O.E. McIntyre, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1957

118 N.L.R.B. 1290 (N.L.R.B. 1957)

1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I therefore hold that because the General Counsel, in the prosecu-
tion of the Respondent herein on a complaint accusing the Respondent
of a violation of a public law, saw fit to call Stanzler as a witness and
because the witness testified he had given a previous statement con-
cerning the matters to which he had testified, the General Counsel
cannot now invoke the governmental privilege and deny the prior
statement to the Respondent. I further hold that, pursuant to the
clear wording of Section 102.86, the governmental privilege no longer
existed, once Stanzler had testified to the "matters of evidence" in
his previously confidential affidavit. Accordingly, in view of the
conceded fact that the Respondent has fully conformed, to the pro-
visions of Section 102.87, I would grant its motion insofar as it merely
requests "all written statements and affidavits made by Stanzler" and
deny it in all other respects.
MEMBER RonoERs took no. part in the consideration of the above
Ruling on Appeal.
U. E. McIntyre, Inc. and District 65, Retail , Wholesale and Depart-
ment Store Union , AFL-CIO, Petitioner. Case No. O-RC-8367.
September 3,1957
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 Leonard J. Lurie, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmeda
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 Leedom and Members Murdock and Jenkins].
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 organization involved claims 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 .2
i The Petitioner excepted to certain rulings on the scope of cross-examination and
access to documents. The rulings . are affirmed . Due process . is not denied by restrictions
:placed upon an asserted right to full cross-examination in representation proceedings.
American Cable d Radio Corp. V. Douds, 111 F. supp. 482, 484-485 (D. C., So. N. Y.).
Nor are such proceedings to be governed by technical rules of evidence. Jerome R. Mundy
Oo ; Inc., 116 NLRB 1487, footnote 2.
On the basis of a computation including authorizations submitted during the course of
the hearing and checked against the Employer's then current payroll , we are administra-
118 NLRB No. 168.
0. E. McINTYRE, INC. 1291
4. The petition, as amended, sought a unit composed of all produc-
tion and maintenance employees and machine mechanics at the Em-
ployer's Westbury, Long Island, New York, plant, and excluding
all office employees and supervisors. The Employer contends that its
operations are almost entirely clerical in nature, that the separation
suggested by the petition does not exist among its employees, and
that the community of skills, interests, and conditions of employment
of its employees as well as the physical and administrative unity of its
plant makes only a plantwide unit appropriate. At the conclusion
of an extended hearing, the Petitioner indicated its willingness to
accept a plantwide unit as an alternative.
The Employer is engaged in the direct mail advertising business,
supplying list selection and mailing services, i. e., clerical services, to
its clients. Advertising or promotional material which is to be mailed
is either supplied by the customer or prepared by the Employer. The
customer determines the extent of the mailing from the "list" which is
kept current and includes 35,000,000 families obtained from every
available telephone and city directory in the United States. In some
instances, the customer provides the names and addresses of individ-
uals, such as their own customers or subscribers, who are not to be
included in a mailing. The millions of names and addresses are
punched on separate IBM cards which may be used in various com-
binations, and mechanically or manually sorted for different entries
thereon. Names and addresses to be excluded from mass mailings may
be eliminated by entries on IBM cards, permitting the extraction of
the corresponding cards from the list to be mailed, or by manual
comparison of subscriber galleys with the IBM cards. The Employer
physically assembles the mailing pieces, addresses the envelopes, and
places them in the mails. Not infrequently the mailing is synchronized
to a time schedule for the date of receipt by the addressee. The Em-
ployer does not engage in the selling of merchandise, and return mail
in response to a mass mailing is normally directed to the customer.
