Farwell, Ozmun, Kirk & Co.

National Labor Relations Board - Board Decisions

May 3, 1945

61 N.L.R.B. 875 (N.L.R.B. 1945)

In the Matter of FARWELL, OZMUN, KIRK & Co. and UNITED RETAIL,
WHOLESALE, AND DEPARTMENT STORE EMPLOYEES OF AMERICA,
C. 1. 0.
Case No. 18-R-1140.-Decided May 3, 1945
Messrs . Mark H. Gehan and John J. Corbett , of St. Paul , Minn., for
the Company.
Messrs. Louis L. Block and Fullerton Fulton, of St . Paul , Minn., for
the United.
Messrs. George Mealey, Jr., and M. H. Quigley, of St. Paul, Minn.,
for the Association.
Mr. Herbert C. Kane , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Retail, Wholesale, and Depart-
ment Store Employees of America, C. I. 0., herein called the United,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Farwell, Ozmun, Kirk & Co., St. Paul,
Minnesota, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Francis K. Helgesen, Trial Examiner. Said hearing was held at Min-
neapolis, Minnesota, on December 1, 1944. The Company, the United,
and Wholesale Hardware Employees Association, No. 1, herein called
the Association,' appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. On January 25, 1945, -the Board issued an Order
Reopening Record for the purpose of adducing evidence which would
set forth more fully the duties and classifications of the employees
involved and the position of the parties with respect thereto. In lieu
of a further hearing, the parties entered into a stipulation in March
1945 setting forth the desired informaion. The stipulation is hereby
made part of the record in this proceeding. All parties were afforded
an opportunity to file briefs with the Board.
At the hearing the Trial Examiner granted the motion of the Association to intervene.
61 N. L. R. B., No. 143.
875
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Farwell, Ozmun, Kirk & Co. is a Minnesota corporation operating
a wholesale hardware house, paint manufacturing plant and ware-
house, and metal parts manufacturing plant in the city of St. Paul,
Minnesota. The Company buys a substantial quantity of raw mate-
rials, which consists primarily of white lead, zinc oxide, linseed oil, and
steel, for use in its manufacturing processes; the Company also pur-
chases merchandise for distribution through its wholesale house. Dur-
ing 1943, the Company purchased merchandise and raw materials
valued in excess of $3,000,000, more than 50 percent of which was pur-
chased from sources outside the State of Minnesota. During the same
period, the value of manufactured goods sold and merchandise dis-
tributed was in excess of $7,000,000, of which approximately 50 percent
was sold to customers located outside the State of Minnesota.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale and Department Store Employees of
America, affiliated with the Congress of Industrial Organizations, is
a labor organization admitting to membership employees of the
Company.
Wholesale Hardware Employees Association, No. 1, is a labor or-
ganization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
United, by letter dated October 30, 1944, requested recognition as
the exclusive bargaining representative of the employees of the Com-
pany- at its Main Building. On November 8, 1944, United requested
recognition as the bargaining representative of all the employees of
the Company excluding clerical and supervisory employees. On No-
vember 9, 1944, the Company replied that since it was under contract
with the Association, it could not grant recognition to the United.
The Association has had a contract with the Company since 1937,
and it contends that its present contract is a bar to a present determina-
tion of representatives. The last contract covering all employees of
the Company except for department heads, foremen, truck drivers,
machinists, and salesmen, was entered into in July 1943 and termi-
nated June 30, 1944. The contract contained a 30-day automatic re-
newal clause . On May 30, 1944, due to proceedings awaiting disposi-
FARWELL, OZMUN, KIRK & CO. 877
tion before the National War Labor Board, the parties waived the
automatic renewal of the contract and entered into written agreement
extending the contract for an indefinite period terminable on 30 days'
notice by either party.2 Since the contract is terminable at will, we
find that it is no bar to a present determination of representatives.
A statement of the Trial Examiner at the hearing indicates that the
United represents a substantial number of employees in the unit here-
inafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties generally agree that a unit of all production and main-
tenance employees of the Company, including chemists and restaurant
employees, but excluding machinists, truck drivers,4 department heads,
foremen, and other supervisory employees would be appropriate.
However, the inclusion or exclusion of the following categories re-
mains in dispute.
The Company and the Association would include office and clerical
employees in the same unit with the remaining employees of the Com-
pany; the United would exclude them. Since 1937, the Association's
contracts have covered all of the Company's employees, including
office and clerical. The greater part of the office and clerical em-
ployees are located in a central office in the Main Building and Ware-
house. However, other clerical employees performing the same
functions under the same or similar supervision as the office employees
