Burlington Food Store, Inc.

BURLINGTON FOOD STORE, INC. 781 Burlington Food Store, Inc., and Delaware Food Store, Inc. and Locals 1358, 1360, 1371, 1262, 1349, Retail Clerks International Association, AFL-CIO. Case 4-CA-3682 June 28, 1968 SUPPLEMENTAL DECISION AND ORDER On November 24, 1965, the Board issued its Decision and Order in the above-entitled proceed- ing, finding that the Respondents had violated Sec- tion 8(a)(5) and (1) of the Act by refusing to bar- gain with the Unions in a unit of store managers and part-time employees in the Respondents' stores in New Jersey and Delaware.' The Respondents, however, refused to comply with the Board's Order on the grounds that the store managers were super- visors and, thus, that the bargaining unit was not appropriate. The Board petitioned the United States Court of Appeals for the Third Circuit for enforcement of its Order. While the case was pend- ing for enforcement and after the record therein had been filed with the court the Board sought, without opposition, to obtain a remand for recon- sideration in the light of its decision in Narragansett Food Service, Inc.' On March 7, 1967, the court re- manded Burlington, and on August 25, 1967, the Board issued an order reopening the record and re- manding case for hearing, to obtain additional evidence concerning the duties, responsibilities, and authority, possessed and/or exercised, by the store managers at the present time and at the time of the hearing in the underlying representation case in Burlington.' On December 28, 1967, Trial Ex- aminer William Seagle issued his Supplemental Decision in this proceeding recommending that the Board reaffirm its previous Decision and Order finding that store managers were appropriately in- cluded in the bargaining unit and that the Respon- dents had violated Section 8(a)(5) and (1) of the Act. Thereafter, the Respondents filed exceptions to the Trial Examiner's Supplemental Decision and a supporting brief. In finding the store managers to be employees, the Board in its original Decision adopted in effect the Regional Director's finding based on the record before him that store managers hired or discharged assistant managers, i.e., part-time employees, only sporadically, a fact which, standing alone, was con- sidered insufficient to establish supervisory authori- ty to hire and discharge. The remand record, how- ever, also shows not only that the managers hire their assistants and also discharge them, if necessa- ry, but that they do so as a customary practice and with a relatively high degree of frequency. There of course is more recourse to hiring than to discharge since the problem with assistants appears more to be their fairly frequent quitting. It appears from the testimony of four managers at that hearing that over roughly a 3-year period each hired seven and discharged one assistant . In the hiring process the managers interview the prospective assistants and have them fill out a form containing references which the managers verify. The application form is sent to the area supervisor for a secutiry check after which, in the usual case, the applicant is hired. It appears that once the applicant gets by his initial interview with, and verification of references by, the managers , he is normally hired absent some de- fect arising in the routine security check. Also, it seems clear that assistants are hired, at least in sub- stantial part, so that a manager may meet the Respondents' requirement that its stores be open 98 hours a week and not solely to further some in- terest of the managers themselves. In view of the foregoing, we cannot agree with the Trial Examiner that the managers' hiring of assistants is a nonsu- pervisory routine action or one made only in the in- terest of the manager and not that of his Employer. On the contrary we find on the record before us that the managers possess the authority to hire and discharge their assistants and are, in consequence, supervisors within the meaning of the Act. Ac- cordingly, we find that the managers should be ex- cluded from the unit previously found appropriate. With such exclusion, there is thus no basis in this record for finding that the Unions have at times material herein represented a majority of em- ployees in such unit. The unit as originally established was considered to include roughly 46 managers and an equal number of assistants. The Union won the election upon which its certification is based by a vote of 40 to 12.4 Consequently, removing the managers from the unit vitiates the election proof of the Unions' majority status. Ac- cordingly, we shall set aside the certification in Case 4-RC-6152 and dismiss the complaint in this proceeding. ' 155 NLRB 1192 ' Case 1 -RC-8744 , not reported in printed volumes of Board Decisions In that case, which involved the same parent company as the present proceeding, the Board found , inter aha, that store managers were super- visors and thus excluded from the unit, while in the present cases it found them to be employees and thus included them in the unit ' Case 4-RC-6152, not reported in printed volumes of Board Decisions ' There were 95 "employees" eligible to vote, 40 voted for the Unions, 12 voted against , 4 ballots were challenged , and 2 were void 172 NLRB No. 73 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the