Long-Lewis Hardware Co.

National Labor Relations Board - Board Decisions

Dec 26, 1961

134 N.L.R.B. 1554 (N.L.R.B. 1961)

1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER RODGERS, dissenting in part :
I believe that both the IAM and the Boilermakers are acting in-
consistently with the joint certification of the IAM and the Trades
Council, and with their previous bargaining positions. Accordingly,
for the reasons stated in Hollingsworth & Whitney, 115 NLRB 15, and
International Paper Company, 115 NLRB 17, I would dismiss both
petitions herein.
Long-Lewis Hardware Company and Teamsters Local Union 612,
affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Petitioner.
Case No. 10-RC-4897. December 26, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Kathryn M. Rossback, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. The Petitioner seeks to represent in one unit employees currently
represented by the Intervenor at the Employer's wholesale hardware
establishment at Birmingham, Alabama, and office clericals who are
presently unrepresented at the same location. The Employer contends
that a contract between it and the Intervenor covering the above rep-
resented employees and effective from April 14, 1960, for 1 year with
provision for automatic renewal is a bar to the petition, which was
filed on January 16,1961. As the petition was filed more than 60 days
but not over 150 days before the terminal date of April 14, 1961,
provided in the contract, we find it was timely filed.'
We find that questions affecting commerce exist concerning the
representation of employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
i Retail, Wholesale and Department Store Union, AFL-CIO, hereinafter called the Inter-
venor, was permitted to intervene at the hearing on the basis of a contracual interest. As
indicated hereinafter, it currently represents a unit of inside salesmen, buyers, sales pro-
motion employees, and clerks who are under the supervision of the wholesale division.
s Delwo Metal Furniture Company, 121 NLRB 995, 1000.
134 NLRB No. 142.
LONG-LEWIS HARDWARE COMPANY 1555
4. The Employer and the Intervenor contend that the combined unit
sought is inappropriate as it would include the unrepresented office
clerical employees with warehouse employees. While admitting the
appropriateness of a separate office clerical unit, the Intervenor con-
tends it should not be limited to employees at Birmingham but should
also encompass office clerical employees at the Employer's Bessemer,
Alabama, headquarters.
The Petitioner presently represents a unit of warehouse employees
at the Employer's Birmingham wholesale hardware establishment, in-
cluding loading and unloading checkers, and truckdrivers and their
helpers, having been certified for such unit in Case No. 10-RM-287
(not published in NLRB volumes) on March 7, 1960. At this same
establishment the Intervenor represents a contractual unit which en-
compasses inside salesmen, buyers, sales promotion employees, and
clerks who are under the supervision of the wholesale division and not
under the major appliance division.' The office employees at this
establishment are unrepresented as apparently are the office employees
at Bessemer.
The unrepresented clerks at Birmingham are on the same floor as
some of the warehouse clerical employees represented by the Inter-
venor. However, they are physically separated, are under different
supervision, and comprise billing clerks, general bookkeeping and
overall cost clerks, and credit clerks who work on data relating to
overall operations of the Employer, while the warehouse clerks work
primarily on warehouse data. Accordingly, we find them to be office
clerical employees. Under all the circumstances, including the history
of exclusion from the existing unit, we find the unrepresented office
clericals may be represented in a separate unit.
With respect to the contention by the Intervenor that the office
clerical employees at Bessemer should be included in the unit with
those at Birmingham, although the employees at Birmingham work
on occasion at Bessemer, there is no regular interchange of employees
between these locations, and the Bessemer employees are under sep-
arate supervision. In view of the foregoing and the distance of some
15 miles between Birmingham and Bessemer, we find that a unit
limited to office clerical employees at Birmingham is appropriate'
In view of the bargaining history, we also find that the unit presently
represented by the Intervenor may also constitute a separate appro-
3 Employees in the major appliance division, which is located at 804 Fourth Avenue
North, Birmingham , adjoining the wholesale hardware establishment involved herein, and
at the branch warehouse under the supervision of the major appliance division at Mont-
gomery , Alabama, are represented in separate units and are not involved in this proceeding
4 In view of our finding herein, we find it unnecessary to consider the contention of the
Employer that the office clericals at Bessemer should be excluded as confidential employees.
We find no merit in the Employer's contention that its office clerical employees at Birming-
ham should be excluded as confidential employees , as these employees do not assist or act
in a confidential capacity to persons who formulate , determine , and effectuate management
policies in the field of labor relations . Lord Baltimore Press, Incorporated, 128 NLRB 334,
footnote 7, at page 337. -
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit. However, as these employees, together with the employees
represented by the Petitioner, would also constitute an appropriate
overall unit, we shall provide that if the Petitioner wins the election
among such employees it may represent them as part of its existing
unit .5
Accordingly, we shall direct elections as follows:
We shall direct an election in a voting group, of all inside salesmen,
buyers, and sales promotion and plant clerical employees of the Em-
ployer at its wholesale hardware establishment at Birmingham, Ala-
bama, excluding employees of its major appliance division and all
other employees, guards, and supervisors as defined in the Act. If a
majority of the employees in this group vote for the Petitioner, they
shall be deemed to constitute a part of the existing warehouse and
truckdrivers unit represented by the Petitioner and the Regional
Director shall issue a certification of results to that effect. If a
majority of the employees vote for the Intervenor, they will be taken
to have indicated their desire to continue to be separately represented
by the Intervenor and the Regional Director shall issue a certification
of representatives to that effect.
We shall also direct a separate election in a unit of all office clerical
,employees of the Employer at its wholesale hardware establishment
at Birmingham, Alabama, excluding employees of its major appliance
division and all other employees, guards, and supervisors as defined
in the Act, as to whether employees wish to be represented by Peti-
tioner or the Intervenor or by neither.
[Text of Direction of Elections omitted from publication.]
G See Pabst Brewing company , 109 NLRB 371.
Teamsters and Allied Workers, Hawaii Local 996; and Arthur
A. Rutledge and Harry Kuhia, Jr., its Agents and Joaquin
Amorin, George Baptista, Daniel Brum , James N. P. Kaneakua,
Franklin Kelekoma , Jacob Merseberg , Makoto Murata, Libert
Nakaahiki, Joseph Nakamura , Tarao Nakamura, Takeo Saka-
moto, and Chai Tin and Twentieth Century-Fox Film Corpo-
ration, Party to the Contract
Teamsters and Allied Workers , Hawaii Local 996; and Arthur
A. Rutledge and Harry Kuhia, Jr., its Agents and Yukio
Arashiro and Twentieth Century-Fox Film Corporation, Party
to the Contract . Cases Nos. 37-CB-8 and 37-CB-9. Decem-
ber 27, 1961
DECISION AND ORDER
On July 29, 1960, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that the
134 NLRB No. 157.