Ozburn-Abston and Co., Inc.

National Labor Relations Board - Board Decisions

May 24, 1955

112 N.L.R.B. 936 (N.L.R.B. 1955)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondents have engaged in conduct violating Section 8 (b)
(4) (A) and (B) of the Act, I will recommend that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, is a labor organization within the meaning of Section
2 (5) of the Act and Respondents Glenn Bailey and H. Blankenship are its agents.
2. By engaging in and directing picketing with an object thereof to force or re-
quire Bateson and McCann to cease doing business with Texas and Hall and with a
further object of forcing or requiring other employers to cease doing business with
Texas and Hall so as to force or require Bateson and McCann to cease doing busi-
ness with Texas and Hall, Respondents have engaged in unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act.
3. By engaging in and directing picketing with an object thereof to force or re-
quire Texas and Hall to recognize or bargain with Respondent Union as the repre-
sentative of their employees when Respondent Union had not been certified as the
representative of such employees under the provisions of Section 9 of the Act, and
with a further object of forcing or requiring other employers to cease doing business
with Texas and Hall when Respondent Union had not been certified as the represent-
ative of the employees of such other employers so as to force or require Bateson
and McCann to cease doing business with Texas and Hall, Respondents have engaged
in unfair labor practices within the meaning of Section 8 (b) (4) (B) of the Act.
4. By presenting a contract proposal to Bateson and McCann which provided
that their subcontractors shall assume all of its terms and conditions and causing
or attempting, to cause the execution of same and procuring Bateson's agreement
thereto, with objects thereof to force or require Bateson and McCann to cease
doing business with Texas and Hall and also to force or require Texas and Hall
to recognize or bargain with Respondent Union as the representative of their em-
ployees when Respondent Union had not been certified as the representative of
such employees under the provisions of Section 9 of the Act, and with further
objects of forcing or requiring other employers to cease doing business with Texas
and Hall so as to force or require Bateson and McCann to cease doing business with
Texas and Hall, and, also, of forcing or requiring other employers to cease doing
business with Texas and Hall when Respondent Union had not been certified as
the representative of the employees of such other employers so as to force or require
Bateson and McCann to cease doing business with Texas and Hall, Respondents
have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
and (B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. ]
Ozburn-Abston and Co., Inc. and Retail Clerks International As-
sociation, Local 1529, AFL, Petitioner. Case No. 32-RC--818.
May 24,1955
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 Samuel J. Weintraub,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
3 The Employer contended at the hearing that the Petitioner had not made an adequate
showing of Interest . , The Board has consistently held that the showing of interest Is an
112 NLRB No. 118.
OZBURN-ABSTON AND CO., INC. 937
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
employees 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.
4. The appropriate unit :
The Petitioner seeks a unit of all employees employed by the Em-
ployer at its warehouse and branch stores in Memphis, Tennessee,
excluding machine shop employees, outside salesmen, cafeteria em-
ployees, service shop employees, over-the-road truckdrivers, head
countermen, office clerical employees, guards, and supervisors as
defined in the Act.
The Employer is a wholesale distributor of automotive parts and
equipment. It has 48 branch wholesale stores located in 6 southern
States. The general warehouse, 4 branch stores, and a service shop
are located in Memphis, Tennesee The Employer agrees that an
overall unit for its Memphis, Tennessee, operations is appropriate but
would include therein the outside salesmen, cafeteria employees, head
countermen, service shop employees, and over-the-road truckdrivers.
Outside salesmen: Although these employees are assigned to a cer-
tain branch store and are carried on the store payrolls, they spend most
of their time outside of the store soliciting business from garages,
service stations, and dealers. They do not have any established work-
ing hours, furnish their own cars used in their work, and are paid on
a commission basis, while the countermen are paid on an hourly basis
and have fixed hours of employment. Furthermore the countermen
are subject to the direction of the head countermen, while this is not
true of the outside salesmen. We find that the interests and conditions
of employment of the outside salesmen differ substantially from those
of the other employees sought in the unit and, therefore, shall exclude
them from the unit.'
