDonald's, 192 NLRB 878 (1971).
and Peirie Siores Coirporation. 212 NLRB 130 (1974). relied on by the Em-
ployer. are in our opinion factually distinguishahle. as in those cases there
was much more temporary interchange and considerabl. less autonomy of
the lical managers.
1204
BUD'S THRIFT-T-WISE
rebutted, this evidence does alone not rebut the pre-
sumption.
The keystone in rebutting the presumption here is
the authority over personnel matters retained by the
Employer's president, coupled with his pervasive role
in the daily operation of the stores. The Employer's
president, Richard Dixon, owns 30 percent of this
family-owned and -operated retail grocery.8 In his
capacity as president, Dixon retains considerable au-
thority over not only merchandising but also person-
nel matters. Thus, Dixon testified that he does "all of
the hiring." 9 He also establishes the wage scales and
benefits, determines wage increases and staffing re-
quirements, and is the final authority for employee
grievances. In addition, the limited authority over
personnel matters vested in the store managers is fur-
ther circumscribed. For example, Dixon decides
whether an employee works full time or part time.
the store managers check with Dixon before firing an
employee, and Dixon personally delivers the pay-
checks to the stores and often directly to the employ-
ees.
The full import of Dixon's role is exemplified by
the fact that he visits each store at least once a day
and most of the stores twice a day. In addition, Dix-
s Dixon's wife and his mother and father own the remaining interest in
the business.
9 Dixon also testified that store managers 'hire package help . . occa-
sionally." but there is no record evidence as to how many package hoys the
Employer employs in its stores.
on conducts a weekly meeting with all managers at
which time he gives directives on how to conduct
business in the store. The unavoidable inference
from the record as a whole is that Dixon's active
participation in the daily management of the Em-
ployer's business does not stop with the issuance of
directives and the establishment of business practices
but also runs to personally ascertaining whether the
stores are being operated in accordance with such
directives and practices.
The record also reveals six instances of temporary
interchange among the five stores and three perma-
nent transfers. Also, several employees h:ave changed
stores after either a short leave of absence or a short
break in service. In assigning weight to the scope of
exchanges. it is important to note that two of the five
stores were acquired by the Employer less than a
year before the hearing.
In sum, the record shows that the autonomy of the
store managers with respect to personnel matters is
severely circumscribed by the authority retained by
the Employer's president. Indeed, Dixon's frequent
visits to the stores make clear that he not only retains
but also exercises this considerable authority over
personnel matters. Thus. Dixon's pervasive role, cou-
pled with the geographic proximity of the Employer's
Tulsa stores and the interchange between the stores.
leads me to conclude that the presumptive appropri-
ateness of the single-store units has been rebutted. '°
Superr Drugs r Illinois. In, 233 NilRB 1114 i 1977)
1205