Cash Wholesale Co, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1947

73 N.L.R.B. 699 (N.L.R.B. 1947)

In the Matter of CASH WHOLESALE COMPANY, INC., AND STERLING
STORES COMPANY, INC., EMPLOYER and AMERICAN FEDERATION. OF
LABOR, PETITIONER
Case No. 15-R-1930.-Decided April 30, 1947
Messrs. E. Charles Eiehenbaum and C. J. McShane , of Little Rock,
Ark., for the Employer.
Messrs. T. J. Gentry and J. D. McPherson, of Little Rock, Ark., for
the Petitioner.
Mr. Martin Sacks, of counsel to the -Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Little
Rock, Arkansas, on November 22, 1946, before Gerald A. Brown, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. -
Upon the entire record .in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
Sterling Stores Company, Inc., an Arkansas corporation, is en-
gaged in the operation of a wholesale warehouse in Little Rock, Arkan-
sas, and approximately 46 variety and department stores, 14 of which
are located in States other than Arkansas. The corporation's main
offices are located at the wholesale warehouse, which is the only opera-
tion involved herein.
Cash Wholesale Company, Inc., is an Arkansas corporation, jointly
engaged with Sterling Stores Company, Inc., in the operation of the
warehouse mentioned above, from which it sells merchandise to outside
customers. It is a wholly owned subsidiary of Sterling Stores Com-
pany, Inc., and has the same president, chairman of the board of' direc-
tors,.and secretary:-treasurer as its parent.
' The names of the' two corporations appear in the caption as amended at the hearing.
73 N. 1: 11. B., No. 133.
699
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goods placed in the Little Rock warehouse are treated as the coin-
mon property of both corporations until sold. During the past year,
virtually all the goods received by the warehouse, and valued at ap-
proximately $3,000,000, came -from points outside the State of
Arkansas. During` the' same period,. the merchandise shipped from
tlie•warehduse'by the parent' corporation had a. Value of approximately
$2,500,000, of which $375,000 represented shipments to.points outside
the State, and shipments made by the subsidiary amounted to approxi-
mately $500,000,`6f which $10,000 represented shipments to points
-outside the State.
We find that' Cash Wholesale Company; Inc., and Sterling Stores
Company, Inc;, are each engaged in commerce within .the meaning of
the National Labor Relations Act .2'- • ' - • ._
We find further, in accordance with the admissions -of both corpo-
rations, that they constitute , for the purposes of this proceeding, a,
single Employer within the meaning of Section 2 (2) of the Act.
II. THE ORGANIZATION INVOLVED
The Petitioner 'is' a labor organization, claiming to represent
employees of the Employer.3
III. THE QUESTION CONCERNING REPRESENTATION
'Eiilployer refuses to recognize the Petitioner as, the exclusiveThe
bargaining representative' of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE . APPROPRIATE UNIT
The .Petitioner seeks a unit consisting of all warehouse employees
including checkers, order fillers, packers, porters, shipping clerks,
assistant shipping clerks, receiving clerks, the elevator operator, and
the truck driver, but 'excluding salesmen, secretaries , order clerks,
IBM girls, key punch operators, comptometer operators, bookkeepers,
PBX operators, the file clerk, stenographer and billing clerk, cashier,
2 At the hearing, each corporation neither admitted nor denied that it was engaged in
commerce within the meaning of the -Act. However, in its brief, the Employer raises the
contention that, because of the small proportion of sales made by Cash Wholesale Com-
pany, Inc.;,to customers outside the State, the Board may not assert jurisdiction over that
corporation 's, operations. Upon all the facts herein, including the existing corporate inter-
relationship , we'find the Employer's contention to be without merit . See Matter of Amer-
ican Bank and Trust Company of Chicago and American National Safe Deposit Company,
its wholly owned subsidiary, 71 N. L . It. B. 503.
'The Petitioner waived any right to urge any of,the acts alleged by it as unfair labor
practices in Case No . 15-C-1209 as a basis for objections to.any election which may be
directed in the instant case. '
CASH WHOLESALE COMPANY, INC. 701
assistant buyer and buyers: The Employer-would, however; also in-
clude all the above classifications, urging that all its employees combine
to form the functionally integrated warehouse unit. -There has been
no bargaining history, affecting any of these 'employees.
The operations here involved are conducted- in a three-story build=
ing, and on the second-story of an adjoining building which- is' not
yet entirely ready for occupancy by the, Employer. -This latter build-
ing houses most of the office and clerical staff', and is designated-as the
"Home Office:" Normally, merchandise is received in an area on the
first floor of the three-story building, where it' is checked,-, counted,
and inspected for quality. After being marked with the cost, the
merchandise is distributed either to the stock bins on all three floor's,
or packed into cases for immediate shipment to-the Sterling 'stores.
Order fillers and salesmen fill the orders by pulling'stock from the bins,
-and conveying it to the billing department which prepares- the, order
copy to be used as a basis for the invoice prepared by, the IBM depart-
ment. Thereafter, the merchandise is checked against the invoice,
packed, and shipped out. - - I - . - I '
The employees located in the "Home Office" -are- the secretaries,
IBM girls, key punch operators, comptometer operators, seven book-
keepers and the file clerk. Due partly to the nature of the warehouse
operation, and partly to the present shortage of space, certain em-
ployees whom the Employer also classifies as office and clerical em-
ployees, viz, the PBX operators, two order clerks, one bookkeeper
and the cashier, are located outside the "Home, Office," with the re-
sult that they mingle physically with the employees engaged in the
manual handling of goods.
