Jim Dandy Fast Foods, Inc.

JIM DANDY FAST FOODS Jim Dandy Fast Foods, Inc ' and Los Angeles Joint Execu- tive Board of Hotel and Restaurant Employees and Bartenders Unions, AFL-CIO, Petitioner Case 21-RC-11525 May 1, 1970 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Orville S Johnson Following the hearing and pursuant to Section 102 67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision The Employer and the Petitioner filed briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three member panel The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error They are hereby affirmed Upon the entire record in this case, the Board finds I The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein 2 The labor organization involved claims to represent certain employees of the Employer 3 A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act 4 The Petitioner, in its petition, seeks a unit of all employees of the Employer at its stores I through 12, inclusive, but excluding warehouse employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act However, the Petition- er at the hearing and in its brief expressed a willingness to accept a unit composed of all stores in operation as of the date of the hearing or "even a unit including all stores in operation at some subsequent date " The Employer contends that the only appropriate unit is one composed of all its stores in the Los Angeles area, and that because of the Employer's rapid expansion at a certain and predictable rate the number of employees presently employed is not a substantial and representa- tive group of the expected total work force The Employ- er also maintains, contrary to the Petitioner, that the warehouse employees should be included in the unit, and the manager and assistant manager of each store should be excluded because they are supervisors ' The Employer s name appears as amended at the hearing The Appropriate Unit 269 The Employer, a subsidiary of Host International, Inc , operates stores selling primarily, fried chicken to the public throughout the greater Los Angeles area 2 The Employer commenced operations in June 1969, by opening four stores Additional stores were opened in succeeding months July, none, August, six, Septem- ber, one, October, none, November, five, and December, at the date of hearing, three more had commenced operations It appears that from the time that a site is acquired, approximately 45 days is required before a store is opened at that location A real estate man is responsible for the acquisition of sites for stores The general manag- er estimated that he expected to open another 10 stores (stores 20-29) before January 1, 1970, and indicated that the Employer had acquired at that time 6 other sites (two already designated stores 30 and 31) for build- ing stores, and there were 30 outstanding offers for acquisition of other sites The Employer's projected plans call for the opening of additional stores during the calendar year 1970 to create a total of from 120 to 150 stores in the greater Los Angeles area As mentioned above, the Employer's stores specialize in selling fried chicken and other food items to the public Each one of these stores is substantially identical in architecture, equipment, arrangement, and method of operation The menu and prices are identical in all stores Stores are supplied from Employer's commissary (warehouse) and an outside bakery supplier When the commissary is closed, the commissary being opened from 6 30 or 7 a in to 5 30 p in , whereas the stores are opened from I to 9 30 or 11 30 p in , supplies are interchanged among the stores as required by changes in business volume at the different stores The main offices of the Employer are located at the commissary (warehouse) From this location, the Employer's general manager, as well as the assistant manager, visits each store at least once a week The Employer also employs two quality control supervisors who inspect the operations of their assigned stores on a daily basis Almost all administrative functions neces- sary in operating the Employer's business are performed at the Employer's main office At the commissary (warehouse) the Employer employs a personnel director who does all the hiring for the stores Advertisements are placed in newspapers for applicants to apply for employment at this location Upon hire, an employee is trained at this location as either a management trainee or cook trainee The training at the commissary (warehouse) for both positions appears to be the same Only after the completion of this training program are the employees assigned to stores The Employer's policy is to continually transfer employees among the stores Transfers are made for the purpose of insuring that all stores have a proper 2 Other subsidiaries of Host operate similar fried chicken carryout stores in other parts of the United States ( Church s 56 stores in Houston Texas) but which are not the subject of this proceeding 182 NLRB No 42 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee complement and to provide some experienced employees in the newly opened stores. Evidence was presented by the Employer to show that there is consider- able transfer of employees from one store to another. Some employees had worked in as many as six different stores. At each store, there is a manager, assistant manager, cook/window men, and trainees. This average comple- ment per store of five employees varies though, depend- ing on the store's volume. All employees at the store are dressed in a similar uniform which is issued to them at the general offices when they are hired. The rates of pay and fringe benefits are almost identical for all store employees. Store employees are paid a base weekly rate plus a percentage of gross sales, the manager and assistant manager receiving a higher per- centage of gross sales. None of the store managers and assistant store manag- ers were originally hired as such. Thus, the Employer