Fries, Beall & Sharp Co.

National Labor Relations Board - Board Decisions

Nov 29, 1945

64 N.L.R.B. 1086 (N.L.R.B. 1945)

In the Matter of FRIES, BEALL & SHARP COMPANY and WAREHOUSE &
DISTRIBUTION WORKERS UNION, LOCAL 222, ILWU-CIO
Case No. 5-R-1976.-Decided November 29,194:5
Messrs. Joseph C. McGarraghg and Waldo H. Tastet, of Washing-
ton, D. C., for the Company.
Mr. Joseph Henderson, of Baltimore, Md., for the Union. -
Mr. Donald B. Brady, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Warehouse & Distribution Workers
Union, Local 222, ILWU-CIO, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Fries, Beall & Sharp Company, Washington, D. C.,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Earle K.
Shawe, Trial Examiner. The hearing was held at Washington, D. C.,
on July 27, 1945. The Company and the Union appeared and partici-
pated. All parties were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
en the issues. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Fries, Beall & Sharp Company, a District of Columbia corporation
with its warehouses and offices located in the District of Columbia, is
engaged in wholesale distribution of hardware, paint and building
materials. The Company transacts a small volume of retail business.
During the calendar year 1944 the Company purchased supplies and
materials valued at approximately $900,000, of which 95 percent was
64 N. L. It. B., No 180.
1086
FRIES, BEALL & SHARP COMPANY 1087
purchased from outside the District of Columbia. The value of the
sales for the same period amounted to approximately $1,200,000, of
which more than 50 percent represented sales to customers outside the
District of Columbia. The volume of the Company's retail business is
approximately 5 percent of its total sales, while the remaining 95 per-
cent constitutes its wholesale business.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Warehouse & Distribution Workers Union, Local 222, ILWU, is a
labor organization, affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing Indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
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
In the conduct of its business in downtown Washington, the Com-
pany operates a store, two warehouses, designated as warehouse #1
and warehouse #2, and a garage which is considered a part of ware-
house #1. The two warehouses are only a few blocks apart and are
There are approximately 29 employees in the appropriate unit. The Field Examiner
reported that the Union submitted 16 authorization cards.
The Company objected to the admission into evidence of the Field Examiner 's report
on the ground that the Union's designations were not checked against the pay roll of the
Company The Trial Examiner correctly overruled this objection . Matter of Buffalo Arms
Corporation , 57 N L R B 1560 ; Matter of Amos-Thompson Corporation , 49 N. L R. B.
423; Matter of Bakelite Corporation , 60 N L . R. B 318; Matter of Joseph Bancroft ct
Sons Company, 60 N L R B 1053.
During the course of the hearing the Union submitted to the Trial Examiner 3 addi-
tional authorization cards and a typewritten membership list which included the names of
the persons on the 3 cards The Trial Examiner checked the membership list, together
with the three cards , against the Company ' s pay roll of July 11, 1945 . The results of
the check , as stated on the record by the Trial Examiner , disclose that of the 19 names
on the list submitted by the Union , 18 are those of persons whose names appear on the
afore-mentioned pay roll and are employed in the unit which the parties have agreed
to he appropriate The Company renewed its objection stating that the Trial Examiner
had seen only 3 of the cards This objection is overruled.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approximately 4 miles from the store. There are approximately 7 stock
clerks at the store who fall within the stipulated unit, approximately
13 warehousemen employed at warehouse #2, and approximately,7
drivers employed as warehousemen working out of warehouse #1.
The Union alleged in its petition that the appropriate unit consists
of all production and maintenance employees of the Company in the
District of Columbia including truck drivers, helpers, warehousemen,
porters and stockmen, exclusive of clerical; supervisory, and sales per-
sonnel . The Company does not contest this unit. At the hearing, the
parties stipulated that it comprises the following job classifications:
all stock clerks, stockmen, workers and general helpers, drivers and
drivers' helpers, warehouse helpers. The parties are further agreed
that the shipping clerk is a supervisory employee and should be ex-
cluded from the unit as such, and that mechanics are excluded. The
parties are in disagreement as to two categories : (1) the so-called fore-
man-warehouse helper, and (2) the watchman:
(1) The foreman-warehouse helper 2
The Union desires the inclusion of Edgecoinbe Alexander, the
foreman-warehouse helper, but the Company desires his exclusion,
asserting that he is a supervisor. Alexander's duties consist of keep-
ing a few records, assisting in the preparation of sales orders, and
relaying of work instructions to his fellow employees, but substan-
tially all of his time is spent working along with the men. A
company official testified that Alexander was listed as foreman-ware-
house helper for the first time on the pay roll submitted in this
proceeding because the Company felt that his status would be clearer,
but that he is primarily a leadman or gang leader and has been so
classified for a long period of time. Alexander makes 5 cents more
per hour than the men working with him. Although he directs the
work of the employees in warehouse #2, the record indicates that
such direction is given merely in the interest of coordinating the
work, and it does not appear that he is empowered to hire or dis-
charge employees or effect changes in their status or recommend such
action.
Inasmuch as Alexander is not clothed with sufficient indieia of
supervisory authority to bring him within our customary definition,
we shall include him in the unit.
(2) Watchman
The Union would exclude and the Company would include the
watchman. The watchman is not uniformed nor deputized. The
parties have agreed to the inclusion of the porter who performs duties
similar to those performed by the watchman. The porter performs
2Warehouse #1 employs no person who has duties comparable to those performed by
Alexander at warehouse #2
FRIES, BEALL & SHARP COMPANY 1089
some janitorial work during the day and the watchman performs
similar duties during the evening and in addition performs general
watchman duties. Both are hourly paid employees. It is clear that
the watchman performs his duties under conditions similar to those
of other employees in the unit, and we shall therefore include him.
We find that all the employees of the Company, including stock
clerks, stockmen, workers and general helpers, drivers and drivers'
helpers, warehouse helpers, the foreman-warehouse' helper, watch-
man, and porters, but excluding all salesmen, mechanics, office clerical
employees, shipping clerks, and all or any other supervisory employ-
ees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recom-
mend 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 employees
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 Direction 3
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 Re-
lations 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 Fries, Beall &
Sharp Company, Washington, D. C., an election by secret ballot shall
be conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Fifth 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
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 vacation or tempo-
rarily laid off, and including employees in the armed forces of the
3 The parties agree that the temporary employees should be excluded from "the Union."
We hold that temporary employees are ineligible to vote in the election.
670417-46-vol 64 70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States who present themselves in person at the polls, but
excluding those employees 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 or not they desire to be repre-
sented by Warehouse & Distribution Workers Union, Local 222,
ILWU , affiliated with the Congress of Industrial Organizations.