Kinney Drugs, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1978

234 N.L.R.B. 783 (N.L.R.B. 1978)

KINNEY DRUGS, INC.
Kinney Drugs, Inc. and Truck Drivers and Helpers
Local No. 687, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.
Case 3-RC-6916
February 8, 1978
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered determinative chal-
lenges in an election held on May 25, 1977,1 and the
Regional Director's report, pertinent parts of which
are attached hereto as Appendix, recommending
disposition of same. The Board has reviewed the
record in light of the exceptions and briefs, and
hereby adopts the Regional Director's findings and
recommendations. 2
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Truck Drivers and
Helpers Local No. 687, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and that said
labor organization is not the exclusive representative
of all employees, in the unit herein involved, within
the meaning of Section 9(a) of the National Labor
Relations Act, as amended.
MEMBER MURPHY, dissenting:
I disagree with my colleagues' finding that employ-
ees Elaine Matott and Judy Fishel are office clerical
employees and that the challenges to their ballots
should therefore be sustained. Based on the facts set
forth in the Regional Director's report, which my
colleagues adopt, I would find that Matott and
Fishel are plant clerical employees or, at the very
least, dual-function employees, who should be in-
cluded in the stipulated unit.
The stipulated unit includes all full-time and
regular part-time truckdrivers and warehouse em-
ployees, including plant clerical employees, but
' The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was: 15 for, and 15 against, the
Petitioner: there were 2 challenged ballots.
2 Our dissenting colleague would find that Matott and Fishel are, at the
very least, dual-function employees and therefore that both should be
included in the unit on that alternative basis. Contrary to our colleague, we
find that the duties performed by Matott and Fishel do not qualify them as
234 NLRB No. 122
excluding, inter alia, office clerical employees, em-
ployed at the Employer's two warehouses, located at
29 and 520 East Main Street, respectively, in Gou-
verneur, New York. Matott and Fishel are both
employed at the Employer's main warehouse (called
warehouse A) at 520 East Main Street. Also working
at that location are truckdrivers, warehouse employ-
ees, the warehouse manager, and six buyers. Matott
and Fishel are the only clerical employees at this
location. The Employer's main administrative and
personnel offices are located at the facility at 29 East
Main Street, known as warehouse B.
Matott and Fishel are both officially classified as
office clericals and both work in a partitioned office
just inside the entrance to warehouse A. Matott acts
as a receptionist for visitors and answers and
transfers incoming telephone calls. She also types
and files letters, interstore memoranda, dittos for
advertisements in the local newspaper, yearend
inventories for one of the buyers, store distribution
sheets, and various other miscellaneous forms for the
buyers. Matott handles the sale of goods from the
warehouse to employees and, occasionally, to sales-
men (under the Employer's discount plan for its
personnel). She also keeps track of office supplies
such as the forms and papers used for the office
machines. When supply is low, she either contacts
the main office to have ihe supply replenished, or, if
the item is stored at warehouse A, she restocks the
supply herself.
During the week of June 12, Matott spent several
hours hand-stamping cigarette packs with the state
sales stamp, a job normally performed by a ware-
house employee. Matott regularly delivers copies of
the price changes, which she types, to the warehouse
employees. This task, however, takes only about 10
minutes per week.
Judy Fishel, as stated, shares the office area at
warehouse A with Matott. Adjacent to Fishel's side
of the office is the office of the head buyer, Bob
Burtis. There is a window between the two offices
through which Fishel and Burtis may speak. Fishel's
duties include sorting Burtis' mail; checking his
appointments for the next day, and his card file for
regular inventories; and taking inventories by physi-
cal count of particular items on hand in the ware-
house and recording the figures on the inventory
card or book. She inventories only the stock of
suppliers with whom Burtis has appointments the
following day, so that he may accurately order new
dual-function employees, i.e., they do not regularly perform duties similar to
those performed by unit employees for sufficient periods of time to indicate
that they share a common interest in the working conditions of the unit with
unit employees. Cf. R.B.P., Inc., d/b/a Royal Communicating Graphics, 176
NLRB 163 (1969); see Elvin Salow Company, 209 NLRB 833 (1974).
Accordingly, we adopt the Regional Director's recommendation to sustain
the challenges to the ballots of Matott and Fishel.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products when he sees a supplier's sales representa-
tive. Fishel also checks whether that stock is moving
at or about the normal rate. She also checks the
invoices of all buyers against the reference books
and, if there is a disparity, she calls it to the attention
of the particular buyer involved. Occasionally, phone
orders will come in from various Kinney Drug Stores
and either Fishel or one of the buyers will write the
order down and post it on the appropriate clipboard
in the warehouse, with a copy to the warehouse
manager.