certification issued in Case 4-RC-6152 on May 19, 1965, certifying the Charging Party Unions as the collective-bar- gaining representatives of employees in a unit of all Respondents' employees including store managers and regular and part-time employees be, and it hereby is, set aside; and IT IS FURTHER ORDERED that the complaint in Case 4-CA-3682 be, and it hereby is, dismissed. TRIAL EXAMINER'S SUPPLEMENTAL DECISION WILLIAM SEAGLE, Trial Examiner: Under date of August 25, 1967, the Board entered an order reopening the record in the present case, and directing that a hearing be held before a Trial Ex- aminer with respect to the alleged supervisory status of the respondent's store managers both at the present time and at the time of the hearing in Case 4-RC-6152, the representation proceeding that preceded the present complaint case, in which the respondents were found to have violated Sec- tion 8(a)(5) and (1) of the National Labor Rela- tions Act, as amended, by reason of their refusal to bargain collectively with the union. In the representation proceeding, the Regional Director found in his Decision and Direction of Election issued March 29, 1965, that the ap- propriate unit consisted of all the employees of the respondents in their retail food stores in New Jersey and Delaware, including the store managers and regular part-time employees but excluding the of- fice clerical employees, guards and supervisors as defined in the Act. Under date of April 16, 1965, the Board denied the request of the respondents for review of the Regional Director's decision. Having prevailed in the subsequent election held on May 11, the union was certified on May 19, 1965, as the collective-bargaining representative of the em- ployees in the bargaining unit found to be ap- propriate but the respondent challenged the ap- propriateness of the unit because it included the store managers, and declined to bargain with the union . After the complaint had been issued against the respondents under date of June 29, 1965, alleg- ing the violation of Section 8(a)(5) and (1) of the Act, counsel for the General Counsel filed a motion for summary judgment which was granted on Sep- tember 28, 1965, by the Trial Examiner who heard the motion. Under date of November 24, 1965, the Board adopted the findings, conclusions, and recommendations of the Trial Examiner. The respondents having failed to comply with the Board's order, the Board on October 28, 1966, petitioned the United States Court of Appeals for the Third Circuit for the enforcement thereof. In its brief to the court, the respondents called attention, however, to a prior decision of the Board in Nar- ragansett Food Service, Inc. (Case 1-RC-8744), which was in apparent conflict with the Board's decision in the present case before the court. As a result, the Board requested the court to remand the case to it for whatever action the Board might deem appropriate, and on March 7, 1967, the court granted the Board's request. On November 3, 1967, the duly designated Trial Examiner held a hearing at Philadelphia, Pennsyl- vania, with respect to the alleged supervisory status of the respondent's store managers. Subsequent to the hearing, counsel for the respondents and for the charging party filed with the Trial Examiner memoranda which have been duly considered. Upon the record so made, and in view of my ob- servation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT Counsel for the General Counsel produced at the hearing two witnesses, both of whom were store managers . The first of these two witnesses was Stanley Junkrowski, who had been a store manager for Cumberland Farms' since July 2, 1964. The store of which Junkrowski is the store manager is located at 9712 Ventnor Avenue, Margate, New Jersey. This is a small store, which measures only about 25 by 30 feet and has only one cash register. The second witness produced by counsel for the General Counsel was John Warren, who managed a store for the respondents located at River Road, Camden, New Jersey, for a period of about 2-1/2 years, beginning in 1963. He then took over the management of another of the respondents' stores located at 1286 Collings Road, Camden, New Jer- sey, but this store was closed on September 26, 1967, and Warren was unemployed at the time of the hearing. Warren's last store, like Junkrowski's, measured only about 25 by 30 feet and had only one cash register. Junkrowski was the star witness at the hearing. A big, corpulent man, he seems to have been abso- lutely tireless in the performance of his duties and selfless in his devotion to his employers. He seems to have demonstrated willingness to work at all hours not only in his own store but also in the stores of other managers , for he testified that on rare occasions he even helped out other managers in the evening when they had nobody else to work for them, and that he did this without the knowledge of his employers. When he was questioned about the amount of sick leave allowed by the respondent, he explained that he could not ' It was stipulated by counsel that in effect Junkrowski worked for Burlington Food Store , Inc , which , although a separate corporation, was controlled by the same officers as Cumberland Farms BURLINGTON FOOD STORE, INC. 783 answer the question because he had never been sick during the period of