Shoreham Drug Co., Inc.

National Labor Relations Board - Board Decisions

May 25, 1945

61 N.L.R.B. 1437 (N.L.R.B. 1945)

In the Matter of SHOREHAM DRUG Co ., INC. and UNITED CAFETERIA &
RESTAURANT WoRHERS UNION LOCAL 471, UFWA-CIO
Case No. 5-R-1851.-Decided May 25,194,5
Mr. William H. Collins, of Washington, D. C., for the Company.
Miss Sallie Peek and Mr. James E. Harris, of Washington, D. C., for
the Union.
Miss Ruth Rusch, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Cafeteria & Restaurant Workers
Union Local 471, UFWA-CIO, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation'
of employees of Shoreham Drug Co., Inc., Washington, D. C., herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Marvin C. Wahl,
Trial Examiner. Said hearing was held at Washington, D. C., on
April 9, 1945. The Company and the Union appeared and partici-
pated. All parties were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing on
the issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were af-
forded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a District of Columbia corporation engaged in the
sale, at retail, of drugs, liquor, cigars and other tobacco supplies, and
in the sale of food, part of which is prepared on the premises. Dur-
ing 1944, the purchases of the Company amounted to approximately
$200,000 in -value, and its gross sales totaled more than $300,000.
61 N. L. R. B., No. 234.
1437
639678-45-vol. 61-92
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Cafeteria & Restaurant Workers Union Local 471, UFWA-
CIO, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership employees of the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees until
the Union has been certified by the Board in an appropriate unit.
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate?
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union desires a unit composed of those employees who work in
the Company's food department, including the chef, waitresses, foun-
tain men and women, bus boys, dishwashers, kitchen help, general
helpers, porters, and cleaners, but excluding the fountain manager
and cashiers. The Company is in substantial agreement with the
unit sought except that it would include the fountain manager and
cashiers and exclude the chef.
Fountain Manager. This employee's general duties consist of di-
recting the work of the waitresses, fountain men and women, and
cleaners; at times, however, when there is a shortage of help during
rush hours, she waits on tables. She is the only employee here in-
volved who receives, in addition to her regular earnings, a commis-
sion on the gross sales of the food department and who suffers no
loss of pay because of absences from work of more than 1 day due to
illness. The record shows that she has authority to recommend the
hire and discharge of employees and that she frequently has exercised
that authority. Upon the basis of the foregoing, we 'find that the
fountain manager possesses sufficient supervisory authority to warrant
her exclusion and we shall exclude her from the unit.
' The Field Examiner reported that the Union submitted 16 membership cards, 11 of
which bore the names of persons listed on the Company's pay roll of February 24, 1945,
which contained the names of 17 employees in the appropriate unit ; and that, of the 11
cards , 7 were dated in January 1945, 1 in February 1945, 1 in March 1945, and 2 were
undated. ,
SHOREHAM DRUG CO., INC. 1439
Cashiers . The Company employs two cashiers , both of whom per-
form substantially the same functions and receive the same hourly
wage rate . During rush hours when there is a shortage of wait-
resses, the cashiers wait on tables for an hour or two. In addition
to these duties , one of the cashiers orders the food for the Company.
Although the nature of the cashiers ' duties is varied, their work re-
mains primarily clerical. The Union does not seek the inclusion of
cashiers , by reason of its desire to avoid any jurisdictional conflict
with another similarly affiliated labor organization which accepts
these employees into membership . Under all the circumstances, we
shall, in accordance with our usual practice , exclude cashiers from
the unit.'
Chef. The Company 's chef is the only employee who does the
cooking. In addition to preparing the food, he also acts as the
general overseer in the kitchen , being responsible for keeping the
kitchen clean, sending food and clean dishes to the soda fountain,
and checking and weighing the food as it is delivered to the Com-
pany. Whenever there is a shortage of dishwashers , he helps with
the dishwashing . The chef also instructs new employees in the
kitchen concerning their duties; however , such instruction usually re-
quires only brief periods of his time during the first 2 days of hire
of such new employees . Although the chef directs the work of the
employees in the kitchen , and reports improper work to the Com-
pany's president he does not appear to have authority to hire or
discharge employees , or effectively to recommend the same.3 Accord-
ingly, since the chef does not have supervisory authority within
the meaning of the Board's customary definition , we shall include
him in the unit.4
We find, in accordance with the agreement of the parties and our
foregoing determinations , that all employees in the Company's food
department , including the chef, waitresses , fountain men and women,
bus boys , dishwashers , kitchen help , general helpers , porters and
cleaners , but excluding cashiers , the fountain manager, and all other
supervisory employees with authority to hire, promote , discharge,
discipline , or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
2 See Matter of S & W Cafeteria of Washington, Inc, 20 N. L. R. B. 259 , Matter of
S & W Cafeteria of Washington, Inc., 30 N. L R. B. 1236, Matter of The Welfare Asso-
ciation of the United States Department of Agriculture , 45 N. L. R B. 285.
3 Although the president of the Company testified that the chef has authority effectively
to recommend the hire and discharge of employees, the chef testified that, while he had
recommended one person for hire, such recommendations were not part of his job ; more-
over, it appears that in his 3 years with the Company , lie has never recommended the
discharge of an employee.
See Matter of McInerney Spring and Wire Company , 61 N L R. B 842
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction. In accordance with the request made by the Uniol} at the
hearing, we shall designate it on the ballot as United Cafeteria &
Restaurant Workers Local 471, U. F. W. A.-C. I. O. of Washington,
D. C.
The Company employs four individuals who are classified on its
pay roll as part-time employees. One such employee 5 is engaged
solely in the preparation of salads, another 8 is a school girl who works
at the fountain, a third 7 is engaged in cleaning the fountain and the
floor, and the fourth 8 works as a general helper. The three first
mentioned employees work for a few hours every day of the working
week and the last mentioned employee, who has been working for the
Company intermittently for about 3 years, works on the average 9
days out of every 2 weeks, for 4 hours on each such working day. It
is apparent from the foregoing that these employees are regular part-
time employees and, as such, have sufficient interest in the outcome
of the election to warrant their participation in the election. Accord-
ingly, we hold them eligible to vote in the election.9
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Shoreham Drug
Co., Inc., Washington, D. C., an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Fifth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding
6 Mrs. Randolph.
6 Marjorie Tines.
David Windley.
e H. Davis.
Matter of Norfolk Southern Bus Corporation, 60 N. L . R. B. 630.
SHOREHAM DRUG CO., INC. 1441
the date of this Direction, including regular parttime employees and
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls , but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether or
not they desire to be represented by United Cafeteria & Restaurant
Workers Local 471 , U. F. W. A.-C. I. O. of Washington , D. C., for
the purposes of collective bargaining.