Biggs Antique Co.

In the Matter of BIGGS ANTIQUE COMPANY, EMPLOYER and WAREHOUSE EMPLOYEES UNION No. 322, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER- ICA, A. F. OF L., PETITIONER Case No. 5-RC-327.Decided August 4, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Sidney J. Bar- ban, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, 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 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 seeks a unit composed of all of the employees of the Employer's factory at 900 W. Marshall Street, Richmond, Vir- ginia,2 excluding office clerical and supervisory employees. The Em- ' The Employer contends that the Petitioner lacks the power to file the instant petition or to represent the employees involved herein under the jurisdictional grant contained in its charter . This contention is without merit. The Petitioner is willing .to represent the employees and there is no showing that it will not adequately do so. Under these circum- stances , we will not inquire into the extent of the Petitioner 's constitutional jurisdiction. Matter of NAPA New York Warehouse , Inc., 75 N. L . it. B. 1269 ; Matter of The Baldwin Locomotive Works, 76 N. L. it. B. 922 , footnote 4 ; Matter of Conroe Creosoting Company, 78 N. L. it. B. 821, footnote 2 ; Matter of Rankin Equipment Co., 79 N . L. R. B. 1.439, foot- note 7; Matter of J. I. Case Company, 80 N. L. R. B . 223, footnote 1 ; Matter of Sampsel Time Control, Inc., 80 N. L. R. B. 1250 , footnote 1 ; and Matter of Modern Upholstered Chair Company, Inc., 84 N. L. it. B., No. 13, footnote 1. ' The Employer also maintains retail stores for the sale of furniture manufactured at its plant . These stores are located at Richmond , Virginia , Baltimore , Maryland , Washing- ton, D. C., and Atlanta, Georgia. The employees of the retail stores are not involved in this proceeding. 85 N. L. R. B., No. 98. 554 BIGGS ANTIQUE COMPANY 555 ployer would exclude from the unit foremen, truck drivers, janitors, firemen, watchmen, the clerk in the Packing and Shipping Depart- ment, the Mirror Department employee, and an employee of the Cabinet Department engaged in transporting materials. Foremen: The Employer is engaged in the manufacture and sale of reproductions of antique furniture. A vice president and general manager is in charge of the plant; beneath him is a superintendent.' Directly under the superintendent are 7 foremen who supervise the 10 departments into which the plant's operations are divided 4 These foremen have authority to hire 5 and discipline the men working under them, and effectively to recommend their discharge.6 They also have the power to grant time off. According to the testimony of the Em- ployer's vice president and general manager, which was not contra- dicted, most of them perform no manual labor.? The foremen are paid a salary, while other employees are hourly paid. Unlike rank and file employees, the foremen receive no extra compensation for working overtime. Under all the circumstances, and in accord with the conten- tion of the Employer, we find that the foremen are supervisors within the meaning of the Act. We shall therefore exclude them from the unit. Truck drivers : The Employer employs three truck drivers, who pick up finished furniture at the factory and deliver it either to the retail stores or directly to customers.8 On occasion, they may pick up fur- niture from the retail stores and deliver it to customers. They work under the supervision of the foreman of the Packing and Shipping Department. They are hourly paid, and receive the same employee benefits as other employees of the factory.. The cost of delivery of furniture is charged against the retail store in which the order originated. The Employer maintains that the truck drivers are therefore retail store employees rather than em- ployees of the factory, and consequently should be excluded from the unit. We do not agree. The truck drivers are not assigned to any 3 This position is vacant at present. 4 One foreman supervises the Rough Mill ; another supervises the Finishing Mill, Turn- ing Department, and Machine Department ; a third supervises the Cabinet Department and the Mirror Department ; a fourth supervises the Finishing Department ; a fifth has charge of the Upholstering Department ; a sixth supervises the Packing and Shipping Department ; and the seventh supervises the Maintenance Department. " It appears that the foreman of the Rough Mill and the Maintenance foreman have each exercised this authority. 6 The Employer 's vice president and general manager testified that their decisions "would have a great deal of weight with me." ' It was estimated that the Maintenance foreman spends approximately two-thirds of his time in supervisory duties , that the Upholstering foreman spends "the majority of his time" in supervision , and that the other five foremen do no manual work whatever , spend- ing full time in supervisory duties. 8 The Employer 's vice president and general manager estimated that 99 percent of the furniture is delivered directly to customers from the factory. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particular retail store. Moreover, the record, is clear that they are part of the factory's Packing and Shipping Department, and take their orders from the foreman of that department. Contrary to the Employer's contention, we find that they are employees of the factory. As they have a community of interest with the other factory employees and as no other organization seeks to represent them in a separate unit, we shall include the truck drivers in the unite Janitors : The Employer employs two janitors who perform the usual clean-up work. They are under the supervision of the Maintenance foreman. The Petitioner desires them included, while the Employer wishes to exclude them on the ground. that they are unskilled and should not be placed in the same unit with skilled workers. They are hourly paid, and have the same hours and employee benefits as the other employees in the unit. In view of the foregoing, we shall include the janitors in the unit.1° Firemen: The Employer employs a fireman who takes care of the heating plant, operating the stoker and, removing ashes. The Peti- tioner contends that he should be included. Contrary to the Peti- tioner's contention, the Employer maintains that the fireman, being unskilled, does not properly belong in a unit composed of skilled em- ployees. It appears that the fireman has the same hours and enjoys the same employee benefits as the other factory employees. We shall therefore include him in the unit.,' Watchmen: The Employer employs two watchmen, who make rounds and guard the Employer's property'12 and also keep the boilers fired. They are not armed. Their immediate supervisor is the Main- tenance foremen. The Petitioner desires the inclusion of the watch- men in the unit, while the Employer would exclude them. The Em- ployer's vice president and general manager estimated that during an 8-hour shift, the watchmen spend approximately 15 minutes firing the boilers 13 As they spend the majority of their time in guard duties, we find that the watchmen are "guards" within the meaning of the Act. Accordingly, we will exclude them from the unit. Clerk in the Packing and Shipping Department: The Employer employs a clerk who is under the supervision of the foreman of the Matter of Stonewall Cotton Mills , 75 N. L. It. B. 762 ; Matter of Greenville Cotton Oil Company, 78 N. L. It. B. 1175 ; and Matter of General Plywood Corporation,. 79 N. L. R. B. 1458. 19 Matter of Boaz. Mills, Inc., 78 N. L. It. B. 1086. 11 Matter of Stonewall Cotton Mills, supra; and Matter of Western Electric Company, Incorporated, 76 N. L. It. B. 400. 17 In case of trespassers , the watchmen are instructed to telephone the police and their superior ; they are not expected to take the intruder into custody . It appears that their primary function is to protect the plant against fire. 13 The Petitioner's representative stated that the watchmen spent 75 percent of their time in nonguard duties, but no evidence was adduced to substantiate this claim. BIGGS ANTIQUE COMPANY 557 Packing and Shipping Department. The other employees in the ,department are engaged in manual labor, but this clerk does no physi- cal work. His duty is to receive materials coming into the plant and to make a record of the items and check the accuracy of the count, to prepare bills of lading, to keep a record of the bills of lading and the weight of outgoing shipments, and similar clerical duties. The Peti- tioner would include this clerk, while the Employer seeks to exclude him. The record reveals that this clerk is hourly paid and has the same hours and employee benefits as the other employees in the unit. In our opinion, his interests are closely related-to those of the pro- duction and maintenance employees; we shall therefore include the clerk in the Packing and Shipping Department in the unit 14 Mirror Department employee: The Employer's Mirror Department consists of a single highly skilled employee who is under the super- vision of the foreman of the Cabinet Department. The Mirror Depart- ment employee's functions consist of molding and composition, glazing and composition, and the composition, and application of gold leaf. The Petitioner seeks.to include-this employee, while the Employer desires to exclude him. Although he works in a separate room he is hourly paid, and has the same hours and employee benefits as other ,employees in the unit. As he is engaged exclusively in production work, we shall include the Mirror Department employee in the unit. Employee engaged in transporting materials: In the Cabinet De- partment, the Employer employs one employee who is engaged in transporting materials and partly completed furniture on trucks from the Cabinet Department to the Finishing and Mirror Departments. The Employer maintains that this employee should not be included in a unit composed of skilled workers. He does not report to work regularly, but the Employer permits him to work whenever he chooses to do so. It appears that he is hourly paid. We are of the opinion that this employee has a community of interest with other production and maintenance employees. Accordingly, we will include him in the unit. We find that all production and maintenance employees of the Employer's factory at 900 W. Marshall Street, Richmond, Virginia, including truck drivers, janitors, firemen, the clerk in the Packing and Shipping Department,-the employee in the Mirror Department, and the employee in the Cabinet Department engaged in transporting ma- terials, but excluding office and clerical employees, watchmen, fore- men and other supervisors, as defined in the Act, constitute a unit 34 Matter of Bryant ' Heater Co ., 77 N. L. R. B. 744 ; Matter of National Mattress Com- pany, 73 N. L. R. B. 185; and Matter of Vulcan Mold and Iron Company, 62 N. L. R. B. 1219. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for the purposes of collective bargaining within the mean- ing 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 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was, heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations , among the employees in the! unit found appropriate in paragraph numbered 4, 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 not been rehired or rein- stated prior to the date of the election, and also excluding employees- on strike who are not entitled to reinstatement , to determine whether or not they desire to be represented , for purposes of collective bar- gaining, by Warehouse Employees Union No. 322 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helper& of America, A. F. of L.