Sperry Rand Corp.

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 409 (N.L.R.B. 1964)

REMINGTON RAND, DIVISION OF SPERRY RAND CORP . 409
eral to the hours when the store is open. The entire store operation,
leased departments included, is held out to the public as a single
enterprise in all respects, with all business done in the name of White
Front and all adjustments of customer complaints made to the satis-
faction of White Front supervisors.
The record thus discloses a retail leased department operation of
a type which has become a commonplace method of conducting a
department store business. Generally speaking, the lessor establishes
the store and holds himself out to the public as the sole entrepreneur,
whereas in fact some or all of the departments are operated by
lessees who assume some of the risk. Such operation, viewed realis-
tically, is for all significant purposes a single business, with the
lessor and lessee functioning jointly insofar as the particular leased
department is concerned.13 Under these circumstances, the Balkani-
zation of the bargaining unit must result in ' decreased effectiveness
of collective bargaining as to those matters which are of common
concern to all similarly placed sales personnel and in an increased
potential for industrial strife. The effects of our colleagues' deci-
sion is, therefore, virtually to preclude meaningful collective bar-
gaining in this rapidly expanding type of retail operation, and
thereby frustrate the effective application of the policies of the Act
to this area of our national economy.
We would, accordingly, find that White Front and Esgro are joint
employers and would dismiss the petitions herein.
Is For analogous situations , see Checker Cab Company and its members , 141 NLRB 583;
Overton Markets , Inc., 142 NLRB 615.
Remington Rand, Division of Sperry Rand Corporation and
Local 2104, International Association of Machinists, AFL-
CIO,' Petitioner
Remington Rand , Division of Sperry Rand Corporation and
Office Employees International Union , AFL-CIO, Local No.
212, Petitioner. Cases Nos. 3-RC-403, 3-RC-429, and 3-RC-1869.
December 16, 1964
DECISION AND ORDER CLARIFYING BARGAINING UNIT
On June 23, 1950, following a Board-ordered election, the Regional
Director issued a certification of representatives in'Cases Nos. 3-RC-
423 and 3-RC-429, in which he certified the United Electrical, Radio
and Machine Workers of America, Local 304 (hereinafter referred to
1 The name of the Petitioner in Cases Nos . 3-RC-423 and 3-RC-429 appears as amended
at the hearing.
150 NLRB No. 31.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as UE), as the bargaining representative of a unit composed of pro-
duction and maintenance employees at the Employer's Tonawanda
and North Tonawanda, New York, plants? On June 28, 1956, Local
2104, International Association of Machinists, AFL-CIO (herein-
after referred to as IAM), upon agreement of all the parties, suc-
ceeded the UE as the representative of the employees involved in Cases
Nos. 3-RC-423 and 3-RC-429 and since that time has been the rec-
ognized bargaining agent of such employees.
On July 3, 1957, following an election pursuant to stipulation for
certification upon consent election, the Regional Director issued a
certification of representatives in Case No. 3-RC-1869, in which he
certified the Office Employees International Union, AFL-CIO, Local
No. 212 (hereinafter referred to as OEIU), as the bargaining repre-
sentative 'of a unit composed of all office clerical employees at the
Employer's Tonawanda and North Tonawanda plants 3 OEIU is the
current bargaining representative of such employees.
On April 30, 1964, the Employer filed with the Board a motion to
clarify bargaining units in which it requested the Board to determine
whether certain employees engaged in maintaining stock records and
onhand balance files in the factory stockrooms are stock attendants
and therefore in the production and maintenance unit as contended
by IAM, or perpetual inventory clerks and therefore in the office
clerical unit as contended by the OEIU. While supporting the posi-
tion of the OEIU, the Employer indicated that it was willing to
recognize as bargaining agent for the employees involved that Union
which the Board determines represents the disputed employees.
