Tyree's Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1961

129 N.L.R.B. 1500 (N.L.R.B. 1961)

1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
;cated their desire to be a part of the multistore unit, and the
Union may bargain for the employees in voting groups (a) and/or
,(c) as part of its existing unit.
(3) If a majority of the professional employees in voting groups
(b) and/or (d) do not vote for inclusion in the unit with nonpro-
fessional employees but vote to be represented by the Union, the Re-
gional Director conducting the elections is instructed to issue separate
certifications of representatives to the Union as the representative of
all pharmacists at the Employer's El Cajon, California (or College
Grove, California, as the case may be), retail drugstore, excluding all
other employees and supervisors as defined in the Act, units which the
Board, in such circumstances, finds to be appropriate for the purposes
of collective bargaining.
(4) In all other circumstances, the employees at the Employer's El
Cajon and/or College Grove drugstores, professional and nonpro-
.fessional, shall remain unrepresented.
[Text of Direction of Elections omitted from publication.]
'Tyree's Inc. and Teamsters Local Union No. 79, affiliated with
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Petitioner. Case No. 12-RC-
1038. January 31, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Alan D. Greene,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial 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 Leedom and Members Rodgers and
Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees 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.'
I The Employer moved to dismiss the petition on the ground that the Petitioner had
made no demand for recognition as bargaining representative of the employees involved.
We deny this motion. The Board has held that the filing of a petition in itself constitutes
129 NLRB No. 183.
TYREE'S INC. 1501
4. The appropriate unit :
The Petitioner seeks a unit composed of all employees of the Em-
ployer, excluding certain classifications, at its warehouse at 5400,
South Westshore Boulevard, Tampa, Florida, and left to the Board
the question of the inclusion of the employees at the Employer's Lake-
land, Florida, warehouse. The Employer contends that the only
appropriate unit is a companywide unit encompassing its operations
at Sarasota, Orlando, Jacksonville, and Lakeland, Florida, as well as,
at Tampa. The Employer is engaged in the buying, selling, storing,,
and servicing of television and other major appliances. The retail,
sales of these appliances are conducted by separate corporations in
each of the aforementioned areas . The sole shareholder of the Em-
ployer is also the sole shareholder of each such retail sales operation.
All the warehouses, except the one at Lakeland, which is 30 miles-
distant, are from 50 to 200 miles from Tampa, the location of the
headquarters and general office. Each operation has its own manager,
who, in turn, is under the immediate supervision of a general man-
ager, actually employed by the appropriate retail sales corporation
within that area.
There are factors which tend to support the appropriateness of the.
companywide unit urged by the Employer. The record shows, in
this connection, that the general office controls all policy matters,
labor relations, wages, hours, and other working conditions; the job'
classifications and duties of the employees at all locations are simi-
lar; and the headquarters office must give its approval to the filling
of vacancies in the field staffs.
On the other hand, with the exception of the Lakeland warehouse,.
it appears that each local manager has considerable autonomy in con--
trolling the respective operations, has the authority to hire and fire,.
and there is little interchange between warehouses. In view of these-
factors, the fact that the Sarasota, Orlando, and Jacksonville ware-
houses are 50, 90, and 200 miles from Tampa, the absence of any
bargaining history, and the fact that no labor organization is seeking-
to represent the employerwide unit, we find that a unit of less than
all of the Employer's warehouses may be appropriate. However,,
because the hiring and discharging of Lakeland personnel is done-
through the Tampa office, and there is regular and frequent inter-
change between these relatively proximate locations, we find that a.
unit limited to the Tampa warehouse only is inappropriate. We find
a sufficient demand to support a representation petition Mirro Aluminum Company,
126 NLRB 934; and F. C. Rus8ell Company, 116 NLRB 1015
After the close of the hearing the Employer filed a motion for an administrative deter-
mination of the Petitioner'is sufficiency of interest and a motion to incorporate the former
motion into the record. As we are administratively satisfied that the Petitioner's show-
ing of interest is adequate, we deny the Employer's motions.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a unit of the employees at the Tampa and Lakeland warehouses
is appropriate.'