Fishel is also responsible for maintaining and
updating approximately 23 reference books, I for
each section of the warehouse, except toys and
cosmetics. She updates these books to indicate
changes in the price or description of each item.
Fishel also types new inventory cards for all of the
buyers. Like Matott, Fishel waits on employee
customers and may order office supplies from the
main office. Periodically, when order fillers cannot
find an item in the warehouse, they will ask Fishel if
the item is in stock or whether it is being dropped, or
where a new item will be stocked.
The Employer estimates that Fishel spends an
average of 2 to 2-1/2 hours per day in the warehouse,
while Fishel estimates that she spends from 4 to 4-
1/2 hours per day doing inventory work in the
warehouse. Indeed, she considers her job to be that
of an inventory clerk.
Both Fishel and Matott are under the supervision
of Bernard Knowlton, the warehouse manager, who
supervises all employees in warehouse A, except the
buyers. The office manager, who is located at 29 East
Main Street, is consulted on proposed wage increases
for all office employees, including Matott and Fishel.
However, since the office manager is rarely at
warehouse A, he consults the people with whom
Matott and Fishel work to assess their abilities. The
office manager was not involved in the hiring of
either Matott or Fishel.
Matott and Fishel come into frequent contact with
the warehouse employees and have only infrequent
contact with the office clerical employees who work
at warehouse B. They punch the same timeclock as
the warehouse employees, and share the same park-
ing, eating, and break facilities. Other fringe benefits,
such as profit sharing, vacations, sick leave, funeral
leave, hospitalization, long-term disability, jury duty,
pension plan, and employee discounts on merchan-
dise are corporatewide. Although the Employer
maintains different wage schedules for office clerical
employees and warehouse employees, and Matott
and Fishel are paid according to the office schedule,
they earn approximately what a new warehouse
employee earns.
Based on the foregoing, I would find, contrary to
the Regional Director and my colleagues, that
Matott's and Fishel's duties and working conditions,
while substantially related to the work of the buyers,
are also intimately tied to the work of the warehouse
employees and that, therefore, they share a sufficient
community of interest with the latter to warrant their
inclusion in the unit as plant clerical employees.
Thus, Matott and Fishel are physically located in
warehouse A, while the Employer's main administra-
tive and personnel offices are located at warehouse
B. They are supervised by the warehouse manager,
rather than the office manager. They come into
regular contact with the warehouse employees and
have virtually no contact with the office clerical
employees. They punch the same timeclocks as
warehouse employees, and share the same parking,
eating, and break facilities with the warehouse
employees. Even if Matott and Fishel are not
exclusively plant clerical employees, I would find
that they are at least dual-function employees who
devote a sufficient amount of their regular working
time to duties directly related to the warehouse
operation to share a community of interest with the
warehouse employees. 3
Accordingly, I would overrule the challenges to the
ballots of Matott and Fishel and direct that they be
opened and counted.
3 Berea Publishing Company, 140 NLRB 516(1963).
APPENDIX
The Challenges
Elaine Matott and Judy Fishel
The ballots of Elaine Matott and Judy Fishel were
challenged by the Board Agent conducting the election
because their names did not appear on the Excelsior list.
The Petitioner's position is that both employees are plant
clericals and included in the unit, whereas the Employer's
position is that both employees are office clericals and
therefore excluded from the unit.
Although Matott's official classification is office clerical,
her understanding is that she is the secretary/receptionist.
She is located at the Employer's main warehouse at 520
East Main Street, Gouverneur, New York. At this facility,
known as warehouse A, are six buyers, the warehouse
managers, warehouse employees, truck drivers, and the two
challenged voters, Matott and Judy Fishel. At 29 East
Main Street are a drug store, administrative and personnel
offices, one buyer and the pharmaceutical warehouse
which is known as warehouse B.
Matott, who is located in an office with a window just
inside the entrance to warehouse A, is the first person with
whom anyone entering warehouse A would have contact.
She then contacts the person whom the visitor wishes to
see. She also answers incoming telephone calls and trans-
fers those calls to the correct person. She types letters for
anyone who needs one typed (usually for the buyers), types
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KINNEY DRUGS, INC.
up interstore memos (there are 19 stores in the chain), price
changes ("All Stores"), dittos for weekly store advertise-
ments in local newspapers, the end of the year inventory
for the toy buyer (the only buyer who has such an
inventory), the form required by the state for the cigarette
tax, a store distribution sheet, and miscellaneous forms for
the various buyers.
Matott files the original or copies of all items which she
types and mimeographs except the dittos, which Fishel
files.
