Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1952

97 N.L.R.B. 1388 (N.L.R.B. 1952)

1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. We shall, however, include Haas within the unit, as it appears
that his duties, though requiring a lesser degree of skill, are among
those ordinarily performed by the other watchmakers.
Accordingly, we find that all watchmakers, apprentice watch-
makers, and learner watchmakers employed in the Employer's retail
stores in Chicago, Evanston, Elmwood Park, and Oak Park, Illinois,
and Gary, Indiana,3 excluding all other employees,' and all super-
visors as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
3 Included within the unit is employee Haas.
4 Excluded as not a matchmaker is employee Saindon.
WILSON & CO., INC. and UNITED PACKINGHOUSE WORKERS OF AMERICA,
CIO, PETITIONER. Case No. 17-RC-1146. January 30, 1952
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harry Irwig, 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 Sections 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel. [Members Houston, Murdock, and Styles].
Upon the entire record 2 in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
I The Employer, in its brief , moved to reopen the record for the purpose of receiving
evidence to show that the Union did not comply with Section 101 . 16 of the Board 's Rules
and Regulations by not submitting evidence of representation to the Regional Office within
48 hours after filing its petition , which alleged defect the Employer claims requires the
dispiissal of the complaint . As this motion is essentially an attempt to put in issue the
adequacy and timeliness of the Petitioner ' s showing of interest , which is an administrative
matter not litigable by the parties , the motion is denied . Charles A. Krause Milling Co.,
97 NLRB 536.
Section 101 . 16 reads in part " * * * the petitioner must supply within 48 hours after
filing, but in no event later than the last day on schich the petition might timely be filed,
evidence of representation ." Since there appears to be no factor which could have affected
the timeliness of the petition , we are administratively satisfied that the Petitioner has
made an adequate and timely showing of interest in compliance with the Board 's Rules
and Regulations , including Section 101.16.
2 The Employer 's request for oral argument is hereby denied , as the record and the
Employer ' s brief, in our opinion , adequately set forth the issues and positions of the
parties.
97 NLRB No. 206.
WILSON & CO., INC. 1389
2. The labor organization involved claims to represent certain
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 Petitioner, which is currently the bargaining representative
of the production and maintenance employees at the Employer's
Omaha, Nebraska, plant, seeks a unit of all office and clerical em-
ployees at that plant. The existing production and maintenance unit
does not now include any of the clerical employees petitioned for here.
The Employer, citing the Petitioner's constitution and past organ-
izational activities, contends that the Petitioner is precluded from
bargaining for the clerical employees because its jurisdiction is limited
to production and maintenance employees. As an alternative argu-
ment, the Employer states that an over-all unit of all clerical em-
ployees is inappropriate and that separate units of plant clerical and
office clerical employees should be established. Although the Peti-
tioner urges that the plant clerical and office clerical employees to-
gether constitute an appropriate unit, it is willing to represent them
in separate units. The Employer and the Petitioner have agreed
upon certain inclusions and exclusions of employees in the event such
separate units are found to be appropriate. The Employer, however,
would exclude certain other job categories and individual employees.
We find the Employer's arguments addressed to the right of the
Petitioner to represent the clerical employees herein to be without
merit. There is no statutory limitation on the right of a union to
represent clerical employees because it already represents the same
employer's production and maintenance employees under a contract
which excludes clerical employees from its coverage.3 Nor is the
Petitioner disqualified from acting as the statutory representative of
the clerical employees, even assuming arguendo that the Petitioner's
constitution does not admit such employees to membership, in the
absence of evidence that the Petitioner will not adequately represent
them.4
The clerical employees at the Omaha plant work in four locations :
the main office building, the plant administration building, the plant
building, and the employment office. The Employer urges the pro-
priety of two separate clerical units in view of the duties, location, and
working conditions of the office and clerical employees. The office
clerical unit would comprise the clerical employees working in the
8 Bulldog Electric Products Company, 96 NLRB 642.
4 See footnote 3, supra.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
main office building, as they allegedly do "office" work.5 The plant
clerical unit would comprise the clerical employees in the plant admin-
istration building, the plant building, and the employment office .a
These latter employees are termed "operational" by the Employer.
