Fleming Foods

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 948 (N.L.R.B. 1994)

948
313 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer also suggests that the only appropriate unit is a
combined unit of the petitioned-for warehouse clericals and the em-
ployees currently represented by Local 384, International Brother-
hood of Teamsters, AFL–CIO. This argument is clearly without
merit because Local 384 is not seeking to represent the warehouse
clericals.
Fleming Foods, Inc. and Local 500, International
Brotherhood of Teamsters, AFL–CIO, Peti-
tioner. Case 4–RC–18120
March 1, 1994
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
Upon a petition filed under Section 9(c) of the Na-
tional Labor Relations Act, a hearing was held on var-
ious dates in May and June 1993 before a designated
hearing officer of the National Labor Relations Board.
On July 23, 1993, pursuant to Section 102.67(h) of the
Board’s Rules and Regulations, this case was trans-
ferred to the Board for decision.
Having carefully reviewed the entire record in this
proceeding, including the posthearing briefs filed by
the Petitioner and the Employer, the Board makes the
following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. 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.
3. The Petitioner claims to represent certain employ-
ees of the Employer.
4. A question affecting commerce exists concerning
the representation of employees of the Employer with-
in the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
5. The Employer is engaged in the warehousing and
sale of general merchandise at its warehouse located in
King of Prussia, Pennsylvania. The Petitioner seeks to
represent a unit consisting of all full-time warehouse
clerical employees at the Employer’s King of Prussia
warehouse. The Employer contends that the only ap-
propriate unit is a residual unit consisting of, in addi-
tion to the petitioned-for employees, two part-time
warehouse clericals and four maintenance employees.1
The Employer’s warehouse employees, approxi-
mately 130, are represented by Local 384, International
Brotherhood of Teamsters, AFL–CIO (Local 384).
These employees include receivers, checkers, forklift
operators, shippers, stockers, order selectors, return
damage inspectors, sales drivers, janitors, rackmen, and
commission sales representatives. The Employer’s
most recent contract with Local 384, effective Novem-
ber 30, 1990, through November 30, 1993, excludes
from the represented unit ‘‘office, clerical, sales super-
visors, professional associates, supervisors and guards,
as defined in the Federal Labor-Management Relations
Act.’’ Local 384 does not seek to represent the Em-
ployer’s warehouse clericals.
There are eight full-time and two part-time ware-
house clerical employees at the Employer’s facility.
The two part-time clericals work 20–24 hours a week
and perform the same clerical duties performed by the
full-time warehouse clericals. Three of the warehouse
clericals previously held positions in the Local 384
bargaining unit before transferring to their present po-
sitions.
The warehouse clericals perform receiving, inven-
tory control, dispatch, audit, and credit functions. Most
of them are cross-trained and thus are able to perform
a number of these clerical duties. The warehouse
clericals have offices throughout the facility where
they work with computers, inputting data they receive
from checkers, receivers, dispatchers, and other Local
384 employees. The clericals also spend much of their
time working on the warehouse floor. While on the
warehouse floor, the warehouse clericals regularly
interact with Local 384 employees.
The warehouse clericals working in receiving (re-
ceiving clericals) deliver the appropriate paperwork to
the receivers to coordinate the unloading of incoming
merchandise. When a truck arrives delivering merchan-
dise to the Employer’s warehouse, a receiving clerical
and a Local 384 receiver communicate with each other
to record any discrepancies between the merchandise
received and that which was scheduled to be received.
The warehouse clericals working in inventory (in-
ventory clericals) maintain, verify, and reconcile the
paperwork describing the quantity of products stored in
inventory. The receiving clerical communicates with
the stockers to resolve variances in the inventory pa-
perwork. The inventory clericals also physically count
the number of products stored in inventory and assist
stockers in locating certain products. If one of the
Local 384 employees discovers a shortage of a particu-
lar product, that employee speaks to a warehouse cleri-
cal about the shortage, who in turn notifies the Em-
ployer’s merchandiser about the shortage.