almost 3-1/2 years that he had been a store manager. He had never taken any time off from his work, moreover, during the whole period of his employment. He did not seem to be interested, furthermore, in how his pay was calcu- lated, accepting whatever was paid to him without question, apparently. Thus, when asked what his rate of pay was, he replied: "Well, really I don't know. I don't want to lie. I don't know actually the rate of pay. Salary and commission, I never stopped to figure it out." He did know in addition, however, that every 6 months he received a bonus provided he had "a plus" in his inventory. He was even more vague about any details of the respondents' profit- sharing plan, although he knew that there was such a plan. But he did know that the respondent had Blue Cross and Blue Shield, which he "guessed" covered hospitalization, and that he got paid for working on holidays. Junkrowski works long hours. While formerly the respondents' stores-at the time of the hearing in the representation proceeding-were open for only 84 hours a week, they are now open for 98 hours a week. The stores now open at 9 a.m. and do not close until 11 p.m. This means that the stores are open for business 14 hours a day, 7 days a week. Of these hours, Junkrowski himself ordinarily works from 9 a.m. to 6 p.m.-when he is fortunate enough to be relieved. Junkrowski's duties may be gathered from his description of them during a typical day. When he arrives at the store, he checks the safe and counts the money that has been taken in during the previ- ous night. He then takes an inventory of his perishables, fills out an order for milk deliveries, puts stock up on the shelves, stamps prices on food items , helps unload deliveries made by wholesale grocers, one of the respondents' chief suppliers, ap- parently,2 sweeps the store to keep it clean, and does whatever paper work is necessary, such as making his daily manager's reports to the company concerning his inventory and deliveries, and mak- ing up his bank statements. Of course, all these types of work are secondary to waiting on customers who may come into the store. At 6 p.m. Junkrowski would be relieved by his "relief manager," who worked until 11 p.m. unless, as sometimes happened, the latter failed to show up. Until about 3 or 4 months ago, Junkrowski had had the same relief manager for 2 years but since then there has been a succession of them, none of whom remained very long. The name of Jun- krowski's present relief manager is Anthony (Tony) Genova. It should be noted that throughout the hearing Junkrowski in answering questions kept referring to his "relief manager," although examin- ing counsel kept referring to his "relief manager" as his "part-timer," the term that seems to have been exclusively in vogue in the original hearing in the representation proceeding. In adopting this change of usage , Junkrowski and examining coun- sel were clearly at loggerheads.' Junkrowski testified that normally the only duty of his relief manager was to wait on customers but that sometimes before leaving the store he would ask the latter to stock shelves or stamp prices on merchandise. As a rule, Junkrowski and his relief manager were together in the store only during the former's last 15 minutes in the store, and it was only during this brief period that he was able to give his relief manager any special instructions. In many respects Junkrowski and his relief manager have the same prerogatives or privileges. Neither of them punches a timeclock. Both of them have keys to the store. Both of them may make refunds to dissatisfied customers. However, only Junkrowski attends the respondents' sales meetings. The reason for this would seem to be, of course, that if both he and his relief manager went to the sales meetings the store would have to be closed. Junkrowski testified that his relief manager is paid by the hour, the rate being either $1.50 or $1.60 an hour. These are the rates fixed by the respondents and Junkrowski has no power to vary them, either upward or downward, and thus he can- not give his relief manager a raise. Apparently, raises are automatic after the relief manager has completed a satisfactory period of service. The top pay of a relief manager would seem to be $1.60 an hour. Junkrowski knew nothing, apparently, about what fringe benefits his relief manager enjoyed, and he was unable to say whether "he had the benefit of Blue Shield and Blue Cross," whether he was in- volved in the profit sharing, or whether he was paid for working on holidays. It appears, finally, from Junkrowski's testimony, that his relief manager does not exactly stand in awe of him. This is ap- parent from his answer to a question of counsel for the General Counsel, "what does the part-timer call you? Does he refer to you as his boss?" Jun- krowski's answer was as follows: They call me Stanley, my first name. Stan for short. Once in a while, in a joking way he might say, "Hey boss." It all depends on the fellow I guess, on the time he approaches or asks , or whatever his sense of humor may be at the time. Judging from Junkrowski's testimony, the respon- dents as employers exercise close and detailed su- pervision over the operations of all their stores, in- cluding the employment of their store managers and relief managers . They prescribe the hours