Merchants & Manufacturers Warehouse Co.

National Labor Relations Board - Board Decisions

Jun 15, 1942

41 N.L.R.B. 979 (N.L.R.B. 1942)

In the Matter Of HARRISON M. OVERMYER , D/B/A MERCHANTS & MANU-
FACTURERS WAREHOUSE COMPANY and UNITED WHOLESALE, WARE-
HOUSE & DELIVERY EMPLOYEES OF AMERICA , LOCAL No. 363 (C. I. 0.)
Case No. B-3905.-Decided June 15, 1942
Jurisdiction : warehousing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition ; contract to which Company was not a party,
having been executed with an employer-association of which Company is not
a member, no bar to ; contract about to expire, no bar to ; election necessary.
Unit Appropriate for Collective Bargaining : all warehouse employees including
truck drivers and their helpers, but excluding watchmen and office and
supervisory employees in the Company's warehouses in Toledo, Ohio. ,
• Messrs . Denman , Miller c6 Beatty, of Toledo, Ohio, for the
Employer.
Mr. Kenneth S. Cole and Mr. No Erwin, of Toledo, Ohio, for the
United.
Mr. Harry W. Card, of Toledo, Ohio, for the Teamsters.
Mr. A. Sumner Lawrence,. of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Wholesale, Warehouse & De-
livery Employees of America, Local No. 363 (C. I. 0.), herein called
the United, alleging that a question affecting commerce had arisen
concerning the representation of employees of Harrison M. Over-
myer, doing business as Merchants & Manufacturers Warehouse
Company, Toledo, Ohio, herein called the Employer, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before Ramey Donovan,- Trial Examiner. Said hearing
was held at Toledo, Ohio, on May 29, 1942. The Employer, the
United, and Teamsters & Chauffeurs Union, Local No. 20, an affiliate
of International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America (A. F. L.), herein called the Teamsters,
appeared, participated, and were afforded full opportunity to be
141 N. L. R. B., No. 176.
979
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Harrison M. Overmyer is an individual doing business as Merchants
& Manufacturers Warehouse Company, having his principal place
of business at Toledo, Ohio. The only plants involved in this pro-
ceeding are two warehouses on Ontario Street and Smead Avenue,
respectively, in Toledo, Ohio, where the Employer is engaged in the
general warehousing of goods and products of various manufacturers,
distributors, and governmental agencies. Of the total amount of
merchandise presently valued at approximately $750,000 and stored
in the Ontario Street warehouse, 50 percent was shipped to this ware-
house from points outside the State of Ohio and approximately
$250,000 worth of goods in storage at this warehouse is destined for-
delivery outside the State of Ohio. The Smead Avenue warehouse
contains raw rubber valued at approximately $400,000, milk valued
at approximately $800,000, and general merchandise valued at ap-
proximately $200,000. Of the merchandise now in storage at the
Smead Avenue warehouse, all of the rubber, 60 percent of the milk,
and 10 percent of the general merchandidse was shipped from points
outside the State of Ohio.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.'
II. THE ORGANIZATIONS INVOLVED
United Wholesale, Warehouse & Delivery Employees of America;
Local 363, is a labor organization, affiliated with the, Congress of
Industrial Organizations, admitting to membership employees of the
Employer.
Teamsters & Chauffeurs Union, Local No. 20, is a labor organization
affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of,America (A. F. L.), admitting
to membership employees of the Employer.
1 See Matter of Johnson, Carvel & Murphy d /b/a Santa Fe Warehouse and General
Warehousemen, Local Union 598 chartered by Int' l Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers, AFL and Sante Fe Warehouse Employees Association, 41'
N. L. R. B. 590
MERCHANTS & MANUFACTURERS WAREHOUSE COMPANY 981
III. THE QUESTION CONCERNING REPRESENTATION
. Shortly before the filing of the petition herein, the United ap
proached the Employer and claimed to'represent a majority of his
employees in the unit petitioned for, but the Employer refused to
recognize the United until it had been certified by the Board. At
the hearing, the Teamsters contended that.it had two collective bar-
gaining agreements with the Employer and that these agreements
constituted a' bar to the present proceeding.
