The Grocers Supply Co., Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1966

160 N.L.R.B. 485 (N.L.R.B. 1966)

GROCERS SUPPLY COMPANY, INC. 485
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF
NIELSEN BROS., INC., SEATTLE, WASHINGTON
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage in, or induce, or encourage employees of Nielsen
Bros., Inc., of Seattle, Washington, or any other person engaged in commerce
or in an industry affecting commerce, to engage in, a strike or in a refusal in
the course of their employment to perform any service for their employer or
threaten, coerce, or restrain Nielsen Bros., Inc., of Seattle, Washington, by
picketing its Market Street store, Seattle, Washington, where an object thereof
is forcing or requiring Nielsen Bros., Inc. or any other person engaged in com-
merce or in an industry affecting commerce to cease doing business with J & J
Carpet Service and Master Carpet Service, Seattle, Washington.
CARPET, LINOLEUM & SOFT-TILE LAYERS LOCAL 1238,
Labor Organization.
Dated------------------- By-------------------------------------------
ROBERT T WoriE, Representative
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-7542.
The Grocers Supply Company, Inc. and Office and Professional
Employees International Union, AFL-CIO, Petitioner. Case
23-RC-2636. August 11, 1966
DECISION AND DIRECTION OF ELECTION
TJpon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before hearing
Officer C. T. -Mosher, of the National Labor Relations Board. The
Hearing Officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated- its powers in connection with this case to a three-
member panel [Chairman McCulloch and -Members Brown and
Zagoria].
Upon the entire record in this case, the Board finds:
1. The employer is engaged in commerce within the meaning
of the Act and it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to represent certain
employees of the employer.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
160 NLRB No. 41.
486 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
4. The Employer is engaged in selliiig groceries and related prod-
ucts at wholesale. Its principal office and warehouse are located at
3131 East Holcombe Boulevard, Houston, Texas; the offices and
related `facilities are' in an', area separate from the warehouse and
shipping docks. The Employer's drivers and warehouse production
employees are covered by a collective-bargaining agreement with
General Drivers, Warehousemen and Helpers Local Union No. 968,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. There is no bargaining history for any of
the Employer's other employees.
The Petitioner seeks a unit composed of office clerical employees
in the accounting, advertising, customer bookkeeping, buying, sales,
and data processing departments at the Employer's Houston plant,
excluding, in additition to the normal exclusions, outside salesmen,
buyers, and "QP" employees. The Employer agrees to the basic unit
requested by the Petitioner, except that it would include outside
salesmen, buyers, and "QP" employers. The parties also disagree as
to whether certain persons should be excluded from the unit as super-
visors, managerial employees, and confidential employees, or because
their employment interests are different from those of unit employees.
Outside Salesmen: The Petitioner would exclude, and the Employer
would include, the approximately 35 outside salesmen. The parties
agree, however, that the eight so-called city sales employees, who
work mainly inside the Employer's offices at telephones, copying
down orders called in by customers, should be included in the unit.
The record shows that salesmen normally spend at least 70 to 75
percent of their time out of the office, visiting stores to take orders,
"walking the aisles" of supermarkets with store managers to help
them determine what to order, and advising customers on sales pro-
motions, store layout, special ads, and similar matters. While in the
Employer's office, salesmen prepare orders for the data processing
section, and sometimes help the city sales staff during rush periods.
Unlike office clerical employees and the city sales staff, who are
hourly paid, outside salesmen receive weekly salaries. Each sales-
man's salary is based on production and seniority; most salesmen
also receive a small additional amount as commission. Outside sales-
men have some discretionary authority to spend on expense account
for lunches and the like to promote goodwill. Some functions per-
formed by outside salesmen are duplicated by members of the city
staff; thus, some city sales employees call customers at prearranged
times to take down their orders, and one city sales employee occa-
sionally goes outside the office to pick up orders. Outside salesmen,
however, unlike city sales employees, also advise customers on prices,
layout, and promotion matters, and sometimes help store managers
GROCERS SUPPLY COMPANY, INC.
r.i 487
make up orders rather than merely accept completed orders. In
addition, outside salesmen spend a 'far greater amount of time out
side the office than city sales employees:' We find that the duties and
working conditions of outside salesmen are different from those of
office clerical employees, including the city sales staff, and we shall
therefore exclude them from the unit:'
The three "utility salesmen" substitute for sick or vacationing out-
side salesmen. While the "utility salesmen" apparently spend some
time inside the office doing work similar to that of unit employees,
they also, like outside salesmen, call on stores to help the managers
in arranging store layouts, and they perform normal outside sales
duties while replacing regular salesmen. We find that the employment
interests of "utility salesmen" are closer to those of outside salesmen
than to those of unit employees, and we shall exclude "utility sales-
men" from the unit.