that their stores must remain open, the items that may ' Junkrowski explained that he preferred to help with the unloading to ' Although I shall hereinafter use the term "relief manager " exclusively, l having deliveries dumped on the sidewalk by the union truckmen shall do so for the sake of brevity, recognizing that the term "part-timer" is also still current 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be purchased for them and sold in them, and the general policies for conducting them. Junkrowski testified that he was permitted to purchase only from authorized suppliers, and that he had a book which guided him in what he could buy; only the amounts of authorized goods that he could buy was at his discretion. The store manager also has no control over the prices that he can charge customers, or the prices that he has to pay for products stocked in the store. The respondents also determine when sales may take place, and what ad- vertising shall be done. From time to time, the store manager receives letters from the respondents, setting forth company policies, and there are rules and regulations that he is required to follow. To make sure that the com- pany's policies are being followed the store manager is required to make a report every day, and once a week or every 10 days the store manager is visited by his district supervisor who checks on the store's operations, again to insure that company policies are being followed. In the case of Junkrowski, the name of his district super- visor is John Rice. Perhaps as good an illustration as any of the closeness of the supervision over the store managers and relief managers is that both are required by company regulations to wear a white shirt and a tie while they are working in the stores. Junkrowski's testimony also indicates that his freedom to hire his relief manager and to discharge him is severely circumscribed. During the period of his employment, which has extended over approxi- mately 3-1/2 years, Junkrowski has not hired more than six relief managers, and all but one of them have been hired during the last few months of his employment. It is apparent from Junkrowski's testimony that the relief managers who are hired are hard to come by, for he testified that he would ask his customers whether they knew of anybody who might be interested. In detailing the procedure that he was required to follow before he could hire a relief manager, Junkrowski testified that he had to give the applicant an application to fill out, and give the application to his district supervisor from whom he had to obtain approval to employ the ap- plicant. As for discharging a relief manager, Jun- krowski testified that he had discharged only one during the 3-1/2 years of his employment-the last one whom he had hired during the past summer- the reason for the discharge being that he was late too frequently. It is to be inferred from Jun- krowski's testimony that he did at least inquire whether he had authority to fire his relief manager. Asked "when you fired that one man, you did that on your own and you did not consult with anyone else?" he replied "No, because I had that authority to do. I'm told that I have that authority" (emphasis supplied). John Warren, the only other witness called by counsel for the General Counsel, began his testimony by declaring that the stores at which he had been employed were operated substantially in the same manner as Junkrowski's store. But he clarified the basis on which store managers were compensated. He worked 54 hours a week and was paid $90 for the first 50 hours, plus commission, and was paid overtime for all hours in excess of the 50 hours, the overtime being calculated on the basis of his relief manager's hourly rate, which in this case was $1.60 an hour. Warren also had vir- tually the same experience as Junkrowski in the matter of hiring and discharging-he hired six or seven, and discharged one-but his testimony makes it even clearer than Junkrowski's that he had no real independence in the exercise of these func- tions. He testified at first in general as follows: Q. Now when you hired these employees and you discharged the one employee did you have to check with anyone else or did you do this on your own authority? A. No, I was notified. Q. You were notified to hire and- A. Notified to fire. Q. You were notified to fire? A. Yes. Q. By whom? A. Well, in this particular case, I was notified by the security officer. Q. The security officer? A. Yes. Q. Now in the case of the hirings that you made did you hire these people on your own authority or did you have to get clearance from someone above you? A. No, I had to get clearance from someone above me. Q. And who would that be? A. Well, the supervisor of that particular area. Going into more detail with respect to the hirings, Warren testified, like Junkrowski, that he was required to take applications and to turn them in to his supervisor, although in one instance he was permitted to hire an applicant provisionally before his application had been processed. In only one in- stance, did Warren, moreover, make any positive recommendation that the applicant be hired. On corss-examination Warren testified that he un- derstood that applications would be sent to his su- pervisor for a security check but he also testified that he was never notified of