Taunton Supply Corp.

National Labor Relations Board - Board Decisions

May 23, 1962

137 N.L.R.B. 221 (N.L.R.B. 1962)

TAUNTON SUPPLY CORP. 221
'Taunton Supply Corp . and Pierce Hardware d/b/a Taunton
Supply Corp . and Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, Local #2, Petitioner.
Case No. 1-RC-6773. May 23, 1962
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 Arnold M. Marrow, hearing
officer. The hearing officer's rulings made at 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 em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer is engaged in the sale of hardware and sporting
goods at its two stores in Taunton, Massachusetts. Its sales transac-
tions are both wholesale and retail. The record shows that the total
staff for the 2 stores is 44, 3 of whom are outside salesmen. The Peti-
tioner seeks an all-employee unit including truckdrivers, but excluding
office clerical employees, outside salesmen, assistant managers, and
supervisors. The Employer urges an all-employee unit. The parties
concede the appropriateness of a unit covering employees at both
stores, and the inclusion of truckdrivers, as to whom there was no
testimony.
O fflce clerical employees : There are six clerical employees at one
store and four at the other. Their work includes computing discounts,
keeping books, preparing the payroll, making out bills, and handling
correspondence. None does secretarial work. Some give quotations
over the telephone but they do not wait on customers. Their working
areas are close to the selling areas, one being separated by a counter
and the other by a flight of four or five steps. They have considerable
contact with the sales clerks.
The Petitioner contends that these clerical employees are office cleri-
cals and should be excluded under Interstate Supply Company, 117
NLRB 1062, where the Board held it would not include office clerical
employees in the same unit with shipping, receiving, and warehouse
employees at a typical wholesale operation if any party objected and
to their inclusion. We find no merit in this contention inasmuch as the
record shows that the business as conducted here is essentially retail in
137 NLRB No. 22.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
character, being fundamentally an over-the-counter operation, and
that these office clerical employees work in adjoining areas and have
a close community of interest with the sales personnel who are re-
quested by the Petitioner.' Accordingly, we shall include these office
clerical employees in the unit.'
Outside salesmen: The Petitioner would also exclude the three out-
side salesmen who spend the greater portion of their time away from
the stores servicing outside accounts. They report at the stores in
the morning and are on the floor selling on Friday evenings and Satur-
day mornings. Consistent. with our usual rule concerning outside
salesmen, we find that these employees lack sufficient community of
interest with the employees in the unit to include them.' Accordingly,
we exclude them from the unit 4
David Lipinsk, : The Petitioner would also exclude this employee
because he is the brother of Jack Lipinsky, principal owner of the
Employer, is paid at a higher rate than other employees for undis-
closed duties, and lacks a community of interest with them. As the
record shows that he enjoys special status by reason of his relationship
to the proprietor, we shall exclude him from the unit.
Supervisors : The Employer contends that Jack Lipinsky, who
spends 1 or 2 days a week "between" the stores, is the sole supervisor
of all employees. It emphasizes the fact that there is a direct tele-
phone line between the stores and Lipinsky's office at another location
so that he is readily available for instructions. However, it appears
from the record that the "managers" at each store, both of whom testi-
fied, have the responsibility of seeing that the employees do their jobs
and that the stores function properly. In the circumstances we find
that these managers responsibly direct the work of the store employees,
and are therefore supervisors within the meaning of the Act. We
exclude them from the unit. The record also contains testimony con-
cerning Aurora, an "assistant manager" at one of the stores, but is
insufficient to determine his supervisory status. Accordingly we shall
permit him to vote subject to challenge.
Part-time employees : There is a schoolgirl who has done clerical
work on Friday afternoons and Saturdays for a year or two, and Bob
Faria, a student who has worked for 5 or 6 years during summer vaca-
tions and on Friday nights and Saturdays. We find that these two
employees are regular part-time employees and shall include them in
the unit.
In addition there is a retired employee who has been working only
sufficient hours to earn the $1,200 permitted while drawing social
1 Member Brown would include these employees in the unit regardless of their occupa-
tional title because of their community of interest with the other employees
2 See J. J. Moreau & Son, Inc, 107 NLRB 999, 1001 ; compare Long-Lewis Hardware
Company, 134 NLRB 1554.
3 Member Rodgers would include the outside salesmen in the unit.
4 See Dependable Parts, Inc., 112 NLRB 581, 583.
ALLEN, LANE & SCOTT, ETC. 223
security benefits, but who, according to the Employer, may forgo his
social security benefits and accept full-time employment. If at the
time of the election he is still working on the basis of earning no
more than the maximum permitted in connection with his social
security benefits, he shall be considered as excluded from the unit.'
If he is working regularly, either full or part time and without regard
to the above maximum, he shall be included.
We find that a unit of the following employees is appropriate for
purposes of collective bargaining within the meaning of Section 9(b)
of the Act :
All employees of the Employer at its two hardware stores on Main
Street, Taunton, Massachusetts, including office clerical employees,
truckdrivers, and regular part-time employees, but excluding outside
salesmen, retired employees working only the maximum permitted
under social security, managers, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Direction of Election.
5 See Hoosier Desk Company, 65 NLRB 785, 787.
Allen, Lane & Scott ; Casey & Andrews ; Cuneo Eastern Press,
Inc.; Edward Stern & Co., Inc. and Lithographic Service Com-
pany, Inc.; 1 Edward Stern & Co., Inc. and Local 14, Amalga-
mated Lithographers of America , AFL-CIO , Petitioner. Cases
Nos. 4-RC-41522 and 4-RC-4&3. May °23, 1962
DECISION AND DIRECTION OF ELECTIONS
Upon the petitions duly filed under Section 9(c) of the National
Labor Relations Act, a consolidated hearing was held before Chester
S. Montgomery, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
On April 5,1962, the Board heard oral argument.
Upon the entire record in these cases, the briefs of the parties, and
the oral argument, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent certain
employees of the Employers.'
1 The Employer' s name appears as amended at the hearing.
2 International Printing Pressmen and Assistants Union of North America, AFL-CIO,
and Its Locals 4 and 11 , International Photo Engravers Union, AFL-CIO, Local 7, and
137 NLRB No. 33.