Price Chopper

PRICE CHOPPER B and T Foods, Inc. d/b/a Price Chopper and United Food and Commercial Workers Interna- tional Union, AFL-CIO/CLC, District Local 340, Petitioner. Case 17-RC-9545 19 July 1984 DECISION AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William R. Carter of the National Labor Relations Board. On 14 October 1983 the Regional Director for Region 17 issued his Decision and Direction of Election, finding Meat Department Manager Mi- chael Thomas eligible to vote in the election. On 10 November 1983 the Board denied the Employ- er's request for review, stating that Thomas' eligi- bility could be best resolved by the challenge pro- cedure. Thereafter, the election was conducted and the tally of ballots shows two votes for and one vote against the Petitioner, with one challenged ballot. Since the challenged ballot was sufficient to affect the results of the election, the Regional Di- rector for Region 17, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, directed that the case be transferred to the Board for decision. Thereafter, the Employer filed a brief in support of its challenge to Thomas' ballot. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has reviewed the rulings made by the hearing officer and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. 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 Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of employees of the Employ- er within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All full-time and regular part-time department employees employed by the Employer at its facility located at 811 W. 7th Street, Joplin, Missouri, but excluding all grocery employees, office clerical employees, guards and supervi- sors as defined in the Act. The Employer operates a retail grocery store in Joplin, Missouri, known as Price Chopper. It chal- lenges the ballot of Meat Department Manager Mi- chael Thomas, contending that Thomas is a super- visor as defined by Section 2(11) of the Act. The record shows that, although Thomas spends any- where from 60 to 90 percent of his time in cutting meat, he alone is responsible for the profitability of the meat department and does all buying and pric- ing, and selects the meats to be featured in the Em- ployer's advertising. Unlike the other meat depart- ment employees, Thomas receives a fixed salary along with a bonus based on the store's profitabil- ity, does not get paid for overtime, and is not re- quired to punch a timeclock. Thomas is responsible for training new employees and for directing em- ployees as to the quantities of meat to be cut, wrapped, and put out for sale. While not possessing final authority in hiring, Thomas has made effec- tive recommendations with regard to the hire or nonhire of job applicants. Thus, the Employer ac- cepted Thomas' recommendation to hire Dee Os- borne temporarily. In addition, the Employer ac- cepted Thomas' recommendation that five appli- cants sent over by the Job Service receive no fur- ther consideration because, according to coowner Terry Cadewell, none of those applicants "seemed to be what [Thomas] was looking for." According- ly, because Thomas possesses the authority, inter alia, to make effective recommendations with re- spect to hiring, we sustain the Employer's chal- lenge to his ballot, and find that a certification of representative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid bal- lots have been cast for United Food and Commer- cial Workers International Union, AFL-CIO/CLC, District Local 340 and that it is the exclusive col- lective-bargaining representative of the employees in the unit found appropriate. All full-time and regular part-time department employees employed by the Employer at its facility located at 811 W. 7th Street, Joplin, Missouri, but excluding all grocery employees, office clerical employees, guards and supervi- sors as defined in the Act. 271 NLRB No. 52 323