the result of the security check. If this revealed "a fault in the per- son," he would be notified, and he would have to fire that person. As for the one relief manager who was discharged, Warren testified that he merely notified the latter of his discharge, someone else having made the decision to fire him. It seems that the reason for this relief manager's discharge was that he was found to have been stealing. The respondent called only three witnesses, Ar- mand R. King, a district supervisor who supervised the operation of Warren's stores, and two store BURLINGTON FOOD STORE, INC. managers, Robert W. Crawford, who has been em- ployed by the respondents since June 6, 1964, and is operating its store in Northfield, New Jersey, and Louis R. Addario, who has been employed by the respondent only since May 1966. The testimony of these three witnesses was extremely brief, and was confined almost entirely to the hiring and firing practices of the respondent. King was called, apparently, to contradict War- ren's testimony with reference to these practices, and he testified that Warren did not have to clear with him in hiring employees as relief managers ex- cept for the security check. But King also testified specifically: "He would request from me when he needed part-timers-and what he was searching for was just the names of those individuals that he had given to me for records. He hired his own part-time people." The conclusion in the last sentence of the quotation would seem to be a nonsequitur, and the quotation as a whole is not exactly consistent with the idea that he had nothing to do with hiring relief managers except for the security check. As for the relief manager who was discharged by Warren, King testified that when this relief manager's thefts were discovered Warren was notified that "his in- ventories were in jeopardy and that he'd have to make changes in his part-time set up." In effect this meant that if the store manager did not fire the re- lief manager he would not qualify for his bonus. This would leave the store manager little choice. Crawford, who had hired six or seven relief managers and discharged one, and Addario, who had hired three relief managers and discharged one, testified that they enjoyed independence in hiring and firing their relief managers. It is apparent that the testimony of Junkrowski and Warren is irrecon- cilable with the testimony of King, Crawford, and Addario, but I resolve the conflict by crediting the testimony of the former rather than of the latter. Concluding Findings Counsel for the General Counsel failed to produce at the hearing any one of the chief execu- tive officers of the respondents, nor did counsel for the respondents, or the charging party. While four store managers and one district supervisor were produced and testified, the questions arise how representative they were, and to what extent it is permissible to generalize about the respondent's operations on the basis of their testimony. Despite the small number of witnesses, safe con- clusions may certainly be reached concerning the size of the respondents' stores, which are small; the total number of hours worked by the store manager and the reliet manager which are 98, of which 54 are normally worked by the store manager, and 44 are normally worked by the relief manager; the basis of compensation of the store manager, con- sisting of a salary in the amount of $90 per week, commission and bonus, and of the relief managers, 785 consisting of pay on an hourly basis at the rate of either $1.50 or $1.60 an hour; the fringe benefits, which seem to consist of health insurance, a week's sick leave, and a certain number of paid holidays, in the case, apparently, of both the store managers and the relief managers; and in general concerning the duties of the store managers and relief managers, and the nature of the supervision exer- cised over them. It is apparent that neither the store managers nor the relief managers exercise or are required to exer- cise truly independent judgment in the performance of their respective duties. They are primarily sales clerks, the chief difference between the store manager's duties and those of the relief manager being that the former does, apparently, all the necessary paper work and ordering of merchandise from stipulated sources and most of the stamping and arrangement of the merchandise. It is also clear that the executive officers of the respondents rather than the store managers are the persons who deter- mine all the basic working conditions of both the store managers and the relief managers, exercising the strictest supervision over all of them, both by means of general instructions and by means of frequent personal visitations by district supervisors. If the store managers are in any sense of the term "supervisors" of the relief managers, it is plain that they are themselves supervised to such an extent that they are deprived of the use of any indepen- dent judgment. This is true to such a degree that the store managers cannot even determine the na- ture of their own wearing apparel or that of their relief managers.There have been a few changes in the operation of the respondents' stores since the Regional Director's decision but these changes have certainly not been of such a nature as to mag- nify the importance of the role' of