Crenshaw's, Inc.

National Labor Relations Board - Board Decisions

May 17, 1956

115 N.L.R.B. 1374 (N.L.R.B. 1956)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses' We see no reason to deny, Petitioner's request for, such a- unit
in this instance. Accordingly,, we shall include the employees Champ-
lin and Myrtle (parts pickers), Proudfit and Hughes, and Gwinn
(counterman) who we find are not office clerical employees,5 contrary
to the contentions of the Employer, and Tomlinson (stock control
clerk) in the unit hereinafter found to be appropriate under the gen-
eral designation of parts department employees.
We find that all journeyman mechanics, their helpers and appren-
tices, including electricians, grinders and metal men, and parts depart-
ment employees, dock men, janitors and truckdrivers employed by
the Employer at its Des Moines, Iowa, operations, but excluding of-
fice clerical employees, professional employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication.]
* Mack Motor Truck Corporation, 04 NLRB 1284; Edwards Motor Company, Inc., 94
NLRB 372; Babb Motors, 108-NLRB 1140.
5 See Mack Motor Truck Corporation, supra, and Edwards Motor Company, Inc., supra.
Crenshaw's, Inc. and/or Gulf Southern Corporation and/or
Banana Exchange Company 1 and International Union of
United Brewery, Flour, Cereal, Soft Drink , & Distillery Work-
ers of America , AFL-CIO, Petitioner . Case No. 10-RC-3345.
May 17, 1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Edwin R. Hancock,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'.
1 The Employer's name appears as amended at the hearing.
At the close of the hearing the Employer moved that the petition be dismissed on the
following grounds : ( 1) The Petitioner is not in compliance with the filing requirements
of Section 9 (h) of the Act ; ( 2) the hearing was directed on behalf of a nonexistent Peti-
tioner ; ( 3) the hearing proceeded without a waiver being filed to pending unfair labor
practice charges by a party to the proceeding; (4) the unit was amended by the parties
without a recheck of the Petitioner's showing of interest ; and (5 ) the Board lacks Juris
diction over the Employer. The hearing officer referred the motion to dismiss to the
Board.
Grounds ( 1) and ( 5) are rejected for reasons set forth hereinafter in the text of this
Decision . Grounds ( 2) and ( 3) arise out of the fact that at the hearing the Petitioner
amended its designation in the petition to reflect the merger of AFL and CIO. Contrary
to the contention of the Employer , this amendment did not change the identity of the
Petitioner , and the notice of hearing and waiver filed by the Petitioner , both indicating
the Petitioner 's affiliation as CIO , were sufficient to warrant further proceedings. As to
115 NLRB No. 217.
CRENSFIAW'S, INC. 1375
At the hearing, the hearing officer declined to permit the Employer
to litigate matters relating to the compliance status of the Petitioner.
Following the. close of the hearing, the Employer- filed with the
Board a motion to reopen the record, accompanied by an' .offer of
proof, a motion to produce documents,, and. an -application,-to -take
depositions in support thereof, by which it again seeks to litigate the
Petitioner's compliance status. The Board has consistently held,3
with the approval of all courts of appeals which have considered the
issue,4 that questions affecting the compliance status of a labor organ-
ization, other than questions involving interpretation of the statutory
language, are matters for administrative determination only, and
may not be litigated in representation or unfair labor practice pro-
ceedings.' Accordingly, the hearing officer's rulings'are hereby af-
firmed and the Employer's motions are hereby denied.