Cafeteria employees : Two employees, a cook and a cook's helper
and dishwasher, work in a lunchroom or cafeteria which is located un-
der the same roof as the general warehouse and branch store #41.
This lunchroom is wholly owned and subsidized by the Employer and
is operated for the benefit of all of the Employer's employees in the
city of Memphis. These two cafeteria employees are under the direct
supervision of the Employer's vice president and general manager,
administrative matter not subject to challenge by the parties at the hearing . East Texas
Steel Castings Company , Inc., 95 NLRB 1135 , at p 1135; Valencia Service Company, 99
NLRB 343, at p 344. Moreover , we are administratively satisfied that the Petitioner has
made an adequate showing of interest.
2 American Factors, Limited, 109 NLRB 834.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are hourly paid, and receive the same employee benefits as the other
employees sought in the unit. Furthermore, no other labor organiza-
tion is seeking to represent these employees separately. In these cir-
cumstances, we find that their interests are not sufficiently distinct and
severable from those of the other branch stores and warehouse em-
ployees to warrant their exclusion from proposed unit. We, therefore,
shall include them.'
Head countermen: The Employer's vice president is also the gen-
eral manager of its Memphis, Tennessee, branch stores; but he visits
the stores infrequently and, in his absence, the head countermen are
responsible for the operation of the stores. The head countermen are
more experienced than the other store employees and direct the work
of those employees, excepting the outside salesmen who are supervised
directly by the general manager of the stores. They are responsible
for training the countermen, authenticate the time records submitted
by the other store employees, and certify the accuracy of the cash at
the close of operations each day. Some employees have been granted
pay raises on the basis of head countermen's recommendations. Other
recommended raises, however, were not granted. The head counter-
men are paid on a monthly salary basis whereas the other store em-
ployees, excepting outside salesmen, are paid biweekly on an hourly
basis. The head countermen are the only individuals in the stores
who participate in a profit sharing plan at the end of each year. A
head counterman's share is based solely upon the net profit of the store
where he works. His remuneration is directly related to his ability to
cut expenses, increase sales, and operate the store efficiently. In these
circumstances, we believe that the head countermen responsibly direct
the work of the other store employees. We therefore find that the
head countermen are supervisors and shall exclude them from the unit.
Service shop employees: The Employer's service shop is located
about a mile and a quarter from its warehouse. The Employer's ware-
house services the needs of all 48 of its branch stores for automotive
parts, supplies, and equipment, while the service shop services their
requirements for automotive equipment parts, as distinguished from
automotive parts. The service shop also repairs, services, and recon-
ditions the automotive equipment, such as air compressors, grease
guns, battery chargers, and motor tuners, sold by the Employer's 48
branch stores. As the service shop has no outside salesmen of its own,
most of its repair and service work originates at these branch stores.
The automotive equipment parts needed by the branch stores are
delivered to the warehouse, from which they are transported to the
branch stores, primarily by the Employer's over-the-road truckdrivers.
These same drivers bring back defective automotive equipment, which
8 Nebel Knitting Company, 106 NLRB 114, at p 118; S H. Kress & Co, 92 NLRB 15,
at p. 17; Maas Brothers , Inc, 88 NLRB 129, at pp. 132-3
OZBURN-ABSTON AND CO., INC. 939
has been sold by the branch stores, for repairing at the service shop.
In addition to the automotive equipment parts, the service shop carries
a small stock of automotive parts. The Employer's vice president and
general manager testified that the Employer plans to install a com-
plete inventory of automotive parts, supplies, and equipment at the
service shop to service its customers.
