Esco Corp.

National Labor Relations Board - Board Decisions

Jun 20, 1990

298 N.L.R.B. 837 (N.L.R.B. 1990)

ESCO CORP. 837
Esco Corporation and Driver, Sales, and Warehouse
Local Union No . 117, affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, Petitioner . Case 19-RC-11823
June 20, 1990
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 12, 1988,1 the Regional Director for
Region 19 issued a Decision and Direction of Elec-
tion for a unit of warehousemen and drivers em-
ployed at the Employer's First Avenue South facil-
ity, located in Seattle, Washington. The election
was held on September 8 and the ballots were im-
pounded.
In accordance with Section 102.67 of the Board's
Rules and Regulations, the Employer filed a timely
request for review'of the Regional Director's Deci-
sion and Direction of Election. The Employer con-
tended that the Seattle facility was not an appropri-
ate unit separate from the Employer's facilities in
Spokane, Washington, and Portland, Oregon; that
the Seattle sales and clerical employees were erro-
neously excluded from the Seattle facility unit
under A. Harris & Co., 116 NLRB 1628 (1956); and
that Seattle warehouse "supervisor" Tim Doran
was not a supervisor within the meaning of Section
2(11) of the Act. The Petitioner filed a statement in
opposition. The Board, by unpublished Order dated
September 8, granted the Employer's request for
review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the entire record in
this case, including the briefs on review filed by
the Employer and the Petitioner, and has decided
to affirm the Regional Director's unit fmding and
reverse his supervisory finding.
The Employer is engaged in the manufacture
and distribution of fabricated metal products. It op-
erates in several western Ststes, including Oregon,
Washington, California, Colorado, and Hawaii. The
Employer's Portland facility serves as an adminis-
trative hub for its warehouse/sales/distribution fa-
cilities located in the various States. Two of these
facilities, located in Seattle and Spokane, together
with the Portland facility, constitute the Employ-
er's northwest district. Seattle is located 174 miles
' All dates are in 1988 unless otherwise indicated
from Portland and 280 miles from Spokane; Spo-
kane is 346 miles from Portland.2
James Corso is general manager for the north-
west district and operates out of the Portland facili-
ty. Outside sales employees from each location
report directly to him. All inside sales employees
report to Tony Seriani in Portland. Warehouse em-
ployees and clericals at each location ultimately
report to James Richards, the operations manager,
also in Portland. Employees located at Portland in-
clude four, warehouse employees, four inside sales
employees, four outside sales employees, and eight
clericals. At the Spokane facility there is one out-
side sales employee who doubles as an inside sales
employee and warehouse employee, one inside
sales employee, and one individual who doubles as
an inside sales and warehouse employee. At Seattle
there are four warehouse employees, three inside
sales employees, two outside sales employees, and
two clericals. Richards visits the Seattle facility
once a month and Corso visits once every 2 to 3
months.
Product orders flow through the Portland office,
regardless of their origin. Decisions are made at the
Portland office regarding marketing, credit, and
billing. Documentation for orders is sent by com-
puters and FAX machines to the various facilities.
Once an order is filled, information is placed in the
computer and sent back to Portland.
In Seattle, the four warehouse employees work
in the warehouse picking and pulling orders; load-
ing customer vehicles, commercial carriers, or the
Employer's single delivery truck; receiving and or-
ganizing stock; and operating metal saws for cus-
tomized orders. The two clericals process orders
received from Portland.3 Sales employees sell
products and take orders, with inside salespersons
contacting customers by telephone, and outside
salespersons concentrating on face-to-face contacts.
The outside sales employees usually work outside
the office unless the Employer is busy.
The clerical and sales employees work in an
office that adjoins and opens through a door into
the warehouse. Occasionally, they enter the ware-
house to check on orders or inventory; however,
clericals and sales employees spend most of their
time in the office performing their respective func-
tions. Warehouse employees spend most of their
time working in the warehouse, but occasionally
they may go into the office. Warehouse employees
3 Rand McNally Highway Map (1987) The precise distance between
each facility is not in the record
3 In Portland, some clericals perform functions similar to the clericals
in Seattle but others work with accounts payable and receivable, and per-
form inventory control, another clerical doubles as a switchboard opera-
tor and a personal secretary to Corso
298 NLRB No. 120
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
do not sell, take orders, or operate computers or
any other office equipment.