Matott handles the sale of goods from the warehouse to
employees. When an employee brings an item to her which
that employee wishes to buy, Matott rings up the sale on
the cash register and handles the money transaction.
Infrequently, a salesman might purchase some product at
the warehouse. She also handles these transactions.
Matott keeps track of office supplies such as forms and
the different types of paper needed for the office machines.
When a supply is low, she contacts the main office (at 29
East Main Street) to have the supply replenished, or, if the
item is something kept at warehouse A, she will restock the
supply.
The ability to type was a prerequisite for Matott's
position. In the performance of her normal duties, Matott
regularly uses a typewriter (which is at her desk), a copy
machine, and a mimeograph or duplicating machine, in
addition, of course, to the telephone console.
The week of June 12, Matott spent several hours hand
stamping cigarette packs with the state sales stamp, a job
duty normally performed by a warehouse employee.
Warehouse employees also do the machine stamping of
cigarettes. This was the first time Matott performed such a
duty in her current classification, however, she was as-
signed the work because she had some free time.
Matott delivers copies of the price changes which she
types to the warehouse employees since they must be made
aware of the changes. This delivery takes about 10 minutes
a week.
Matott works 8 hours a day, Monday through Friday,
plus 4 hours on Saturday. All employees in both warehouse
A and warehouse B work such a schedule, except for
Fishel, two or three drivers, and one warehouse employee.
Judy Fishel's official job classification is office clerical,
although she understands it to be inventory clerk. She
shares the office area at warehouse A with Matott. A
partition which is 3/4 the height of the room and less than
the width of the room divides their work area. Adjacent to
her side of the office is the office of Bob Burtis, the head
buyer. There is a window between the two offices through
which Burtis and Fishel may speak.
Because Burtis is the head buyer, he does not have the
time to perform some of his job duties. Fishel does them for
him. These duties include sorting Burtis' mail, checking his
appointments for the next day and his card file for regular
inventories, taking an inventory (through a physical count)
in the warehouse of the number of items of a particular
product which is in stock and putting the figures on the
inventory card (purchase record card) or book. She only
inventories the stock on hand for the companies with
whom Burtis has an appointment the following day. This
allows him accurately to order new products when he sees
a salesman for a specific company. Fishel also checks
whether that stock is moving at about the normal rate. If it
is not she checks whether an error was made in the
ordering of the product, or when the product was received.
Fishel puts the completed cards and/or books onto Burtis'
desk the morning of the next day so he will have them for
his appointments.
Fishel checks the invoices of all the buyers against the
reference books. If they are consistent, she okays the
invoices, files Burtis', and returns the others to the other
buyers. If the invoices and reference books do not agree,
she notes the change on a form for that purpose and
returns the forms to the appropriate buyer.
Occasionally, phone orders will come in from various
Kinney Drug Stores. Either Dora Sterling (a buyer), or
Fishel would handle such a call. (Infrequently Matott
would handle a phone-in-order.) The order is written down
and a xerox copy is made of it. The order is posted on the
"write-in" clipboard in the warehouse and the copy is given
to the warehouse manager.
There are approximately 23 reference books, one for
each section of the warehouse, except toys and cosmetics,
for which Fishel is responsible. She updates them to
indicate any change in the price or description of an item,
or the deletion of an item. These changes are not effective
until the "All-Stores," which Matott prepares, are sent out
notifying the stores of the changes. Usually companies
send out price change lists in advance of the price changes,
although sometimes a price change is gleaned from an
invoice. Although Fishel may enter such changes in the
reference books, they are not effective until the "All-
Stores" issues.
Fishel types new inventory cards for all of the buyers.
Fishel waits on employee customers as does Matott. She
may also order an office supply item from the main office.
Order fillers or pickers ask Fishel if a particular item is in
stock if they cannot find it, or whether a specific item is
being dropped, or if she knows where a new item will be
stocked so they can arrange their books accordingly.
Fishel does not use the duplicating machine (unless
substituting for Matott), and uses the copying machine
only to copy phone-in orders.
Unlike most of the other employees in warehouse A and
warehouse B, Fishel only works a 5-day, 40-hour week.
Fishel relieves Matott during breaks and vacations, and
any other time Matott is absent. Matott relieves Fishel of
her office duties, only, under the same circumstances.
Burtis then has to do his own inventory. If, in an unusual
circumstance, both Matott and Fishel were to be out of
work at the same time, (they would not be scheduled for
vacation at the same time), an office employee from 29
East Main Street would substitute at warehouse A. There is
no interchange between the buyers, the warehouse employ-
ees, and the office clerical employees.
