W. W. Chambers Co., Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1959

124 N.L.R.B. 984 (N.L.R.B. 1959)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the production manager has frequently called upon the warehousemen
to assist the employees in the other divisions, and vice versa. Signifi-
cantly, the warehousemen have the same hours, working conditions,
and fringe benefits as the employees in the other divisions.
The Petitioner argues that the one division it seeks is separate and
distinct from the other divisions with respect to both the functions
performed and the skills required, and should be found a separate ap-
propriate unit, in line with the Board's asserted past practice in other
manufacturing plants. However, we do not agree that the facts set
forth above support the Petitioner's argument that the requested
division is substantially distinct and separate from the remainder
of the Employer's operations at this plant. Rather, we find that
the division here, although showing some characteristics of an inde-
pendent operation, is substantially integrated with the remaining
operations, with employee interchange among the divisions as re-
quired; the work of the employees sought by the Petitioner is closely
interrelated with that of the other employees; all the employees are
closely allied in interest; and a separate unit of warehousemen thus
would not be appropriate. Gunnison Homes, Inc., 90 NLRB 1048,
1053. It is also clear that the warehouse unit sought by the Petitioner
constitutes but an artificial grouping of employees, with insufficient
community of interests to warrant their reprseentation as a separate
unit. International Furniture Company, 119 NLRB 1462, 1464. To
the extent that the cases cited by the Petitioner may possibly indicate
a contrary view applicable to operations other than retail department
stores, we find them inapplicable?
We find that the division here requested does not constitute an
appropriate unit, apart from the other production and maintenance
employees.
Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
2 Cf A. Harris & Co., 116 NLRB 1628, where the Board set forth restrictive criteria
governing the establishment of warehouse units in retail department stores only.
W. W. Chambers Co., Inc. and Local 2, Office Employees Inter-
national Union , AFL-CIO,' Petitioner. Case No. 5-RC-708.
September 18, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition 2 duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held 3 before Thomas J. Walsh, hear-
3 The Petitioner's name appears herein as amended at the hearing.
2 For reasons hereinafter set forth , the Employer's motion to dismiss the petition herein,
on grounds relating to jurisdiction and the unit, is denied.
a The Employer's contention as to the adequacy of the Petitioner 's compliance with
Section 9 ( f), (g), and ( h) involves administrative matters not cognizable in this proceed-
124 NLRB No. 135.
W. W. CHAMBERS CO., INC. 985
ing 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 Bean and Fanning].
Upon the entire record in this case , the Board finds :
1. The Employer , a District of Columbia corporation , is engaged
in the undertaking business at four locations , three in the District of
Columbia and one in the State of Maryland , and in connection there-
with it also maintains a garage in the District of Columbia. The
Employer contends that the petition should be dismissed because, in
substance , the type of business in which it is engaged does not affect
commerce, and has further moved to dismiss the petition with respect
to the Maryland establishment because, in substance , the gross volume
of business of that establishment does not independently satisfy any
of the Board 's jurisdictional standards.
We find no merit in the Employer 's contentions . As the Board has
held, enterprises engaged in the undertaking business are engaged in
commerce within the meaning of the Act ,' and the Board will assert
jurisdiction on a plenary basis over enterprises engaged in commerce
within the District of Columbia .' Moreover, the Board bases its asser-
tion of jurisdiction on the totality of an employer 's operations.' Ac-
cordingly , without considering whether the Employer 's Maryland
operations independently meet any of the Board 's jurisdictional
standards , we find that the Employer is engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction over all the Employer 's operations.
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.
4. The Petitioner seeks a single unit of all employees at all the
Employer's establishments, including licensed undertakers , licensed
apprentice undertakers , undertakers ' helpers, cleaners , and night
attendants , but excluding office clerical employees , the motorcycle
messenger , the organist , the buyer , the hairdresser , the night watch-
ing. We are presently administratively satisfied that the Petitioner is in compliance. See
Desaulniers and Company , 115 NLRB 1025 , and Standard Cigar Company, 117 NLRB 852.
The sufficiency of a Petitioner 's showing of interest is an administrative matter not sub-
ject to litigation . We are administratively satisfied that the Petitioner ' s showing of
interest is adequate . 0. D. Jennings and Company , 68 NLRB 516.
'Riverside Memorial Chapel, Inc ., 92 NLRB 1594 ; D. W. Newcomer 's Sons, 117
NLRB 565.
