All-American Distributing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1975

221 N.L.R.B. 980 (N.L.R.B. 1975)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All-American Distributing Co., , Inc. and United
Industrial Workers, Midwest, Seafarers Interna-
tional Union of North America , AFL-CIO, Peti-
tioner. Case 13-RC-13661
December 4, 1975
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 20, 1975, the Regional Director for
Region 13 issued a Decision ,and Direction of
Election in the above-entitled proceeding in which he
found appropriate a unit of all full-time and regular
part-time warehouse employees, including printroom
employees of the Employer at its warehouse present-
ly located at 1000 Estes Avenue, Elk Grove Village,
Illinois; but excluding the order and invoice clerk,
the sales clerk, office clerical employees, and guards
and supervisors as defined in the Act. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, ' as amended, the Employer filed a timely request
for review of the Regional Director's Decision on the
grounds, inter `alia, that in deferring'ruling on the
eligibility of six, laid-off employees and permitting
them to vote under challenge and by excluding the
order clerk and the "will-call" employees ,from the
unit found appropriate, he made erroneous findings
as to substantial factual issues and departed from
officially reported Board precedent. Petitioner filed a
reply brief urging that the Regional Director be
affirmed and requested leave to file cross-exceptions.
The Employer filed a motion to strike Petitioner's
reply brief as untimely filed and opposed Petitioner's
request to file cross-exceptions.'
By telegraphic order dated August 13, 1975, the
National Labor Relations Board granted the Em-
ployer's request for review and stayed the election
pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Employer, an Illinois corporation, is engaged
in the warehousing and wholesale distribution of
auto supplies to stores which have automotive
departments. Its business involves the purchase and
storage of automotive products, the sale of these
products, and their preparation for shipping. The
Employer's executive vice president,- Morton D.
Purvin, has responsibility for the purchase, receipt,
and packaging of merchandise, 'as 'well as the
supervision, of the eight or nine employees who work
in these areas. In the receiving department, located
on the west side of the warehouse,, merchandise is
unloaded from trucks, stacked on pallets, and taken,
by the use of a forklift truck or hand pallet truck, to
the place where it is to be- stored in the, warehouse.
The packaging department, located in the northeast
corner -of the warehouse, is where` bulk items' are
brought to be individually packaged, 'reassembled
into standard packs, and 'returned' to the warehouse
for order picking.,
The warehouse manager, Rudolph Herz, supervises
the shipping area at-the east side of the warehouse,
where the general warehousing, and shipping func-
tions take place. Warehouse employees, according'to
established routines, pick orders, check orders, pack
orders, and stack them on pallets to be taken to the
shipping area and prepared for shipping.
The record indicates that on or about April 4, 1975,
the Employer laid off six warehouse employees. The
Employer contends that the Regional Director erred
'by deferring ruling on the eligibility of the six laid-off
employees and permitting them to vote subject to
challenge. We find, merit in the Employer's conten-
tions.
The evidence, as found by the Regional Director,
indicates that the Employer's volume of business has
dropped about 20 percent over the past year due to
the loss of several large customers and a general
business decline. The Employer's president and
general manager, Maurice Kaplan, testified that
there, has been a shift from large accounts to small
accounts and that he did not project an increase in
the volume of sales or the need to hire additional
employees or recall the laid-off employees. Kaplan
also stated that three of the six laid-off employees
requested and received reference letters for other
employment. Kaplan's testimony that the employees
were given no expectancy of recall was corroborated
by laid-off employee Michael Durlak who testified
that, when Warehouse Manager Herz told him he
was laid off, he was also told "to look for another
job."
In its reply brief, the Petitioner contends that the
Employer has the prospect of improved business and
that the problem causing its decrease in business may
soon be alleviated.2 Thus, as the record evidence
1 The Board , by letter dated August 22 , 1975, rejected Petitioner's 2 The Employer's president testified that the drop in business causing the
request to file cross-exceptions and, by letter dated August 27, 1975 , demed layoffs resulted from the financial reverses in 1974 of certain of the
the Employer 's motion to strike Petitioner 's reply brief Employer's major customers. The Petitioner notes that two large discount
221 NLRB No. 155
ALL-AMERICAN DISTRIBUTING CO., INC. 981
indicates that the Employer has a policy of recalling
laid-off employees, the Petitioner asserts that the
Board should ' find that the six employees at issue
have a reasonable expectancy of recall and should be
permitted to vote. However, the record also shows
that none of the employees laid off the year before
were recalled, and part-time employees have worked
fewer hours since the layoff of the six employees
involved herein. Accordingly, in view of all the
circumstances , we are not persuaded that these laid-
off employees have a reasonable expectancy of recall
and shall not permit them to vote under challenge.
