Fanny Farmer Candy Shops, Inc.

FANNY FARMER CANDY SHOPS, INC. 299 Chester Kulisz was challenged by the Intervenor on the ground that he had been discharged before the date of the election. The Regional Director found that Kulisz was employed as a warehouseman until September 1954, when he was discharged. It appears that unfair labor practice charges were later filed alleging that Kulisz was discharged in violation of Section 8 (a) (1) and (3). In his report, the Regional Director states he found no merit to the charge, but was unable to dis- miss the charge because of lack of authority, the office of General Counsel then being vacant. He therefore recommended that the Board sustain the challenge to Kulisz' ballot. However, as the 8 (a) (3) charges filed with respect to Kulisz' discharge are still pending, we shall not now resolve the challenge to Kulisz' ballot. Inasmuch as the counting of the seven ballots, the challenges to which are hereby overruled, may determine the results of the election, we shall direct that they be opened and counted. In the event that a sufficient number of ballots were cast for the Petitioner to give it a majority of all the votes cast in the election, the Regional Director is instructed to issue a certification of representatives to the Petitioner. If a majority of all votes cast is for Amalgamated Union, Local 649, UAW-AFL, then the Regional Director is instructed to issue a certi- fication of representatives to that effect. In the event, however, that the above seven ballots when opened and counted, do not determine the results of the election, we shall, at that time, resolve the challenge to Chester Kulisz' ballot. [The Board directed that the Regional Director for the Second Re- gion shall, within ten (10) days from the date of this Direction, open and count the ballots of Wasyl Ratuszny, Frank Coyne, Otto Schapa, Sylvester Lefkowitz, William Yarrow, Anthony Piagentini, and Mitchell Pietruszkiewicz, and serve upon the parties a revised tally of ballots, and issue certification.] MEMBER LEEDOM took no part in the consideration of the above Supplemental Decision and Direction. Fanny Farmer Candy Shops , Inc. and Bakery and Confectionery Workers' International Union of America, Local 12, AFL, Pe- titioner. C, a<se No. 6-RC-1501. April 20, 1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harvard G. Borchardt, hear- ing officer. The hearing officer's rulings made at the hearing are free, from prejudicial error and are hereby affirmed. 112 NLRB No. 48. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer is engaged in the manufacture of candy and con- fections which it sells through approximately 400 of its own retail stores located in 18 States. The retail operations of the Employer are administratively divided in eight districts and numerous subdivi- sions thereof, each being headed by a district manager and a subdi- vision supervisor. In the Pittsburgh area subdivision there are 8 stores, 5 of which are located in Pittsburgh, Pennsylvania, and are involved herein.' The parties agree that the scope of the unit should include only the five stores in the city of Pittsburgh, and that temporary and seasonal employees should be excluded therefrom. The Petitioner would limit the unit to all regular and part-time selling employees while the Em- ployer would also include therein the nonselling employees, such as porters and cleaning women. The parties also disagree as to the supervisory status of the shop managers and assistant shop managers. Selling and nonselling employees : In addition to full-time and part- time sales personnel, the Employer employs 4 nonselling employees for work at all 5 stores : 1 full-time and 1 part-time porter and 1 full- time and 1 part-time cleaning woman. These employees perform the customary duties of their classifications, such as cleaning and other janitorial functions. These nonselling employees, unlike the hourly rated sales employees, receive a salary,' but they work the same hours and are eligible for the same employee benefits as the sales personnel.' In the past the Board has recognized that a functional integration and mutuality of interest exists between these nonselling employees and selling employees in retail establishments.4 Accordingly, in the ab- sence of a bargaining history, and as no other union seeks to represent them, we shall include in the unit, the porters and cleaning women,5 both full-time and part-time.' ' The other three stores are located in Altoona , Uniontown, and Monroeville , Pennsyl- vania. 2 The part-time porter is paid on an hourly basis a The part-time employees, selling and nonselling , are not eligible for the same fringe benefits as the full-time employees. * J C. Penney Company, 86 NLRB 920, 921 15 Petrie'', an Operating Divsstion of Red Robin Stores, Inc, 108 NLRB 1318. 6 The part-time porter regularly works more than 16 hours each week , the part-time cleaning woman more than 6 hours each week, and the part -time sales girls more than 25 hours per week As the Board's unit findings are based upon functionally related occupa- FANNY FARMER CANDY SHOPS, INC. 301 Shop managers and assistant shop managers: Contrary to the Peti- tioner, the Employer contends that the shop managers and assistant shop managers have authority to hire and fire employees or effectively recommend the same and therefore should be excluded from the unit as supervisors. Although the stores are under the general super- vision of the subdivision supervisor who regularly visits each store and acts as liaison with the district office, and who has authority to 'hire and fire, a shop manager is in complete charge of each store. The shop manager directs the activities of from 1 to 4 salesgirls in the performance of their duties. She prepares and may change their work schedules, settles minor grievances, trains the new sales per- sonnel and recommends pay increases. Although the record does not -establish that the shop managers were specifically advised prior to the hearing as to their authority to hire or fire sales employees or recommend the same, it does show that, during the course of the hear- ing, the Employer so advised them and reaffirmed such authority. Further, three shop managers testified that since the start of the hear- ing they had hired or recommended for hire new employees. In view ,of the foregoing and as the shop managers possess and exercise the statutory authority of supervisors, we find that they are supervisors within the meaning of the Act, and therefore will exclude them from the unit. In each store there is one employee designated as the assistant shop manager who substitutes for the shop manager at lunch time, and whenever the shop manager is sick, on vacation, or otherwise absent from the store. Except during these absences, this employee does not have any of the statutory authority of a' supervisor. As the super- visory authority vested in the assistant shop manager is of a sporadic nature, we are not persuaded that they are supervisors within the meaning of the Act, and therefore shall include them in the unit.' Accordingly, we find that all employees, selling and nonselling, em- ployed in the Employer's five candy stores in Pittsburgh, Pennsyl- vania, including salesgirls, assistant shop managers, porters, cleaning women, and part-time employees, but excluding office clericals, guards, shop managers, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above Decision and Direction of Election. tional categories, and as the record indicates that all part-time employees, selling and non- selling, regularly perform the same duties as those performed by the full-time employees, we shall include them in the unit. Montgomery Ward & Co, 110 NLRB 256; Crown Drug Company, 108 NLRB 1126. 7 Helms Motor Express, Inc., 107 NLRB 132.