Contrary to the Employer, the Petitioner contends that the service
dispatchers, the inventory control clerks, and the delivery order proc-
essors should be excluded. The service dispatchers are hourly paid
and receive the same benefits as the other employees. Their duties
include filling out work orders for the truckdrivers, accepting col-
lections from the servicemen, keeping timecards, and working on
inventory. As they work in an office in the service building apart
from the office clericals, and are engaged in work that is closely re-
lated to that of the warehouse employees, we find that they are plant
clericals and include them.' The delivery order processors and the
inventory control clerks work in separate offices adjacent to the ware-
house, are hourly paid, and enjoy the same benefits as the warehouse
employees. They spend approximately 25 percent of their time in
the warehouse assisting the dispatcher or checking inventory. Em-
ployees in both classifications prepare reports concerning the ware-
house operations. In addition, the order processors are under the
direct supervision of a warehouse supervisor. In view of these facts,
we find that these employees are plant clericals and include them .4
The Petitioner further contends that Spinicelli, Gaboric, Cecilia
Jones, and Mrs. Kent should be excluded. Spinicelli is responsible
for the operation of the service office. As he can effectively recom-
mend the hire and discharge of the other employees, we find, contrary
to the Employer, that he is a supervisor within the meaning of the
Act and exclude him. Gaboric does the "paper work" for the general
service manager. He maintains files and records and makes periodic
inventory checks. Jones prepares inventory reports, maintains rec-
ords of the various parts that are sent back for credit, and coordinates
service records. She shares a private office with Gaboric and has little
contact with the other employees. We find that their work and inter-
ests are closely allied to those of the office clericals and exclude them e
A question was also raised as to the supervisory status of Mrs. Kent,
the senior employee among the delivery order processors. As she can
neither hire, discharge, nor effectively recommend such action, and
does not responsibly direct other employees, we shall include her in
the unit.
S Southeastern Concrete Products Co., et al., 127 NLRB 1024 ; Standard Trucking
Company, 122 NLRB 761, 762; and Houle Industries, Inc., 117 NLRB 1710 , 1711-1712.
$ LilZtiston Implement Company, 121 NLRB 868.
* Southern Steel d Stove Company, Inc., et ai., 124 NLRB 577, 578.
5Divco -Wayne Corporation, Wayne Works Division, 122 NLRB 162 . In view of our
decision it is unnecessary to discuss the Petitioner's other asserted reasons for excluding
these employees.
TYREE'S INC. 1503
No position was taken by either party, at the hearing, as to the unit
placement of Tyner, Collins, Hebert, Travis, and Gross. The Em-
ployer, however, maintains in its brief that Collins and Hebert are
supervisors; that Gross is not a supervisor; and that the duties of
Travis and Tyner are closely allied to those of the other employees
sought and that they should be included. Tyner's duties entail the
disposition of used merchandise and he exercises his own independent
judgment in fixing the selling price. He is a salaried employee and
has hired extra help to assist him. Collins and Hebert, respectively,
are responsible for the white goods and paint departments. They can
effectively recommend the hire, discharge, transfer, and promotion
of employees in their departments. We find that Tyner, Collins, and
Hebert are supervisors within the meaning of the Act and exclude
them. Travis is employed primarily as a janitor but occasionally
acts as a messenger. As he is paid on an hourly basis and enjoys
the same benefits as the warehouse employees, we shall include him'
Gross previously was the supervisor of the television repair depart-
ment. This position was eliminated by the Employer as a result of
'a departmental consolidation. Both Gross and the employees that
are presently working with him were informed that Gross no longer
has the authority to hire, discharge, transfer, discipline, or effectively
recommend such action. As he is not now performing any supervisory
duties and his future service in such capacity is speculative, we shall
include him.'
We find that the following employees constitute a unit appropriate
for collective bargaining within the meaning of Section 9 (b) of the
Act : 8
All the employees at the Employer's warehouses in Tampa and
Lakeland, Florida, including truckdrivers, helpers, repairmen, paint-
ers, mechanics, warehousemen, janitors, delivery order processors,
inventory control clerks, service dispatchers, installation men, main-
tenance men, and plant clericals, but excluding employees in the ac-
counting, advertising, payroll, and accounts payable departments, and
office clericals, guards, watchmen, and supervisors as defined in the
Act.
[Text of Direction of Election omitted from-publication.]
O Kentucky Rural Electric Cooperative Corporation, 127 NLRB 1887.
7 United States Gypsum Company, 118 NLRB 20, 20-27.
8 Neither the exact size of the unit nor the exact interest of the Petitioner is clear
from the record before us. Accordingly, we instruct the Regional Director not to proceed
with the election herein directed until he shall have first determined that the Petitioner
has made an adequate showing of interest among the employees in the appropriate unit.
Cf. Swift d- Co., 127 NLRB 87.