Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

May 19, 1970

182 N.L.R.B. 543 (N.L.R.B. 1970)

WESTINGHOUSE ELECTRIC CORP. 1
Westinghouse Electric Corporation and International
Union of Electrical , Radio and Machine Workers, Local
456, AFL-CIO. Case 22-CA-3685
May 19, 1970
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On June 30 , 1969, the National Labor Relations Board
issued its Decision in this proceeding , finding that
Respondent had engaged in certain unfair labor practices
in violation of Section 8(a)(5) and ( 1) of the National
Labor Relations Act, as amended, and ordering Respond-
ent to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.'
Thereafter Respondent filed with the Court of Appeals
for the Second Circuit a petition to review and set
aside the Board ' s Order . The Board filed with the court
a cross-application for enforcement of its Order.
Thereafter, the Supreme Court of the United States
denied the Board ' s petition for certiorari in Pepsi-Cola
Buffalo Bottling Co. v. N. L.R.B., 396 U . S. 904 (Novem-
ber 6 , 1969). Decision below 409 F. 2d 676 (C.A. 2).
After the denial of the petition for certiorari, the
Board moved the court of appeals for leave to withdraw
the certified list of documents , pleadings and materials
comprising the record of the proceeding to permit the
Board to pass upon the controlling representation issue
in conformity with the decision of the court of appeals
in Pepsi-Cola Buffalo Bottling Co., supra . The court
of appeals entered an order granting the Board's motion.
Thereafter , the Board granted leave to the parties
to file a statement of position respecting the issues.
The Respondent , General Counsel , and Charging Party
each filed a statement.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three -member panel.
The Decision and Order issued in June 1969 was
a grant of summary judgment finding that all issues
raised by Respondent had been fully litigated in the
related representation case .' The complaint in this case
543
arose out of Respondent's failure, after a hearing, to
honor the Regional Director's decision and order clarify-
ing bargaining unit.3 In his decision, the Regional Director
had granted the Union's request to include- systems
and procedures analysts "A" and "B',' in the bargaining
unit. He found (1) that the disputed employees were
technical employees with a close community of interest
with the technical employees already in the unit and
were not professional employees; (2) that they were
not confidential employees; and (3) that they could be
included in the bargaining unit by means of the unit
clarification procedure.
As more fully set out in the Decision and Order
in this case, Respondent filed a request for review.
The Board denied review on the issues raised by the
first two findings of the Regional Director, but granted
it as to the third issue.
The Board issued its Decision on Review in which
it affirmed the Regional Director's findings and found
the disputed employees to be an accretion to the certified
unit.
Respondent does not contend that the Regional
Director erred in finding that the disputed employees
were not confidential employees.
We have since made an independent review of the
record of the hearing in the representation case from
which we conclude that the Regional Director's other
findings and conclusions, as set forth in his decision
and order clarifying unit, were also correct in all respects.
As the issues have been fully litigated and no newly
discovered and previously unavailable evidence was
offered by Respondent in its answer to the notice to
show cause and memorandum in support of answer,
and in its statement of position on remand, no further
hearing is required. We therefore affirm the bargaining
order previously issued.
SUPPLEMENTAL ORDER
Based on the foregoing, and the entire record in
this case, the National Labor Relations Board hereby
affirms its Order issued in this proceeding on June 30,
1969.
177 NLRB No 49
' Case 2-RC-8368 Decision and Direction of Elections , 116 NLRB
1545 Board Certification of the Union , December 10, 1956 Decision
on Review , 173 NLRB 319 (October 24, 1968)
' Case 22-UC-I I
182 NLRB No. 85
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frisch 's Restaurants , Inc. and Truck Drivers, Chauffeurs
and Helpers Local Union No. 100 , an affiliate of the
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America Petitioner
Frisch 's Restaurants , Inc., Petitioner and Truck Drivers,
Chauffeurs and Helpers Local Union No. 100 , an affiliate
of the International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America. Cases
9-RC-8244 and 9-RM-569
. May 19, 1970
DECISION ON REVIEW AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
On September 15, 1969, the Regional Director for
Region 9 of the National Labor Relations Board issued
his Decision and Direction of Election in the above-
entitled proceeding, finding the Petitioner's requested
unit of all warehouse department employees in the
Employer's commissary continued to be appropriate for
separate representation apart from other commissary
employees. Thereafter, in accordance with National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer filed a timely request
for review and a motion for stay of the election on
the grounds that the Regional Director's unit finding
constituted a departure from Board precedent and was
clearly erroneous on substantial factual issues.
By telegraphic order dated October 8, 1969, the Board
granted the request for review and stayed the election.
Thereafter the Employer filed a brief on review.
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.
The Board has reviewed the entire record in this
case with respect to the issues under review, including
the briefs, and makes the following findings:
On February 21, 1967, the Acting Regional Director
for Region 9 issued a Decision and Direction of Election
in Case 9-RC-7083 finding appropriate, in accord with
the Petitioner's request, a unit identical to that which
it now seeks.' The Regional Director, in finding the
unit appropriate herein, relied on the Acting Regional
Director's earlier determination, rejecting the Employ-
er's contention that such decision was no longer control-
ling because of changed circumstances. The Employer
asserts that he erred in rejecting this contention. We
agree.
The Employer is engaged in the wholesale and retail
distribution of food products and has various restaurant
outlets in the States of Ohio, Indiana, Kentucky, and
Florida. It services approximately 150 of these restau-
' The Board denied the Employer's request for review of that finding
An election was held in which the Petitioner failed to receive a majority
of the valid ballots cast.
rants from a commissary located in Cincinnati, Ohio,
the only operation involved herein.