The first of these agreements is dated June 17, 1941, and names
as parties the Teamsters and two employer associations. The agree-
ment provides for the exclusive employment of members of the
Teamsters' Local when available, and sets forth the wage scale and
working conditions governing the employment of members . of the
Teamsters. The agreement is for a period of 1 year from June 1,
1941, and contains a provision for automatic renewal in the event
a written notice of termination is not given at least 30 days prior
to the termination date of the agreement. It was stipulated at the
hearing that the Employer is not and never has been a member of
either of the employer associations named in the agreement. The
secretary of one of the employer associations testified that to his
knowledge it was the practice of both employer associations to nego-
tiate, only for members of their respective associations. It was fur-
ther admitted by the Teamsters that about the middle of April 1942
a notice had been given under the provision therefor in the agreement
and that negotiations were proceeding toward the making of a new
agreement which had not been signed, though as of the date of the
hearing a verbal agreement had just then been reached to the effect
that, the old agreement should remain in force until a new one
should be'negotiated. We are of the opinion' and find that the Em-
ployer is not a party to the agreement in question and that by
reason thereof the said agreement is not a bar to the present pro-
ceeding. Accordingly we find it unnecessary to decide whether or not
the agreement has been opened in such a manner that it is no longer
a bar to the present proceeding.2
The second agreement which is claimed to be a bar is a mimeo=
graphed copy of the first agreement but signed by the Employer
rather than the employer associations and bears no other signature
than that of the Employer. The Employer testified that this docu-
ment, while dated June 17, 1941, was in fact signed by him on March
16, 1942, at the request of the Teamsters on the representation that
if he would sign, the Teamsters would effect a settlement of-a strike
2 Cf. Matter of Theo F. Anderson & Louis Torvinen, partners, d/b/a Swartz Lake
Lumber Company and Lumber & Sawmill Workers Union, Local No. 2631, 40 N. L. R B.
853.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then being conducted by the United. The Teamsters, however,
claimed that the agreement in question had been executed on or about
June 17, 1941, after a copy of the agreement with the employer
associations had been mailed to the Employer for his signature. It
was, however, admitted by the Teamsters that due notice of termi-
nation had been given the Employer and that the agreement would
expire on June 1, 1942.
Since notice of termination was given by the Teamsters, we are
of the opinion and find that the agreement which has since expired,
assuming that it was valid, is not a bar to the present proceeding.
A statement by the Regional Director introduced in evidence at the
hearing shows that each of the unions involved represents a sub-
stantial number of employees in the unit hereinafter found appro-
priate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer within the meaning
Gf Section 9 (c) and Section,2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT '
. The United claimed in its petition that the appropriate unit should
consist of all warehouse employees except office and supervisory
employees, truck drivers, and truck drivers' helpers, employed in the
Company's two warehouses at Toledo, Ohio. At the hearing the
United specifically stated that the unit included watchmen, of whom
there appear to be three employed as of May 29, 1942. The Teams-
ters opposes the inclusion of watchmen on the ground that it has no
jurisdiction over them, and seeks the inclusion of truck drivers and
helpers. - The Employer stated he had no objection to the unit pro-
posed by the United. The warehouse employees are interchangeable
between the two warehouses, both of which have been- organized by
the United.
We are of the opinion that the warehouse employees of both ware-
houses constitute an appropriate unit. Since it does not appear that
the watchmen have duties or interests similar to the warehouse
employees generally, and since the Teamsters does not have jurisdic-
tion over them, we shall exclude watchmen from the appropriate unit.
With respect to the truck drivers and their helpers, whom the United
would exclude from the appropriate unit, but whom the Teamsters
, The Regional Director reported that the United had submitted 33 authorization cards
of which 2 were dated February 20, 1942, 23 dated March 5, 1942, 5 dated March 6,
1942, and 1 dated March 10, 1942, and that of the 33 cards submitted , the signatures
on 26 corresponded to names on the pay roll of March 20, 1942, containing a list of 46
names , of which 37 were in the claimed appropriate unit. -
The Regional Director further reported that the Teamsters had submitted the names
of five individuals whose names appear on the Employer 's pay roll as of March 30, 1942,
and, in addition thereto, submitted a closed -shop contract which it claims to be valid.
MERCBANTS & MANUFACTURERS WAREHOUSE COMPANY 983
would include, we are of the opinion that no sufficient cause has been
shown for excluding them from the appropriate unit. The United
admits that ordinarily it would seek to represent all warehouse em-
ployees except supervisors and office employees, but asserts that in the
present case it did not claim the truck drivers because it understood
that they belonged to the Teamsters. Both the truck drivers and
the warehouse employees do manual work and are paid upon an
hourly basis. Since it appears that the truck drivers and their helpers
have substantial interests in common with the warehouse employees
and that no real conflict exists between the unions with respect to
their inclusion, we shall include truck drivers and their helpers in the
appropriate unit.
We find that all warehouse employees of the Employer including
truck drivers and their helpers, but excluding watchmen and office
and supervisory employees, employed in the Employer's warehouses
at Ontario Street and at Smead Avenue, Toledo, Ohio, 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 find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot . At the hearing
the Teamsters indicated that it would call a strike on June 1; we have
since been advised that a strike has been called which has resulted
in a complete shut-down of the business of the Employer. Under
these circumstances , we shall direct that the employees of the Em-
ployer eligible to vote in the election shall be those in the appropriate
unit who were employed during the last pay -roll period for the
month of May 1942 , subject to the limitations and additions set forth
in the Direction.