The record as a whole shows that the duties of the plant clericals
are more closely integrated with production work than with that of
the office clericals. Moreover, the work of most of the plant clericals
brings them into close and constant contact with the production em-
ployees.7 Unlike the office clericals, who work 5 days per week, the
plant clericals have a 6-day workweek." They are separately super-
vised, being under the general supervision of the plant superintendent
who is in charge of all production operations. Plant clericals must
pass a physical examination, a requirement to which office clericals
are not subject. The physical separation of the two groups has been
pointed out above. In these circumstances, and because the parties
do not agree to the establishment of a single unit of all office and plant
clerical employees, we shall not direct an election in such unit .9 We
shall, therefore, establish a separate unit for the office clerical em-
ployees, and, in accordance with our usual policy, we shall accord the
plant clerical employees the opportunity through an election to ex-
press their desires as to whether or not they should be added to the
established production and maintenance unit represented by the
Petitioner io
Office Clerical
The assistant managers of the invoice and railroad billing depart-
ment and the voucher department.-The Employer contends that these
employees are supervisors because they are empowered to hire, dis-
charge, or effectively to recommend the change in status of other
employees in their departments. The record, however, shows that only
5 Located in the main office building are the following departments : Invoice and railroad
billing, order writing and claims, test , voucher, accounts receivable bookkeeping , comptom-
eter , department , payroll and fidelity, payroll auditing , credit, car route sales, byproducts
sales, canned meat sales , purchasing, traffic, beef sales, lamb and veal sales, provision,
sausage and casing sales , meat specialty sales, refinery sales, telephone and teletype, mail
and messenger , addressograph , private ledger bookkeeper , and cashier.
e The plant and plant administration building contains the following departments : plant
clerical , timekeeping, mechanical , planning and methods , cost , and receiving.
7 The plant clerks form the bulk of the plant clerical unit. These clerks are located
throughout the plant and are assigned to the various production departments. Their
duties primarily involve the collection of data for use in the preparation of production de-
partment payrolls . Other employees whom the Petitioner would include in the plant
clerical unit do work intimately connected with the formulation of production pay rates
and the calculation of production employees ' payrolls.
8 The plant operates 6 days a week
9 Compare B. F. Goodrich Company, 92 NLRB 575, where the Board found a single unit
of plant and office clericals appropriate in the absence of objection by any party to the
commingling of the two types of clericals.
10 Foster Wheeler Corporation , 94 NLRB 211.
WILSON & CO., INC. 1391
when the managers of the departments, admitted supervisors, are
absent, do the assistants have such supervisory authority. When the
managers are present, each assistant manager performs his usual work,
which does not involve any supervisory duties.
There is no evidence that either of the assistant managers assumes
the duties of his manager with any degree of regularity or for any
substantial period of time during the course of the year. We shall,
therefore, include the employees holding these positions in the office
clerical unit."
Assistant manager of the railroad billing department.-The rail-
road billing department, a subdivision of the invoice and railroad
billing department, is located on the floor below that on which the
remainder of the latter department is situated and handles railroad
and truck bills only. It contains five employees including the as-
sistant manager. The manager of the over-all department is acknowl-
edged as a supervisor by both parties. The record shows that the as-
sistant manager also responsibly directs the employees in his sub-
division and that he makes effective recommendations to the manager
with -respect to the discipline or discharge of such employees. We
find that the assistant manager of the railroad billing department is
a supervisor as defined in the Act and we shall, therefore, exclude him
from the office clerical unit.
The assistant manager of the credit department.-The Employer
seeks to have this position classified as confidential or managerial and
excluded from the office clerical unit. The assistant manager, it is
asserted, performs the same work as the manager, whom the parties
have agreed to exclude. The record, however, shows that the as-
sistant manager performs the routine credit work. He is required to
present doubtful credit risks to the manager for approval. More-
over, the alleged confidential matters handled by the assistant do not
relate to the general labor relations policy of the Employer. We find
this employee to be neither confidential nor managerial. We shall
include him in the office clerical unit.12
The assistant manager of the purchasing department.-The Em-
ployer would exclude this employee as managerial and confidential.
In the absence of the manager of the department, the assistant man-
ager is delegated the authority to purchase materials and supplies
required by the Employer. This employee also acts as a stenographer
for the traffic department and it is in this capacity, the Employer
claims, that she would handle confidential information. The record
discloses, however, that the assumption of managerial duties is spo-
11 E I duPont de Nemour8 and Company , 85 NLRB 1516.
12 E. I. duPont de Nemour and Company , supra; Ohio Associated Telephone Company,
82 NLRB 972.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
radic, and that this employee does not act in a confidential capacity
to one who formulates or effectuates the Employer's general labor
policy. We find, therefore, that the assistant manager of the purchas-
ing department is not a confidential or a managerial employee and we
shall include her in the office clerical unit.
