M. S. Young & Co.

National Labor Relations Board - Board DecisionsOct 30, 1953

106 N.L.R.B. 1385 (N.L.R.B. 1953)

M. S. YOUNG & CO. 1385 trolling. Accordingly, we find that the watchmen are guards within the meaning of the Act and exclude them from the unit.5 We find that all production and maintenance employees of the Employer at its Walterboro, South Carolina, plant, including firemen and shipping clerks, but excluding office clerical employees, technicians, professional employees, chief me- chanic, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. A strike at the Employer's plant lasted from July '24, 1953, to August 31, 1953. The Petitioner contends that only the employees working during the week ending July 24 should be permitted to vote. The Employer asserts that the usual payroll period should be used to determine eligibility to vote. We perceive no reason in the circumstances relied on by the Petitioner for altering the Board's usual practice of deter- mining voting eligibility by employment during the payroll period immediately preceding the date of the issuance of the Decision and Direction of Election.6 [Text of Direction of Election omitted from publication.] Member Murdock, concurring: I note with pleasure that this decision, both in result and approach, adopts my dissenting opinion (in which I was joined by ex-Member Reynolds) issued 6 years ago in Radio Corpora- tion of America 76 NLRB 826, 828, with respect to the application o ection 9 (b) (3) of the Act to part-timewatch- men. I am accordingly happy to join my colleagues in this decision and in reversing the long line of decisions inconsist- ent therewith which have issued since 1948. 5 To the extent that they are inconsistent with this decision past Board cases holding that part- time guards are not guards within the meaning of Section 9 (b) (3) of the Act are hereby overruled. 6Otis Steel Products Co., 95 NLRB 623. M. S. YOUNG & CO. and LOCAL NO. 1361, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Case No. 4-RC-2063. October 30, 1953 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 Herbert B. Mintz, hearing officer. The hearing officer's rulings made at 106 NLRB No. 248. 1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists 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. 4. The appropriate unit: The Petitioner seeks to represent a unit composed of all selling and nonselling employees of the Employer, including retail store clerks, repair and salesmen , glass room clerks, stock clerks, decorators, displaymen, inventory and price change checkers , elevator operators , warehousemen , shipping clerks, and freight handlers, but excluding truckdrivers,2 outside salesmen and house salesmen , buyers, office clerical employees, and all supervisors as defined in the Act. The Employer would include some nonselling employees in the unit, but would exclude warehousemen, shipping clerks, and freight handlers, and the inventory and price change checkers. The Employer is engaged in the wholesale and retail dis- tribution of hardware and related items, and conducts its business in three buildings in Allentown, Pennsylvania. It operates a retail store and maintains warehousing facilities at its "main building ," where the Employer ' s general offices are also located, and maintains additional warehousing facili- ties at its 2 other buildings, 1 located across the street from the main building and the other located about 9 blocks away. There are approximately 45 employees involved herein; 43 work at the main building and the other 2 at the warehouse directly across the alley from that building.' There is no history of collective bargaining with respect to any of these employees. The Employer asserts that the warehousemen , shipping clerks, and freight handlers, who perform the duties of receiving clerks, should be excluded from the unit on the grounds that their functions are related to warehousing rather than to selling; that the Employer's warehousing and mer- chandising operations are physically separate and distinct; and that these groups of employees are separately supervised, IAlthough the Employer sought to question a representative of the Petitioner with respect to the composition of bargaining units generally represented by the Petitioner, the hearing officer sustained the Petitioner's objection to this line of questioning, but permitted the Employer to make such inquiries as an offer of proof We have, however, considered the matter contained in this offer of proof and find that it would not affect our ultimate deter- mination herein. 