Moreover, although the Board will, when necessary, conduct col-
lateral proceedings to determine compliance matters, the Employer's
allegations are insufficient to warrant the institution of collateral pro-
ceedings for the purpose of determining the Petitioner's compliance
status under Section 9 (h). The Employer alleges that the Peti-
tioner is not in compliance because, inter alia, the Petitioner's general
organizer and the occupants of several other named positions are
designated as officers in the Petitioner's constitution but they have
not filed the required affidavits. The Board has, however, determined
administratively that the title of general organizer has been changed
by constitutional amendment to director of organization, and that
the incumbent of that position has filed the required affidavit. The
Board has further determined that the other named positions are not
designated as offices in the Petitioner's constitution, and the occupants
of such positions are therefore not officers of the Petitioner under
the Board's "constitutional" test, which has been approved by the
(4), the amendment to the petition did not affect the composition of the unit but rather
described more specifically employees included in the unit set forth in the petition. More-
over, we are administratively satisfied that the Petitioner' s showing of interest is ade-
quate. Accordingly, the motion to dismiss is denied.
3 See Coca-Cola Bottling Company of Louisville, Inc, 108 NLRB 490.
' See N. L. R. B v. Sharples Chemicals, 209 F. 2d 645 (C. A. 6) ; N. L. R. B. v. Louis-
ville Container Corp ; 209 F. 2d 654 (C A. 6) ; Aerovox Corp v. N. L R B., 211 F. 2d 640
(C. A., D. C ), cert. denied 347 U. S. 968; American Rubber Products Corp. v. N. L. R. B.,
214 F. 2d 47 (C. A. 7) ; N. L. R. B v. Vulcan Furnnture Manufacturing Co., 214 F. 2d 369
(C. A. 5), cert. denied 348 U S 873; N. L. R B. v. Lannom Manufacturing Company, 226
F. 2d 194 (C. A. 6) ; Goodman Manufacturing Company v. N L. R. B., 227 F 2d 465
(C A 7).
c See the Board's recent decision in Desaulniers and Company, 115 NLRB 1025.
Member Rodgers does not agree with this interpretation of N. L R. B v Coca-Cola Bot-
tling Company of Louisville, Inc, 350 U. S. 264 It is his opinion that the Supreme Court
requires the Board to permit litigation, during the course of unfair labor practice or repre-
sentation proceedings, of all issues pertaining to the compliance of a labor organization
with Section 9 (h) of the Act except that the application of the Board's constitutional
test, as approved by the Supreme Court, cannot be challenged. See N. L. R. B. v. Puerto
Rico Food Products Corp, 232 F. 2d 515 (C. A. 1).
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supreme :Court.6 As the Employer's remaining allegations are either
too vague and general to form the basis for further administrative
investigation ,' or are based upon the ground, recently deemed unde-
terminative by the Supreme Court 8 that the incumbents of certain
positions are officers of the Petitioner or the AFL-CIO by virtue of
their functions, and as the Board is administratively satisfied that
all officers of the Petitioner and the AFL-CIO have filed the re-
quired affidavits, the Board is further administratively satisfied that
the Petitioner is, and at all times material to this proceeding has been,
in compliance with the filing requirements of Section 9 (h).
Upon the entire record in this case, the Board finds :
1. Crenshaw's, Inc., is engaged in the stevedoring of bananas at the
municipal dock in Tampa, Florida. Banana Exchange Company
sells bananas at wholesale and retail at the dock and at its warehouse,
about 10 blocks distant. Gulf Southern Corporation is located in the
same building as the Banana Exchange warehouse and produces frozen
banana puree for resale. All three are corporations having the same
shareholders, who hold the same proportion of shares in each corpora-
tion, and having the same officers and directors. In addition, 1 in-
dividual is general manager of all 3 operations, and determines their
major labor policies. Each corporation has its own employees, but
there is some interchange, particularly between-,,Banana Exchange
and Gulf Southern. Crenshaw's performs 50 percent of the stevedor-
ing required by Banana Exchange, but 95 percent of its total serv-
ices is performed for employers other than Banana Exchange and
Gulf Southern. A substantial portion of the sales of Banana Ex-
change was made 'to Gulf Southern, and those constituted in turn a
substantial portion of Gulf Southern's purchases.' The three corpo-
rations used a common post office address and have their main offices'
at the same location. They have common auditors, but maintain
separate payrolls and bank accounts, and use different advertising
agencies. In view of the integration of ownership, management, and
operations, and the centralized control of labor relations policies, we
find, contrary to the contention of the Employer, that Crenshaw's,
Inc., Gulf Southern Corporation, and Banana Exchange Company
constitute a single Employer for jurisdictional purposes.10
e N. L. R. B. V. Coca-Cola Bottling Co. of Louisville , Inc, 350 U. S 264, 76 S Ct. 383
7 These allegations are that the incumbents of positions in the Petitioner and AFL-CIO
have not filed affidavits and are officers because the Petitioner and AFL-CIO have failed
to designate their positions as offices for the purpose of evading or circumventing the
filing requirements of Section 9 (h) or because their positions are defined as offices in the
AFL-CIO constitution . However, the Employer did-not identify the individuals or offices
in question , nor did it state any evidentiary basis in support of these allegations.
