Cole Instrument Co.

National Labor Relations Board - Board Decisions

Nov 28, 1947

75 N.L.R.B. 348 (N.L.R.B. 1947)

In the Matter of FRED H. COLE, D/B/A COLE INSTRUMENT COMPANY,
EMPLOYER and GENERAL TRUCK DRIVERS AND HELPERS UNION, LOCAL
No. 467, PETITIONER
Case No. 21-R-.3988.-Decided November 28, 1947
Mr. William H. Wilson, of Los Angeles, Calif., for the Employer.
Mr. Thomas L. Young, of Los Angeles, Calif., and Messrs. Stewart
Mason and O. B. Robbins , of San Bernardino , Calif., for the
Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Los
Angeles, California, on July 23, 1947, before Daniel J. Harrington,
hearing officer . The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TILE EMPLOYER
Fred H. Cole, doing business as Cole Instrument Company, is
engaged in the manufacture , distribution , and repair of electrical
instruments at a plant in Los Angeles , California , with a warehouse
at Ontario, California, which warehouse is alone involved in this
proceeding. During the period from April 12, 1947, to July 1, 1947,
the Employer received at its warehouse , materials valued at about
$5,500,000 of which approximately 20 percent was obtained from
points outside the State of California. During the same period, the
Employer sold materials valued at $70,000, of which 7 to 8 percent
was shipped to points outside the State of California.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
75 N. L . R. B, No. 44.
348
COLE INSTRUMENT COMPANY
II. THE ORGANIZATION INVOLVED
349
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. TIIE APPROPRIATE UNIT
The Petitioner seeks a unit including all warehouse employees and
truck drivers and helpers, but excluding the plant superintendent,
office employees, and all other supervisory personnel. The Employer is
in general agreement with the scope of the requested unit. However,
some dispute exists as to the supervisory status of 11 employees whom
the Petitioner would include in the unit.
Of some 21 employees possibly eligible for inclusion within the unit,,
11 are classified by the Employer as supervisors, the remaining 10
being rank and file employees. Each of these employees is in charge
of a certain warehouse department such as shipping and receiving, or
of a definite function such as order picking and inspecting. Depend-
ing upon the flow of materials in or out of the warehouse, these indi-
viduals may or may not be occupied at their particular jobs.2 Thus,
for example, when materials are incoming, the employee in charge of
receiving will be assigned employees to assist him in receiving the
goods; but if there are no incoming shipments, this nominal receiving
department employee will be assigned, in the same manner as is a rank
and file employee, to another phase of warehouse work.
When one of the employees in question works in his own department
with other employees assigned to hint, he performs the same manual
tasks as his fellow workers at least 80 percent of the time. And when
1 At the date of the hearing there were 25 employees employed at the warehouse The
record indicates that 3 of this number were office clericals, both parties agree to exclude
all office employees from the unit See Matter of Pinyon O'Keefe Fireproof Storage Com-
pany, 65 N L R B 992, 994-5. Both parties also agree to exclude the plant superintend-
ent as a supervisor, he has complete authority over all warehouse employees and opera-
tions and is clearly a supervisor nnithin the meaning of the Act.
2 This is true of all but the lift elevator operator "supervisor" who is nominally in
charge of 2 or 3 lift operators at all times. However, the record indicates that this em-
ployee is himself a full -time operator and that he is at most a conduit for orders from the
superintendent.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he is working alone in his department, or when he is assigned to assist
with other warehouse work, the so-called supervisor is performing
work essentially as a rank and file employee. Appropriately, the Em-
ployer recognizes little difference between the two groupings of em-
ployees; thus the record shows that all warehouse employees have the
same working hours, working conditions, and vacation benefits, and
that all are hourly paid, there being only a wage differential of 10 cents
per hour between the two classifications. It appears, therefore, that
the employees in dispute, who outnumber other employees, spend most
of their time at routine non-supervisory tasks and that at most they are
essentially more experienced workers who occasionally act as group
leaders.3
The Employer however contends that these individuals are super-
visors in that they have the power to recommend the hiring and
discharge of those employees occasionally assigned to them .4 Al-
though such recommendations have been made in the past, the record
is silent as to instances wherein those recommendations have been
effective. The testimony at the hearing clearly demonstrates that
the plant superintendent possesses complete independent authority
in hiring and discharging employees and that, contrary to the Em-
ployer's contention, these employees have in fact no power effectively
to recommend such action.
While, as indicated by their acting as group leaders, there is some
showing that at times the disputed employees exercise supervisory
authority, it is clear from all the foregoing that such authority is
exercised too sporadically to warrant supervisory classification.6
Under all the circumstances, we find that they are not supervisors
within the meaning of the Act, as amended; accordingly, we shall
include them in the unit of warehouse employees 6
We find that all employees in the Employer's Ontario, California,
warehouse,7 including truck drivers and helpers, but excluding office
employees, the warehouse superintendent, and all other supervisors,
8 Matter of Hall Level & Manufacturing Works, 72 N L. it. B 165, 168 We deem
significant the large proportion of so-called supervisors. See Matter of Saw Pipeline Com-
pany, 73 N. L. it. B. 508.
4 Prior to June 2, 1947, all warehouse employees were classed as rank and file employees,
the plant superintendent alone having recognized supervisory authority. On that date,
certain employees were notified by letter that henceforth they were to be supervisors with
authority to recommend the hiring and discharge of employees
5 See Matter of Textile Machine Works, Inc, 72 N L. it. B 56; and Matter of Union
Switch and Signal Company, 63 N. L R B 974, 978.
6 Matter of Hall Level d Manufacturing Works, supra; see Matter of Southeastern
Telephone Company, 70 N. L. R B. 4, 7-8 Matter of National Elect,ic Coil Company,
69 N. L. it. B. 475, 476-7; and Matter of Charles Eneu Johnson and Company, 67 N. L. R. B.
1234, 1236
T Including the 11 employees herein discussed who we have found do not possess
supervisory authority within the meaning of the Act
COLE INSTRUMENT COMPANY 351
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act, as amended.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Fred H. Cole, d/b/a Cole In-
strument Company, Ontario, California, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Twenty-first Region, and
subject to Sections 203.61 and 203.62, of National Labor Relations
Board Rules and Regulations-Series 5, among the employees in the
unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction or who had worked a minimum of 5 days in the 30 days
preceding the date of the election," including employees who did not
work during said pay-roll period because they were ill or on vaca-
tion, but excluding all those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior
to the date of the election, to determine whether or not they desire to
be represented by General Truck Drivers and Helpers Union, Local No.
467, for the purposes of collective bargaining.
8 Due to the steady fluctuation in the flow of materials resulting in unstable employment,
the parties accepted the hearing officer ' s proposed stipulation that all those employees
who had worked a minimum of 5 days in the 30 days preceding the date of the election
be eligible to vote