Prather's, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1977

227 N.L.R.B. 1229 (N.L.R.B. 1977)

PRATHER'S, INC.
Prather's, Inc . and Retail , Wholesale and Department
Store Union, AFL-CIO, Petitioner. Case 12-RC-
5132
January 19, 1977
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On August 13, 1976, the Regional Director for
Region 12 issued a Decision and Direction of
Election in the above-entitled proceeding, in which
he directed an election be held in the following
appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Employ-
er at its plants and pick-up facilities located in
Fort Myers and Naples, Florida, including route-
men, relay man, plant clerical employees; exclud-
ing office clerical employees, solicitors, guards
and supervisors as defined in the Act.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, Petitioner filed a
timely request for review on the ground that, in
including the routemen and the relay man in the unit,
the Regional Director made erroneous findings as to
substantial factual issues and departed from officially
reported precedent. The Employer also filed a timely
request for review of the Regional Director's decision
on the grounds that, inter alia, in excluding data
processing employees, in permitting employee Ander-
son to vote subject to challenge despite a stipulation
that she was a plant clerical employee, and in
excluding employees MacConnell and Hermes as
office clericals instead of confidential employees, he
made erroneous findings as to substantial factual
issues and departed from officially reported prece-
dent.
The National Labor Relations Board, by telegraph-
ic order dated September 9, 1976, granted the
requests for review on the above issues, denied review
as to other issues, and stayed the election pending
decision on review. Thereafter, the Employer filed a
brief on review.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I The Employer has requested oral argument This request is hereby
denied as the record , the exceptions, and the briefs adequately present the
issues and the positions of the parties
2 In explaining his reasons for excluding the data processing employees,
the Regional Director indicated that the data processing employees' office is
upstairs rather than on the main floor of the plant The Employer excepts to
this finding and moves to reopen the record for the purpose of introducing an
227 NLRB No. 176
1229
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, including
the documents of the parties, and makes the following
findings:
The Employer is engaged in renting uniforms and
linen supply items under maintenance contracts to
various business establishments; it also provides
laundry, dry cleaning, and other related services.
Employer's routemen and relay man pick up laundry
at customers' establishments, sort it into wash loads
and attach invoice tickets, and then transport the
laundry to the plant. In some cases, they unload the
truck and put the goods on lift conveyors to store it in
preparation for check-in and classify the goods for
washing. They thus spend most of their time away
from the plant. Unlike production employees, they
receive additional compensation if they expand
business. All employees receive similar fringe bene-
fits. The routemen are under separate supervision and
have separate employee meetings from the produc-
tion employees. Additionally, they wear uniforms,
must have drivers licenses, and are bonded.
The Regional Director concluded that the route-
men and relay man have a sufficient community of
interest with the production and maintenance em-
ployees to warrant their inclusion in the bargaining
unit. We disagree. Here the routemen and relay man
have separate supervision, do almost all of their work
away from the plant, have separate occupational
qualifications such as bonding and licensing, solicit
new business on a commission basis, and have little, if
any, contact with the production and maintenance
employees. It is therefore clear, contrary to the
Regional Director's finding, that the routemen and
relay man have a separate community of interest
which requires their exclusion from a unit of produc-
tion and maintenance employees. Accordingly, we
shall exclude them.
We also granted review of the Regional Director's
exclusion of the data processing employees as office
clericals. These employees process the invoice, ship-
ping, and conservation data generated in the course
of business, as well as the payroll records for all
employees. They spend 95 percent of their time in an
office separated from production and maintenance
employees,2 and are under separate supervision.
Since they have little community of interest with the
production and maintenance employees we will
affidavit showing the office is actually on the main floor of the plant Since
the Regional Director's finding is not based on the location of their office,
but rather on the nummal contact between the data processing employees
and the production and maintenance employees , we agree that the data
processing employees should be excluded and deny Respondent 's motion to
reopen the record.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirm the Regional Director's finding and exclude
them.
Pursuant to an oral stipulation made at hearing, the
Regional Director excluded employees Hermes and
MacConnell as office clerical employees. We agree
with the Regional Director. The Employer, however,
contends the stipulation excluded these employees as
confidential employees rather than office clericals.
While the point may well be moot since these
employees are excluded in either case, we believe the
Regional Director's interpretation of the stipulation
is not unreasonable since the Employer described
these two employees as persons who "do general
office and bookkeeping work" when it proposed the
stipulation at hearing.
At the hearing the parties stipulated to the inclusion
of employee Anderson as a plant clerical. The
Regional Director found that this stipulation is not
supported by sufficient evidence in the record and
concluded Anderson should vote subject to chal-
lenge. While it is our established policy to scrutinize
stipulations relating to statutory exclusions, we will
not generally upset a stipulation concerning a non-
statutory exclusion to which no party objects. Ac-
cordingly, we accept the stipulation of the parties and
include Anderson in the unit as a plant clerical.
Based on the foregoing, we find that the following
employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees employed by the Employ-
er at its plant and pick-up facilities located in Fort
Myers and Naples, Florida, including plant cleri-
cal employees; excluding routemen, relay man,
office clerical employees, solicitors, guards and
supervisors as defined in the Act.
Accordingly, we shall remand the case to the
Regional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that ending
immediately before the date of issuance of this
Decision on Review. [Excelsior footnote omitted
from publication.]