H. G. Hill Stores, Inc. Warehouse

National Labor Relations Board - Board Decisions

Mar 17, 1942

39 N.L.R.B. 874 (N.L.R.B. 1942)

In the Matter of H. G. HILL STORES, INC. WAREHOUSE and LOCAL 2-7,
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,
AFFILIATED WITH THE C. I. O.
Case No. R-3495.Decided March 17, 1942
Jurisdiction : warehouse of retail grocery chain.
Investigation and Certification of Representatives : existence of question : refusal
to accord union recognition until certified by Board ; election necessary.
Unit Appropriate for Collective Bargaining : all warehousemen, including truck
drivers and helpers, porter, yardmen, and carpenter, but excluding clerical
workers, supervisory employees, any persons having the right to hire or
discharge, and checkers.
Mr. Samuel Lang, and Mr. Joseph M. Jones, of New Orleans, La.,
for the Company.
Mr. Caleb D. Green, of New Orleans, La., for the Union.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 23, 1941, Local 2-7, International Longshoremen's
and Warehousemen's Union, affiliated with the C. I. 0., herein called
the Union, filed with the Regional Director for the Fifteenth Region
(New Orleans, Louisiana) a petition alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of H. G. Hill Stores, Inc. Warehouse, New Orleans, Louisiana, herein
called the Company, and requesting an investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On De-
cember 23, 1941, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
39 N. L. R. B., No. 171.
874
H. G. HILL 'STOR'ESS, INC. WAREHOUSE 875
On January 15, 1942, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the -Union. Pursuant to notice, a hearing was held on January 30,
and February 2, 1942, at New Orleans, Louisiana, before C. Paul
Barker, the Trial Examiner duly designated by the Chief Trial
Examiner. The Company and the Union were represented and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. During the course of the hearing,
the Trial Examiner made rulings on motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
lnitted. The rulings are hereby affirmed. During the hearing, the
Company filed a motion to dismiss the petition on ,the ground that
the Company is not engaged in commerce within the meaning of the
Act. In view of the findings of fact set forth in Section I, infra,
the motion is hereby denied.'
On February 13, 1942, the parties filed a Stipulation for Correction
of Record which is hereby approved and made a part of the record
of the proceeding. On February 14, 1942, the Company filed a
brief, which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT I I
I. THE BUSINESS OF THE COMPANY
H. G. Hill Stores, Inc. is a Louisiana corporation owning and
operating, approximately 86 retail grocery stores in New Orleans,
Louisiana, 4 in the State of Mississippi, and a single warehouse with
offices in New Orleans. Only the warehouse is involved in this
proceeding:
During 1941 the Company purchased $5,995,000.56 worth of gro-
ceries from all sources. Of this total, $3,828,760.61 was expended
in Louisiana on products originating in Louisiana; $874,897.14 was
paid in Louisiana for products whose source remains uncertain; and
$1,291,342.81 was paid for products originating outside Louisiana.
The warehouse handled goods valued at $3,977,527.93, including all
the goods coming from sources outside Louisiana and some of the
goods local to Louisiana. The Mississippi stores received from the
warehouse products amounting in value to $232,258.98., Merchandise
' See Matter of The May Department Stores Company, doing business as The May Com-
pany and Retail Clerks International Protective Association , Retail Shoe Salesmen, Local
Union No. 420, A F. of L, 39 N. L. R. B 471; and Matter of Columbus & Southern Ohio
Electric Company and Transport Workers Union (C. 1 O ), 36 N. L. R. B. 386
The Company set forth as a second ground for dismissal its contention that there was
- no showing of present substantial representation ; see tinfra, Section III and footnote 2.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent to Mississippi from the New Orleans warehouse goes by way of
common carrier: • ; '
Sales made by the retail stores of the Company are 100 percent
local in nature; 1941 sales totaled $7,131,601.32, of which $6,606,780.39
represents' New Orleans sales and $524,820.93 represents Mississippi
sales.