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 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 Harrison M. Overmyer, doing business as Merchants & Manu-
facturers Warehouse Company, Toledo, Ohio, 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, under the direction and
supervision of the Regional Director for the Eighth Region, acting
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above, who
were employed during the last pay-roll period for the month of May
1942, including any such employees 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 any who have since quit or been discharged for cause,
to determine whether they desire to be represented by United Whole-
sale, Warehouse & Delivery Employees of America, Local No. 363,
(C. I. 0.), or by Teamsters & Chauffeurs Union, Local No. 20, an affil-
iate of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (A. F. L.), for purposes of collec-
tive bargaining or by neither.
i
In the ' Matter of HARRISON M . OVERMYER , D/B/A MERCHANTS & MANU-
FACTURERS WAREHOUSE COMPANY and UNITED WHOLESALE, WARE-
HOUSE & DELIVERY EMPLOYEES OF AMERICA , LOCAL No . 363 (C. I. 0.)
Case No. R-3905
SUPPLEMENTAL, DECISION
ORDER
AND
CERTIFICATION OF REPRESENTATIVES
Jwne 2,1942
On June 15, 1942, the National Labor Relations Board issued a
Decision and Direction of Election in the above-entitled proceeding,"
,directing that an election be held within thirty (30) days among all
warehouse employees of Harrison M. Overmyer, doing business as
Merchants & Manufacturers Warehouse Company, Toledo, Ohio,
herein called the Employer, employed in the -Employer's warehouses
at Ontario Street and at Smead Avenue, Toledo, Ohio, including
truck drivers and their helpers, but excluding watchmen and office
and supervisory employees, to determine whether they desired to be
represented by United Wholesale, Warehouse & Delivery Employees
of America, Local No. 303 (C. I. 0.), herein called the United, or by
Teamsters & Chauffeurs Union, Local No. 20, an affiliate of Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America (A. F. L.), herein called the Teamsters, for purposes
of collective bargaining, or by neither. ' On or about June 16, 1942,
all parties to this proceeding entered into a stipulation wherein they
agreed that truck drivers and their helpers be excluded from the
unit, that a majority of the employees in the revised unit are members
of the United ,and that the United is the exclusive representative of
all employees in said unit, that a majority of the truck drivers and
their helpers are members of the Teamsters, and that none of the
parties desired or intended said employees to' be included in the ap-
propriate unit. All parties further stipulated that an election was
141 N. L. R. B. 979.
41 N. L. R. B., No. 176a.
985
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not necessary and that the Board may certify the United as the
exclusive representative of the employees in the agreed unit. The
parties moved that the Board withdraw and vacate the Decision and
Direction of Election, incorporate the stipulation as part'of the record
herein, and take such further action as the Board deemed appropriate.
The Board hereby orders that the stipulation and motion be made
a part of the record in this proceeding.
Upon the basis of the entire record in the case, the Board makes
the following supplemental findings of fact which supersede, to the
extent that they are inconsistent therewith, the findings of fact made
in the Board's Decision and Direction of Election :
SUPPLEMENTAL FINDINGs OF FACT
1. All warehouse employees of the Employer employed in the
Employer's warehouses at Ontario Street and at Smead Avenue,
Toledo, Ohio, excluding truck drivers and their helpers, watchmen,
and office and supervisory employees, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the National Labor, Relations Act.
2. United Wholesale, Warehouse & Delivery Employees of America,
Local No. 363 (C. I. 0.), has been designated and selected by a
majority of the employees in the above unit as their representative
for the purposes of collective bargaining and is the exclusive repre-
sentative of all the employees in said unit, within the meaning of
Section 9 (a) of the National Labor Relations Act.
ORDER
IT IS HEREBY ORDERED that the Direction of Election in this pro-
ceeding, dated June 15, 1942, be, and it hereby is, vacated and set
aside.
CERTIFICATION. OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act,
IT IS HEREBY CERTIFIED that United Wholesale, Warehouse & Deliv-
ery Employees of America, Local No. 363 (C. I. 0.), has been desig-
nated and selected by a majority of all warehouse employees of
Harrison M. Overmyer, doing business as Merchants & Manufacturers
Warehouse Company, Toledo, Ohio, employed in the Employer's ware-
houses at Ontario Street and at Smead Avenue, Toledo, Ohio,
excluding truck drivers and their helpers, watchmen, and office and
HARRISON M. OVERMYER 987
supervisory employees, as their representative for the purposes of
collective bargaining, and that, pursuant to the provisions of Section
9 (a) of the Act, United Wholesale, Warehouse & Delivery Employees
of America, Local No. 363 (C. I. 0.), is the exclusive representative
of all such employees for the purposes of collective bargaining in
respect , to rates of pay, wages, hours of employment, and other
conditions of employment. -
MR. GERARD D. REILLY took no part in the consideration of the
above Supplemental Decision, Order and Certification of Repre-
sentatives. -
O