Sierra Lingerie Company, 191 NLRB 844 (1971).3
The Employer also contends in its request for
review that the Regional Director improperly exclud-
ed the order clerk, Betty Stubblefield, from the
warehouse unit because in his view she did not have
a community of interest with unit employees. The
Employer asserts that Stubblefield is a plant clerical
and that, as her duties are directly related to
warehouse operations, she should be included in the
unit . We agree.
The record reveals that Stubblefield spends most of
her time in the display department located adjacent
to the shipping section of the general warehouse area.
A doorway connects the warehouse and the display
area which is also adjacent to the general office in
which the Employer's three office clericals work.
Contrary to the office clericals, Stubblefield does not
report to the general office, have a desk there, or
perform any duties there. Whereas office clericals are
supervised by the office manager, Stubblefield is
supervised by the Employer's president, Kaplan.
Stubblefield's duties include recording all orders in
a book, stamping orders with invoice numbers,
preparing the orders for filling, checking with the
warehouse manager as to whether an order has been
shipped, and generally checking on what has been
shipped and what has not. Orders are either brought
to the warehouse by Stubblefield or a warehouse
employee comes to her to collect them. Stubblefield
spends 20 to 25 percent of each day in the warehouse
and warehouse employees regularly come to her
work area to consult and perform other duties.
The order clerk receives the same paid holidays,
health insurance , profit sharing; and vacation bene-
fits as do warehouse employees 4 She punches a
timeclock in the warehouse as do warehouse and
office clerical employees.
houses, which had been customers of the Employer, have filed chapter XI
bankruptcy petitions which are not "straight" bankruptcy but are
rehabilitative in nature.
3 Member Fanning views the facts herein as distinguishable from those
in Sierra Lingerie Company, ,supra He would not have granted review on the
challenge issue as, in his opimon,'the Regional Director reached the correct
result in permitting the six laid-off employees to vote subject to challenge
Based on the foregoing, we find that the order clerk
is essentially a plant clerical engaged in warehousing
functions and has a community of interest with
warehouse employees. Accordingly, we include her
in the unit. The May Department Stores Company,
d/b/a Famous-Barr Company, 153 NLRB 341 (1965).
In addition to the above, the Employer contends,
contrary to the Regional Director, that the employee
who works in the will-call room shares a community
of interest with the warehouse employees and should
be included in the unit. We agree with this conten-
tion.
The will-call room serves as the entrance to the
company -premises for all persons other than employ-
ees. This room contains some chairs and tables and
some pegboard shelves on which are displayed a few
samples of merchandise and various catalogues of
the merchandise sold by the Employer. Marvin
Becker, the employee assigned to the will-call area, is
responsible for taking orders from customers who
prefer to pick up their orders rather than have them
delivered. Becker not only takes the orders, but must
go into the warehouse to have them filled. Sometimes
Becker picks up the orders from the warehouse
himself or a warehouse employee brings the order to
the will-call area.
In view of the evidence indicating that Becker
works closely with warehouse employees in a section
adjacent to the warehouse and performs a sales
function which is integrated with the warehouse
operations, we find that the will-call employee's
interest is aligned with that of the unit employees.
Therefore, we include the will-call employee in the
unit. In making this finding, we note, but find
unpersuasive, the contention made by the Petitioner
in its reply brief that the will-call employee's interest
is more closely aligned with that of the Employer's
outside salesmen who were by stipulation excluded
from the unit. The record contains no evidence to
support this contention.
Accordingly, the matter is hereby remanded to the
Regional Director for Region 13 for the purpose of
conducting an election in the appropriate unit, as
modified herein, pursuant to his Decision and
Direction of Election, except that the payroll period
for determining eligibility shall be that immediately
preceding the date of issuance of this Decision on
Review. [Excelsior footnote omitted from publica-
tion.]
The Regional Director found the record insufficient to determine that issue,
which is not unusual with respect to the prospect of recall of laid-off
employees, and Member Fanning believes his colleagues, without additional
testimony, are disenfranchising six employees
4 The record does not indicate whether office clericals share in all these
benefits. Also, there is no evidence as to whether the order clerk's wages are
more akin to those of warehouse or office clerical employees