Shirley-Ohnstad, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1956

115 N.L.R.B. 1439 (N.L.R.B. 1956)

SHIRLEY-OHNSTAD , INC. 1435
We.find here.no threat or other element of intimidation.. We agree
with the Regional Director that neither of these alleged telegrams was,
other than legitimate propaganda. There: was nothing fraudulent in
the representations of what the Petitioner hoped to gain for its mem
-bers. We find that they do not justify setting aside the election 7
We find that the exceptions do not raise substantial and material
issues with respect to the conduct or results of the election. In agree-
ment with the Regional Director's recommendations, we hereby over-
rule the objections. As the Petitioner has secured a majority of the
valid votes cast, we shall certify it as the bargaining representative
of the employees in the appropriate unit.
[The Board certified Upholsterers' International Union of North
America, AFL-CIO, as the designated collective-bargaining repre-
sentative of the employees at the Employer's Grand Rapids, Michigan,
plant.]
v Horder 's, Incorporated, 114 NLRB 751 ; Comfort ,Shipper Corporation, 112 NLRB 183,
184. See also The DeVilbtss Company, 115 NLRB 1164.
Shirley-Ohnstad, Inc. and General Drivers, Helpers, Warehouse-
men, Dairy Employees & Inside Workers Union, Local 116,
affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, and Helpers of America, AFL-CIO,
Petitioner. Case No. 18-RC-3775. June 4, 1956
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election
entered into by the parties on March 1, 1956, an election by secret bal-
lot was conducted on March 14, 1956, under the direction and super-
vision of the Regional Director for the Eighteenth Region. Upon the
conclusion of the balloting and in accordance with the Rules and
Regulations of the Board, the parties were furnished with copies of
the tally of ballots which shows that of approximately 4 eligible
voters, 5 cast ballots of which 2 were for the Petitioner, 2 were against
the Petitioner, and 1 was challenged.
As the single challenged ballot was sufficient to affect the results of
the election, the Regional Director, pursuant to the Board's Rules and
Regulations, conducted an investigation and on April 13, 1956, issued
and served upon the parties a report and recommendation on, chal-
lenged ballot. On April 23,1956, the Employer filed exceptions to the
Regional Director's report.
Upon the entire record in this case, the Board makes the fol-
lowing findings :
115 NLRB No. 233.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees of
the Employer. -
3. A question affecting commerce exists concerning representation
of certain employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All employees employed by the Employer at its Fargo, North
Dakota, warehouse, excluding office clerical employees, salesmen,
watchmen, guards, professional employees, and supervisors as de-
fined in the Act.
5. In his report on the challenged ballot, the Regional Director
recommended that the challenge to the ballot cast by Robert Booher
be overruled, that the challenged ballot be opened and counted, and
that thereafter a revised tally of ballots be served upon the parties.
The Regional Director found that the Employer operates a whole-
sale plumbing supply business in which it employs warehousemen,
shipping and receiving employees, a city desk man, office clerical
employees, and salesmen.
Booher, whose ballot was challenged by the Employer, is the city
desk man. His duties include waiting on customers and escorting
prospective customers to the company display room and helping, ad-
vising, and making suggestions to them as to their needs. He writes
up customer orders and fills the orders by going into the warehouse
contiguous to the city desk where he gets the purchased items out of
stock. Booher then conducts the customers to company offices where
they pay or arrange for credit.
Mail order and all orders requiring shipment are filled by regular
warehousemen, who are included in the unit. Occasionally Booher
assists warehousemen in putting incoming stock into storage bins
inside the warehouse or assists the warehousemen in unloading plumb-
ing items from trucks and railroad cars. Like the warehousemen,
Booher is hourly paid and his wages are comparable to wages of ware-
housemen. Warehousemen replace him at the city desk when he is
out to lunch or absent. However, some former city deskmen have
progressed to salesman positions and the Employer considers this a
normal line of progression open to Booher.
The Regional Director concluded upon the basis of the foregoing
that Booher has a mutuality of interests with the warehousemen
sufficiently great to justify his inclusion in the unit. Therefore, the
Regional Director recommended that the challenge be overruled.
MERCHANDISER PRESS, INC. 1441
The Employer objects to the Regional Director's findings of fact,
conclusions, and recommendation. However, the Employer's ver-
sion of the facts does not differ substantially from that of the Regional
Director. The Employer contends that its business is dependent upon
the success of its salesmen and that Booher's primary duties are those
of a salesman in dealing with customers at the city desk. Further-
more, it argues that most of his time is so spent and that only ex-
ceptionally does he assist warehousemen in filling bins and unload-
ing. The Employer emphasizes that Booher has no less authority
in quoting standard company prices than do regular salesmen, that
he is considered part of the sales department, that he sometimes is
assisted by salesmen, and that he will normally progress to a regular
salesman's position.
We note that the Employer's version of the facts is largely one of
emphasis and that Employer does not dispute the Regional Director's
other significant findings of fact including, inter alia, that Booher'-s
hourly wages are comparable to warehousemen's wages, that he fills
orders himself from warehouse bins, that his duties are performed
by warehousemen rather than salesmen in his absence, and that oc-
casionally he assists warehousemen in performance of their duties,
and that his place of work is adjacent to the warehouse proper. On
this record, we find that Booher has a substantial community of in-
terest with the warehouse employees who are included in the unit 1
Accordingly, we hereby adopt the Regional Director's recommenda-
tion that the challenge to Booher's ballot be overruled and that the
ballot be opened and counted.
[The Board directed that the Regional Director for the Eighteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballot of Robert Booher and serve upon the parties
a supplemental tally of ballots.]
3 J. Segari & Co ., 114 NLRB 1159.
Merchandiser Press, Inc. and United Auto Workers of America,
AFL-CIO, Local No. 250. Case No. 2-CA-4367. June 6,1956
DECISION AND ORDER
On March 9, 1956, Trial Examiner Robert E. Mullin 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
115 NLRB No. 238.
390609--56-vol. 115-92