There is one employee who is assigned to schedule and keep rec-
ords on cooperative advertising, in addition to servicing some cus-
tomers as an outside salesman. The advertising work, which consists
of recordkeeping so that grocery store customers will be aware of
manufacturers' offers to share the cost of advertising certain prod-
ucts and take full advantage of the contributions, and which is
done inside the Employer's office, absorbs more than 50 percent
of his time. As this employee spends a major portion of his time
performing work similar to that performed by unit employees, we
shall include him in the unit.2
One outside salesmen (Kuehnel) has a special arrangement with
the Employer, made after he had suffered a heart attack, under
which he is permitted to do a substantial amount of his work by
telephone rather than by traveling to the customer's stores. While
this employee also spends most of his time inside the Employer's
office, his responsibilities are essentially the same as those of outside
salesmen. We shall exclude him from the unit.
Another individual (Edward Stone) is in charge of vacation and
relief schedules for outside salesmen. His responsibilities include
helping to "coordinate information going to salesmen," as well as pre-
paring lists of telephoning assignments for some city sales employees
and handling trading stamps for stores served by the Employer.
The Petition contends that this individual is a supervisor in
the sales department, whereas the Employer, referring to him as
the "order coordinator," would include him in the unit. We find
it unnecessary to decide whether this individual is a supervisor since
'- Interstate Supply Company, 117 NLRB 1062, 1065
2 Denver-Colorado Springs -Pueblo Motor Way, 129 NLRB 1184, 1185-86, Member Fanning
dissenting , cf. Berea Publishing Company, 140 NLRB 516, 519
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we conclude that his duties are such that he does not have a com-
munity of interest with the office clerical employees. We shall there-
fore exclude him from the unit.
"QP Group": The Petitioner would exclude, and the Employer
would include in the unit, four employees,in the "QP" group. This
group is part of a separate corporation, not named in the record,
which is owned equally by the Employer and a Mr. Weisz and
operates grocery stores outside Houston. Weisz and the four
employees under him in the QP group perform certain functions
related to these stores. Although the QP employees work in the same
building as the bargaining unit employees, QP employees are
employed by a separate corporation, are on a separate payroll, are
subject to labor policies set by Weisz and work under his super-
vision, and the identity of these employees is not well 'known even
to the Employer's witness who testified about them. We find that
QP employees do not have a community of employment interests
with unit employees, and we shall exclude them from the unit.
Buyers : The Petitioner would exclude, and the Employer would
include the buyers. The six or seven buyers purchase the products
which the Employer supplies to its customers and handle the order-
ing, checking, filing, and other functions incident to buying. The
buyers have desks on the main floor of the Employer's office, and
each has one or two assistants nearby. The buyers negotiate with
suppliers, exercise judgment in purchasing decisions, and pledge the
Employer's credit. The buyers are not under the supervision of the
head of the accounting department or any other supervisor of office
clerical employees. They direct the work--of their assistants, exer-
cising lead authority though not acting as supervisors within the
statutory definition. On these facts, we find that the buyers do not
have the same employment interests as office clerical employees, and
shall exclude them from the unit.3
Confidential Employees: The Employer would include six sec-
retaries as confidential employees; the Petitioner would include
them in the unit. The Board has held that it will exclude as con-
fidential employees individuals who "assist and act in a confidential
capacity to persons who formulate, determine, and effectuate man-
agement policies in the field of labor relations." 4 The two secre-
taries to the two vice presidents and the secretary to the secretary-
treasurer are present on some occasions when labor relations matters
are discussed by these officers, including confidential meetings
between the officers and supervisors at which the Employer's
3 See, e g , Sunnyland Packing Company and Sunnyland Poultry Company , 113 NLRB
162, 165, Federal Telephone and Radio Company, 120 NLRB 1652 , 1653-54, Swift d
Company, 115 NLRB 752, 753
4 B. F. Goodrich Company, 115 NLRB 722, 724.
GROCERS SUPPLY,COMPANY, INC. 489
policy as to grievances and union negotiations is discussed. These
secretaries are also responsible for preparing orders and documents
in labor relations matters. We find that they are confidential
employees, and we shall exclude them from the unit.
