M. Brenner and Sons, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 30, 1970185 N.L.R.B. 814 (N.L.R.B. 1970) Copy Citation 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. Copy with citationCopy as parenthetical citation