M. Brenner and Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1970

185 N.L.R.B. 814 (N.L.R.B. 1970)

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. Brenner and Sons, Inc. and Local 776, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Petition-
er. Case 4-RC-8290
September 30, 1970
SUPPLEMENTAL DECISION, DIRECTION,
AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS.
Pursuant to a Stipulation for Certification Upon
Consent election executed June 13, 1969, an election
by secret ballot was conducted on June 27, 1969,
under the direction and supervision of the Regional
Director for Region 4, among the employees in a
stipulated unit of all employees employed at the
Employer's Harrisburg, Pennsylvania, operation,
excluding office clerical employees, outside salesmen,
buyers, guards, and supervisors as defined in the
Act. At the conclusion of the election, a tally of
ballots was furnished the parties in accordance with
National Labor Relations Board Rules and Regula-
tions. Objections to conduct affecting the election
were filed by the Petitioner. The Regional Director
deferred action on those objections pending the results
of this proceeding.
The tally of ballots shows that, of approximately
75 eligible voters, 75 cast ballots, of which 36 were
for, and 34 against, the Petitioner, and 5 ballots
were challenged. The challenged ballots were sufficient
to affect the outcome of the election.
Thereafter, the Regional Director conducted an
investigation of the challenged ballots and on August
26, 1969, issued and served on the parties his Report
and Recommendations on Challenged Ballots, in
which he found that Maxwell B. Goldsteen, Samuel
B. Levinson, and Joseph J. Zerance, individually and
collectively as employees in the Employer's cash and
carry department, were properly excluded from the
stipulated unit, and recommended that their challenges
should therefore be sustained and their ballots remain
unopened. He further recommended that the challenge
to the ballot of Erwin J. Boettger be sustained and
that the challenge to the ballot of James E. Reisinger
be overruled.
On September 17, 1969, the Employer filed excep-
tions to the Regional Director's Report, together with
a supporting brief, contending that the challenges
to the ballots of Goldsteen, Levinson, and Zerance
should be overruled, and requesting a hearing with
respect to the issues raised by the challenges.
On January 19, 1970, the Board' issued an Order
Directing Hearing,' in which it found appropriate
the stipulated unit; adopted, pro forma, and absent
exceptions, the Regional Director's recommendations
sustaining the challenge to the ballot of Boettger
and overruling the challenges to the ballot of Reising-
er, but without directing the opening of that ballot;
and ordered a hearing to adduce facts relative to
the unit placement of Goldsteen, Levinson, and Zer-
ance.
On March 24 and 25, and April 9 and 10, 1970,
a hearing was held pursuant to the Board's Order,
before John J. Baruch, a duly designated Hearing
Officer. At the hearing, the Petitioner, the Employer,
and the Regional Director were represented by coun-
sel, and all parties had a full opportunity to be
heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
On May 26, 1970, the Hearing Officer issued his
Report on Challenged Ballots, in which he found
that Goldsteen, Levinson, and Zerance were properly
excluded from the appropriate unit, and he therefore
recommended that the challenges to their ballots be
sustained and that the ballots remain unopened. The
Employer and the Petitioner filed timely exceptions
to the Hearing Officer's Report.
Upon the entire record in this case, the Board
finds:
The Petitioner contends, in substance, that Golds-
teen, Levinson, and Zerance are properly excluded
from the unit, and therefore ineligible to vote, because
of (a) their alleged dissimilar group interests, as evi-
denced by their separate location, their preoccupation
with selling and customer contacts in contrast to
warehousing functions, and their somewhat different
conditions of employment, and (b), their alleged so-
called special employees status, as individual employ-
ees. As to (a), the Employer contends, in substance,
that the difference in location and conditions of
employment are too minimal to countervail their close
community of interest with the other unit employees,
that irrespective of whether or not the cash and
carry department can appropriately be called a selling
department, the Board regularly and customarily
includes similar departments and personnel in ware-
house units in analogous situations; and that the
sustaining of the challenges would leave the challenged
voters without opportunity for representation. As to
(b), the Employer contends that the alleged special
' Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this case to a threq-member
panel
' Unpublished.
185 NLRB No. 116
M BRENNER AND SONS, INC.
status of the challenged voters is based on factors
such as age and minor employment differences which
are irrelevant and immaterial to a determination of
unit placement.
The Employer is engaged in the distribution at
wholesale of tobacco, drugs, and sundry products
at its warehouse building at Harrisburg, Pennsylvania.
The warehouse building, with some 60 warehouse
employees, houses the receiving department, a storage
area, tobacco and drug sections, packing and shipping
areas, return goods department, and a "will call"
department and, around the perimeter and separated
by walls, the cash and carry department, cafeteria,
and office area. The cash and carry department, with
up to six employees, where Goldsteen and Levinson
work, and where Zerance, a nonemployee at the
time of the hearing, worked at the time of the election,
is separated from the office area by a doorway, a
lobby, and a second doorway, and from the warehouse
area by a doorway.
Sales are primarily performed by commissioned
outside salesmen, who regularly contact customers.