5 M. S. Ginn & Company, 114 NLRB 112 ; The Westchester Corporation, 124 NLRB 194.
6 See The T . H. Rogers Lumber Company, 117 NLRB 1732, reaffirmed in Siemens Mailing
Service, 122 NLRB 81.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, managers of undertaking establishments, shift managers, the
manager of the accounting department, the credit manager, man-
agerial employees, the president and other officers of the Employer,
and all members of its board of directors. The Petitioner takes no
position as to the unit placement of assistant managers of undertaking
establishments or assistant shift managers, and although the Petitioner
indicated at the hearing that it wished to exclude the mechanics and
mechanics' helpers at the Employer's garage, it did not set forth these
categories among the exclusions urged in its brief filed after the
hearing. The Employer does not contest the appropriateness of a
multiplant unit for its employees, but in its motion to dismiss the
petition filed after the hearing contends, in substance that : (1) All
its employees are supervisors within the meaning of Section 2(11) of
the Act and therefore none of them may be included in any bargaining
unit, and (2) the Employer's licensed undertakers, licensed apprentice
undertakers, and undertakers' helpers are professional employees
within the meaning of Section 2(12) of the Act and therefore may
not be included in a unit which also includes nonprofessional em-
ployees, unless a majority of the alleged professional employees vote
for inclusion in such a unit. Although in its motion the Employer
takes no position as to the exclusions requested by the Petitioner, at
the hearing the Employer appeared to contend that it wished all its
employees included in the unit, if the Board rejected its other unit
contentions. So far as the record discloses, there is no history of
collective bargaining for any of the Employer's employees.
The Employer employs, in all, some 35 individuals. It operates its
four undertaking establishments on a three-shift basis, under the
overall supervision of its president and treasurer, general manager,
and assistant general manager. Although the record is not entirely
clear on these points, it appears that each of the undertaking estab-
lishments and each of the shifts have both a manager and an assistant
manager, and that normally the managers are in charge of the opera-
tions to which they are assigned. It further appears that the man-
agers and assistant managers of the four establishments are shifted
from one establishment to another with some frequency, and that
there are times, depending on the exigencies of the business, when
managers designate as their substitutes persons other than those cur-
rently serving as their assistants. These managers and assistant
managers and the substitutes are generally licensed undertakers or
licensed apprentice undertakers or their helpers.
Normally, the three officials mentioned above, together with the
manager of the accounting department, hire and discharge the Em-
ployer's personnel. Although the Employer contends that virtually
.all of its employees have authority to hire and discharge employees,
and to make effective recommendations concerning such matters, there
W. W. CHAMBERS Co., INC. 987
is no credible evidence that any of the persons hereinafter included in
the unit in fact possess any authority other than the authority to make
recommendations concerning discharge, and it is not wholly clear
which employees do make such recommendations . It is clear, how-
ever, that these recommendations are normally investigated by man-
agement before final action is taken. With respect to the assistant
managers of the four undertaking establishments and of the three
work shifts , concerning whom the Petitioner takes no position, it
appears that during the absences of the managers their assistants are
in charge of the various operations ,' and also that these assistants
make personnel recommendations . However, it further appears that
the absences of the managers are usually temporary and of relatively
short duration ; that sometimes even during such absences the assistant
managers telephone the managers for instructions ; and that the per-
sonnel recommendations made by assistant managers are generally
subject to investigation by management . As to the night attendants,
although allegedly they are "in complete charge " of the funeral estab-
lishments during the night and dispatch employees to perform duties
in connection with the business , it appears that their duties are routine
and the record does not disclose that these attendants are required to
exercise independent judgment in directing employees in the discharge
of their duties. In view of the foregoing, and on the entire record
in this case , Nye find that the evidence fails to establish that any of the
categories now under consideration regularly has or exercises any of
the specific powers of a supervisor set forth in Section 2(11) of the
Act. That some of these employees sporadically exercise supervisory
power is not alone sufficient to constitute them supervisors.' We
therefore find that none of these employees is a supervisor.
As to the Employer 's contention that licensed undertakers, licensed
apprentice undertakers , and undertakers ' helpers are professional em-
ployees within the meaning of the Act, the record discloses that, in
order to become a licensed undertaker in the District of Columbia, an
applicant must be a high school graduate, successfully complete a 9
to 12 months' course at a mortuary school , serve a 2 years ' apprentice-
ship, and pass an examination given by the District 's Department of
Occupations and Professions . To be licensed as an apprentice under-
taker, an applicant must be a high school graduate and pass an exami-
nation given by the above Department . Undertakers ' helpers are not
required to have any formal education , but in practice the Employer
requires all its employees, including these helpers, to have a high
school education. Upon this record, we are unable to find that the
work of licensed undertakers , licensed apprentice undertakers, or un-
dertakers ' helpers requires knowledge of such an advanced type in a
As stated above , it appears that normally the managers are in charge.