One warehouse employee, Doran, has contact
with office employees as he picks up processed
orders from the clericals and drops off paperwork
in the office after goods are received in the ware-
house. Communication between the warehouse and
the clericals concerning the paperwork is handled
by Doran.
Except for Doran, who has telephonic contact
with the Portland office regarding orders, the
warehouse employees have virtually no contact
with employees from other locations. There was a
one time only "crunch period" during which two
salespersons from Portland and an unspecified
number from Seattle worked in the Seattle ware-
house, helping other employees customize products
with metal saws.4 The evidence is conflicting as to
how long this period lasted as Corso estimated 6
weeks and Doran recalled 3 to 5 weeks. Richards
recalled that the crunch period lasted 3 to 4
months; however, when he was present at the Seat-
tle warehouse during this period, he recalled only
Seattle warehousemen being present. The only
other evidence of interchange involved a salesman
from Portland who on one occasion helped ware-
house employees put away inventory and another
Portland salesman who came to Seattle voluntarily
on a couple of occasions to help speed an order by
helping to customize the goods.
Nonsales employees are paid a salary. All outside
sales employees, except one in Spokane, are paid
by commission, Inside sales employees begin their
employment salaried but gradually switch over to
commissions. Seattle warehouse employees `earn
from $1300 to $2100 per month while the two cler-
icals earn from $1275 to $1375 per month. Seattle
outside sales employees earn more than warehouse
employees while some inside sales employees make
more and some less than warehouse employees.
Employees share common benefits.
Although Doran oversees the daily operations of
the warehouse, he coordinates the warehouse oper-
ation through Richards. Doran is referred to as the
warehouse supervisor and is in charge of paper-
work, communicates with Portland operations, and
makes sure that employees are working. Employees
generally know what they have to do, but Doran
decides who runs the saw machines, who pulls par-
ticular orders and in which sequence, and how
products are to be delivered (commercially or by
the Employer). Everyone in the warehouse is
trained on all the machines, and such training takes
approximately 2 weeks. However, one warehouse
4 The saws are used to "deburr" or remove the rough edges of metal
blocks
employee is not trained fully, a factor Doran con-
siders when assigning someone to run the saw.
Doran reassigns an employee from the saw if the
employee is bored or if there is not enough work
on the saw.
Doran submits the hours employees work to
Richards for approval. Richards determines the
hours of the warehouse operation. Doran can
permit a few hours overtime at the end of the day
to complete work, but he cannot authorize week-
end overtime without management clearance.
Moreover, he has been told to cut back on over-
time. The Employer has a standard sick and vaca-
tion leave policy. Doran has granted vacation time,
although he checks with Richards after giving au-
thorization. Doran also has permitted an employee
to leave work early, although entire days off must
be approved by Corso.
Employees usually are hired through temporary
agencies and then considered for regular employ-
ment. Although Corso and Richards ask Doran for
his opinion of job applicants, they also seek such
input from other employees. Doran has referred or
recommended individuals for employment, several
of whom have been hired, but Richards and Corso
interviewed the applicants without Doran's partici-
pation.
One employee, whom Doran recommended for
discharge because of poor performance, ultimately
was fired by Richards. However, Richards had
been told about this employee's work for some
time by Doran and at least one other employee.
Moreover, Richards visited Seattle twice and ob-
served the individual's work. Doran and Richards
met with the employee and told him that his work
would have to improve. Later, Doran called Rich-
ards and told him the employee should be let go;
Richards then came to Seattle, and the employee
was discharged. Doran also kept Richards in-
formed of the absenteeism of a second employee.
When this employee was again tardy on a day that
Richards was present at the facility, Richards de-
cided to discharge him. Later, the employee was
allowed to resign. Doran also verbally warned a
habitually late employee that he would be let go if
further absences occurred. Although Doran was
requested by Richards to put this warning in writ-
ing and did, the Employer never issued the warn-
ing. Doran testified that he "believes" he has au-
thority to send a drunk employee home.