The Employer contends that the secretary to the chief of the
accounting section should also be excluded from the unit as a con-
fidential employee because the chief will be on the negotiating team
if the Union is certified as bargaining representative of office clerical
employees. The Petitioner opposes this exclusion. As the record is
inconclusive as to the status of this employee, we shall allow her to
vote subject to challenge.
The Employer also seeks to exclude an employee (Ryan) who does
occasional secretarial work for the president of the Company. This
employee does not have a desk in the president's office, has no
access to labor relations files, and is primarily concerned with other
duties. We shall include her in the unit.5 The Employer also seeks
to exclude an employee (Pontikas) who helps one vice president
with work related to advertising and occasionally types a letter for
another vice president. This employee's desk is outside the mana-
gerial offices, she is principally engaged in work other than assisting
the two vice presidents, and there is no evidence that she comes into
contact with labor relations information. We shall include her in
the unit.
Supervisory and Managerial Employees: The parties disagree as
to whether several employees are supervisors. The Petitioner would
exclude the senior employee in the bookkeeping department as a
supervisor. This employee answers questions that are normally
directed to the department supervisor when the supervisor is absent
on a Saturday morning, during vacation time, or when sick. Ninety
percent of the work done by this senior employee consists of the
same tasks performed by office clerical employees, and his work is
integrated with theirs. In the absence of any evidence of supervisory
powers, we find that the fact that less experienced employees look
to him for guidance when the supervisor is absent is not enough
to make this employee a supervisor. We shall therefore include him
in the unit.6
Petitioner would also exclude the head of the foreign sales depart-
ment as a supervisor. While the record contains little evidence as to
the operations of the foreign sales department, it establishes that
this department is almost completely separated from the other por-
tions of the Employer's business and that the head of the foreign
5Westinghou8e Air Brake Company , Union Switch & Signal Division , 119 NLRB 1391,
1395 ; Swift it Company, 129 NLRB 1391, 1393
6 See The Peoria Journal Star, Inc., 117 NLRB 708, 711, 712, American Radiator and
Standard Sanitary Corporation , Pacific Order Handling Division , 119 NLRB 1715, 1716-19
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sales department directs and assigns work to the two employees in
the department. We find that he is a supervisor, and we shall exclude
him from the unit.
The Employer proposed exclusion of one Multilith operator in
the print shop (Wilson) as a supervisor, on the grounds that he
gives instructions to the two other workers, takes their calls when
they report in sick, requests extra help when needed, and determines
when print shop employees will work overtime. The individual in
question does the same work as done by the other Multilith operator
(the third employee runs a collating machine), and has no authority
to hire and fire. When he is not present, the other Multilith operator
takes over his functions. The disputed individual testified that he
did not believe that he had supervisory authority, and that he would
probably consult management if a print shop employee asked for
time off other than sick leave. We find that this employee normally
makes routine decisions about the operations of the print shop and
that he does not exercise independent judgment or make effective
recommendations about the performance of other employees. We
shall accordingly include him in the unit.'
The Employer contends that two data processing machine opera-
tors are assistant supervisors; Petitioner disagrees. These men work
on the day shift, with' 1 supervisor over them, and 10 key punch
operators providing the material to feed into the machine. If neces-
sary, they pass out work to key punch operators when the super-
visor is not present. However, this does not involve any significant
decisions, since usually the operators pick up the work in random
order; the data machine operators might change the order to give
priority to the items needed next for efficient operation of their
machines. The two individuals in question also try to adjust key
punch operators' complaints when the supervisor is not available.
One data machine operator interviewed some applicants for employ-
ment, but the supervisor always re-interviewed them. Neither of
these men took any part in deciding which employees to lay off
when new data processing machines were installed. Although they
recently attended a meeting with the supervisor and had there made
recommendations on operation of the department that were adopted,
one of them testified that the supervisor had specifically refused
at that meeting to share supervisory authority with anyone. We
shall include them in the unit.
The Employer contends that an individual (Hoover), who is
engaged mostly in clerical work related to the data processing opera-
tion, but sometimes runs the data processing machines, is a super-
7 See Big Three Welding Equipment Company, 145 NIJRB 1685,1696-98.
GROCERS SUPPLY COMPANY, INC. 491
visor. This individual also makes routine work assignments and
attempts to adjust key punch operators' complaints when the data
processing supervisor is absent. As lie lacks the indicia of supervisory
authority, we shall include him in the unit.