On May 22, 1964, the IAM_filed a motion in opposition in which
it requested that the Employer's motion be dismissed on the ground
that the employees were clearly in the production and maintenance
unit. The IAM further contended that the dispute should be settled
through the grievance procedure machinery provided in the existing
contract. In the alternative the IAM requested that a hearing be
directed. On June 5, 1964, the OEIU filed a reply to the Employer's
motion, requesting that it be dismissed on the ground that the dispute
is a "matter of contract" between the Employer and the IAM.
On July 15, 1964, the Board issued an order remanding the pro-
ceeding'to the Regional Director for the purpose of holding a hear-
ing and receiving testimony on the issues raised by the Employer's
5The certified unit includes all production and maintenance employees including lead-
men, folder machine operators , and timekeepers at the Employer 's Tonawanda and North
Tonawanda plants, excluding printing pressmen and printing pressmen assistants at the
Tonawanda plant.
a The certified unit includes all office clerical employees of the North Tonawanda and
Tonawanda plants of the Employer , excluding all confidential , technical, and managerial
employees and all guards, professional employees , and supervisors as defined in the Act
REMINGTON RAND, DIVISION OF SPERRY RAND CORP. 411
motion and the responses of the IAM and OEIU. The hearing was
held on September 29, 1964, before Hearing Officer Henry J. Winters.
Thereafter, the OEIU filed a brief with the Board.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Brown].
The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. The Board has considered
the Employer's motion, the responses of the IAM and OEIU in
opposition thereto, the OEIU's brief, and the entire record herein,
and hereby makes the following findings :
The Employer, Remington Rand, Division of Sperry Rand Cor-
poration, is engaged, at various locations, including Tonawanda and
North Tonawanda, New York, in the manufacture of office equipment.
The two employees whose unit placement is in dispute are employed
at the Employer's Tonawanda-plant. As noted above, the IAM rep-
resents a unit of all production and maintenance employees at the
Tonawanda plant and the OEIU represents the office clerical em-
ployees.employed at that plant.
For approximately 23 years prior to February 1962, two employees
represented by the IAM as part of the production and maintenance
unit and classified as stockroom attendant A were responsible for the
maintaining of stock records in the plant stockrooms. The Employ-
er's Tonawanda plant is divided into a front office area and a plant
area which includes stockrooms. These two employees worked in
small offices located in stockrooms in two buildings 4 under the super-
vision of Dominick Grimaldi, the stockroom foreman . These employ-
ees maintained continuing records of the parts inventory, noting stock
received and disbursed, and recorded the locations of the parts kept
in stock at the plant. This information, in addition to being used by
the stockroom employees, was transmitted on request to the purchas-
ing and cost departments in the front office.
In February 1962 the Employer transferred these two employees
from the plant to the front office, changing their job title to that of
perpetual inventory clerk and recognizing OEIU as their collective-
bargaining representative. Although the two employees worked
under office clerical supervision and under the same working condi-
tions as office clerical employees, their work remained substantially
the same. Thus, the two employees continued to maintain the same
records as in the past, with the additional function of reserving
orders, that is, of placing automatic orders when stock reached a
'The record does not reveal the precise location of the stockroom offices in relation
to the front office where the office clerical staff, represented by the ,OEIU, is employed.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minimum inventory level. The records maintained by these employ-
ees were utilized in the same manner as previously by the production
and maintenance departments as well as by the front office staff.
On April 3, 1962, the IAM filed a grievance protesting the Em-
ployer's action in recognizing OEIU as representative of the two
employees in question. The grievance was withdrawn April 18, when
the two employees were transferred back to the plant, where they
were assigned different work, and the Employer recognized the IAM
as their bargaining representative. The Employer then assigned two
other employees to the classification of perpetual inventory clerk in
the front office. These newly assigned employees continued to do the
same work as had been done by the employees previously assigned to
those positions and the Employer recognized OEIU as their bargain-
ing representative. _
In September 1963 the Employer transferred the two employees
classified as perpetual inventory clerks from the front office to the
stockrooms in the plant. These employees performed the same work
as had previously been performed by the two employees represented
by the IAM prior to the transfer in February 1962, with the addition
of the reserve order work which had been added after their transfer
to the front office. This work was performed in the same plant- loca-
tions, under the same stockroom supervisor, and with the same work-
ing hours and conditions as previously. However, the Employer con-
tinued to, recognize the OEIU as representative of these employees..
The issue raised by the Employer's motion is whether the two
employees now classified-as perpetual inventory clerks and working
in -the plant stockrooms properly belong in the production and main-
tenance unit, represented by the IAM, or the office clerical unit, rep-
resented by OEIU.
The record establishes that the two employees in dispute work in
the plant stockroom 'area, under the supervision of the stockroom
foreman; they have the same working hours and other. conditions of
employment as production and maintenance employees and they have
frequent contact with them; their work is related to the production
and maintenance function; and the disputed employees work in a
different area, under separate supervision, and with little or no direct
contact with office clerical employees. Further, as noted, the disputed
employees are doing, in the same location and under the same super-
vision, the same work as had been done prior to 1962 by the stock
attendants who were represented by the IAM. We find on the entire
record that these employees are plant clerical employees.5 The Board
normally includes plant clerical employees in production and mainte-
6 See American Beryllium Company , Inc., 142 NLRB 457; Avco Corporation, Electronics
and Ordnance Division, etc., 131 NLRB 921; Southern Steel & Stove Company, Inc., et al.,
124 NLRB 577; Lilliston Implement Company , 121 NLRB 868.
MIDWEST TELEVISION, INC., STATION WMBD-AM-FM-TV 413
nance units unless they are specifically excluded therefrom or unless
they are expressly included in other units.- Here, as plant clerical
employees are not specifically excluded from the production and
maintenance unit, and as the OEIU was not certified to represent
plant clerical employees and the record otherwise fails to establish
that it represents plant clerical employees,7 we find that the two
employees should be included in the production and maintenance unit
represented by the IAM.
[The Board clarified the production and maintenance unit hereto-
fore established in Cases Nos. 3-RC-423 and 3-RC-429 to include
therein, as plant clerical employees, the two employees involved
herein classified as perpetual inventory clerks.] 8
s Equipment Sales Co., Inc ., 146 NLRB 865 ; American Beryllium Company, supra.
9 while the record establishes that the OEIU represents the typist clerk, employed in
the receiving department in the plant area and working under the supervision of the stock-
room foreman , this fact, standing alone, is insufficient to show that the OEIU represents
plant clerical employees.
8 This Decision and Order Clarifying Bargaining Unit is not to be construed as a new
certification.
Midwest Television , Inc., . Station WMBD-AM-FM-TV and
American Federation of Television and Radio Artists, AFL-
CIO, and International Brotherhood of Electrical Workers,
Local 1292 , AFL-CIO, Jointly. Case No. 13-CA-5418. Decem-
ber 16, 1964
SUPPLEMENTAL DECISION AND ORDER 1
On October 29, 1964, Trial Examiner Fannie M. Boyls issued her
Report on Evidence Regarding Challenged Ballots, on remand,2 in
the above-entitled proceeding, which report is attached hereto.
Neither party has filed exceptions to the report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Leedom,
Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
report and the entire record in the case, and hereby adopts the fac-
tual findings of the Trial Examiner.
1 The Board 's original Decision and Order is reported at 144 NLRB 972.
2 This proceeding was remanded to the Regional Director for Region 13, by Board Order
dated January 27, 1964, and the record reopened for the purpose of holding a further
hearing before a Trial Examiner to receive evidence with respect to the challenges to the
ballots of William Moylan, Lloyd Peterson, David Phillips, Dee Richards, and Milton
H. Budd cast in the election conducted on December 4, 1961, in Case No. 13-RC-8194.
150 NLRB No. 41.