Bernard Knowlton is the warehouse manager and has
overall supervision for all employees in warehouse A,
except for the buyers. The office manager, who is located at
29 East Main Street, is consulted by the president of the
Employer on proposed wage increases for all office
employees, including Matott and Fishel. Since the office
manager spends a minimal amount of time at warehouse A,
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he consults those people for whom Matott and Fishel work
to assess their abilities.
Although the office manager did not interview either
Matott or Fishel for their current positions, the office
manager would interview any potential replacement and
make a recommendation to the president of the Employer.
Matott had been hired originally to work for a division of
the Employer at the same location. When that operation
was terminated late 1975, she entered her current position.
Fishel had worked for the Employer in warehouse A in
another position prior to entering her current position in
December 1976.
The Employer has two wage schedules, one for office
clerical employees and one for warehouse employees.
Matott and Fishel are about midway on the office clerical
schedule. The two schedules are different; i.e., a new
warehouse employee would earn approximately the same
wage as an office clerical employee midway through the
office clerical schedule.
All warehouse employees punch a timeclock, as do
Matott and Fishel; all employees at warehouse A share the
same parking, eating, and break facilities. Benefits such as
profit sharing, vacations, sick leave, funeral leave, hospital-
ization, long term disability, jury duty, pension plan, and
employee discounts on merchandise are corporate-wide.
Buyers, truck drivers, warehouse employees, office employ-
ees, selling personnel, and members of management share
the same benefits.
Although the Petitioner claims that Matott takes orders
from drivers and customers and posts orders throughout
the warehouse for the other warehousemen, that she assists
Fishel in taking inventory, and that much of Matott's time
is spent on the warehouse floor among the other warehouse
employees, the investigation did not reveal evidence to
support such claims. The Petitioner also claims that Fishel
does no typing, however this is also contrary to evidence
adduced during the investigation.
The warehouse employees are engaged in receiving
incoming merchandise (unloading, counting, and signing
for it), stocking shelves, filling orders with outgoing
merchandise, machine stamping cigarettes, and general
cleaning and maintenance work. The truck drivers load
their own trucks, deliver orders, and bring new orders back
to the warehouse. Neither Matott nor Fishel performs any
of these duties.
Matott and Fishel both perform their duties at ware-
house A and therefore come into more contact with
warehouse employees than with other employees, such as
the office clerical employees who are located at 29 East
Main Street.
It is clear, however, from the duties which Matott
performs, that she is an office clerical employee who does
not share a community of interest with the warehouse
employees. Her duties require her to be in her office almost
the entire day, answering the telephone, typing, filing, and
using office machines. While Fishel spends some portion of
her working day in the warehouse (Employer and employ-
ee estimates of the amount of time she spends in the
warehouse vary from averaging 2 to 2-1/2 hours per day to
4 to 4-1/2 hours per day, respectively), she is doing work
which a buyer normally performs while she is in the
warehouse, i.e., inventorying on-hand stock in preparation
for the visit of a salesman from a particular company.
Matott's and Fishel's duties, while related to the overall
operation of the Employer, are not intimately tied to the
work of the warehouse employees, but rather their work is
more closely tied with the work of the buyers.
The cases which the Petitioner cites in support of its
contention that both employees are plant clericals and
should be included in the warehouse unit (Montgomery
Ward & Co., 193 NLRB 992 (1971); All-American Distrib-
uting Co., 221 NLRB 980 (1975); Sears, Roebuck & Co., 220
NLRB 1224 (1975); Sears, Roebuck & Co., 222 NLRB 476
(1976); and Jacob Ash Co., Inc., 224 NLRB 74 (1976)), may
all be distinguished from the facts in the instant case. In
those cases the clerical employees were performing tasks
directly related to the work the warehousemen or service-
men were performing - receiving orders, completing
shipping and receiving paperwork, picking orders or
performing continual warehouse inventory.
Although the employee who held Fishel's current posi-
tiop at the time of the National Labor Relations Board
election held in August 1973, in the same unit at the
Employer's facility (Case 3-RC-5780), voted in that elec-
tion, allegedly without being challenged, that fact alone is
not dispositive of the eligibility issue. That election was
conducted pursuant to a Stipulation for Certification Upon
Consent Election and the status of the position currently in
issue was not litigated at that time. See Lloyd A. Fry
Roofing Company and Volney Felt Mills, division thereof 121
NLRB 1433, 1438, fn. 5 (1958); and Coca Cola Bottling Co.
of Baltimore, 156 NLRB 450 (1965).
Accordingly, I recommend that the challenges to the
ballots of Elaine Matott and Judy Fishel be sustained.
786