Colorfax Laboratories, Inc.

COLORFAX LABORATORIES, INC. 439 Colorfax Laboratories, Inc. and Retail Store Em- ployees Union, Local 400, United Food and Commercial Workers, AFL-CIO, Petitioner. Case 5-RC-11013 March 13, 1980 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBER JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on November 1, 1979, before Hearing Officer Zoe E. Mavridis. On November 27, 1979, the Regional Director for Region 5 issued a Decision and Direction of Election in which he found that the following was an appropriate unit for collective bargaining within the meaning of Section 9(c) of the Act: "All full-time and regular part-time retail store employees employed by the Employer in the Washington-Baltimore area, in- cluding store managers, assistant managers, store assistant personnel, store decor and assistant store decor coordinator, training manager and customer service manager, but excluding all other employ- ees, guards and supervisors as defined in the Act." Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision. In its request for review, the Employer contends that the Regional Director made factual findings which were clearly erroneous, and that he departed from officially reported Board precedent. By telegraphic order dated December 20, 1979, as amended by telegraphic order dated December 27, 1979, the Board granted the Employer's request for review "with respect to the supervisory status of the individual store managers with employees under them," denied the request for review in all other respects, and ordered that the election be stayed pending Decision on Review. On January 7, 1980, Petitioner filed a brief in support of the Re- gional Director's decision. 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 proceeding with respect to the issue under review, including the briefs of the parties, and makes the following findings: The Employer is engaged in providing photo- graphic processing, printing, and related services, 248 NLRB No. 68 primarily to professional photographers, through its 17 retail outlets in the Washington, D.C./Balti- more, Maryland, metropolitan areas. It also main- tains a film processing laboratory in Silver Spring, Maryland, which is not directly involved in this proceeding. The only issue presented in this case is whether those store managers having employees under them are supervisors within the meaning of Section 2(11) of the Act. For the reasons stated below we find, in agreement with the Employer, that such managers are supervisors within the meaning of the Act and should therefore be ex- cluded from the petitioned-for unit. The record reveals that the Employer's store managers have sole discretion in setting their store's hours of operation, conditioned only upon meeting certain minimum hours prescribed by the Employer. The store managers do not hire the em- ployees assigned to their store. Rather, these "assis- tants" are hired directly by the Employer's sales manager and only thereafter are they assigned to a particular store. Once so assigned, however, the store manager provides the assistant with all requi- site training, directs the assistant in his or her duties, and sets the assistant's hours of work. The store managers may, without prior approval and at their own discretion, instruct assistants to work overtime. While the store managers do not appear to have the authority to hire, fire, discipline, or reward as- sistants working at their store, the record reveals that the managers can and do effectively recom- mend disciplinary actions and pay raises. The Em- ployer's sales manager, who was the only witness at the hearing, testified that on every occasion he could remember that a store manager recommend- ed an assistant for a pay increase, that recommen- dation was followed. He further testified that store managers' disciplinary recommendations are fol- lowed "virtually all the time." Based on the foregoing evidence, we find and conclude that the Employer's store managers who have employees under them are statutory supervi- sors. Section 2(11) of the Act provides that a su- pervisor is any individual who has authority on behalf of his employer "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effec- tively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but re- quires the use of independent judgment." The facts recited above establish that the Employer's store managers in issue were clothed with and exercised such independent authority. Accordingly. we shall COLORFAX LABORATORIES INC. 439 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclude them from the petitioned-for unit and shall direct an election in the following unit which we find to be appropriate: All full-time and regular part-time retail store employees employed by the Employer in the Washington-Baltimore area, including store managers without employees under them, as- sistant store managers, store assistant person- nel, store decor and assistant store decor coor- dinator, training manager and customer service manager, but excluding all other employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.]