are stationed throughout the Company's warehousing and fabrication
operations. It is clear that all of the office and clerical employees are
engaged in office operations concerning over-all phases of the work
in the various departments. While it is the customary practice of the
Board to separate office and clerical employees from production and
maintenance employees in determining the appropriate bargaining
unit, where the type of operations conducted by a Company are so func-
tionally integrated as to make such a division impracticable, the Board
has included both types of employees in one unit. In operations that
2 The agreement provided : ". . . our present contract be extended in its present
form and effect for an indefinite period of time with the proviso that ( anything to the
contrary notwithstanding ) either party thereto may petition the other party thereto for
and receive revision or termination of the contract on thirty days written notice."
8 The Trial Examiner reported that the United submitted 111 authorization cards which
bore apparently genuine original signatures ; that the names of 103 persons appearing on
the cards were listed on the Company's pay roll of October 24, 1944. There are approxi-
mately 480 employees in the appropriate unit . The Associatign relies upon its contract
with the Company to show its interest.
4 The machinists and truck drivers are presently represented by International Association
of Machinists and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America.
639678-45-vol. 61-57
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are primarily retail or wholesale in nature, such as is true here, we are
of the opinion that a separation of the office and clerical employees is
unwarranted and that in view of the integration and intermingled per-'
formance of their duties they might well function as part of an over-
all company unit. Accordingly, we shall include office and clerical
employees in the unit hereinafter found appropriate.5
Working Foremen, Assistant Foremen: The Company would ex-
clude both working and assistant foremen and the Association would
include them; the United would exclude working foremen but would
include some of the assistant foremen. Working foremen are to be
found in the Main Building and assistant foremen are to be found in
Warehouse #2 in the sheet metal fabrication division. It is apparent
from the record that all of the working foremen and assistant fore-
men, respectively, have comparable-duties and authority to recommend
changes in status of those under their supervision. We shall therefore
exclude both working and assistant foremen from the unit.
Inspectors: The Company would exclude these employees from the
unit; the United and the Association would include them. Inspectors
are production employees who are assigned from time to "time to per-
form the usual type of inspection work. Upon completion of such
work, they return to their production jobs. We shall include them in
the 'snit.6
Salesmen: The Association would include these employees; the
Company and the United would exclude them. There are approxi-
mately 75 employees in this category, of whom approximately 10 are
working in the city of St. Paul. The rest are "on the road" through-
out the western United States. They are paid a salary plus com-
mission, have expense accounts, and are under the supervision of the
sales manager . They do no work at the plant. We find the duties
and interests of salesmen to be functionally different from those of the
inside employees of the Company. We shall exclude them from the
unit.
Assistant Department Heads: The United would exclude, and the
Company and the Association would include, these employees. The
assistant department heads initiate procedures, formulate plans, set
prices, and have supervisory authority over the clerical employees
in their respective departments. They also act as assistant buyers.
We shall exclude them from the unit.
We find that all employees of the Company including office and
clerical employees, chemists, restaurant employees, and inspectors,
5Matter of The Lamson Brothers Company , 59 N L R B . 1561 , Matter of The May
Department Stores Company, d/b/a Famous -Barr Company, 54 N L R B. 230
Matter of United Wallpaper Factories , Inc, 49 N L . R B 388 , Matter of Dayton
Rubber Manufacturing Company , 57 N L . R B. 388 , Matter of Scott & Williams, Incorpo-
rated, 58 N . L R B. 249
FARWELL, OZMUN, KIRK & CO. 879
but excluding machinists, truck drivers, department heads, assistant
department heads, foremen, working foremen, assistant foremen, and
all other supervisory employees who have the authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate 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 among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Farwell, Ozmun,
Kirk & Co., St. Paul, Minnesota, 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 Eighteenth Region acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the 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 vaca-
tion 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 any who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be represented by United
Retail, Wholesale, and Department Store Employees of America,
C. I. 0., or by Wholesale Hardware Employees Association, No. 1,
for the purposes of collective bargaining, or by neither.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.