II. THE ORGANIZATION INVOLVED
Local 2-7, ,International Longshoremen's and Warehousemen's
Union, is a -labor organization affiliated. with the Congress of Indus
trial, Organizations. It admits to membership employees of the
Company. .
. I III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to` recognize the Union until the latter
has been ' certified as ' the proper representative by the Board. The
Union has submitted to the Regional Director evidence showing that
it represents a substantial number of employees in the unit hereinafter
found appropriate.2
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with' the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce, among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
a The Regional Director's statement and supplemental statement show that the Union sub-
mitted 70 application-for-membership cards; 10 of these were duplicates. Of the remaining
60, the signatures of 56 appear to be genuine ; of the 56, the pay roll of January 15, 1942,
listing 78 employees eligible to the proposed unit, contains names appearing on 38 of the
cards. Of these 38 cards, 4 are dated in February' or March 1940; 20 in July 1941; 1 in
October 1941 ; 9 in December 1941 ; 1 in January 1942 ; and 3 are undated. A later
comparison of these 38 cards with canceled checks showed only 36 signatures to be
apparently genuine. The turn-over among employees is small.
The Company contends ' that the Union failed to make a showing of present substantial
representation , and, therefore, no question exists concerning the representation of em-
ployees of. the Company. In support of this contention, the Company relies principally
upon the arguments that the cards are too few in number , do not bear recent dates, and
were not made available for examination by the Company We are of the opinion that
this contention is without merit. As we have frequently stated, authorization or member-
ship cards are required , not as proof of the precise number of employees who desire to be
represented by a labor organization , or as a basis for determining the appropriate , repre-
sentative , but simply to provide a'reasonable safeguard against the indiscriminate institu-
tion of representation proceedings by' labor organizations which might have little or no
membership in the unit claimed to be appropriate. See Matter of Cities Service Oil Com-
pany, Pettys Island Refines; Divisor and'O12 ' Workers International Union, affiliated with
the C. I 0, 38 N. L R B. 1055; Matter of'Interlake from Corpotat lon and Local Union
1657, Steel Workers Organizing Com»ui.ttee, C. 1 0., 38 N. L . R. B. 139.
H. G. HILL STORES, INC. WAREHOUSE 877
V. THE APPROPRIATE UNIT
The parties have agreed that warehousemen,-3 including ' truck
drivers and helpers, but excluding clerical workers,4 supervisory em-
ployees and any persons having the right''to hire or discharge,5
should be included in the unit appropriate for' the purposes of col-,
lective bargaining.
The parties are not agreed as to the inclusion of several employees
in the appropriate unit. Thus, the Company contends that the
following employees, whom the Union would exclude, should be
included in the proposed unit because they are indistinguishable'
from other employees included by agreement: the porter; the yard-
men; checkers; and a carpenter. ,
The porter: The Union would exclude this man because he works
as a porter in the office and serves in the kitchen at noon time. The
record substantiates these contentions but further reveals that this
employee serves as a porter for the warehouse also. The record does
not disclose the presence of any janitors. The unit'proposed here
is composed entirely of non-skilled laborers. . Thus, there 'seems little
reason for excluding the porter because of the nature of his work,
especially since he is regularly employed in the warehouse part of
the time. We shall include him in the unit.
Four .yardmen: The Union would exclude these men principally
because their employment is out-of-door's, and not in the warehouse
or on the trucks. The record discloses that the work of the yardiiien
is largely out-of-doors. Joseph Robertson and Cornelius Truehill
burn trash and keep the yard clean. Herman Johnson spends most
of his time in the yard but may help to load trucks in emergencies.