maintains a policy, since commencing its operations, of promoting to these positions employees who were originally hired as cooks or cook/window men. The Employer contends that the only appropriate unit is one including all the stores in the Los Angeles area. The Petitioner has in effect agreed to this, since it has expressed its willingness to include in the unit all stores open at either the date of the hearing or at some subsequent date. In the light of the foregoing facts and the positions of the parties, we find that an appropriate unit here includes all the stores in the Los Angeles area. However, the Employer contends that the election should be postponed to some future date, because the Employer is so rapidly expanding the number of operat- ing stores in the Los Angeles area as to cause the present complement of employees to be an unsubstantial and unrepresentative group of the expected total work force. As noted above, the Employer states that it plans to have between 120 and 150 stores in operation by the end of 1970. But from the record evidence, such plans seem to be highly speculative in light of the Employer's present rate of growth. In the course of the first 6 months of operation, June through Novem- ber 1969, the Employer had only opened 16 stores. In 3 months during this period no stores were opened at all. The Employer's general manager did testify that it was planned, during December 1969, to open an additional 13 stores, of which 3 were open at the time of the hearing, December 10, 1969. He further testified, though, that the Employer has firm plans to open only an additional four stores in January 1970, and no definite plans for store openings in February 1970, or thereafter. The Employer failed to produce evidence at the hearing to show that there was a firm and definite plan for completion of its expansion program within a reasonable time in the future.3 Consequently, we feel that it would be improper to refuse to allow the employees to deter- mine at this time whether they wish to be represented s See Kellogg Switchboard and Supply Co , 127 NLRB 64, 65 by the Petitioner, and we shall direct an election among the employees of the Employer presently employed.4 , The Employer also contends that the commissary (warehouse) employees should be included within the unit. These employees include two chicken-cutters, two warehousemen, one warehouseman-truckdriver, and one truckdriver. The record reveals that they work different hours and are compensated in a different manner from the store employees. Further, these employees are given a different type of training and perform completely different duties from the store employees. There is no regular interchange or transfer of personnel between the commissary (warehouse) and the stores, and there appears to be little or no contact between the two groups of employees. Accordingly, we conclude that these employees should not be included in the unit of store employees.' Unit Placement and Eligibility As set forth above, the Petitioner, unlike the Employ- er, asserts that the store managers and assistant store managers are not supervisors within the meaning of the Act, and therefore should be included in the unit. The general manager in describing the duties of the store manager specified that the manager had the authori- ty to schedule the hours of employees at his store; the authority to call his employees to come in to work unscheduled hours; the authority to permit employees to leave before their work schedule ends; to authorize employees to work overtime; and can effectively recom- mend the promotion of employees at his store. Managers, according to the general manager, also have the authority to fire employees under certain circumstances; i.e., an employee reporting to work while intoxicated. Although Dotson, a former manager, testified that he had never been told that he had the authority to discharge employ- ees, he did admit that he had never inquired whether he had such authority nor had a situation arisen in which he might have had cause to exercise such authori- ty. We are of the opinion that the store managers are supervisors within the meaning of the Act. However, the present record, in our view, does not present sufficient evidence to make a determination about the supervisory status of the assistant store managers. Accordingly, we do not hereby determine their unit placement but shall permit the assistant store managers to vote subject to challenge. " The Employer seems to make a contention that because of its rapid expansion and its present policy of promoting present employees to supervisory positions most of the employees now in the unit will soon be supervisors and therefore not part of the unit The Employer therefore suggests that the present employee complement is unrepresenta- tive of any future complement We disagree Although many of these employees may some day become supervisors they are currently employed at those jobs which we find are within the appropriate unit and are entitled to be represented by a collective-bargaining agent if they so desire Further, the speed of this change in work force is far from clear since it is contingent upon the Employer's speculative growth rate 5 John's Bargain Store, 160 NLRB 1519 JIM DANDY FAST FOODS 271 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act All employees of the Employer at its stores in the Los Angeles area, excluding warehouse employees, office clerical employees, professional employees, guards, store managers, and supervisors as defined in the Act [Direction of Election' omitted from publication I ' 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 addresses which may be used to communicate with them Excelsior Undentear Inc 156 NLRB 1236 N L R B v Wyman Gordon Company 394 U S 759 Accordingly it is hereby directed that an 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 21 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed