Cumberland Farms

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burlington Food Store, Inc., t/a Cumberland Farms; Lily-Pen Food Stores, Inc., t/a Cumberland Farms; Delaware Food Store, Inc., t/a Cumber- land Farms; Fireline Petroleum, Inc , t/a D15/GAS and United Food and Commercial Workers International Union, AFL-CIO, CLC, Petitioner. Case 4-RC-15199 26 September 1984 DECISION AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board, by a three- member panel, has considered objections to, and determinative challenges in, an election held 28 and 29 January 1983 and the Acting Regional Direc- tor's report recommending disposition of them The election was conducted pursuant to a Stipulat- ed Election Agreement The tally of ballots shows 348 for and 387 against the Petitioner, with 97 challenged ballots The Board has reviewed the record in light of the Employer's exceptions and brief and has adopt- ed the Acting Regional Director's findings and rec- ommendations with respect to the objections to the conduct of the election and with respect to the dis- position of the challenged ballots, except as de- scribed below 1 The unit is composed of over 200 convenience stores, each of which is supervised by a different store manager Store managers are, in turn, respon- sible to their area supervisors The Acting Regional Director ruled that challenges to the ballots of em- ployees who were related to, and living in the same household with, the store managers or the ' In the absence of exceptions we adopt, pro forma the Acting Re gional Director's recommendations that the Petitioner's objections be overruled, that a hearing be held on the Employer s Objections 2 and 3, if necessary, that the Employer's Objection I be sustained if the errone ously counted challenged ballot of ineligible voter Jill Sinclair is deternu native, but that the Employer s Objection 1 be overruled if Sinclair s ballot is not determinative, that the challenges to the ballots of Anthony Carter, Richard Chamberlain, Clair Tomaskovich, Timothy Harm, Carol Bolmarcich, Richard Bolmarcich, Barbara Salmon, Lisa Salmon, Cather inc Salmon, Cecilia Prettyman, Adam McCarsky, Theresa C Johnson, Anna Mane Tullio, Barbara A Burrows, Edward Gulick, Janine Stanton Thaddeus Mihallovitch, Sam Shapiro, Martha Rue, Patricia Zasowski, Jeannette Cleary Maureen Enourato, Robert Klemkofslu, Susan M Fitz patnck, Joanne H Monahan, Bndget T Wengert, Thomas A Garback, Mildred Brando, Susan L Savage, Bernadette P Maiorano, Sarah Jane Heard, Pamela M Baum, Sharon L Watkins, Matthew E Kovslurk, Keith C Shelly, James T Ackley, Elaine A Rost, D L Ferramolo, Wil ham Martinsen Jr, Patncia S Coleman, John Diednck, Joan Hess, Ran- dolph Lenk, Sharon Puckett, and Diane Viden be overruled, that the challenges to the ballots of Susan Caruso, Debra Franklin, Barry Jackson, Arthur Klink, Mane A Kayati, Mark Pizzuto, and Denise Smith be sus tamed, and that a hearing be held on the challenges to the ballots of Lo retta E Lockbaum, Jean Samuels Francis W Disney, Francis C Pol lock, Martha Curran, Joseph Massimino, Lewis Kuntz, Susan E Keeney, Lawrence Johnson, Tonya Ross, Maureen Kelly, Francis Sessa, Lois Jar kovsky, Michael Tschinkel, Maureen Lynn D'Amico, and James Garcia, if necessary area supervisors under whom they worked should be sustained on the ground that these employees "necessarily have a special status and community of interest distinct from that of other employees," even in the absence of special working conditions or benefits We disagree Employee relationships with supervisors, absent a showing of specific spe- cial privileges or benefits, are insufficient in and of themselves to warrant exclusion from the bargain- ing unit Pargas of Crescent City, 194 NLRB 616 (1971) 2 Consequently, we overrule the challenges to the ballots of employees Kathleen Hurley, Jere- miah Hurley, Frank Toth, Harold McCarsky, Renee Schager, Gina Zaremba, Gloria Sule, Fred Sule, and Nadine Sule, and order that their ballots be opened and counted We also find that the Employer provided suffi- cient evidence to raise issues of fact which are best resolved by a hearing with regard to certain addi- tional employees who were relatives of, and living with, supervisory personnel and who the Petitioner contends were receiving specific special treatment not accorded other employees See Novi-American, 234 NLRB 421 (1978) Consequently, we will order that a hearing be held, if necessary, on the chal- lenges to the ballots of Priscilla Moeller, Andrew Candeloro, John Hurley, James Ehling, Pat Dube, and Vincent Miles DIRECTION It is hereby directed that, as part of the investi- gation to ascertain a representative for the purpose of collective bargaining among certain employees of Burlington Food Store, Inc , t/a Cumberland Farms, Lily-Pen Food Stores, Inc , t/a Cumberland Farms, Delaware Food Store, Inc , t/a Cumberland Farms, and Fireline Petroleum, Inc , t/a DIS/GAS, the Regional Director for Region 4 shall, pursuant to the Board's Rules and Regula- tions, within 10 days from the date of this direc- tion, open and count the ballots of Anthony Carter, Richard Chamberlain, Clair Tomaskovich, Timo- thy Hann, Carol Bolmarcich, Richard Bolmarcich, Barbara Salmon, Lisa Salmon, Catherine Salmon, 2 The Acting Regional Director relied on Pandick Press Midwest, 251 NLRB 473 (1980) In that case, the Board excluded on community of in terest grounds the daughter of the employer's president The Board said both that the president was 'not an owner" of the employer and that he claimed to own "less than 1 percent" of the employer s open stock 251 NLRB at 473 Because Pandick Press may be read as applying an "ex panded community of interest" test to relatives of nonowner managers, we reaffirm today that the proper test in cases where ownership is not at issue is special status' on the job No Issue pertaining to relatives of total or partial owners is presented or reached here Member Hunter agrees that, absent a showing of specific special pnvi leges or benefits, an employee s relationship with a supervisor is no ground on which to exclude the employee from the unit As stated in Action Automotive, 262 NLRB 423, 424 fn 4 (1982), Member Hunter ap- plies the same pnnciple to employees who are related to owners 272 NLRB No 51 CUMBERLAND FARMS 337 Cecilia Prettyman, Adam McCarsky, Theresa C Johnson, Anna Marie Tullio, Barbara A Burrows, Edward Gulick, Janine Stanton, Thaddeus Mihailo- vitch, Sam Shapiro, Martha Rue, Patricia Za- sowski, Jeannette Cleary, Maureen Enourato, Robert Klemkofski, Susan M Fitzpatrick, Joanne H Monahan, Bridget T Wengert, Thomas A Gar- back, Mildred Brando, Susan L Savage, Berna- dette P Maiorano, Sarah Jane Heard, Pamela M Baum, Sharon L Watkins, Matthew E Kovskirk, Keith C Shelly, James T Ackley, Elaine A Rost, D L Ferraiuolo, William Martinsen Jr, Patricia S Coleman, John Diedrick, Joan Hess, Randolph Lenk, Sharon Puckett, Diane Viden, Kathleen Hurley, Jeremiah Hurley, Frank Toth, Harold McCarsky, Renee Schager, Gina Zaremba, Gloria Sule, Fred Sule, Nadine Sule, Susan Schoonover, Mohammed Tahir, Jefferey Killian, Donna Land- kamer, Loretta Esnor, Versie Smith Jr, Barbara Scott, Craig Bordsky, Patrick Fennell, and Theresa A Merritt, and, thereafter, prepare and cause to be served on the parties a revised tally of ballots, in- cluding therein the count of such ballots If the re- vised tally of ballots shows that the Petitioner has not received a majority of the valid ballots cast, and that the remaining unresolved challenged bal- lots and the ballot of Jill Sinclair are not determi- native, the Regional Director shall issue a certifica- tion of results of the election However, in the event that the revised tally of ballots shows that a resolution of the remaining challenges is necessary to determine whether the Petitioner has received a majority of the valid bal- lots cast, the following shall be applicable IT IS HEREBY directed that a hearing be held for the purpose of receiving evidence (a) to resolve the challenges to the ballots of Priscilla Moeller, Andrew Candeloro, John Hurley, James Ehling, Pat Dube, Vincent Miles, Betty Champion, Loretta E Lockbaum, Louise Urbina, Jean Samuels, Laura A Fischer, Paul Coleman, Francis W Disney, Francis C Pollock, Martha Curran, Joseph Massi- mino, Lewis Kuntz, Susan E Keeney, Lawrence Johnson, Tonya Ross, Maureen Kelly, Francis Sessa, Lois Jarkovsky, Michael Tschinkel, Maureen Lynn D'Amico, and James Garcia, and (b) to re- solve the issues raised by the Employer's Objec- tions 2 and 3 IT IS FURTHER DIRECTED that the hearing officer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the challenges and objections Within the time prescribed by the Board's Rules and Regulations, any party may file with the Board in Washington, D C, eight copies of exceptions thereto Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other party and shall file a copy with the Regional Director If no ex- ceptions are filed, the Board will adopt the recom- mendations of the hearing officer IT IS FURTHER DIRECTED that the above-entitled proceeding be remanded to the Regional Director for Region 4 for the purpose of arranging a hear- ing, and that the Regional Director be authorized to issue notice thereof