Progressive Supermarkets, Inc.

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union's jurisdictional limitations in no way restrict the Board in determining the appropriateness of a proposed bargaining unit? As all the Employer's drivers operate the same type of tractor-trailers, have essentially the same duties and skills, are under the same super- vision, and may interchange, we find that a unit which would include only a portion of these drivers is not appropriate. We further find that the drivers in dispute are part of the unit for which the Inter- venor is bargaining representative. We therefore shall dismiss the petition. The record indicates that all the facts submitted to the Board in this proceeding were not presented to the Joint Council before it directed the transfer of the membership of the seven bakery truck drivers. We do not know whether if it had been aware of these facts, it would have made the determination it did. In any event, we find that as the seven drivers in dispute are part of the bargaining unit of truckdrivers for which the Intervenor is statutory representative, the Intervenor is under a duty fairly to represent them. The Wallace Corporation v. N.L.R.B., 323 U.S. 248, 255; Peerless Tool and Engi neering Co., 111 NLRB 853, 857-858, enfd. sub nom. N.L.R.B. v. Die and Tool Makers Lodge No. 113, International Association of Ma- chinists, AFL, et al., 231 F. 2d 298, 302 (C.A. 7), cert. denied 352 U.S. 833. [The Board dismissed the petition.] 2 Maybee Stone Company, 129 NLRB 487. Progressive Supermarkets, Inc. and Retail Clerks International Association, Local 1573, AFL-CIO, Petitioner. Case No. 19-RC- 3179. May 13, 1963 DECISION AND CLARIFICATION OF UNIT On January 11, 1963, following an election pursuant to stipulation for certification upon consent election in the unit agreed to by the parties, the Regional Director certified the Petitioner as the collective- bargaining representative of Employer's retail store employees, with certain exclusions.' The Employer's four assistant managers cast chal- lenged ballots in the election held on January 3, 1963, but their em- ployment status was not investigated at that time since the challenged ballots were not sufficient in number to affect the results of the election. I The stipulation describes the unit as all retail store employees, box boys, stockroom and produce employees , checkers, and delicatessen and regular part-time employees at Employer's retail stores located in Billings , Montana, excluding meat department em- ployees, supervisors , and guards as defined in the Act. 142 NLRB No. 65. PROGRESSIVE SUPERMARKETS, INC. 579 On January 10, 1963, the Employer filed a "Motion for Clarification" requesting the Regional Director to exclude the four assistant man- agers from the unit because of their alleged supervisory status. On January 11, 1963, the Regional Director issued an order to show cause why the Employer's motion should not be granted and on February 4, 1963, the Petitioner filed an answer and objections to the order. The Regional Director thereafter referred the matter to the Board, and the Board, on February 20, 1963, issued an order remanding the proceeding to the Regional Director for the purpose of holding a hearing on the issue raised on the Employer's motion and the Petitioner's response thereto. The hearing was held on March 13, 1963, before Dan E. Boyd, hearing officer, following which both parties filed briefs with the Board. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The hearing officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Board has considered the Employer's motion, Petitioner's answer and objections, the parties' briefs, and the entire record herein, and hereby makes the following findings : The record clearly indicates that it is the Employer's practice to have the assistant managers substitute for the managers at least 4 hours in every working day.2 During these periods the assistant managers have complete managerial authority and responsibility for their re- spective supermarkets. Additionally, they effectively recommend the hiring and firing of employees, direct and assign work to employees, consult with managers about certain financial aspects of the stores' operations, and in some instances participate in the formulation and effectuation of the Employer's policies. Therefore, notwithstanding the fact that they punch timeclocks and spend part of their time per- forming the same duties as other employees within the unit, we find the four assistant managers to be supervisors 3 Accordingly, we shall clarify the certification to exclude them from the unit herein. [The Board clarified the certification issued in this proceeding to Retail Clerks International Association, Local 1573, AFL-CIO, to exclude from the unit the four assistant managers at Progressive Supermarkets' four retail stores in Billings, Montana.] 2 The evidence reveals that the Employer schedules the working hours of the manager and assistant manager at each store so that at all times at least one of them is always in the store. a Sigman Food Stores #27, 113 NLRB 689, 692; Birmingham Fabricating Company, 140 NLRB 640; Walgreen Co. of New York, Inc., 97 NLRB 1101, 1104. 712-548-64-vol. 142-38