s N. L R. B. v. Coca-Cola Bottling Co. of Louisville , Inc, supra.
e Banana Exchange 's total sales were approximately $ 660,000, of which $553,000 went
to Gulf Southern . Gulf Southern 's total purchases were approximately $630,000.
10 Marvel Roofing Products, Incorporated, 108 NLRB 292.
CRENSHAW'S, INC. 1377
During the last calendar year, Gulf Southern's total sales were
$732,000, of which the Employer admits that $3,000 constituted direct
outflow. The Employer contends that the remainder of its sales are
not direct outflow because, although shipped directly to customers
outside the State, all shipments were f. o. b..Tampa, and a substantial
portion of those sales were consummated in Tampa by representa-
tives of the purchasers. However, the Board has previously held
that f. o. b. shipments out of State constitute direct outflow," and
the place of consummation of the sales is not material. Accordingly,
as these sales constitute direct outflow 12 in excess of $50,000, we find
that it will effectuate the policies of the Act to assert jurisdiction.13
2. The labor organization involved claims to represent certain em-
ployees of the Employer.14
- 3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9,
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all warehouse and processing de-
partment employees engaged in handling and processing bananas at
the warehouse and at the dock, employed by Gulf Southern and
Banana Exchange. Employees of Crenshaw's are currently repre-
sented by another labor organization, and are not sought in this pro-
ceeding. The Employer contends that a single unit including em-
ployees of both corporations is inappropriate, but would include in
any unit found appropriate refrigeration engineers , whom the Peti-
tioner would exclude. In addition, the Petitioner would include cer-
tain employees as regular part-time employees, while the Employer
would exclude all part-time employees as casual employees. There'
is no bargaining history for any, of the employees of Gulf Southern
and Banana Exchange.
Banana Exchange employs 23 regular employees who perform cut-
ting, packing, stacking, and warehousing duties at the warehouse and
dock. Gulf Southern 'employs 17 regular employees at the ware
house, engaged in the puree making process, who separate and peel
bananas, operate the equipment used in the process, wash and fill con-
tainers, stack containers in the freezer, and perform general labor
it Texas Construction Material Company , 114 NLRB 378.
12 Even if the Employer's contention were sustained , we would nevertheless assert juris-
diction under the Board's indirect outflow standard , as the record would establish that
Gulf Southern sold merchandise valued in excess of $100,000 to purchasers in the State
of Florida who themselves ship merchandise valued in excess of $ 50,000 outside the State.
Bush and Stokes Co., 111 NLRB 1142, footnote 1; Whippany Motor Go, Inc, 115 NLRB 52.
" Jonesboro Grain Drying Cooperative , 110 NLRB 481.
''4 Although the Employer did not stipulate that the Petitioner is a labor organization
within the meaning of the Act, the record clearly establishes that the Petitioner is an
organization in which employees participate and which exists for the purpose of dealing
with employers concerning grievances , labor disputes , wages, rates of pay, hours of
employment, and other conditions of employment.