Plankinton Packing Company ( Division of Swift & Co .), 116 NLRB 1225 at 1231.
'988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field of science as would make them professional employees within the
meaning of Section 2 (12) of the Act .9
The Board has found that all the nonclerical employees of an under-
taking business constitute an appropriate unit,10 and we therefore
find such unit appropriate in the instant case. We shall include in the
unit all the employees sought by the Petitioner and also assistant
managers of undertaking establishments, and assistant shift managers
who, as found above, are nonsupervisory undertakers, apprentices,
or helpers.
For reasons indicated above, we find that the office clericals do not
properly belong in the unit, and we shall therefore exclude them.
The motorcycle messenger, and the mechanics and their helpers, per-
form the customary duties of their classifications. The organist plays
the organ, places flowers in the various rooms, conducts people to the
proper chapels, and serves as a helper in removing remains and per-
forming similar duties. As the motorcycle messenger, the mechanics
and helpers, and the organist, are nonclerical employees, we shall in-
clude them in the nonclerical unit herein found appropriate. The
buyer spends about 60 percent of her time in buying supplies for the
Employer and the remainder in hairdressing and general work at the
funeral establishment. By virtue of her purchasing activities, in
which, as noted, she spends the greater part of her working time, this
employee effectively exercises a prerogative of, and is a representative
of, management. We therefore find that the interests of the buyer are
allied with those of management. Accordingly, we shall exclude her
from the unit herein found appropriate.ll The hairdresser does hair-
dressing and answers telephones. Although her services are always
available, she does not have a regular work schedule, but works only
when needed. Because of the intermittent nature of her employment,
we do not believe she has sufficient community of interest with the
other employees in the unit to warrant her inclusion therein. Accord-
ingly, for this reason, apart from other considerations, we exclude
the hairdresser from the unit.12 The watchman works at night and
controls access to the Employer's garage. He also does undertaking
work. As the watchman spends part of his time in plant-protection
duties, we shall exclude him.13 The managers of undertaking estab-
lishments and the shift managers, as stated above, are in charge of the
various operations. They responsibly direct employees and are re-
quired to exercise independent judgment in that regard. The man-
ager of the accounting department hires and discharges employees.
We therefore find that the managers of undertaking establishments,
9 Cf. The Riverside Memorial Chapel, 92 NLRB 1594, at footnote 5.
10 Utter-McKinley Mortuaries , et al., 98 NLRB 450, 452.
11 Federal Telephone and Radio Company, 120 NLRB 1652, 1654.
12 Cf. F. W. Woolworth Company, 119 NLRB 480, 484, and cases cited therein.
1s Walterboro Manufacturing Corporation , 106 NLRB 1383, 1384-1385.
VAC-ART, INC. 989
the shift managers, and the manager of the accounting department are
all supervisors within the meaning of the Act. Accordingly, we shall
exclude them all. The credit manager is in charge of collections, and
has other duties relating to customers' credit. He is primarily a cleri-
cal employee, and therefore does not belong in the nonclerical unit
herein found appropriate. Accordingly, we shall exclude him. We
shall also exclude the Employer's president, its other officers, and all
members of its board of directors, because the interests of all these
persons are closely allied with those of management.
Upon the entire record in this case, we find that the following em-
ployees of the Employer at its undertaking establishments and garage
in the District of Columbia and at its undertaking establishment in the
State of Maryland constitute an appropriate bargaining unit within
the meaning of Section 9(b) of the Act: All employees, including
licensed undertakers, licensed apprentice undertakers, undertakers'
helpers, cleaners, night attendants, assistant managers of undertaking
establishments, assistant shift managers, mechanics and their helpers,
the motorcycle messenger, and the organist, but excluding the buyer,
the hairdresser, the night watchman, managers of undertaking estab-
lishments, shift managers, the manager of the accounting department,
the credit manager, managerial employees, the president and other
officers of the Employer, all members of its board of directors, and all
other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Vac-Art, Inc. and International Union , United Automobile, Air-
craft and Agricultural Implement Workers of America, UAW-
AFL-CIO, and Its Local 743. Cases Nos. 7'-CA-1561, 7-CA-1667,
and 7-CA-1744. September 21, 1959
DECISION AND ORDER
On November 14, 1958, Trial Examiner Charles W. Whittemore
issued his Intermediate Report in the above-entitled proceedings, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.,-.
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 [Members Rodgers, Bean, and Fanning].
124 NLRB No. 132.