Although Doran has recommended wage in-
creases, all were rejected. Richards and Seriani de
termine wage increases.
With regard to collective-bargaining history, the
Employer had a collective-bargaining agreement
with the United Foundry & Warehouse Employees
ESCO CORP. 839
(UFWE) from 1983 through 1985. According to
the agreement, the UFWE was recognized as the
representative of all "shop" employees and janitors
at the Portland, Oregon plants, and all "shop" em-
ployees in the "district warehouses" in San Fran-
cisco, Los Angeles, Denver, Seattle, and Spokane,
excluding "office, clerical, supervisory employees,
and guards as defined in the NLRA." The unit in-
cluded foundry employees in Portland and the
warehouse employees at issue in this case, but not
sales employees. Between 1961 and 1971, the Em-
ployer had been party to three agreements with the
Esco Employees Association in a similar unit
which also included warehouses in Eugene,
Oregon, and Honolulu, Hawaii.
1. Supervisory Status of Doran: Although Doran
refers and recommends prospective employees for
hire, Corso and Richards also solicit the opinions
of other employees as to the various job applicants.
Corso and Richards also personally interview the
applicants before making any decision to hire;
Doran does not participate in the interviews.
Although Doran recommended that an employee
be discharged, Richards independently investigated
and observed the employee's performance before
discharging him. Moreover, Richards received in-
formation regarding the employee's performance
from other sources. Although Doran was involved
with another employee who left the Employer,
that employee voluntarily resigned. Even if his res-
ignation could be construed as a constructive dis-
charge, his conduct also was independently ob-
served by Richards.
Doran has warned one employee verbally.
Doran subsequently put the warning in writing as
requested by Richards, but the written warning
had not been issued as of the date of the hearing in
this proceeding.
Although Doran is referred to as the warehouse
supervisor and the person "in charge," he does not
use independent judgment in connection with the
assignment of work and direction of employees.
The pulling of orders, loading of trucks, and the
operation of the customizing saws are routine tasks
which do not require much supervision beyond
making sure that tasks are completed. Although
Doran decides who will pull which orders or oper-
ate the saws, this does not require independent
judgment as the skill level of the various ware-
house employees is comparable and as training in
operation of the saws takes only about 2 weeks.
Thus, assignment of work is not based on the level
of employee skill but on the need to get work done
or to vary an employee's routine.
Doran grants overtime, but only for limited peri-
ods to complete work, and not on weekends. Al-
though Doran has some discretion in arranging the
schedules for warehouse employees and granting
vacation time off, these decisions are subject to
management oversight, if not approval.
Considering the above, we find that Tim Doran
is not a supervisor within the meaning of Section
2(11) of the Act as he does not have the authority
to effectively recommend hiring or firing, and does
not use independent judgment in the assignment
and direction of work or have sufficient discretion
in granting time off for vacation or in scheduling
work hours.
2. Unit Scope: A single plant or store unit loca-
tion is presumptively appropriate unless it has been
so effectively merged into a more comprehensive
unit, or is so functionally integrated, that it has lost
its separate identity. Dixie Belle Mills, 139 NLRB
629, 631 (1962). To determine if the presumption
has been rebutted, the Board looks to such factors
as central control 'over daily operations and labor
relations, including the extent of local autonomy;
similarity of the employee skills, functions, and
working conditions; degree of employee inter-
change; distance between locations; and bargaining
history, if any. See Dixie Belle Mills, supra; Gray
Drug Stores, 197 NLRB 924, 925 (1972); Sol's, 272
NLRB 621 (1984); and Bowie Hall Trucking, 290
NLRB 41 (1988).
The Employer's administrative operations and its
labor relations policy are centrally determined. Al-
though Doran is involved in the day-to-day direc-
tion and assignment of the warehouse employees at
the Seattle facility, labor relations decisions includ-
ing hiring, firing, and discipline are made by Port-
land-based General Manager Corso and Operations
Manager Richards.
There is no interchange of warehouse employees
and clericals between Seattle and any other facility.
The one "crunch period" when some employees
from Portland and Seattle assisted in the prepara-
tion of customized orders at the Seattle facility in-
volved only salespersons. Moreover, apart from
Doran's contact with the Portland facility and the
isolated contact of warehouse employees with sales
employees during the crunch period, there is virtu-
ally no contact between the Seattle warehouse em-
ployees and employees at other locations.