Finally, the Employer would exclude as a supervisor one of three
individuals who programs computers to answer questions for
accounting information (Cota). The programmer in question had
interviewed applicants for employment, and on one occasion the
head of the data processing department, after interviewing an
applicant, sent him to the programmer for an additional interview to
resolve some doubts about his suitability. The department head then
accepted his recommendation to hire the applicant. However, the
department head always interviewed applicants before hiring, and
the record contains no evidence linking the programmer to other hir-
ing decisions. Furthermore, the programmer does not responsibly
direct the work of other employees engaged in programing, all of
whom have specialized training and carry out their jobs without
detailed supervision. In these circumstances, we find the programmer
is not a supervisor, and we shall include him in the unit.
The Petitioner would exclude as managerial the employee who
performs internal auditing, relying on, the fact that he sometimes
discusses his work directly with management, that he is the only
employee performing internal audits, and that he is an ex-office
manager. The Board has defined managerial functions as policy
making; the absence of supervision, and the employee's use of dis-
cretion in following established policy is not enough to make him
a managerial employee.8 There was no showing that the employee
performing internal auditing influences policy making. We shall
include him in the unit.
The Petitioner contends that two long-term employees, with 18
and 26 years' seniority, who compile a daily pricing bulletin and
perform other clerical tasks, do not have the same employment
interests as the relatively inexperienced persons working on punch
cards for data processing or the like, and therefore these senior
employees should be excluded from the unit. While it is probable
that these veteran employees have different attitudes from those of
newly hired personnel, they nonetheless perform routine clerical
tasks under the same working conditions as office clerical employees.
We shall include them in the unit.
There are two employees who work on customers' bookkeeping.
Although one of these employees occasionally leaves the office to set
up a new system at a customer's store, or to solve a problem for the
customers, the great bulk of the work on customers' bookkeeping
8 See FWD Corporation, 138 NLRB 386, 393.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
takes place in the office and is the same routine clerical activity
carried on by other employees in the unit. We shall therefore include
the two employees who perform this work in the unit.
The Employer would include in the unit one male employee on
the city sales staff; the Petitioner took no position as to this
employee. While there was testimony that this employee occasionally
asked an outside salesman who happened to be in the office to help
out on the telephone at rush times , there was no evidence of super-
visory or managerial duties. We shall include the male city sales
employee in the unit.9
Accordingly, we find that the following employees constitute a
unit appropriate for collective -bargaining purposes within the
meaning of Section 9 (b) of the Act.
All office clerical employees in the accounting , advertising, buy-
ing, accounts payable, customer bookkeeping , sales, and data
processing departments , including "city sales" employees, the
employee who deals with cooperative advertising, the two
employees who perform occasional secretarial jobs for the presi-
dent and vice presidents , the employee who performs internal
auditing , the senior employee in the bookkeeping department,
the two employees who compile daily pricing bulletins, the
data processing machine operators , the programers , the "errand
boys ," and the senior employee in the printing shop, but exclud-
ing outside salesmen , "utility salesmen," the "order coordina-
tor," employees in the "QP " group, buyers , the two secretaries
to the vice presidents , the secretary to the secretary -treasurer,
the head of the foreign sales department , and all guards and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.] 10
9 While the parties agree that "errand boys" should be included in the unit , a question
was raised at the hearing as to whether one of them , Neal, was covered by the Employer's
collective-bargaining contract with Local 968, Teamsters The parties agree that Neal
should be excluded if lie is so covered . In the absence of specific evidence on this issue,
we shall permit him to vote subject to challenge.
The parties stipulated that the following employees are supervisors within the meaning
of the Act and should be excluded from the unit. Albert Lamza, Joe Levitt, Milton Levitt,
Max Levitt , George Levitt , Sam Schillaci, Archie Leach, Gleb Fedorin , Thelma Krakower,
and Carl Lundell
to An election eligibility list , containing the names and addresses of all the eligible
voters , must be filed by the Employer with the Regional Director for Region 23, within
7 days after the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension of time to file
this list shall be granted by the Regional Director except in extraordinary ciicunistances
Failure to comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed. Excelsior Underwear, Inc, 156 NLRB 1236