Nuturn Corp.Download PDFNational Labor Relations Board - Board DecisionsApr 25, 1978235 N.L.R.B. 1139 (N.L.R.B. 1978) Copy Citation NUTURN CORPORATION Nuturn Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, Petitioner. Case 26- RC-5624 April 25, 1978 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On November 3, 1977, the Acting Regional Direc- tor for Region 26 issued a Decision and Order dismissing the petition in the above-entitled proceed- ing. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Acting Regional Director's decision on the grounds, inter alia, that, in including the Employer's customer service clerks, accounting clerks, materials control clerks, and truckdrivers in the warehouse-type unit sought, the Acting Regional Director made errone- ous factual findings and departed from officially reported precedent.' The Employer filed a motion to strike and a statement in opposition thereto, con- tending that Petitioner's request for review failed to identify asserted facts by page citations and relied on facts not contained in the transcript. On December 30, 1977, the National Labor Rela- tions Board, by telegraphic order, granted the Peti- tioner's request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the entire record in this proceeding with respect to the issues under review and makes the following findings: The Employer, a Delaware corporation, is engaged in the distribution of replacement parts for heavy- duty trucks and buses from its warehouse facility in Nashville, Tennessee. The Union seeks to represent a unit consisting of approximately 17 warehouse em- ployees in the Employer's receiving, shipping, pack- aging, picking, and packing departments. The Employer's warehouse facility is located at an industrial warehouse complex whose space is leased by approximately 15 or 20 tenants. A partition separates Nuturn's facility from the space leased by other tenants. I In its request for review, Petitioner contends that the Acting Regional Director's decision "incorrectly classifies" transportation employees by concluding that truckdrivers and forklift operators are the same. However, 235 NLRB No. 147 Nuturn's warehouse is rectangular in shape. A loading dock is located at the front of the building. Warehouse employees work behind the loading dock in a one-story area which is approximately 25 feet in depth. They are supervised by Distribution Manager Bob Ramsey. An enclosed two-story office area is located in one corner of the facility. The office area is referred to in the record as a "clean area" which is free of dirt and dust; apparently it is air-conditioned. The office area has stairways on both the inside and outside and has its own restrooms. After replacement parts are delivered to the ware- house, employees in Nuturn's receiving, packaging, picking, packing, and shipping departments prepare them for shipment to customers in several stages. Receiving department employees unload, weigh, and count merchandise and complete a receiving report concerning each shipment. The merchandise is then placed in bulk overstock. As the level of demand requires, replacement parts are removed from bulk storage and are packaged by warehouse employees. The packaged parts are then forwarded to the packing area. Packers prepare the goods for ship- ment. They are then moved to the dock area and are shipped to customers. The customer service, accounting, and materials control clerks work in the two-story office area. Employees who are admittedly outside the appropri- ate unit as office clericals also work in the office area. Four customer service clerks, who are supervised by the sales operation manager, Al Sloan, work at desks on the first floor of the office area. They are primarily responsible for taking customer orders by telephone. However, when immediate delivery of a replacement part is requested, a customer service clerk goes into the warehouse, obtains the part, and brings it to a warehouse employee, who packs and ships the item. This occurs approximately once a week. Three accounting clerks, who perform a data control function and are supervised by the Employ- er's controller, work on the second floor of the office area. They audit receiving documents to ensure that the invoices of suppliers accurately reflect the num- ber of replacement parts actually received. Addition- ally, they check computer records to verify the number of parts received and shipped, the accuracy of accounts receivable and accounts payable, and the location of replacement parts in the warehouse. At the end of the month, the accounting clerks update their computer records and, under the direction of the controller, publish a "financial package" con- cerning the availability and location of replacement in his decision the Acting Regional Director simply held that "four transportation employees who operate forklifts" should be included in the unit. The decision does not mention truckdrivers. 1139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parts. If a problem arises concerning the accuracy of their computer records, an accounting clerk may telephone a warehouse employee to resolve the discrepancy. If the problem cannot be resolved by telephone, Steve Hughes, the inventory control su- pervisor, will go into the warehouse and attempt to resolve the problem. 