Milens

National Labor Relations Board - Board Decisions

Aug 10, 1959

124 N.L.R.B. 389 (N.L.R.B. 1959)

MILENS
APPENDIX
389
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Cannery,
Citrus Workers, Drivers, Warehousemen and Allied Employees , Local 444, as
the exclusive representative of all employees in the following bargaining unit
with respect to rates of pay, wages, hours of employment , and other conditions
of employment , and, if an understanding is reached , embody such under-
standing in a signed agreement . The bargaining unit is:
All production and maintenance employees , including warehousemen,
checkers, cafeteria employees, leadmen and peel oil operators, but exclud-
ing office and office clerical employees , print shop employees , truck-
drivers, garage employees, fruit scale men , all new construction and
installation employees , agriculture employees , first-aid personnel , labora-
tory technicians , professional employees , night watchmen , guards, in-
spectors, subforemen and foremen, the cafeteria supervisor, and all super-
visors as defined in the Act , employed at the Respondent 's plant in
Auburndale, Florida.
MINUTE MAID CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Milens 1 and Warehouse Union Local No. 6, International Long-
shoremen's and Warehousemen 's Union (Ind.), Petitioner.
Case No. 00-RC-3789. August 10, 1959
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Albert Schneider,
hearing 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Members Rodgers, Jenkins, and
Fanning].
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations here involved claim to represent certain
employees of the Employer.2
1 The names of the parties appear as corrected at the hearing.
2 Department & Specialty Store Employees ' Union, Local No. 1265, Retail Clerks In-
ternational Association , AFL-CIO , herein called Local 1,265, and Local No. 1179, Re-
tail Clerks International Association, AFL-CIO , herein called Local 1179 , intervened in
this proceeding on the basis of alleged contractual interests.
124 NLRB No. 51.
390 DECISIONS OF NATIONAL :LABOR RELATIONS BOARD
3. The question concerning representation :
The Petitioner seeks a unit which embraces three or four employees
at the Employer's Oakland, California, store, and one employee at
the Employer's Hayward, California, store. Each of these employ-
ees, referred to as warehousemen or stock clerks, counts, sorts, receipts,
packs, ships, and displays merchandise, and one of them devotes most
of his time to driving a truck between the two stores. The Employer
and the Intervenors, Bay Counties Jewelers Guild, herein called the
Guild, Local 1265, and Local 1179 move to dismiss the petition on the
grounds that (1) the multiemployer agreement between the Guild and
Local 1265 is a bar, and (2) the principles stated in the A. Harris &
Co. cases require a finding that the requested unit is inappropriate.
The contract alleged as a bar expressly covers selling employees
and employees "otherwise coming in direct contact with customers."
The Oakland warehousemen do no selling and come into direct contact
with the customers only when one of them relieves a delivery counter
employee who is ill, at lunch, or on vacation. The Hayward ware-
houseman does no selling, and comes into direct contact with custom-
ers only while attending a repair and delivery counter which involves
an indefinite amount of this employee's time. The Guild's attorney
testified that he "understands" that the contractual unit includes the
warehousemen. Although the warehousemen receive wages, vacations,
and holidays comparable to those set forth in the agreement, the
warehouse supervisor at Oakland testified that he was not told of the
contract until a week before the hearing, that he negotiated his own
wage increases even before becoming a supervisor, that another
warehouseman recently did the same, and that, whereas the contract
calls for an hourly wage, two warehousemen are paid on a monthly
basis. Unlike this contract, the Guild's agreement with Local 1179,
which covers the Employer's Richmond, California, store,' refers to
"all employees" and specifically mentions "stock clerks." On the
basis of the foregoing, and the entire record, we find that the con-
tracting parties did not intend to include the warehousemen in the
contractual unit and, therefore, that the agreement is no bar to this
proceeding.'
There remains, however, the question of the applicability of A. Har-
ris cC Co., supra. It was therein stated that a separate unit of ware-
housing employees is inappropriate in cases involving retail depart-
ment stores unless the following conditions are present: (1) The Em-
ployer's warehousing operations are geographically separated from its
9 116 NLRB 1.628 , 1632 ; see also Sears Roebuck & Company , 117 NLRB 133, 134.
4 The initial unit request herein covered a stock clerk at the Richmond store, but the
Petitioner has withdrawn its claim to represent that employee.
B See Appalachian Shale Products Co., 121 • NLRB 1160 ; United States Time Corpora-
tion, 108 • NLRB 1435 , 1436 ; ef . Sterling. Faucet Company, 119 NLRB 1225 , 1226-1232.
MILENS 391
retail store operations; (2) there.is separate supervision, of, employees
engaged in the warehousing functions; and (3) there is no substantial
integration among the warehousing employees and those engaged in
other store functions.