Seattle, Portland, and Spokane are considerable
distances apart, with a range from 174 to 346 miles.
Indeed, each city is in a different metropolitan
area, and in the case of Portland, a different State.
Although in the past the Employer has bar-
gained in a multilocation unit, that history is not
controlling. The multilocation unit was much
broader in terms of the plants included than either
the unit sought by the Petitioner here or the north-
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
west facilities that the Employer contends share a
community of interest. Moreover, the multilocation
unit was not limited to warehouse employees, but
also included foundry employees in Portland. In
addition, the most recent agreement expired over 4
years ago.
Weighing all these factors, the Board finds that
the single unit presumption has not been rebutted.
The lack of regular and substantial interchange or
contact between the Seattle warehouse employees
and employees at other locations plus the great dis-
tances between locations outweigh the centralized
operations and labor relations, limited local auton-
omy, and the common skills and functions of the
employees at all three locations. Although Doran is
not a statutory supervisor, the Employer does rely
on him to oversee the warehouse operation. This is
significant as here the locations are far apart, and
the Employer's managers are not onsite and visit
only infrequently. Accordingly, we find that the
petitioned-for Seattle facility is an appropriate unit.
3. Applicability of A. Harris to Nonretail Ware-
houses: The Regional Director excluded the Seattle
sales and clerical employees from the unit because
they lacked a sufficient community of interest to
require their inclusion. He found that the employ-
ees had different skills, lacked functional integra-
tion and interchange, and had separate supervision.
The Regional Director also found that A. Harris is
not controlling because the Employer is not en-
gaged in a retail operation. We agree.
In A. Harris, the Board found that the warehouse
employees in the employer's Dallas, Texas retail
department store operation constituted an appropri-
ate unit. The employer had contended that only a
unit of all employees was appropriate. Although
acknowledging that the Board frequently has ap-
proved storewide units "in this industry," the
Board stated that it had found warehouse units ap-
propriate where the employer's warehousing oper-
ation was
(1) geographically separated from its retail
store operations; (2) there is separate supervi-
sion of the employees engaged in warehousing
functions; and (3) there is no substantial inte-
gration among the warehousing employees and
those engaged in other store functions... .
[Emphasis added.]
116 NLRB at 1631-1632. The Board then found
that the unit had satisfied these established condi-
tions for granting petitions for warehouse units.
Later Board decisions have adhered to the A.
Harris criteria.5 None have specifically addressed
whether A. Harris applies to nonretail or wholesale
operations. However, in Roskin Bros. Inc., 274
NLRB 413 (1985), the Board, without explanation,
applied A. Harris to a wholesale operation and
found the petitioned-for warehouse unit inappropri-
ate.
Since Roskin, two circuits6 have enforced Board
decisions in which wholesale warehouse units were
found appropriate, with both courts rejecting argu-
ments that A. Harris applies. The Ninth Circuit in
Great Western Produce recognized that the Board
had not been consistent in its application of A.
Harris with respect to wholesale warehouses. Thus,
the court noted that although the Board had ap-
plied A. Harris in Roskin and in Napa Columbus
Parts Co., 269 NLRB 1052 (1984) (a wholesale and
retail distributor), finding the units inappropriate
under the A. Harris criteria, the Board had neither
applied nor discussed A. Harris in a number of
other wholesale warehouse cases. Moreover, the
court determined that no established Board policy
could be inferred from Roskin and Napa Columbus
Parts as those cases simply applied A. Harris "with-
out any examination of whether the standard
should be extended from retail to wholesale oper-
ations." 839 F.2d at 558-559. Nevertheless, the
court suggested that the Board clarify its approach
to wholesale warehouse employees.