the store manager. Although the hours that- the stores must remain open have been increased from 84 to 98, the number of hours normally worked by the store managers and the relief managers have been more nearly equalized, the ratio now being 54 to 44. While too much can be made of a mere change in nomenclature, particularly in determining whether a particular employee is a supervisor, it is not without some significance that the former "part- timers" are now also referred to as "relief managers. " There has been no change, however, in the ex- tent of the respondents' control over the hiring and firing of relief managers but the credited evidence before me casts doubt upon the conclusion of the Regional Director that "Store managers are, except in the most formal sense, responsible for, and authorized to, dismiss part-time employees." It also casts doubt upon the Regional Director's conclu- sion that the store managers exercise the functions of hiring and firing so infrequently that it can be said to be sporadic and rare. At least the hirings have recently been fairly frequent in some instances 354-126 O-LT - 73 - pt. 1 - 51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but whether one considers either the hiring or the firing the basic difficulty is that the evidence as to these practices is too scant to be generalized. In the absence of overall figures on hirings and firings, it is not possible to reach general conclusions with respect to these functions. It seems to me, however, that the question whether hirings and firings are sporadic or rare is distinctly secondary to the question whether they involve the exercise of inde- pendent judgment and, as to this question, it seems to me that the record is wholly adequate, and requires that the question be answered in the nega- tive. The credited evidence shows that so far as hiring goes the store manager is no more than a taker of applications and an announcer of results to the suc- cessful applicant. The role of the store manager cannot be maximized by arguing that all the respon- dents do is to run a security check, even if this were all they do, for a security check inherently would cover all the factors which, in the case of an un- skilled job, would determine whether an applicant should be hired. As for discharging a relief manager, here, too, the initiative comes from the respondent's district manager when he informs the store manager that his inventory is in danger. Ac- tually, if the store manager proved obdurate, the district manager would not content himself with just passing on this information. While these circumstances are sufficient to show that the store managers do not exercise indepen- dent judgment in hiring and firing, there is still another ground for reaching the conclusion that the store managers are not supervisors within the meaning of Section 2(11) of the Act. This reason is that in hiring and firing relief managers the store managers exercise the authority in their own in- terest rather than "in the interest of the employer," as is provided in Section 2(1 1) of the Act.4 They do so in order to save themselves from working the whole of the 98 hours a week during which they are required to keep the stores open, and in order to save their inventories when they are imperiled by a defalcating relief manager. Indeed, the whole relationship between the store manager and his relief manager is anomalous and highly abnormal. The Regional Director called at- tention to one phase of this abnormality, namely, that the store manager and the relief manager worked at different times, with the result that the former had no real opportunity to supervise the latter. There are, however, other facets of this ab- normality. In the circumstances that normally 4 See, for instance , Intl Union of United Brewery Workers v N L R B , 298 F 2d 297 (C A D C ), cert denied 369 U S 843, enfg Gulf Bottlers, Inc, 127 NLRB 850, where the court said in a case involving driver- salesmen for a brewery who hired and fired their helpers The whole purpose of section 2(11) was to place into the employer category "those who acted for management not only in formulating but also in executing its labor policies " We are satisfied that the ex- aminer and the Board alike correctly interpreted as routine the extent of the driver-salesmen 's direction of the helpers . That the latter in the prevail in the relationship between a supervisor and the employee or employees who are supervised by him, the latter look to the supervisor for their promotion or the improvement of their working conditions. This nexus is wholly absent, however, in the relationship between the respondents' store managers and relief managers, since the respon- dents themselves have assumed total control over the promotion of the relief managers and the deter- mination of their working conditions. Doubtless this policy is influenced by the fact that the store manager has no opportunity to observe the work of his relief manager , and would, therefore, be at a loss when it came to making any recommendation for promotion. For somewhat similar reasons, the whole hiring and firing process in the respondents' stores is also abnormal. The relief manager is in the position of "holding down the fort." In an impor- tant sense, the store manager is more dependent on the relief manager