With few exceptions, employees classified as office clerk, clerk typist,
and production clerk are included in each section of each department
and work side-by-side and under common supervision. The terms and
conditions of employment of all the Employer's nonsupervisory em-
ployees are the same regardless of the department to which they are
assigned. Except for tasks requiring particular skills, seniority is
plantwide. All nonsupervisory employees are hourly paid, have the
tively satisfied that the Petitioner ' s showing of interest in the unit herein found appropri-
ate is adequate . Contrary to the Employer 's contention , nothing in the Act nor the
Board 's Rules and Regulations requires the investigation of the showing of interest to be
completed before the completion of the record in the hearing . Brunswick Quick Freezer,
Inc., 117 NLRB 662 ; and see The Shefeld Corporation, 108 NLRB 349, 349-351. As the
desires of the employees for a bargaining representative will be determined by a secret
election and not by a count of the authorization cards, we are administratively satisfied
that the showing of interest should be considered current. See Chemical Express, 117
NLRB 29, footnote 1.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same payday, receive the same compensation for absences, have the
same fringe benefits, and so forth. All employees are given the op=
portunity to indicate job preferences and are considered for transfer
whenever and wherever a vacancy occurs in a job for which they have
indicated a preference. IBM training programs are available to any
interested employee. Work is variously allocated among different
departments depending upon the workload of the department, e. g., a
large statistical job for one of the Employer's customers may be per-
formed in the marketing section of the production control department,
in the compilation department, or in the financial department. In
the latter case the work would be done by "payroll clerks" rather than
by "production clerks." Both permanent and temporary transfers
among sections and departments are frequent. There is no prior
history of collective bargaining.
The plantwide unit urged by the Employer is presumptively ap
propriate.3 Although willing to accept such a unit, the Petitioner
contends that a unit of all "production and maintenance employees
and machine mechanics" is more appropriate. It bases this contention
on four grounds : (1) In Interstate Supply Company, 117 NLRB 1062,
the Board decided that it would "in the future exclude office clerical
employees from wholesale units if any party objects to their inclu-
sion"; (2) the Union has never sought in the general direct mail in-
dustry to organize the "office clericals" and its bargaining relation-
ships with about 40 firms in that industry within the area exclude office
clericals; (3) the Board has conducted elections in units within' the
industry excluding clericals; and (4) the Board in cases involving
manufacturing has consistently recognized the dichotomy of interest
between "plant" and "office clericals."
We find no merit to these contentions. Interstate Supply Company
involved a wholesale establishment and the question of the inclusion
of separately supervised clerical employees with warehouse employees
performing clearly distinguishable tasks requiring unrelated skills.
Much of the "direct mail industry" includes wholesale establishments
comparable to that involved in Interstate Supply Company. How-
ever, the direct mail advertising business in which the present Em-
ployer is engaged involves the sale of services and not of commodities,
either wholesale or retail. The services furnished by the Employer
are essentially office services, and there is no functional difference
between so-called "office clerks" and the "production clerks" with whom
they are associated. In these circumstances, the considerations dic-
tating the exclusion of "office clerical" employees from wholesale units
are absent, and Interstate Supply Company is inapposite. Neither
3 See Beaumont Forging Company, 110 NLRB 2200, in which the Board said (at
2201-2202) : "A plant unit, being one of the unit types listed in the statute as appropri-
ate for bargaining purposes . . . should, other things being equal, prevail over other unit
types not designated in the statute."
O. E. McINTYRE, INC. 1293
the organizational practices nor the alleged pattern of bargaining
by the Petitioner in the direct mail industry are relevant to the
Board's determination of the unit appropriate for bargaining in this
case, in the absence of a bargaining history taking such factors into
consideration 4. The Board cases cited by the Petitioner, as authority
within the industry, for its requested unit failI to support the Peti-
tioner.5 Cases involving plant clericals in manufacturing establish-
ments are inapposite.
The Petitioner concedes that the employees herein all perform
identical tasks, or those involving similar skills, have the same work-
ing conditions, including, in most cases, common supervision. The
Petitioner contends, however, that a criterion for finding a dichotomy
of interest between employees doing identical work is to be found
in the distinction between work done on a "customer-job" rather than
,on: a "company-job." The,distinction is without difference in classi-
fication or administrative practice, and unpersuasive.6
As none of the divergence in interest, skills, or working conditions
traditionally relied upon to sustain the division of employees into sep-
arate bargaining units is present, we find that only a plantwide unit
is appropriate.'