The warehouse clericals performing dispatch func-
tions (dispatch clericals) create the paperwork nec-
essary for the shipment of merchandise from the Em-
ployer’s facility. The dispatch clericals obtain from the
Local 384 checkers and shippers the information nec-
essary to prepare the required paperwork for dispatch-
ing the merchandise. Further, the dispatch clericals
verify that the items placed on the trucks match the de-
scriptions of the merchandise on customer invoices.
The dispatch clericals spend a majority of their time
working with the Local 384 checkers and shippers, as
well as with the Employer’s shipping supervisor.
949FLEMING FOODS
2 The Employer’s brief refers to Zakoski as ‘‘Ms. Sojkowski.’’
3 The record does not indicate Knight-Fox’s specific area of super-
vision.
4 The Employer also employs 20–25 office clericals who work in
the Employer’s office. The office clericals are unrepresented employ-
ees, but neither the Petitioner nor the Employer contend that they
should be included in any unit found appropriate.
The warehouse clericals performing audit functions
(audit clericals) perform most of their duties on the
warehouse floor. Like the dispatch clericals, audit
clericals verify that shipments of goods to be delivered
to customers are consistent with that which the cus-
tomer has ordered. This is done by physically counting
the products that have been packed in tote boxes,
which the Employer uses to ship its products. In order
to verify any discrepancies between a customer’s or-
ders and the products to be shipped to the customers,
the audit clerk communicates with the Local 384 em-
ployees, with the dispatch clerical, the shipping super-
visor, and other warehouse supervisors.
The warehouse clerical performing credit functions
(credit clerical) reviews the paperwork concerning
merchandise that customers return to the Employer.
The credit clerical verifies that certain products have
actually been returned, and that the Local 384 employ-
ees working in the Employer’s returns and salvage de-
partment have properly filled out the necessary paper-
work for the return. The credit clerical also inves-
tigates customer requests for credit and ensures that
customers receive credit for their returns. Such inves-
tigations involve communicating with the Local 384
employees in the returns and salvage department.
Distribution Manager John Fitzgerald oversees the
entire warehousing operations for the Employer. Re-
porting directly to Fitzgerald are two warehousing su-
perintendents—Loretta Zakoski2 and Charles McHugh.
Next in the chain of command are the supervisors re-
sponsible for the frontline supervision of the Local 384
unit employees—Receiving Supervisor Ed Hagan,
Shipping Supervisor Joe Techman, Shipping and Line
Selection Supervisor Mike Larcenes, Order Selection
Supervisors Josie Baranack, Barbara Engro, and Jerry
Hayes, and Supervisor Pat Knight-Fox.3
Superintendent Zakoski supervises the warehouse
clericals. However, as the duties of the warehouse
clericals often require interaction with other warehouse
supervisors, Zakoski receives input from the other su-
pervisors when preparing evaluations of the warehouse
clericals.
The Employer’s maintenance staff consists of four
maintenance employees. These employees perform
general maintenance throughout the Employer’s facility
and are supervised by Distribution Manager Fitzgerald.
The maintenance employees primarily do simple, rou-
tine repair jobs. Their duties include cleaning and re-
pairing plastic totes, drywall and painting, simple
plumbing and electrical repairs, routine repair of fork-
lifts and conveyors, and various other odd jobs. Main-
tenance employees have computerized security cards
that give them access to all parts of the Employer’s fa-
cility. Local 384’s employees have security cards that
provide only limited access to the facility.
Maintenance employees receive no formal training
and are not required to have licensing or certifications
of any kind. The Employer utilizes outside contractors
for all of its major plumbing and electrical needs, and
for repair and service of the Employer’s equipment.
Two employees from the Local 384 unit have trans-
ferred to maintenance positions.
There are two janitors who work in the Employer’s
warehouse. The janitors are part of the Local 384 unit.
