Low Bros. National Market, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 432 (N.L.R.B. 1971)

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Low Bros. National Market, Inc. and Super M Mar-
ket, Inc. and Retail Clerks Union Local 1288, Retail
Clerks International Association, AFL-CIO, Peti-
tioner. Case 20-RC-9586
June 23, 1971
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 18, 1971, the Regional Director for Re-
gion 20 issued his Decision and Direction of Election
in the above-entitled proceeding, in which he found
appropriate a unit of all office clerical employees at the
Employer's Los Banos, California, location. There-
after, in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer timely filed a Request for
Review of the Regional Director's Decision, contend-
ing, inter alia, that the petition herein should be dis-
missed for the reason that the two employees in the unit
at the time of the hearing are confidential employees.
On February 16, 1971, the National Labor Relations
Board by telegraphic Order granted the Request for
Review on the issue of the confidential employee status
of the employees in the unit sought. Thereafter, the
Employer filed a brief on review.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the entire record in this
case, including the Request for Review, the Petitioner's
statement in opposition, and the Employer's brief on
review, and makes the following findings:
The Employer operates two retail grocery stores-
Low Brothers National Market and Super M Market
-as a single-integrated enterprise. Both stores are
managed by Morey Low from a single office at the
National Market location. As manager and principal
stockholder of both stores, Low is the ultimate au-
thority with respect to hiring, discharging, and other
operational decisions, including the formulation, deter-
mination, and effectuation of management policies with
regard to labor relations.
At the time the petition was filed, there were al-
legedly three office clerical employees in the unit sought
by the Petitioner-Donna Muzio, Lois Hicks, and Ella
Stevenson. Muzio and Hicks are regular full-time em-
ployees whose primary clerical responsibilities pertain
to the separate operations of National and Super M,
respectively. Stevenson was a regular part-time em-
ployee who assisted both Muzio and Hicks in the per-
191 NLRB No. 67
formance of their clerical duties for their respective
stores. i
According to the Regional Director, neither Muzio
nor Hicks is sufficiently concerned with labor relations
matters to be classified as a confidential employee.
While the record indicates that Hicks' duties involve
only routine clerical work not sufficiently concerned
with labor relations matters to warrant her exclusion 2
we do not agree that Muzio is not a confidential em-
ployee.
The record indicates that Muzio generally assists
Low in the performance of his various responsibilities,
including his responsibilities with respect to labor rela-
tions matters. Thus, Muzio is responsible for compiling
information at the request of Low's labor relations
counsel or at the request of the union currently repre-
senting the Employer's store clerks. She has on numer-
ous occasions prepared information to be utilized by
the Board, including the preparation of charts used by
Low's labor relations counsel in a Board proceeding.
She handles all correspondence between Low, his labor
relations counsel, the store clerks' union, and the
Board. There is no other employee of the Employer
who assists Low in this capacity.
Hence it is clear from the record in the present case
that Muzio's duties in assisting Low far exceed the
mere typing of employee lists and other routine clerical
activities which the Board has found insufficient to
confer confidential status.' Accordingly, we find that
Donna Muzio is a confidential employee and we hereby
exclude her from the unit of office clerical employees."
In view of the foregoing, the case is hereby remanded
to the Regional Director for Region 20 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 date of this Decision on
Reviews However, in the event it is subsequently deter-
' Stevenson was subsequently discharged on October 9, 1970. Thereafter,
Petitioner filed unfair labor practice charges against the Employer, alleging
that Stevenson was discharged in violation of Section 8(a)(3) and (1) of the
Act. Although a complaint with respect to Stevenson's alleged discrimina-
tory discharge is still pending, we have received a request to proceed with
the instant representation case Therefore, as it appears on the record before
us that Stevenson was a regular part-time employee at the tune the petition
was filed, performing the same type of work as Hicks, and under the same
supervision, we will allow her to vote subject to challenge pending final
determination of her status as an employee on the eligibility date established
herein.
2 RCA Communications, Inc., 154 NLRB 34,
See B. F. Goodrich Company, 115 NLRB 722.
° Eastern Camera and Photo Corp., 140 NLRB 569.
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 ad-
dresses which may be used to communicate with them. Excelsior Underwear
Inc., '156 NLRB 1236, N.L.R.B. v. Wyman-Gordon Co., 394 US 759.
Accordingly, it is hereby directed that an amended 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 20 within 7 days
of the date of this Decision on Review. The Regional Director shall make
LOW BROS . NATIONAL MARKET 433
mined that Ella Stevenson was not eligible to vote in the the petition herein6 as the Board does not entertain
election, the Regional Director is directed to dismiss petitions for a one-man unit.
circumstances Failure to comply with this requirement shall be grounds for
the list available to all parties to the election No extension of time to file setting aside the election whenever proper objections are filed
this list shall be granted by the Regional Director except in extraordinary 6 See Sonoma-Mann Publishing Company., 172 NLRB No. 62.