The assistant manager of the car route sales department.-The
record shows that this employee has, in the past, hired and discharged
car route salesmen, and that he responsibly directs said salesmen.
• We find this employee to be a supervisor as defined in the Act and
shall exclude him from the office clerical unit.
The stenographers of the car route sales department and the provi-
sion department.-The Employer contends that these employees are
confidential in that they "would be required to take dictation that
would involve confidential matters pertaining to the company's labor
relations and effecting employees in any clerical or office unit." The
record does not contain any evidence that these employees act in
a confidential capacity to any one formulating or effectuating the
Employer's general labor policy 13 We shall include them in the office
clerical unit.
Assistant Manager of the Beef Sales Department, Assistant Manager
of the Provision Department, Assistant Manager of the Sausage
and Casing Sales Department, and Assistant Manager of the Lamb
and Veal Department
John Hodik, assistant manager of the beef sales department, John
Hembree, assistant manager of the provision department, and Charles
Ira, assistant manager of the sausage and casing sales department.-
The Employer contends that these employees should be excluded from
the office clerical unit upon the ground that they are supervisory
and managerial employees. As basis for such contention, the Em-
ployer states that each of these employees substitutes for, and has all
the authority of, the manager of his respective department when the
manager is absent. In addition, it is asserted that these employees
are highly experienced in the complex operations of their respective
departments, which involve determinations of the amounts of livestock
to process and market, the prices to be received for the products, and
the profits to be derived therefrom.
The record shows that none of these employees substitutes for his
manager with any degree of regularity or for any considerable portion
of the year. With respect to the managerial aspects of their work,
we note that although they may work without close supervision and
have freedom to exercise considerable discretion, their decisions must
13 Ohio A8soetated Telephone Company, supra.
WILSON & CO., INC. 1393
conform to the Employer's established policies to which end the results
of their work are reviewed by their departmental managers. We find,
therefore, that these employees are neither supervisors as defined in
the Act,'4 nor managerial employees 15 We shall include them in the
office clerical unit.
Robert Powell, assistant manager of the lamb and veal depart-
ment.-With the exception of the fact that there are only two em-
ployees in the lamb and veal sales department, the managdr and
Powell, the facts set forth above, relating to the duties and authority
of_the other assistant managers, and our findings based thereon, apply
to this employee. We shall, therefore include him in the office clerical
unit.
The other assistant managers of the beef sales and provision depart-
ments.-The Employer contends that these employees are managerial
employees and should be excluded from the office clerical unit. Their
inclusion, it is claimed, would be "unusual and highly detrimental to
the company's interest and welfare."
Each of these employees handles the office work connected with the
procurement, processing, allocation to customers, and pricing of a
certain type of meat.16 The Employer argues that because these
employees are highly trained and must "assume the responsibility of
directing the allocation, disposition, taking into consideration market
condition, supply and demand, and government regulations to assure
the company the best returns" from the phase of its operation each
handles, their interests lie with management.
The record shows that each employee is responsible to the manager
of his respective department, the department manager in turn being
responsible to the general manager of the plant. While admittedly
these employees hold positions requiring the exercise of considerable
discretion, it is apparent that their activities and functions are cir-
cumscribed by the Employer's established policies as to the procure-
ment, processing, and marketing of meats. These employees do not
participate 'in the formulation of such policies, nor do they handle
confidential information pertaining to the Employer's labor relations
policy. On the contrary, the work of these employees is constantly
reviewed to determine whether such policies are being followed. We
are not convinced that the inclusion of these employees in the office
clerical unit would be detrimental to the interests of the Employer.
We find, therefore, that these assistant managers are not managerial
employees.17 We shall include them in the office clerical unit.
14 See footnote 11, supra.
16 Northwestern Bell Telephone Company, 79 NLRB 549.
" For example , boneless beef, fabricated beef cuts, and fresh pork.
