Memphis Cold Storage Warehouse Co.

National Labor Relations Board - Board Decisions

Nov 1, 1950

91 N.L.R.B. 1404 (N.L.R.B. 1950)

In the Matter of MEMPHIS COLD STORAGE WAREHOUSE COMPANY" EM-
PLOYER and LOCAL 1441, CONSTRUCTION AND GENERAL LABOR UNION,
INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS,
A. F. L., PETITIONER
Case No. 32-RC-053.-Decided November 1, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Anthony J. Sabella,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The business of the Employer :
The Employer, a Tennessee corporation, is engaged in the operation
of a cold storage warehouse in Memphis, Tennessee. Its plant is 'a
nine-story building containing a gross area of 1,000,000 cubic feet.
In the year 1949, the value of the products stored in the warehouse
was in excess of $1,000,000. In the same period, the Employer ren-
dered services, valued in excess of $100,000, to local users of perishable
commodities, including local branches of national grocery chains and
of national meat packing concerns. A substantial portion of the
products stored by the Employer originate outside the State. The
Employer, under contract with the Quartermaster Corps, United
States Army, has stored food to be used at a nearby Army base and
at other places unknown to the Employer. The Illinois Central Rail-
road main line passes the warehouse and has a siding adjacent to the
' At the beginning of the hearing , the hearing officer granted the motion of the Petitioner
to amend the unit description from "all maintenance employees" to "all employees , includ-
ing maintenance employees ." Thereupon a recess was had, and an amended petition was
prepared , filed , served upon the Employer and the Intervenor ( Local 242 , United Packing-
house Workers of America , C. I. 0.), and included in the record . At the conclusion of
the hearing , the Employer renewed its motion for a continuance on the ground that the
Petitioner' s amendment presented a substantial change in the original unit request. On
the basis of the entire record, we find that the Employer was not surprised by the amend-
ment and that it had ample opportunity to, and did in fact, fully present its position with
regard to the unit issue . Accordingly , the hearing officer's ruling denying the Employer's
motion is hereby affirmed.
The motion of the Intervenor to dismiss the petition on the ground that the Petitioner
had not advised the Employer in advance of the unit it was requesting is likewise denied.
91 NLRB No. 219.
1404
MEMPHIS COLD STORAGE WAREHOUSE COMPANY 1405
warehouse. In addition, a number of interstate trucking firms trans-
port commodities to and from the Employer's warehouse.
The Employer contends that it is not engaged in commerce and that
its operations do not affect commerce. Under all the circumstances
of this case, however, and particularly in view of the Employer's
contract with the Army Quartermaster Corps, which makes its opera-
tions a part of the national defense effort, we shall assert jurisdiction.2
2. The labor organizations involved claim'to represent certain em-
ployees of the employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.3
4. The appropriate unit :
The Petitioner seeks a unit composed of all employees of the Em-
ployer at its warehouse, including assistant engineers and maintenance
employees, but excluding office and clerical employees, watchmen-
guards, technical and professional employees, and supervisors as de-
fined in the Act. In the alternative, should the Board determine that
the engineers or the maintenance employees constitute separate appro-
priate units, the Petitioner seeks to represent them in separate units.
The Employer and the Intervenor contend that a unit of all employ-
ees, excluding assistant engineers, maintenance employees, watchmen,
office employees, and supervisors, as described in the current contract,
is appropriate.4
The Employer's warehouse operation is divided into 3 main depart-
ments : storage, maintenance, and power. The storage department
consists of a superintendent, 3 supervisors, and 16 porters. The por-
ters perform all the manual labor with the aid of freight elevators,
floats, and trucks necessary to move, load, and unload the perishable
commodities in the various storage rooms of the warehouse.
The maintenance department consists of a maintenance man and two
helpers who work under the supervision of the chief engineer. The
maintenance employees are responsible for the general maintenance
of equipment and working parts throughout the entire plant. The
maintenance man possesses skills in electrical, welding, and machine
