Bisese & Console, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1967

167 N.L.R.B. 424 (N.L.R.B. 1967)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bisese & Console , Inc., Rosso & Mastracco , Inc., Shu-
madine Dairies, Inc.' and Production and Main-
tenance Local Union 1138 , Laborers ' International
Union of North America , AFL-CIO, Petitioner.
Case 5-RC-5873
September 14, 1967
DECISION ON REVIEW
On April 27, 1967, the Regional Director for Re-
gion 5 issued a Decision and Direction of Election
in the above-entitled proceeding, in which he found
appropriate the Petitioner's requested unit limited
to drivers and warehousemen employed by Bisese
at its 1187 Azalea Garden Road, Norfolk, Virginia,
operations. Thereafter, the Employer filed a timely
request for review of the Regional Director's Deci-
sion on the grounds that in making his unit deter-
mination , he departed from established Board pol-
icy, and that he made certain factual findings which
were clearly erroneous. Thereafter, the Petitioner
filed opposition thereto. On July 11, 1967, the Na-
tional Labor Relations Board by telegraphic order
granted the request for review.
Upon the entire record in this case, including the
Employer's request for review and the Petitioner's
opposition, the Board makes the following findings:
The Employer contends that the only appropriate
unit comprises the employees of its three con-
stituent companies at the Azalea Garden Road lo-
cation.
Bisese is engaged in the wholesale distribution of
groceries, produce, and frozen foods and maintains
its warehouse in a building at the aforesaid location.
Rosso operates a bakery and commissary, while
Shumadine processes milk and manufactures ice
cream and related items in the same building. Most
of the produce and merchandise of these companies
is sold and distributed to Rosso's 5 "Giant Open
Air Markets" and 19 "Tinee Giants" retail food
stores.2 The office clerical staff which services all
three companies is also housed in this building. The
operations of these companies are sectioned off by
cinder-block walls containing swinging doors.
While employees of each company generally per-
form their duties for their respective company, the
record shows that, approximately three times a
month, four Bisese warehousemen spend three to
four hours assisting Rosso's receiving clerk in un-
loading flour received by carload. At times when
truck loads of merchandise are delivered to the
bakery, a Bisese forklift operator assists the Rosso
The Regional Director found and the record shows that Bisese &
Console, Inc (hereinafter referred to as Bisese), Rosso & Mastracco, Inc
(hereinafter referred to as Rosso), and Shumadme Dairies, Inc
(hereinafter referred to as Shumadine) are under common ownership, and
have identical officers and directors In view of such common ownership
and control, and the findings of fact hereinafter made as to the extent of in-
receiving clerk in moving and storing the merchan-
dise. On Thanksgiving, Christmas, Easter, and
Labor Day, Rosso borrows three Bisese employees
for a period of 2 days. Bisese drivers also. deliver
bakery merchandise on a daily basis and Shumadine
drivers load and deliver frozen foods for Bisese and
bakery products for Rosso twice a week. Whenever
a truck is not loaded to capacity with merchandise
of one company, the truck will be loaded with
merchandise of another of the companies.
However, each company has its own operating
supervisors, has separate seniority lists for its em-
ployees, and, except as noted above, the employees
of Rosso at this location work in Rosso's bakery
and commissary operations, including a packaging
department, and the employees of Shumadine per-
form duties related to the processing of milk and the
production of ice cream and related items. Further-
more, there is virtually no interchange between
such employees of Rosso and Shumadine with the
employees of Bisese.
Although it is clear from the foregoing facts and
the entire record that a unit comprising all the em-
ployees of Bisese, Rosso, and Shumadine may be
an appropriate unit, we believe a unit lesser in
scope, of the type sought by the Petitioner, is also
appropriate. In view of the fact that the employees
of Rosso and Shumadine at this location are en-
gaged in separate and distinct operations, are
separately supervised, and do not interchange with
employees of Bisese, we, like the Regional
Director, are satisfied that a unit of drivers and
warehousemen, excluding employees working in
the bakery and commissary operations of Rosso
and the milk processing and ice cream production
operations of Shumadine, is appropriate herein.
However, unlike the Regional Director, in view of
their close functional relationships and work con-
tacts, we shall include in such unit the drivers of
Shumadine and the shipping clerk and receiving
clerk of Rosso.
Accordingly, we find that the following em-
ployees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All truckdrivers, truckdriver helpers,
warehousemen, checkers, receivers, and shipping
clerks employed by Bisese & Console, Inc., the
shipping clerk and receiving clerk employed by
Rosso & Mastracco, Inc., and the drivers and
drivers' helpers employed by Shumadine Dairies,
Inc., at their building located at 1187 Azalea
Garden Road, Norfolk, Virginia, excluding all other
tegration of the operations of the three companies, we find that they con-
stitute a single employer for purposes of collective bargaining L & S
Construction Company, 155 NLRB 524, 527. Accordingly, we amend
the caption in this case to include all three companies
2 The employees of the retail food stores are not involved in this
proceeding
167 NLRB No. 56
BISESE & CONSOLE, INC. 425
employees, office clericals, guards, and supervisors
as defined in the Act.3
Although the unit we thus find appropriate is
broader than either the unit sought by the Petitioner
or found appropriate by the Regional Director, we
shall not dismiss the petition inasmuch as the Peti-
tioner has not specifically disclaimed interest in
such unit. We shall therefore remand the case to the
Regional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, subject to his ascer-
taining that the Petitioner has made an adequate
showing of interest among the employees in the ap-
propriate unit, and with the further exception that
the eligibility date shall be that immediately preced-
ing the date of this case.4
S A corrected election eligibility list, containing the names and ad-
dresses of all the eligible voters, must be filed by the Employer with the
Regional Director for Region 5 within 7 days after the date of this Deci-
sion and Direction of Election The list may initially be used by the Re-
gional Director to assist in determining an adequate showing of interest
The Regional Director shall make the list available to all parties to the
election when he shall have determined that an adequate showing of in-
terest among the employees in the unit found appropriate has been
established No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the elec-
tion whenever proper objections are filed Excelsior Underwear Inc , 156
NLRB 1236
" If the Petitioner does not now desire to participate in an election in the
unit we find appropriate herein, we shall permit it to withdraw its petition
without prejudice upon written notice to the Regional Director within 10
days from the date of this Decision