However, the Company' asserts that all three men are used 'as utility
warehousemen and also assist in loading and-unloading empty boxes
and crates from the trucks. The fourth man, Stewart Freeman, has
the task'of washing, greasing, and supplying gas to the trucks.' In
the event of emergency, he may help to load trucks. All yardmen
receive the same pay as warehousemen. Especially since the Union
stated at the hearing that it would include in its proposed unit-those
employees who worked. part of the time in the warehouse or on
8 The parties further agreed that included as "warehousemen " are general warehouse
employees and employees in the tomatoes ' division , cigarettes ' division, ' shipping and
receiving department , and the packing room, excluding the supervisors. The parties agreed
also to exclude the kitchen employee and the watchman. -
' The parties agreed to exclude employees of the meat department as part of the clerical
exclusions.
e The parties agreed upon a list of supervisors to be excluded On the January 15, 1942,,
pay roll these were Nos. 15 (X. E. Camors, shipping and receiving), 17 (B.' S. Story,
shipping and receiving ), 22 (S. P. Leonard, shipping and receiving), 23 (R. G Foster, Jr.,
packing room), 32 (Chas. P Cusack , general warehouse ), 53 (John F. Guenther , general
warehouse).
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the trucks, we believe no distinction can be drawn between employees
working inside the warehouse and those working outside. The in-
terests of both groups' appear to be closely related. We shall,
therefore, include the yardmen in the unit.
Carpenter: The Union objects to the inclusion of this employee
for the reasons stated above with respect to yardmen, i. e., that his
work station is separate from that of the warehousemen. The rec-
ord shows that he functions as a carpenter and handy man. He
works in a small building behind the warehouse where he repairs
packing boxes. He also keeps the warehouse building in repair.
His work involves no loading, crating, or storing. Like the other
employees, he is regarded as unskilled, and his pay is the same as
that of the warehousemen. We see no more reason for excluding
him from the unit than for excluding the yardmen. In both cases,
their work is closely related to the warehouse and brings them into
association with the warehousemen. We shall include the carpenter
in the unit.
-Checkers: The Union would exclude these employees on the ground
that they are doing work of a clerical nature. There are 3 of these
men in the shipping and receiving department who have not been
excluded as supervisors. It is their job to see that the trucks are
properly loaded and unloaded. These functions, they perform by
checking orders and bills of lading from the loading platform.
They perform no manual labor in conjunction with this checking.
Furthermore, they receive 12 cents more per hour than the other
warehouse employees. When necessary, as in the case of absences,
they are sent to the packing room to assist in assembling and ship-
ping orders. In view of all these facts, we shall exclude the checkers
from the unit as being clerical employees.
We find that all warehousemen, including truck drivers and help-
ers, porter, yardmen, and carpenter, but excluding clerical workers,,
supervisory employees, any persons having the right to hire or dis-s
charge, and checkers, constitute a unit appropriate for the purposes
of collective bargaining, and that said unit will insure to employees
of the Company the full benefit, of their right to self-organization
and to collective bargaining and otherwise will effectuate the policies
of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by ,secret
ballot, and we shall so direct. Those eligible to vote shall be the,
employees in the appropriate unit who were employed during the'
pay-roll period immediately preceding the date of our Direction of
Election, subject to the limitations and additions set forth therein.
H. G. HILL STGRES, INC. WAREHOUSE - 879
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW -
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of H. G. Hill Stores, Inc. Warehouse, New
Orleans, Louisiana, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
2. All warehousemen of H. G. Hill Stores, Inc. Warehouse, in-
cluding truck drivers and helpers, porter, yardmen, and carpenter,
but excluding clerical workers, supervisory employees, any persons
•having the right to hire or discharge, and checkers, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.,
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, 49 Stat. 440, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
,with H. G. Hill Stores, Inc. Warehouse, New.Orleans, Louisiana, 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 of
Election,- under the direction and supervision of the Regional Di-
rector for the Fifteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tion 9, of said Rules and Regulations, among all warehousemen of
the Company who were employed during the pay-roll period im-
mediately preceding the date of this Direction of Election, including
• truck drivers and helpers, porter, yardmen, and carpenter, and em-
ployees who did not work during such pay-roll period because they,
were ill or on vacation or in the active military service or training
of the, United States, or temporarily laid off, but excluding clerical
workers, supervisory employees, any persons having the right to hire
or discharge, and checkers, and those employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Local 2-7, International Longshoremen's, and
Warehousemen's Union, affiliated with the C. I. O., for the purposes
of collective bargaining. .
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.
448105-42-vol. 39-57