17 See footnote 15, supra
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The teletype and telephone operators.-The Employer would exclude
these employees as confidential for the reason that they transmit and
receive confidential messages dealing with the Employer's labor rela-
tions and business policy matters. There is no evidence that these
employees act in a confidential capacity to an executive who formulates
or effectuates the Employer's general labor policy. We find, therefore,
that these employees do not have the status of confidential employees,
and we shall include them in the office clerical unit."'
Plant Clerical
Plant clerks.-The Employer contends that since these employees
check on the time, earnings, production, and demeanor of the produc-
tion and maintenance employees, it would be detrimental to its interest
if they were included in a unit represented by the same union which
represents the production and maintenance employees. We find no
merit in this contention for the reasons stated in the Foster Wheeler
case.19 In accordance with our established policy, we shall include
them in the plant clerical group.20
Time checkers of the" timekeeping department, supervisory and
clerical payroll clerk, labor control auditors of the cost department,
labor cost clerk of the cost department, comptometer operators of the
cost department.-In substance, the Employer contends that these
employees should be excluded from the plant clerical unit as confi-
dential employees because they handle matters concerning employees'
earnings and/or formulate statistical reports which are used in the
processing of grievances. There is no evidence in the record that any
of these employees act in a confidential capacity to any one charged
with formulating or effectuating the Employer's general labor rela-
tions policy. Our discussion of the plant cleark, supra, is also appli-
cable to these employees. In addition, we note that all the computa-
tions of payrolls are based on predetermined standards and although
changes may be recommended by some of these employees their control
over the earnings of the production and maintenance employees is
insufficient to warrant their exclusion from the plant clerical group.
We find the above employees not to be confidential employees.21 We
shall include them in the plant clerical group.
Assistant general timekeeper and auditor.-The Employer contends
that this employee holds a supervisory and confidential position and re-
quests that he be excluded from the plant clerical unit. The record
shows that this employee normally performs nonsupervisory, routine
work, and that his exercise of supervisory authority occurs only when
18 Phillips Oil Company, 91 NLRB 534.
's See footnote 10, supra ; see also Hotpoint, Inc., 85 NLRB 485.
20 Included here is the weekly paid scaler who does control work.
11 See Republic Steel Corporation, 91 NLRB 904.
WILSON & CO., INC. 1395
the general timekeeper is absent . Although the general timekeeper
testified that he spent a major part of his time out of the department,
we note that this absence resulted from certain special assignments.
Normally, any absences of the general timekeeper would appear to be
irregular . In accordance with the Board's established policy of hold-
ing that the sporadic exercise of supervisory authority does not war-
rant a supervisory classification , we find this employee not to be a
supervisor as defined in the Act 22
The Employer further contends that because of the close relation-
ship between the timekeeping and industrial relations department, this
employee would have access to confidential labor relations informa-
tion. The Board requires more than a mere access to confidential labor
relations information before it will find an employee to be in a confi-
dential position .23 Accordingly , we find this employee not to be con-
fidential ; we shall include him in the plant clerical group.
The assistant chief clerk.-The plant building in which the produc-
tion is carried on is eight stories high . The plant clerks , who are
assigned to the various production departments , thus are located
throughout these eight floors. Though the chief clerk is charged with
the responsibility of supervising these plant clerks , the widely scat-
tered locations of the clerks requires that the supervisory task be shared
with the assistant chief clerk in order that proper supervision be had.
The assistant chief clerk checks on the plant clerks' assignments, makes
new assignments , and trains and instructs the plant clerks . Upon the
record as a whole , we find that the assistant chief clerk responsibly
directs other employees in a manner which requires the exercise of
independent judgment . Accordingly , we find him to be a supervisor
within the meaning of the Act. We shall exclude him from the plant
clerical ovti group.
The receiva g clerk.-The Employer contends that this position
is one "closely allied with top management and has no community of
interest with the rank and file clerical employees ." The further con-
tention is made that this employee occasionally supervises other
employees temporarily assigned to his department . The duties of
this employee consist of recording the receipt of products and supplies
received at the plant. Occasionally, he hequires the assistance of other
employees to unload trucks of incoming material . The receiving
clerk works 5 or 6 days per week, depending on the expected volume
of incoming shipments , and receives time and one-half for overtime.