Both cash and carry department employees and drug
section warehouse employees in the "will call" depart-
ment sell to customers and engage in direct customer
contacts. The only significant difference in their selling
functions lies in the fact that the cash and carry
department employees accept customers' payments
and ring them up on a cash register, while the drug
section employees, without a cash register in the
"will call" section, furnish customers with invoices
and the items to be purchased and send them to
the office area to make payments. Furthermore, the
Employer's 12 drivers also engage in sales-related
activities, inasmuch as they, like the cash and carry
employees, deliver merchandise on a charge, C.O.D.,
or cash basis. In the latter case, the driver accepts
cash payments in amounts which average $300 to
$1,000 per driver and may go as high as $2,000
a day for a single driver.
Cash and carry employees sell to customers in
their department at the warehouse building. In the
course of these transactions, the customers wait while
these employees go into the warehouse area to obtain
the purchased items. Invoices for previously called-
in merchandise originate at the "will call" section
in the warehouse. They are then sent to the office
area for pricing and thence to the cash and carry
department. Cash and carry employees assist "will
call" customers by picking up and moving purchased
items at the "will call" section. The cash and carry
department employees appear regularly to spend sub-
stantial amounts of their time in the warehouse area
in the regular course of their work.
The Petitioner and the Hearing Officer point to
such differences in the employment conditions of
815
the cash and carry employees and the warehouse
employees as the fact that the former have slightly
different working hours, wear distinctive clothing,
do not regularly interchange with the warehousemen,
do not break down loads, or drive trucks, and, in
the case of Goldsteen, have received small sums as
"push money" for "pushing" the sales of certain
items.' On the other hand, the warehouse supervisor
appears to exercise at least partial supervisory authori-
ty over cash and carry employees, and all employees
enjoy substantially the same benefits and conditions
of employment. While it is true, as the Petitioner
and the Hearing Officer point out, that the cash
and carry employees do not load or unload trucks,
the same is also generally true of the warehouse
employees, as only the dispatcher assists in loading
trucks and only two receiving room employees assist
in unloading them.
As to the challenged voters individually, Goldsteen,
65 years old, performs the regular duties required
by the cash and carry department and, in addition,
works for up to 2 hours, 2 to 3 days a week, in
the Employer's office. Levinson, 86 years old, is a
helper, or supply boy, who spends nearly all of his
time in the warehouse preparing orders and moving
merchandise with the aid of a hand truck from the
warehouse to the cash and carry department in
response to orders. Zerance's job, while in the Employ-
er's employ, was a helper, stocking the cash and
carry department shelves and filling orders from the
warehouse. We find without merit the Petitioner's
contention that, as individual employees, the chal-
lenged voters were ineligible to vote because of their
alleged special employee status based on age, the
minor amount of working time spent by one of them
in the office, and minimal variations in their working
conditions involving matters such as distinctive cloth-
ing and differing lunch periods and coffee breaks.
In these circumstances, and in view of the substan-
tial amounts of time that the challenged voters spend
in the warehouse, their partial warehouse supervision,
the similar sales and sales-related functions performed
by cash and carry department employees, warehouse
employees, and drivers, and their substantially similar
benefits and conditions of employment, we find, con-
trary to the Hearing Officer, that they are properly
included in the appropriate unit.' We shall therefore
direct that the challenges to their ballots be overruled,
that their ballots and that of Reisinger be opened
' In 1 month, Goldsteen received $13 in "push" money
' Newark Electronics Co., Inc, 131 NLRB 553, Houston Sash and
Door Company, 127 NLRB 1089 , Marvin Lumber and Cedar Company,
117 NLRB 363, Interstate Supply Company, 117 NLRB 1062 ; Ketl Compa-
ny, 117 NLRB 828, at 835 , J Segan & Co, 114 NLRB 1159 Compare
Giordano Lumber Co., Inc., 133 NLRB 205, and General Electric Company,
170 NLRB No 153
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and counted , that a revised tally of ballots , including
these ballots, issue and be served on the parties,
and that , in the event that a majority of the valid
ballots has been cast for the Petitioner , the Regional
Director shall forthwith issue the appropriate Certifi-
cation of Representative . We shall further direct
that if the revised tally of ballots shows that a majority
of the valid ballots has not been cast for the Petitioner,
a Certification of Results of Election shall issue and
be served on the parties, and that the Regional
Director shall thereafter investigate the Petitioner's
objections to the election and issue and serve on
the parties a report in that regard in accord with
the Board 's Rules and Regulations . Accordingly,
It is hereby directed that , as part of the investigation
to ascertain representatives for the purposes of collec-
tive bargaining among certain employees of M. Bren-
ner & Sons, Inc., Harrisburg , Pennsylvania, in the
unit heretofore found appropriate , the Regional
Director for Region 4 shall, at a time and place
to be determined by him , open and count the ballots
of Maxwell B. Goldsteen , Samuel B. Levinson, Joseph
J. Zerance , and James E. Reisinger , and thereafter
prepare and cause to be served on the parties a
revised tally of ballots , including therein the count
of said ballots.
It is hereby ordered that if the revised tally of
ballots shows that the Petitioner has received a majori-
ty of the valid votes cast the Regional Director shall
forthwith issue the appropriate Certification of Repre-
sentative.
IT IS FURTHER ORDERED that if the revised tally
of ballots shows that the Petitioner has not received
a majority of the valid votes cast the Regional Director
shall issue a Certification of Results of Election and
shall conduct an investigation for the purpose of
determining the validity of the Petitioner's objections
to the election.