Thalhimer Brothers, Inc.

National Labor Relations Board - Board Decisions

May 17, 1949

83 N.L.R.B. 664 (N.L.R.B. 1949)

In the Matter of THALHIMER BROTHERS , INCORPORATED, EMPLOYER, and.
WAREHOUSE EMPLOYEES UNION, LOCAL 322, INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS
OF AMERICA, A. F. of L., PETITIONER
Case No. 5-RC-261.-Decided May 17,1919
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold G.
Biermann, hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.'
2. The labor organization named below claims to represent cer-
tain 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 to represent all the building service employees
of the Employer's store in Richmond, Virginia, including carpenters,
painters, electricians, machinists, firemen, porters, maids, elevator
operators, and watchmen, but excluding all warehousemen, covered
-under a separate agreement, truck drivers, all other store employees,
-clerical employees, and supervisors.
1 At the hearing and in its brief, the Employer contested the Board 's jurisdiction on the
,grounds ( 1) that the Employer is not engaged in commerce ; and (2) that the employees in
the unit requested are not engaged in commerce . We find this contention without merit.
Matter of Thaihimer Brothers, Incorporated , 77 N. L. R. B. 1249, and 81 N . L. R. B.
1175. The Employer moved to dismiss the petition herein on the ground that the unit
sought is inappropriate This motion is denied for the reasons set forth below.
83 N. L. R. B., No. 99.
664
THALHIMER BROTHERS, INCORPORATED 665
The building service department of the Employer's store is headed
by a building manager , who has charge, through intermediate super-
visors, of all the employees at the store classified as porters, night por-
ters, elevator operators, maids, carpenters, painters, electrical and
mechanical employees, and employees of the engineering department.
The employees in the first four groups are unskilled individuals per-
forming the routine duties indicated by their respective classifications.
Those in the last four groups are, for most part, skilled journeymen
who had at least 4 years' training in their respective crafts before being
hired by the Employer. The carpenters and painters have their shops
in a building owned by the Employer across the street from the main
store building. The electricians and engineers are located in the main
store building,2 where most of the employees in the proposed unit are
located. There is practically no interchange of employees among the
`different groups, and there is a wide variation in the wages paid to the
skilled groups.
There is no bargaining history covering the employees involved
herein. The Petitioner has been certified as the bargaining representa-
tive of the Employer's warehouse employees.3 In September 1948,
Truck Drivers and Helpers Local No. 592, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
A. F. of L., petitioned for a unit of the Employer's truck drivers, but
-failed to achieve a majority in the ensuing election. A petition filed
by Local 157, Retail Clerks International Association, A. F. of L., for
a unit of the employees in all the Employer's food-handling depart-
ments was dismissed by the Board on the ground that the unit sought
was inappropriate.4
The Employer contends that because of the variations in duties,
skills, interests, and wages, the proposed unit cannot be found appro-
priate. The employees herein involved, however, form a cohesive
group, under the ultimate supervision of the building manager, which
includes all the employees engaged in building service at the main
store. The duties of these employees, although dissimilar in many re-
spects, are directed toward a common purpose which is clearly distinct
and separate from that of other groups of the Employer's employees.
We have previously found such groups of maintenance and operating
employees to be sufficiently homogeneous and identifiable to warrant
2 Four firemen , who work in the building across the street from the main store, fall under
the supervision of the chief engineer. They are not skilled craftsmen , but are required to
have some experience with automatic stokers, and to know how to operate, oil, clean, and
repair automatic stokers and other boiler equipment . An "engine room helper" and a
"general helper" are also under the chief engineer 's supervision.
3 Matter of Thaihimer Brothers Incorporated, 77 N. L . it. B. 1249.
4 Matter of Thaihimer Brothers Incorporated , 81 N. L . it. B. 1175,
`666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishing them in separate units,' and have recently dismissed a
petition seeking a unit of elevator operators in a department store
because it sought only a segment of the broader custodial unit .6
The Employer contends further that the unit sought herein can be
found appropriate only if extent of organization is considered as the
-controlling factor. Section 9 (c) (5) of the Act precludes the Board
from giving controlling weight to this factor in determining the appro-
priateness of a unit; and it was on the ground that extent of organiza-
tion was the "controlling justification" that the petition seeking a unit
of food handlers, referred to above, was dismissed by the Board.
As pointed out above, however, there are a number of reasons,
wholly unrelated to the extent of organization, for establishing the
building service employees in a separate unit. Moreover, there is
nothing in the Act to preclude the Board from considering extent of
organization as one of the factors to be weighed in determining the
appropriateness of a unit, and there is no other labor organization
seeking to include the employees herein involved in a broader unit.,
- On the basis of the facts referred to above, and on the entire record
in the case , we find that all the building service employees connected
with the Employer's store in Richmond, Virginia, including car-
penters, painters, electricians, machinists, engineers, firemen, helpers,
elevator operators, maids, porters, night porters, and the paper baler,'
but excluding warehousemen, truck drivers, guards," clerical em-
ployees, and supervisors, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted 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, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the
employees in the unit found appropriate in paragraph numbered 4,
3 Matter of Marshall Field d Company, 36 N. L. R. B. 748, 57 N. L. R. B. 1244.
Matter of May Department Stores Company, d/b/a Famous-Barr Company, 82 N. L. R. B.
731.
7 It appears from the record that there is one paper baler who bundles all the waste paper
collected in the store during the day, and who is under the building superintendent's
ultimate supervision.
8 The Petitioner sought, by amending its petition at the hearing, to include watchmen in
the unit. It appears, however, that the Employer has no employees designated as watch-
men, and that all its guards are guards within the meaning of Section 9 (b) (3) of the Act,
and are therefore excluded from the unit.
THALHIMER BROTHERS, INCORPORATED 667
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
,on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have been re-
hired or reinstated prior to the date of the election, and also excluding
employees on strike who are not entitled to reinstatement, to deter-
mine whether or not they desire to be represented, for purposes of col-
lective bargaining, by Warehouse Employees Union, Local 322, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A. F. of L.