Since the previous hearing in December 1966, the
number of restaurants serviced by the commissary has
increased by 35, or over 30 percent. However, the
commissary services are performed by approximately
the same number of employees. This has apparently
been made possible by certain changes made in the
operations of the various departments in the past 2
years to facilitate greater efficiency in the use of employ-
ees and space.2
In the 1967 decision, the Acting Regional Director
described the duties of the warehouse department
employees as follows:
[they] spend their entire time performing typical
warehouse functions such as the unloading, receiv-
ing, moving and storing of merchandise, which
are separate and distinct from those duties normally
performed by the other employees. They unload
merchandise received from suppliers which they
stack on pallets and move, by electric mules, to
a position on the receiving dock or to the storage
area in the basement of the commissary. As the
need arises, they move this merchandise from the
basement to one of the other departments. They
regularly perform work in the storage area of the
commissary basement, stacking merchandise
received from the suppliers. When it comes time
to load the trucks, they place the merchandise
on the conveyors leading from the basement to
the dock area. They then check the merchandise
ordered by the Employer's restaurant units, load
such merchandise onto the trucks used to transport
it, and move the trucks around to the dock. . . .
Permanent or semi-permanent transfers of employ-
ees to or from the warehouse department are occa-
sional. Only two transfers into, and seven out of,
the warehouse department have occurred in the
last three calendar years, with all seven employees
from that department having gone into the truck
drivers department, which, as noted heretofore,
is a separately-represented unit. Temporary assign-
ments of employees to or from the warehouse
department are sporadic, with only five employees
being temporarily assigned to that department dur-
ing the past two calendar years, where they worked
a total of only 51 hours; and with no employees
being temporarily assigned out of that department,
to work in other departments, during the same
period of time. Although warehouse department
employees may also have occasion to be in other
departments for a few minutes of their time during
the course of a day, this is primarily in connection
with the performance of their regular warehouse
Y At the time of the previous hearing, the Employer's commissary
operations employed 73 employees, it now employs approximately 76,
with the following number of employees in each department bakery-
14 (1 less), butcher-8 (2 less); produce-16 (3 more), soup and chill-
3 (3 less), cleaning-6 (I more); maintenance-7 (the same), cafeteria-
2 (the same), warehouse-10 (2 less), and truckdrivers-I I (the same)
182 NLRB No. 86
FRISCH 'S RESTAURANTS, INC
duties, such as the delivery of merchandise into
or from these departments
Since that time, the Employer has decentralized stor-
age by establishing storage areas adjacent to the various
departments, shifting from warehouse employees to
department personnel the tasks of moving and rotating
merchandise from such storage areas to their work areas
and of loading processed materials on moving equipment3
for transport to the dock area for subsequent loading
onto the trucks, giving the warehouse department and
the other commissary departments joint responsibility
for rotating stored products between departments, and
increasing both permanent and temporary assignments
to other departments, with many warehousing tasks
now being performed by either warehouse department
employees or employees of other departments, depend-
ing upon availability at the time to do the work 4 Except
for the receiving clerk and the checker, all warehouse
department employees and many of the other commis-
sary employees are considered "utility" employees by
the Employer because they may engage in general utility
work within any department 5 Warehouse department
employees also regularly assist the cleaning department
in the cleaning of trucks, assist the soup & chili depart-
ment in the preparation of soft drink syrup, and assist
the maintenance department in moving heavy machinery
The shipping and receiving dock is functionally the
focal point for the entire commissary operation and
is contiguous to almost all the commissary departments
The office of the commissary manager is located immedi-
ately adjacent to the dock, as is the employee entrance
and timeclock used in common by all employees All
commissary employees, other than the truckdrivers,
enjoy the same working conditions, facilities, and fringe
benefits The departments all have overlapping working
hours
Unlike the Regional Director, we believe the changes
in the commissary operations since the 1967 decision
545
necessitate a different result herein In the facts of
this case, especially the integration of the shipping and
receiving functions performed by warehouse department
employees with the material -moving functions performed
by other commissary department employees in produc-
tion areas , and the degree of interchange shown to
exist between these employees, we are unable to con-
clude that the requested employees possess sufficient
functional distinctness to warrant a finding that they
have a separate community of interest for bargaining
purposes We find, therefore, contrary to the Regional
Director , that the warehouse department unit is inappro-
priate as too narrow in scope " Accordingly, as the
Petitioner does not seek an election in a broader,
appropriate unit, we shall dismiss both petitions herein
ORDER
It is hereby ordered that the petitions filed herein
be, and they hereby are, dismissed
3 At present all departments use forklifts pallet packs dollies hand
trucks and electric mules
During the last year and 7 months there have been four permanent
transfers of present employees between commissary departments and
the warehouse In the past year 30 percent of the complement of
warehouse employees have spent over 30 partial shifts working in
the bakery In the 2 months preceding the hearing 80 percent of
the warehouse employees worked in other departments for extended
periods of time An undisclosed proportion of this interchange of work
has been performed on overtime
The utility employees make up the great bulk of the commissary
work force They are distributed by departments as follows 8 out
of the 14 in the bakery all 3 in the soup & chili department approximately
13 of the 16 in produce 6 of the 8 in the meat department all
6 in the cleaning department I dual function employee of the 2 in
the cafeteria and 8 of the 10 warehouse department employees the
others being plant clericals the checker and the receiving clerk
See Riker Laboratories 156 NLRB 1099 1101