2 Three materials control clerks work on the second floor of the office area. They are supervised by Materials Manager Dave Rex and by Inventory Control Supervisor Steve Hughes. Like the account- ing clerks, materials control clerks attempt to resolve discrepancies between their computer records and reports concerning inventory submitted by ware- house employees. Additionally, materials control clerks are responsible for controlling the flow of inventory through the warehouse. Under the direc- tion of Steve Hughes, materials control clerks com- plete work orders directing that replacement parts be moved from bulk storage to individual packs. Two or three times a day, a materials control clerk delivers work orders to the leadman in packaging. When replacement parts are delivered to the loading dock, the leadman in receiving telephones to materials control to inform the clerks of the delivery. In his decision, the Regional Director concluded that the customer service, accounting, and materials control clerks are plant clericals and should be included in the bargaining unit. On the basis of the record as a whole and for the reasons stated below, we find that the customer service, accounting, and materials control clerks are office clericals and should be excluded from the unit. Our conclusion that the warehouse employees and the clerks in question should not be included in the same unit is based in part on the pronounced differences in the working conditions of the two groups. Except for one warehouse employee who works from 8 a.m. to 4:30 p.m., all warehouse employees work on either the 7:15 to 3:45 p.m. or the 4 p.m. to 12:30 a.m. shift. Approximately one-half of all warehouse employees work on the second shift. 2 The testimony of Robert Steinmetz, the Employer's general manager, indicated he believed there are occasions when accounting clerks will leave the office area and will contact the leadman in receiving, the leadman in packaging, or the second-shift supervisor in checking the accuracy of their computer records. However, James Tracy, the leadman in receiving, testified that it is Hughes, the inventory control supervisor, who goes onto the warehouse floor to investigate conflicting records concerning inventory. As Tracy has a far greater opportunity to observe the day-to-day operations of the warehouse than does Steinmetz, we view his testimony on this issue as more accurate than that of Steinmetz. 3 The Board's decisions in Sears, Roebuck and Co., 220 NLRB 1224 (1975) (Sears 1), and Sears, Roebuck and Co., 222 NLRB 476 (1976) (Sears I/), are distinguishable. The warehouse clerks and inventory control clerks in Sears I worked in the same office, adjacent to the "staging area," and received the same pay and fringe benefits as the warehousemen. While General Manager Steinmetz testified that clerks and warehousemen re- ceived comparable fringe benefits, the Employer's attorney repeatedly refused to permit testimony concerning specific fringe benefits, thus Warehouse employees punch a timeclock, are paid weekly, and receive one-half hour for lunch. They are not paid when absent because of illness or personal reasons. They dress casually in a shirt and jeans. The responsibilities and terms of employment of the customer service, accounting, and materials control clerks differ markedly from those of ware- house employees. The record reveals that the clerks spend the bulk of their day working at desks in the office area. Their primary responsibility is the prepa- ration and verification of written documents and records. Except for one part-time clerk and one clerk who works on the 7:15 a.m. shift, the customer service, accounting, and materials control clerks all work from 8 a.m. to 5 p.m. None works on the second shift. The clerks are paid every 2 weeks, use timeslips to account for their time, and are paid when absent from work. They dress in a manner which is appropriate for office employees. The limited extent of the contact between ware- house employees and the customer service, account- ing, and materials control clerks, described above, contributes to our conclusion that these clerks are actually office, rather than plant, clericals. They have little face-to-face contact with warehouse employees and interchange is nonexistent. In view of the foregoing and the record as a whole, we find, contrary to the Acting Regional Director, that the customer service, accounting, and materials control clerks are essentially office clericals and should be excluded from the bargaining unit.3 The Acting Regional Director concluded that "four transportation employees who operate forklifts . . . in the warehouse" should be included in the bargain- ing unit, noting that their wages, benefits, and conditions of employment are comparable to those of admitted unit employees and that their supervision is the same. We assume from this finding and the record that these employees function as forklift operators rather than as truckdrivers and we include them in the unit.4 preventing a true comparison. The merchandise control clerks, receiving clericals, and delivery-office clericals in Sears II had frequent and daily contact with warehouse employees. 4 The record does not contain any evidence concerning the number of truckdrivers employed by Nuturn. Further, it does not reveal whether or not any forklift operators also function as truckdrivers. Petitioner does not seek to include truckdrivers in the unit, asserting in its request for review that truckdrivers are paid on a different basis and have little contact with warehouse employees. Employer contests this assertion procedurally, with- out denying its truth. In these circumstances, and as representation proceedings are nonadversary, we accept Petitioner's assertion at face value. Accordingly, we shall exclude truckdrivers from the warehouse unit. See E. H. Koester Bakery Co., Inc., 136 NLRB 1006 (1962), where the Board discontinued its policy of automatically including truckdrivers in production and maintenance units where the parties disagreed as to their placement and they are not sought separately. In the event that any forklift operators are truckdrivers or function as such, they shall be permitted to vote subject to challenge. 1140 NUTURN CORPORATION We find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees who work in the receiving, ship- ping, packaging, picking, and packing areas and all forklift operators employed by the Employer at its warehouse facility in Nashville, Tennessee, but excluding all customer service clerks, ac- counting clerks, materials control clerks, office clerical employees, truckdrivers, managerial em- ployees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] 1141 Copy with citationCopy as parenthetical citation