At the time of the hearing, the employee complement of the service
shop consisted of 6 mechanics and a helper who primarily repair and
service the automotive equipment which has been sold by the Employer,
an inventory clerk who maintains a perpetual inventory record, a
counterman who sells automotive parts and automotive equipment
parts to local customers and writes job orders for the repair and serv-
ice on automotive equipment for customers who visit the service shop, a
delivery man, and a stock boy. Employees of the latter three classifica-
tions, perform duties similar to those performed by employees of those
classifications at the branch stores.
The service shop employees, as well as the other employees whom
the Petitioner would include in the unit, are paid biweekly on an
hourly basis. They also receive the same employee benefits, i. e., holi-
days, vacation plans, and hospitalization plan, as the other employees.
In the aforesaid circumstances, we find that the duties, working con-
ditions, and interests of the service shop employees are closely related
to those of the branch stores and warehouse employees, and shall, there-
fore, include them in the unit.4
Over-the-road truckdrivers : The Employer's over-the-road truck-
drivers are carried on the warehouse payroll and are under the im-
mediate supervision of the warehouse foreman. Each driver usually
makes three trips weekly to certain out-of-State branch stores. They
ordinarily depart from the warehouse around 5 p. m., and return in
about 26 hours, whereupon they leave their trucks at the warehouse, de-
posit their trip papers at the office, and go home. They do not ordi-
narily perform any work in the warehouse. The warehouse laborers
load their trucks prior to departure and unload any merchandise or
equipment which is returned by the drivers from the branch stores.
These drivers are paid on a mileage-plus-fixed monthly expense ac-
count basis, while nearly all other warehouse employees are paid on an
hourly basis. However, no other union is presently seeking to repre-
sent them in a separate unit. We believe that, despite the disagree-
ment of the parties, the over-the-road truckdrivers may appropriately
be included in a unit of production and maintenance employees. We
shall, therefore, include the over-the-road truckdrivers in the unit.5
40. 0. Anderson Stores Company, 100 NLRB 986, at pp. 987-8; The P. B. Magrane
Store, Inc , 84 NLRB 345 , at p. 346. See also J. J. Moreau & Son, Inc., 107 NLRB 999,
at p. 1001.
5 See Thomas Electronics, Inc, 107 NLRB 614, at p. 615.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act :
All employees employed by the Employer at its warehouse, four
branch stores, and service shop in Memphis, Tennessee, including
cafeteria employees, and over-the-road truckdrivers, but excluding
head countermen, outside salesmen, machine shop employees, office
clerical employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Smithfield Packing Company, Incorporated and United Packing-
house Workers of America, CIO, Petitioner. Case No. 5-RC-
1597. May 04, 1955
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election dated March 3,
1955,1 an election by secret ballot was conducted on March 23, 1955,
under the direction and supervision of the Regional Director for the
Fifth Region, among the employees in the unit found appropriate
in the above-mentioned decision . Thereafter , a tally of ballots was
furnished the parties, showing that out of 477 voters casting valid
ballots, 289 voted for Employees Beneficial Association of the Smith-
field Packing Co . ( Ind.), 176 voted for Petitioner , 12 voted against
the participating labor organizations , and 36 cast challenged ballots.
On March 30 , 1955, the Petitioner attempted to file objections to the
election.
In his report on objections , issued and duly served upon the parties
April 1, 1955 , the Regional Director recommended that the objec-
tions be overruled and that Employees Beneficial Association of Smith-
field Packing Co. (Ind.) be certified as exclusive bargaining agent for
the employees in the unit found appropriate . On April 5 , 1955, the
Petitioner filed exceptions to the Regional Director 's report and on
April 6, 1955 , filed a motion requesting that if the objections be con-
sidered untimely, the time for filing them be extended nune pro tune.
The Board has considered the Regional Director 's report, the ex-
ceptions , and the entire record in the case, and hereby adopts the find-
ings, conclusions , and recommendations of the Regional Director.
As indicated in the report on objections , the Petitioner reached the
Board's Regional Office after the close of its business day on March
30, 1955, and after all Board personnel had departed . March 30 was
1 Not reported in printed volumes of Board Decisions and Orders
112 NLRB No 117.