2 The truckdrivers are represented by another union 3 There are no employees regularly assigned to the third building. M. S. YOUNG & CO. 1 387 require different training from, and have little contact with, the other employees sought to be represented by the Petitioner Although the Employer maintains two separate warehouses, referred to by the Employer as Warehouse No. 2 and Ware- house No. 3, it also has storage space and shipping and re- ceiving facilities at its main building, where it operates its retail store. Operations at all three locations are unified under the overall control of the Employer' s general manager. An assistant general manager, in charge of the traffic depart- ment, is responsible not only for the functions performed by the warehousemen, shipping clerks, and freight handlers, but also for those performed by the elevator operator, whom the Employer would include in the unit. All the employees whom the Petitioner seeks to represent enjoy the same vacation, hospitalization, life insurance, and sick leave benefits, work the same hours," and all punch the same time clock. The record also reveals that there is frequent contact between the employees engaged in warehousing, receiving, and shipping, and those engaged in merchandising. Although the employees engaged in selling and related functions may require a dif- ferent kind of experience or training than the warehousemen and shipping and receiving clerks, the degree of experience or training required to attain proficiency in either type of work is not extensive, and the difference in the "skill" of these employees is no greater than that normally found among differing classifications of production and maintenance em- ployees. In view of these facts, including the integration between the Employer's warehousing and merchandising operations andthe mutuality of interests of all the employees in the terms and conditions of employment, and the further fact that no union is seeking to represent the warehouse employees ina separate unit, we shall, pursuant to the Board's usualpractice,6 include the Employer's warehousemen, shipping clerks, and freight handlers in the unit. A question remains, however, with respect to the placement of the inventory and price change checkers, whom the Peti- tioner would include and the Employer would exclude from the unit. There are two employees who perform such functions, Lafaw, and Oswald. Lafaw assists the buyer of the houseware department in checking inventory and preparing requisitions for items to be purchased. Although Lafaw's present duties bring him into frequent contact with other employees whom we are including in the unit, these duties are part of his training as a buyer. As Lafaw is a buyer trainee, we find that his interests are more closely related to those of the buyers, whom we are excluding from the unit.6 Accordingly, we shall 4Pursuant to State statute, however, the Employer's female employees work a 44-hour rather than a 48-hour week. 5John W. Thomas & Co., 104 NLRB 868; C. C Anderson Stores Company, 100 NLRB 986. Cf. Sears, Roebuck & Company, 101 NLRB 665. 6General Electric Company, 103 NLRB 403 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclude Lafaw from the unit . Oswald is temporarily assigned to the builders ' hardware department and spends most of his time performing clerical work in the builders ' hardware office. Thus, he records price changes for the use of the billing department and maintains inventory records . Although Oswald is performing his present duties on a temporary basis, the record reveals that he will continue to perform similar clerical work after the completion of this assignment . Accord- ingly, as the parties have agreed to exclude all office clerical employees from the unit , we shall also exclude Oswald.' We find that all selling and nonselling employees at the Employer's main building and warehouses in Allentown, Pennsylvania , including retail store . clerks, repair and sales- men, glass room clerks, stock clerks, decorators , displaymen, elevator operators , warehousemen , shipping clerks, and freight handlers , but excluding truckdrivers , outside salesmen and house salesmen , buyers and buyer trainees ,' office clerical employees,' guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] 7 Montgomery Ward & Company, Inc., 100 NLRB 1351. 8 Including Lafaw. 9 Including Oswald. SOERENS MOTOR COMPANY and UNITED AUTOMOBILE SALESMEN, LOCAL 174, CIO, AFFILIATED WITH UNITED OPTICAL & INSTRUMENT WORKERS, Petitioner . Case No. 13-RC-2584 . October 30, 1953 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election , an election was conducted on April 21 , 1952, under the direction and supervision of the Regional Director for the Thirteenth 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 5 valid ballots were cast for the Petitioner , 4 valid ballots were cast against the Petitioner, 1 ballot was challenged , and no ballots were void . On April 24, 1952, the Employer filed objections to the conduct of the election and conduct affecting the results of the election. As the challenged ballot was sufficient in number to affect the results of the election , and the objections were timely filed, the Regional Director , acting pursuant to the Board's Rules and Regulations , investigated the issues raised by the challenge and objections , and on August 24, 1953, issued his 106 NLRB No. 242.