The record, however, indicates that other departmental managers do
not receive overtime pay. The receiving clerk makes no purchases and
writes no orders on behalf of the Employer . In view of the above,
we are unable to see wherein the inherent nature of this employee's
22 General Motors Corporation , 78 NLRB 72.
21 Ohio Associated Telephone Company, supra ; Republic Steel Corporation, supra.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties closely ally him with top management. His position is one
which the board frequently has included in a unit of clerical
employees.24 Furthermore, we do not find him to be a supervisor
within the meaning of the Act because his alleged exercise of super-
visory authority occurs sporadically. We shall include him in-.the
plant clerical voting group.
The stenographers to the general timekeeper, master mechanic,
manager of the planning and methods department, chief clerk, and
employment manager.-The Employer contends that these employees
should be excluded because they handle correspondence pertaining
to labor relations matters "that deal with policies regarding working
conditions, rates of pay, grievances, and personnel records of employees
in the proposed plant clerical unit." We find no merit in this conten-
tion in view of the fact that none of these employees acts in a confiden-
tial capacity to an executive who formulates or effectuates the
Employer's general labor policy or who handles the Employer's
general labor relations work.25 The Board, too, has held that
employees having access to labor relations information on a depart-
mental level are not confidential employees.- Accordingly, we shall
include these employees in the plant clerical voting group.
We shall direct an election in the following voting groups :
All clerical employees in the plant administration building, the
'plant building, and the employment office, at the Employer's Omaha,
Nebraska, plant, including the plant clerks, and the hourly paid scaler,
the assistant general timekeeper, the time checkers, the supervisory and
clerical payroll clerk, the stenographer in the timekeeping department,
the steno-clerk in the mechanical department, the stenographers in
the planning and methods department, the labor control auditors, the
labor cost clerk, and the comptometer operators in the cost department,
the receiving clerk, the stenographer in the employment department,
but excluding the chief clerk, the assistant chief clerk, the general
timekeeper, the manager and the interviewer in the employment
department, the manager and the stenographer in the industrial
relations department, all other employees, and all other supervisors
as defined in the Act.
If a majority of the employees in the above voting group vote for
the Petitioner, they will be taken to have indicated their desire to
be included in the production and maintenance unit currently repre-
sented by the Petitioner, and the Regional Director shall issue a
certification of results of election to such effect.
24 B. F Goodrich Company, 92 NLRB 575.
25 The record shows that the "industrial relations men " in the Chicago main office set
labor relations policy for the Employer
28 Republic Steel Corporation, supra.
PACIFIC GAS AND ELECTRIC COMPANY 1397
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All office, clerical, and stenographic employees in the main office
building at the Employer's Omaha, Nebraska, plant, including the
assistant manager of the invoice and railroad billing department, the
assistant manager of the voucher department, the assistant manager
of the credit department, the stenographers in the car route sales
department, the assistant manager of the purchasing department, all
assistant managers of the beef sales department, the assistant manager
of the lamb and veal sales department, all assistant managers and the
stenographer of the provision department, the assistant manager of
the sausage and casing sales department, the telephone and relief
telephone operators, the teletype operator, and the private ledger
bookkeeper '21 but excluding the assistant manager of the railroad
and truck billing department, the assistant manager of the car route
sales department, all departmental managers, the salesmen of the
city sales department, the cashier, all other employees, and all other
supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
27 As the , confidential information alleged to be possessed by this employee relates only
to matters of a general business or financial nature and because he does •not act in a con-
fidential capacity to a person exercising managerial functions in the field of labor relations,
we find that the private ledger bookkeeper is not a confidential employee , we shall include
him in the office clerical unit. Bonwit Teller, Inc., 84 NLRB 414.
PACIFIC GAS AND ELECTRIC COMPANY and UTILITY WORKERS UNION
of AMERICA, CIO, PETITIONER
PACIFIC GAS AND ELECTRIC COMPANY' and JOHN D. WILLETT, PETI-
TIONER and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 1245, AFL.2 Cases Nos. 20-RC-1454, 2O-RC-1455, and
20-RD-55. January 30,195'
Decision , Order, and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
I The petition and other formal papers were amended at the hearing to show the correct
name of the Employer and the Intervenor Electrical Workers.
2 International Brotherhood of Electrical Workers, AFL, was also allowed to intervene
in Cases Nos . 20-RC-1454 and 20-RC-1455. Utility Workers Union of America, CIO,
also intervened in Case No . 20-RD-52.
97 NLRB No. 195.
986209-52-vol 97--89