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (c) of the Act :
All employees of the Employer at its Westbury, Long Island, New
York, establishment, excluding confidential and managerial employ-
ees,, watchmen, guards, and supervisors I as defined in the -Act.
4 Comfort Slipper Corporation , 111 NLRB 188, 189.
5 Two cases are irrelevant as Board authority : one involved a consent election and the
other a Board -directed election in a stipulated unit . The latter case involved an employer
engaged in the direct mail order candy business and a warehouse facility, not a direct
mail advertising service . In the only case involving an employer engaged in the direct
mail advertising business , the Board dismissed as inappropriate the present Petitioner's
request for a unit limited to various machine operators , noting that " the great majority
of its . . . employees are clericals who type, address, sort, insert and mail catalogues and
other items." Circulation Associates Press Corp., 2-RC-7291 ( not reported in printed
volumes of Board Decisions and Orders).
'The Petitioner 's reliance upon the distinction between "live " and "non-live" traffic
employees in American, Cable i Radio Corporation , 101 NLRB 1759, is misplaced . In that
case, the employees were physically separated , separately supervised in separate depart-
ments, and never interchanged . Absent the administrative distinction between the two
groups, the distinction would not have been made . See Globe Wireless, Ltd., 101 NLRB
1043, 1046.
° See The Peoria Journal Star, Inc., 117 NLRB 708; The H. W. Wilson Company, Inc.,
108 NLRB 1192: The Bureau of National Affairs, Inc., 96 NLRB 673, 675.
s The parties stipulated that employees classified as interviewer-assistant , section head,
nurse , confidential secretary, and chauffeur should be excluded.
9 The parties stipulated that unit chiefs are supervisors as defined in the Act and
should be excluded . The Petitioner contends , and the Employer denies, that individuals
in the classification of senior operator IV "by and large have similar authorities to the
unit chiefs ," and should be excluded as supervisors . The production manager testified,
without contradiction , that none of the senior operator IV individuals have been granted
or exercise authority to hire, assign , reward, or discipline other employees , or responsibly
I
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. During the course of the hearing, the hearing officer directed
that testimony be taken with respect to the alleged supervisory status
of Anna Matthews, a unit chief, who was discharged on January 6,
1956. Charges filed January 9, 1956, with respect to her discharge
are still pending in Case No. 2-CA-4609. The Employer contends,
and the Petitioner denies, that she was a supervisor at the time of
her discharge. There is a conflict in the testimony thereon in the
record. If the charges are pending when the election directed herein
is conducted, she shall be entitled to vote subject to challenge on the
ground that she is a supervisor. In the event that her challenged
ballot be determinative of the outcome of the election, we shall then
resolve the challenge.10
[Text of Direction of Election omitted from publication.]
to direct them or to adjust their grievances , or effectively to recommend such action.
Although a senior operator IV may act as a substitute for the unit chief during a
temporary absence, the record shows that such situations are of a sporadic and extremely
limited nature. We find that the infrequent and sporadic substitution for a unit chief
insufficient to vest the senior operator IV's with supervisory status and shall include
them as employees within the unit. See United States Gypsum Company, 116 NLRB
1771, 1773.
11 See Tube Distributors Co., Inc., 112 NLRB 296, 299.
The Deutsch Company and United Industrial Workers Local 976,
AIW-AFL-CIO. Case No. 21-CA-2581. September 4, 1957
DECISION AND ORDER
On February 19, 1957, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The General Counsel filed exceptions to the remedy only.'
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 Leedom and Members Murdock and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
'As the record, exceptions, and brief adequately present the issues and positions of
the parties , the Respondent 's request for oral argument is denied.
118 NLRB No. 171.
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