Assuming, without deciding, the continued appli-
cability of A. Harris to unit determinations in the
retail industry, we find for the reasons stated below
that A. Harris does not apply to wholesale or non-
retail operations. First, the facts in A. Harris were
limited to a retail operation and nothing in the de-
cision indicates that it was intended to apply to
nonretail warehouses. We note in this regard that
the restrictive test applied in that case was consist-
ent with the Board's policy at that time favoring
wall-to-wall units in the retail industry. See, e.g.,
John's Bargain Stores Corp., 160 NLRB 1519, 1522
(1966); Stern's, Paramus, 150 NLRB 799, 803
(1965). Second, except for Roskin, no published de-
cision has ever applied the A. Harris criteria to
wholesale operations. Indeed, in Lily Tulip Cup-
Corp., 124 NLRB 982, 984 fn. 2 (1959), the Board
(including two members of the full Board deciding
A. Harris) dismissed a petition for a warehouse unit
5 See, e g, Sears Roebuck & Co, 117 NLRB 133, 134 (1957); Montgom-
ery Ward & Co., 181 NLRB 1132 (1970), Roberds, Inc, 272 NLRB 1318
(1984), and Charrette Drafting Supplies, 275 NLRB 1294 (1985)
6 NLRB v. Great Western Produce, 839 F 2d 555 (9th Cu. 1988), enfg
282 NLRB No 17 (Nov. 12, 1986) (unpublished); and NLRB v McKees-
port Beer Distributor, 815 F 2d 695 (3d Cir 1987) (unpublished per curiam
opinion), enfg. 280 NLRB No 126 (June 30, 1986) (unpublished) Neither
of the underlying Board decisions discussed the unit determination
ESCO CORP.
in a manufacturing operation, noting that A. Harris
was inapplicable to operations other than retail as
that case "set forth restrictive criteria governing
the establishment of warehouse units in retail de-
partment stores only." As for Roskin, although it
applied A. Harris, it did so without addressing or
discussing the issue. Third, extension of the A.
Harris criteria to nonretail operations would be in-
consistent with the Board's usual approach to unit
determinations in other industries. Thus, the Board
normally considers all relevant factors rather than
automatically deciding the case based solely on
whether the specific community-of-interest factors
enumerated in A. Harris are all satisfied. See Kala-
mazoo Paper Box Corp., 136 NLRB 134, 137 (1962);
Airco, Inc., 273 NLRB 348 (1984). If A. Harris were
applied to nonretail operations, each of the three
individual community-of-interest factors set forth in
A. Harris would control unit determinations as all
three criteria must be present to find a warehouse
unit appropriate. We see no compelling reason to
limit our traditional community-of-interest analysis
in this manner. Accordingly, in deciding whether a
nonretail warehouse unit is appropriate, the Board
will examine all relevant community-of-interest fac-
tors. 7
Applying the traditional factors, we agree with
the Regional Director that the sales and clerical
7 To the extent that Roskm Bros applied the A. Harris criteria to the
the wholesale operations in that case, it is overruled. We need not decide
whether A. Harris applies where an employer's operation is both whole-
sale and retail , as in Napa Columbus Parts, since that issue is not before
us
841
employees in Seattle do not share such a strong
community of interest as to require their inclusion
in the petitioned-for warehouse unit. Thus, the
clericals and sales employees perform separate
functions from the warehouse employees, do not
interchange or have substantial contact with them,
and rarely enter the warehouse. Sales employees
are separately supervised by Corso or Seriani. Cler-
icals and warehouse employees ultimately report to
Operations Manager Richards, but the warehouse
employees' work is separately overseen by Doran.
Although all employees share common benefits,
many salespersons are paid by commission; all
warehouse employees are salaried. The different
duties and skills of the Seattle employees and the
lack of contact between warehouse employees and
clerical and sales personnel do not reflect a highly
integrated operation which requires inclusion of the
clericals and salespersons in the unit. Cf. S & S
Parts Distributors Warehouse, 277 NLRB 1293
(1985). Therefore, the Regional Director correctly
excluded the clerical and sales employees from the
warehouse unit.
Accordingly, the Regional Director's Decision
and Direction of Election finding Tim Doran a
statutory supervisor is reversed, and his findings re-
garding the scope of the unit and the inapplicability
of A. Harris are affirmed. 8 The Regional Director
is directed to open and count, the ballots and issue
the appropriate certification.
8 As we find that A Harris is inapplicable, we do not pass on the Re-
gional Director's statement that the A. Harris requirements would be met
here