than vice versa, and it can be said also that in a sense the relief manager "fires" the store manager simply by failing to show up for work. It is by no means a statistical accident that hirings are frequent while firings are infrequent, for there would seem to be only two basic reasons for firing a relief manager-absenteeism and dishonesty-and the record suggests that of the two absenteeism is the more common reason for the discharge of a relief manager . Considering all the facets of the abnormal relationship between store manager and relief manager, it is no wonder that if the latter calls the former "boss," he does so only as a joke. Section 2(11) of the Act provides: The term "supervisor" means any individual having authoriity , in the interest of the em- ployer, 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 ef- fectively to recommend such action if in con- nection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment (emphasis supplied). Counsel for the respondent submits that the statutory definition is to be read in the disjunctive, and hence that if it is shown that the store managers possess any of the forms of authority enu- merated in Section 2(11) of the Act, they must be deemed to be supervisors. Since the store managers have authority to hire and fire their relief managers, the conclusion follows that they are supervisors. If circumstances described became employees is clear That the driver- salesmen became supervisors is not In no meaningful sense was their exercise of authority "in the interest of the employer "On the contra- ry, we see the record before us demonstrating that the driver -salesmen were motivated by and were acting in their own interest Engaging the helpers had the effect of reducing the manual burdens of the driver- salesmen , expediting the service to their route customers , and increas- ing their potential for higher commissions , even to the point of their foregoing $15 each week which otherwise they would have received BURLINGTON FOOD STORE, INC. 787 my view of the functions exercised by the store managers is correct, however, this syllogism rests upon unsound factual and legal premises. While it is true that the authorities enumerated in Section 2(11) are to be read in the disjunctive, the "if" clause, which I have underlined, is to be read in the conjunctive.' The effect of this clause is to require that each of the authorities enumerated involve the use of independent judgment. The authority to hire and fire is as subject to this requirement as any other of the authorities enumerated in Section 2(11) of the Act. The mere showing, therefore, that an employee can hire and fire, or recommend hir- ing and firing, does not ipso facto make him a super- visor .6 Although it would not seem to be necessary to determine whether the hiring or firing of relief managers can be said to be sporadic, it is perhaps also desirable to point out that counsel for the respondent has not successfully challenged the rule that permits the sporadic exercise of supervisory authority to be disregarded. In essence his argu- ment is that the courts have held that the test of su- pervisory status is the possession of supervisory powers rather than the exercise of them. The courts have so held but only in cases in which the posses- sor of the power may exercise it as a matter of right at any time. It does not follow, however, that such an unlimited and continuous power may be inferred from its sporadic exercise. Indeed, this distinction is present in the very case on which counsel for the respondent relies to support his argument that it is the mere possession of supervisory power that is decisive , and from which he quotes . In this case, which is West Penn Power Co. v. N.L.R.B., 337 F.2d 993 (C.A. 3), the court did declare that "It is the existence of the power which determines the clas- sification of whether an individual is an employee or a supervisor " but the court recognized neverthe- less that "the assumption of some supervisory authority during a temporary period does not bring the employee within the definition (of a super- visor)." Counsel for the respondent does not quote, however, from this portion of the court's opinion. The Board 's decision in Narragansett Food Ser- vice, Inc. (Case 1-RC-8744), would not seem to require that the respondents' store managers be held to be supervisors , the decision being based on a different record which led thet'Board to find that "store managers have on their own hired part-time employees," and exercised the right to discharge them. Similar findings in the present case would not be consistent with the testimony which I have credited. RECOMMENDATION I recommend that the Board reaffirm its decision that the respondents' store managers were ap- propriately included in the bargaining unit, and find that the respondents have violated Section 8(a)(5) and (1) of the Act. ' See, for instance, Poultry Enterprises v N L R B , 216 F 2d 798, 802 (C A 5), and N L R B v Lindsay Newspapers, Inc, 315 F 2d 709, 712 (CA 5) 6 In addition to Gulf Bottlers, Inc , supra, see, for instance, Wells Dairies Cooperative, 109 NLRB 1450, 1451-52, Eastern Camera and Photo Corp, 140 NLRB 569, 570-571, and Journeymen Plasterers ' Protective and Benevolent Society of Chicago, Local No 5, 145 NLRB 1608, 1617-18, enfd 341F2d539(CA 7)