390609-56-vol. 115-88
1378 DECISIONS OF NATIONAL"-LABOR RELATIONS BOARD
including the loading of cars. The employees of the two corporations
have separate immediate supervisors, are on separate payrolls, and
punch separate time clocks. However, with the exception of employ-
ees employed as peelers, all employees of both corporations engaged
in these operations have the same pay rate, overtime, vacations, holi-
days, and insurance plans. As noted above, the general manager de-
termines major labor relations policies for both corporations. In ad-
dition, there is interchange of employees between Gulf Southern and
Banana Exchange, due at least in part to variations in the level of
activity of both businesses and particularly of Gulf Southern. Accord-
ingly we find, contrary to the Employer's contention, that a single unit
of the employees of both corporations is appropriate.15
There are three refrigeration engineers employed jointly by the
Banana Exchange and Gulf Southern at the warehouse, who main-
tain and operate all the refrigeration equipment at the warehouse.
They are supervised directly by the common general manager of the
corporations and are required to hold licenses as second -class engineers.
Unlike the other employees, the engineers work regular hours on a
shift basis, as an engineer must be on duty at all times. Although the
working conditions of these employees differ to this extent from
those of other employees, we will include them in the unit as they are
essentially maintenance employees and no other labor organization
seeks to represent them.'6
There remains for consideration so-called "casual" employees em-
ployed by Banana Exchange at the dock and warehouse and to some
extent by Gulf Southern at the warehouse. Those at the dock are
hired by the Banana Exchange dock foreman from a group of labor-
ers who appear daily at the dock seeking employment. Other em-
ployers at the dock also hire casual labor from this group. Those
at the warehouse are hired either at the warehouse or at the dock from
persons who come to the warehouse daily looking for work, from the
dock, or are obtained from other sources in the city where itinerant
labor can be found. All the casuals work by the hour as long as
needed, and no arrangements exist as to their future employment
upon completion of the job for which they are hired. Although it
appears that the dock foreman gives preference to persons who he
knows from previous experience are good workers, they may accept
or reject employment, and there is no evidence as to the frequency of
employment of any of the casual employees. Accordingly, we will
exclude them from the unit.''
15 Marvel Roofing Products, Inc., supra.
16 Comfort slop per Corporation, 111 NLRB 188. See Memphis Cold Storage Warehouse
Company, 91 NLRB 1404, 1405.
- 17 Rollo Transit Corporation, 110 NLRB 1623, 1627, footnote 8.
THE GALLAHER DRUG COMPANY 1379
We find that 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 employees of Banana Exchange Company and Gulf Southern
Corporation. engaged in the handling and processing of fruit em-
ployed at the Tampa Municipal Dock and at the Employer's plant
and warehouse in Tampa, Florida, including cutters, box packers,
box stackers, refrigeration engineers, and plant clerical employees,
but excluding casual employees, office clerical employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
The Gallaher Drug Company and Retail Clerks International
Association, AFL-CIO, Petitioner . Case No. 9-RC-2583. May
17,1956
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
executed August 27, 1955, an election was conducted on September
20, -1955, under the direction and supervision of the Regional Director
for the Ninth Region, among certain employees of the Employer. At
the close of the election, a tally of ballots was furnished each of the
parties in accordance with the Board's Rules and Regulations. The
tally shows that 168 valid ballots were cast for the Petitioner, 221
valid ballots were cast against the Petitioner, 2 ballots were chal-
lenged , and 2 ballots were declared void.
On September 29, 1955, the Petitioner filed timely objections to
conduct affecting the results of the election. On December 23, 1955,
the Regional Director, after investigation, issued his report on the
objections, recommending that certain objections be sustained, and
that a new election be directed. On January 4, 1956, the Employer
filed exceptions to the Regional Director's report.
The Board has considered the objections, the Regional Director's
report, the exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Regional
Director with the following additions : '
1. The Employer is engaged in commerce within the meaning of
Section 2 (6) of the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
I In the absence of any exception thereto, we adopt, pro forma, the Regional Director's
recommendation that Petitioner 's objections 3, 4, and 5 be overruled.
115 NLRB No. 213.