Both stores involved herein are engaged in the retail sale of dia-
monds, watches, and other jewelry. As "traffic builders," electric
shavers, radios, portable television sets, and other electrical appliances
are also sold. In the Oakland store, the electrical appliances are not
sold on the same floor on which most of the jewelry is handled. There
are 100 employees at the Oakland store and 20 at the Hayward store.
We find that these are retail department stores for the purpose of the
Harris doctrine.
The Oakland warehousemen work in or near an underground area
which is enclosed by a brick wall and extends from the store building
to an office building one-half a city block away. Three or four build-
ings and sidewalk are located over this warehouse. Merchandise is
delivered to it by way of an elevator in the office building. At the
other end of this underground area is a metal fire door which sep-
arates the store proper. One of the warehousemen spends two-thirds
of his time on the store side of the fire door in an area used for parcel
packing and shipping. This employee works less than 40 yards from
the basement selling area and about 10 yards from the delivery coun-
ter where customers pick up merchandise. A delivery counter em-
ployee, who is not included in the unit request, must enter the ware-
house proper whenever he has to bring forward merchandise stored
in the "lay-away section." Although a sign prohibits sales and credit
employees from entering the warehouse, the uncontroverted testimony
is that these employees do not obey the rule.
In the light of all these facts, we find that the Oakland warehousing
function does not satisfy the requirement of geographical separation
from the retailing operation." In addition, there is no evidence that
the Hayward warehouseman is under separate supervision. We find
that these circumstances preclude the establishment of a separate
warehouse unit. The Petitioner did not request, and the record does
8 After the hearing, the Petitioner moved that the record be reopened to permit the
introduction of evidence which was previously unavailable . An affidavit in support of
the motion states that "Employees . . . involved in the present proceeding ." are
now performing their duties in a warehouse located 1 block from the Oakland store.
The Employer , replying by affidavit , contends that ( 1) the use of this warehouse is
temporary and for a special purpose, and (2 ) only one employee is at work there . Exhibit
A attached to the Petitioner 's motion states that "Only merchandise to be in warehouse
will be for Five-Card Mailer and Mid-Year Sale, " which appears . to support the -Em-
ployer 's first contention . The Petitioner makes no allegation that the Employer has
ceased to carry . on a substantial part of its warehousing activity in the underground
area . At best , therefore, the Petitioner seeks to show that .the Employer's warehousing.
is done in part at a geographically separate location. Such proof would not change the
result herein . See Sears Roebuck & Company, supra, at p. 13.4. Accordingly , the motion
to reopen the record is denied.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not contain sufficient evidence to support, a finding that the employees
involved constitute a residual unit. Accordingly, we shall dismiss
the petition.
[The Board dismissed the petition.]
United Aircraft Corporation , Pratt & Whitney Aircraft Division
and International Association of Machinists , AFL-CIO, Peti-
tioner and International Union , United Automobile , Aircraft
and Agricultural Implement Workers of America (UAW, AFL-
CIO). Case No. 1-IBC-1889. August 10, 1959
SUPPLEMENTAL DECISION AND ORDER
On April 17, 1953, following a second runoff election held pursuant
to a Decision, Order, and Direction of New Runoff Election,' the
Board issued a certification of representatives in which the Intervenor,
herein called UAW, was certified as the exclusive bargaining repre-
sentative for a unit of production and maintenance employees at the
Employer's North Haven, Connecticut, plant. Thereafter, on March
11, 1959, UAW filed a motion to clarify certification, requesting that
the Board specifically include "in-plant trainees" in the unit for
which it was certified as bargaining representative. On March 25,
1959, the Employer filed a memorandum entitled "Opposition to
Motion to Clarify Certification."
On April 1, 1959, the Board remanded the matter to the Regional
Director for the First Region, for the purpose of holding a hearing
on the issues raised by the motion for clarification and the Employer's
opposition thereto. A hearing was held on May 5, 1959, before
William I. Shooer, hearing officer 2 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 [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in the case, the Board finds :
There are approximately 70 employees presently classified as "in-
plant trainees." These employees are in training for specific produc-
tion and maintenance jobs at the North Haven plant. Some have been
recruited from outside, others from inside, the plant. Their training
1103 NLRB 102. See also 103 NLRB 878 , in which the eligibility period for the
election was determined.
2 International Association of Machinists , AFI.-CIO, the petitioner In the original rep-
resentation case, made no appearance at the hearing on the motion for clarification of
certification , and Chas not participated in this proceeding.
124 NLRB No. 52.