The checkers, packers, porters, order fillers, shipping and receiving
clerks, the elevator operator,' and the truck driver perfoni pliysicai
labor in the movement of goods in the Employer's-warehouse. These
Employees are paid on an hourly basis and receive their pay each
week, with the exception of one receiving clerk and two order fillers
who are paid on a semi-monthly basis.
It is clear that the interests and work. of the employees handling
the merchandise in the warehouse are different from those of the
office and clerical employees. Moreover, the facts that certain of
these office and clerical employees are, at the present time, located
in the warehouse area, and that other office and clerical employees
take part in the annual inventory in the warehouse are not sufficient
,to: affect the separate and clear identity of the group of warehouse
employees. In addition, we'have heretofore rejected similar conten-
tions 5'that clerical employees be included in the same unit with ware-
6
' In addition to operating the elevator, a substantial part of the elevator operator's
time is spent in the sorting of goods. - I
See Matter of Eisner Grocery Company, 72 N. L. R. B. 767; cf. Matter of Worth Hai d-
ware Company, Inc., 71 N. L. R. B. 684.
702 DECISIONS fOF NATIONAL LABOR. RELATIONS BOARD
housemen. Accordingly, -we find,, contrary, to the Employer's- posi=
tion, that all warehouse,erhployees; including checkers, packers, port-
ers, order fillers, shipping, clerks, assistant -shipping clerks, ,receiving
clerks, the elevator operator and the truck driver, but excluding of-
fice - and clerical employees,, constitute homogeneous grouping for
the purposes of collective bargaining:.., -
There is some further. question with respect to the salesmen, the
assistant buyer, and,the handy-man. , - .
The salesmen: The Petitioner would exclude the three employees,
in this classification from the unit while the Employer would.include
tliem. They appear. to devote all their time to selling in the ware-
house and filling orders, and are,almost invariably required to pull
stock ' from the bins-as an incident of their selling duties. They are
on a fixed salary,-one of,them receiving a,bonus in addition.: On all
the facts, including the situs of employment of the salesmen and their
performance of manual labor alongside the warehousemen, we are
persuaded that.they -have a substantial community, of interest with
the warehousemen. We shall include the salesmen in the unit here-
inafter, found appropriate.e I - . - . -
,.-The assistant buyer: The parties agree that =the buyers should be
eYChided,because of their "executive.cipacity,',' but-the Employer, in
disagreement with the Petitioner, would include the assistant buyer.
This employee is located in the "Front Office"' where he receives train-
ing in buying and in checking on the quality of merchandise: More-
over, the assistant buyer is receiving training in IBM work in con-
nection with his duties. Upon the foregoing facts, we are persuaded
-that, like the buyers, the assistant buyer has interests which are di-
verse from those'of the warehouse employees. We shall,-accordingly,
exclude him from the unit.,
The handy-man: The petitioner, in disagreement with the Em-
ployer, would exclude this employee from the unit. Because the
record is barren as to the duties of the regularly employed part-time
handy-man, we shall make provisions for his inclusion in the unit
if his duties are primarily manual in nature, and for his exclusion if
his duties are chiefly clerical.
We find that all warehouse employees of the Employer, including
checkers, order fillers, packers, porters, shipping clerks, assistant
shipping clerks, receiving clerks, salesmen, the elevator operator, and
truck driver, but excluding secretaries, IBM girls, key -punch opera-
tors, comptometer operators, bookkeepers, order clerks, PBX oper-
ators, the cashier, stenographer and billing clerk, file clerk, buyers, the,
assistant, buyer, department manager, assistant, warehouse, manager
and all supervisory employees with authority to hire, promote, dis-
See Matter of The ChatfietS Paper Company, 72 N. L' R B. 73.
CASH WHOLESALE COMPANY, INC. 703
charge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot.
The record shows that the three salesmen, two order fillers, and one
receiving clerk ,in the appropriate unit are paid on a• semi-monthly
basis, while the other classifications found to be in the appropriate
unit in Section 'IV above are paid each week. ' Accordingly, because
the names of all those eligible to vote will not appear ow-any one pay
roll, we shall direct that the election be held among the employees in
the appropriate unit whose names appear either on the Employer's
weekly or on its semi-monthly pay roll immediately preceding the-en
the Direction of Election herein.'
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Cash Wholesale Company,
Inc., and Sterling Wholesale Company, Inc., Little Rock, Arkansas,
an election, by secret ballot shall be conducted as early as possible, but
not later than thirty (30) days from the date of this Direction, under
the direction and supervision of the Regional Director for the Fif-
teenth Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Sections 203.55 and 203.56, of National
Labor Relations Board Rules and Regulations-Series 4, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the weekly or semi-monthly pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, and including employees in the
armed forces of the. United States who present themselves in person
at the polls, but excluding those employees who have-since quit or been
dischargedfor cause and have not been rehired or reinstated prior to,
the date of the election, to determine whether or not they desire to be
represented by American Federation of Labor, for the purposes of col-
lective bargaining. -
.' Cf. Matter of BtM htsalar Line, Inc., et at, 71 N. L R B 38.,
739926-47-vol 73-46