work. The maintenance employees are sometimes called upon to work
R Westport Moving and Storage Company, Crate Making Division, 91 NLRB 902.
8 The most recent agreement between the parties was automatically renewed for 1 year
on January 10, 1950. The Intervenor and the Employer contend that this contract con-
stitutes a bar to this proceeding. As this contract contains an unauthorized union-security
clause, however, we find that it does not constitute a bar to this proceeding, and the
motions of the Intervenor and the Employer to dismiss on this ground are therefore denied.
* This unit, confined to the porters, was established in 1944 in accordance with the
terms of a consent-election agreement.
The Employer not only opposes the inclusion of the maintenance employees and the
engineers in a unit with the porters, but also the establishment of separate units for them.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer than the regular 40-hour Week under standby and emergency
conditions. There is no machine shop in the plant. The power plant
is located in the basement of the warehouse, and is operated by a chief
engineer and three assistant engineers, one on each shift. The engi-
neers are required to obtain city licenses as stationary engineers after
1 year on the' job. They are responsible for the operation of the
equipment used to produce the refrigerated air of the warehouse.
Their duties consist of checking gauges for proper pressures and levels,
and operating compressors and brine and water pumps.
In the operation of the warehouse, the furnishing of refrigerated
storage space is the function of all three departments. Thus the
porters move the perishable commodities in and out of the refrigerated
rooms, and the maintenance employees repair the equipment used by
the porters and the engineers. This integration of function is, we
believe, closely analogous to the organizational pattern of a manufac-
turing establishment, with the porters comparable to production em-
ployees, and the maintenance employees performing the usual tasks
of plant maintenance. In these circumstances, we are of the opinion
that the porters and maintenance employees may appropriately be
included in the same unit. As the assistant engineers operate the
equipment which produces the refrigerated air, a necessary component
.of the service rendered by the Employer, their duties are essential to
the operation of the warehouse.5 Moreover, no other labor organiza-
tion is seeking to represent these engineers in a separate unit.' We
find that the assistant engineers ° possess sufficient interests in common
with the porters and maintenance employees to be appropriately in-
cluded in the same unit.
The parties.would exclude the watchman from the. unit found
appropriate. The watchman makes his rounds at night, and checks
the time boxes and ADT controls located throughout the building.
We shall exclude the watchman from the unit."
On the basis of the entire record, we find that all employees at the
Employer's Memphis, Tennessee, warehouse, including maintenance
' See Lynn Gas and. Electric Company, 78 NLRB 3. Cf . H. L. Handy Company, 81
NLRB 425 ; C. A. Swanson and Sons, Si NLRB 321.
6 The French Oil Mill Machinery Company, 80 NLRB 1069 . Inasmuch as no labor
organization previously sought to represent all the employees of the Employer in a plant-
wide unit , we attach no controlling significance to the history of collective bargaining on
a less comprehensive basis. Contrary to the contention of the Employer , agreement of
parties as to the appropriate unit for the purposes of a consent election is not binding
on the Board in a later proceeding , involving the same employees , in which the unit issue
is litigated . Peoples Life Insurance Company, 72 NLRB 1406 ; Waterfront Employers'
Association of the Pacific Coast, 71 NLRB 121.
7 We reject as without merit the Employer's contention that the engineers are a part of
management . See K-D Lamp Division, Noma Electric Corporation of Maryland, 71
NLRB 704.
8 Arkansas City Flour Mills, 88 NLRB 1293.
MEMPHIS COLD STORAGE WAREHOUSE COMPANY 1407
employees and assistant engineers, but excluding office and clerical
employees, watchman, technical and professional employees, and all
supervisors 9 as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER REYNOLDS took no part in the con-
sideration of the above Decision and Direction of Election.
9 We find , in accord with the parties , that the warehouse superintendent , chief engineer,
and the three storage department supervisors are supervisors within the meaning of the
Act and are therefore excluded from the unit.