Loretta Zakoski, who supervises the warehouse
clericals, also supervises the janitors. They perform
normal janitorial services, including sweeping and
scrubbing floors, mopping up spills, and collecting
trash. The janitors have assisted maintenance employ-
ees on various projects such as drywall work and tarp
construction. The janitors also work together with
maintenance employees on major cleanup jobs, trash
collection, repair of leaky pipes, and in preparing the
Employer’s facility for sanitary inspections.4
Based on the foregoing, we find that the petitioned-
for unit of full-time warehouse clericals is too narrow
in scope. First, we note that there is no basis for ex-
cluding the two part-time warehouse clericals, as these
employees perform the same clerical duties that full-
time warehouse clericals perform and are regular em-
ployees working 20–24 hours a week. Pat’s Blue Rib-
bons, 286 NLRB 918 (1987).
Second, we find that the 10 warehouse clericals are
residual to the unit of warehouse employees rep-
resented by Local 384. In cases involving petitioned-
for units of warehouse employees, the Board has found
that warehouse clericals should be included in the unit
of warehouse employees when the duties of the ware-
house clericals are integral to the functioning of the
warehouse operations. John N. Hansen Co., 293 NLRB
63, 64–65 (1989); S & S Parts Distributors Ware-
house, 277 NLRB 1293 (1985). In the instant case, the
duties of the warehouse clericals are integral to the
shipping, receiving, and storage of the Employer’s
merchandise. Further, as noted above, the performance
of warehouse clerical functions requires a high level of
interaction with employees represented by Local 384.
Moreover, the warehouse clericals share common im-
mediate supervision with the Local 384 janitors. In
view of these facts, the warehouse clericals do not
constitute an appropriate unit separate from that of the
Employer’s other warehouse employees. Instead, they
can be represented by the Petitioner only if they con-
stitute an appropriate residual unit.
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 There is no evidence that the office clerical employees, unlike
the other unrepresented employees discussed above, are residual to
the warehouse unit.
6 As the unit found appropriate herein is larger than the unit re-
quested, the Petitioner is accorded a period of 10 days from the date
of this Decision and Direction of Election in which to submit to the
Regional Director for Region 4 an additional showing of interest if
necessary. In the event the Petitioner does not wish to proceed with
an election, it may withdraw its petition without prejudice by notice
to the Regional Director for Region 4 within 7 days from the date
of this Decision and Direction of Election.
It is well established that a residual unit is appro-
priate only if it includes all unrepresented employees
of the type covered by the petition. Eastern Container
Corp., 275 NLRB 1537, 1538 (1985). Here, in addition
to the 10 warehouse clericals, there are 4 maintenance
employees who are also unrepresented. As the record
evidence set forth above shows, the maintenance em-
ployees are assigned to projects that overlap with the
duties of the Local 384 janitors. The maintenance em-
ployees’ duties require them to work on the warehouse
floor in the same areas with the Local 384 employees.
In addition, maintenance employees cannot claim to be
a separate craft unit as they are not skilled craft em-
ployees and are not required to undergo any formal
training. We find, therefore, that the maintenance em-
ployees—like the warehouse clericals—are residual to
Local 384’s unit of warehouse employees, and thus
they must also be included in the petitioned-for unit.
The Petitioner contends, however, that the mainte-
nance employees should not be included in a unit with
the warehouse clericals because the maintenance em-
ployees are guards or managerial employees in light of
their possession of computerized access cards affording
them entry to all parts of the Employer’s facility. We
find no merit to this contention, as there is nothing in
the record indicating that the maintenance employees
possess any of the statutory indicia of managerial em-
ployees or that they perform guard duties within the
meaning of Section 9(b)(3) of the Act. Rather, we find
that the maintenance employees perform duties that are
at times similar to those of the Local 384-represented
janitors, and that require regular interaction with the
Local 384 employees.5
Accordingly, as the warehouse clericals and mainte-
nance employees constitute all the Employer’s unrepre-
sented employees that are residual to the Local 384
unit, they constitute an appropriate residual unit. At the
hearing, the Petitioner expressed a willingness, in the
event the petitioned-for unit was found inappropriate,
to proceed to an election in any broader unit found ap-
propriate. Accordingly, we shall direct an election in
the following unit:6
All full-time and regular part-time warehouse
clerical employees and maintenance employees
employed by the Employer at its King of Prussia
facility, but excluding office clerical employees,
managerial employees, guards and supervisors as
defined in the Act, and all other employees.
[Direction of Election omitted from publication.]