Cohn-Hall-Marx Co.

In the Matter Of COHN-HALL-MARY COMPANY, EMPLOYER and GAR- MENT SHIPPING & RECEIVING CLERKS, WAREHOUSEMEN, DRIVERS & HELPERS LOCAL 994, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,. CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, PETITIONER Case No. 21-RC-847.-Decided September 23, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Eugene M. Purver, 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 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. 1 The Employer made a motion to dismiss the hearing on the grounds that a consent election had been held and that the results of that election were determinative. The hearing officer denied this motion. The Employer further moved that the Board process the challenges which were made in the consent election and then dismiss the petition if the results warrant it . On June 29 , 1949, the election referred to by the Employer was set aside by the Regional Director in a Report on Challenges and Order Setting Aside Election on the grounds that there had been a fundamental "failure of meeting of minds" in regard to the unit as set forth in the consent election stipulation made by Employer and Petitioner . In that election 9 votes were cast for the Petitioner , with 13 votes challenged by the Petitioner on the ground that these employees were not to be included in the unit. The Employer agrees that there was a failure of meeting of minds as to the consent agreement, but disagrees with the Regional Director 's reasons for making such finding. It is plain that the Regional Director , in accordance with Section 203.54 (a) of the Rules and Regulations of the National Labor Relations Board , acted within his author- ity. The hearing officer ' s denial of the motion to dismiss the hearing is affirmed. We deny the Employer 's motion to dismiss the petition. 86 N. L. R. B., No. 21. 867351-50-vol. 86-8 101 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner seeks a unit of all shipping and receiving clerks, warehousemen, packers, wrappers, order fillers, and drivers, excluding all office and clerical employees, professional employees, guards, and all supervisors as defined in the Act. The Employer agrees as to the inclusion of these employees in the proposed unit, but contends that floorboys, checker-calculators, checker-comparers, billers, and fanfold operators should also be included. The Employer is engaged in the distribution of textiles-on a Nation- wide basis. It operates in Los Angeles a warehouse and an office located about 20 blocks from each other. Textiles and other materials are received at the warehouse and stored for eventual shipment to customers. Employed at the office are office and record-keeping em- ployees and a sales force. The employees whom the Employer con- tends should be included in the unit are mainly engaged in the duties of stock record keeping at the office. Checker-calculators check the actual papers coming from the ware- house for the purpose of calculating the shipping costs and charges. These calculations are used within the billing department itself. These employees are presently located at the Office.2 Floorboys act as runners between the stockrooms and offices and han- dle samples and sample cuts. They spend a portion of their time in the warehouse every day either cutting off samples or bringing back sample cuts to the office for distribution. They deliver these samples to the customers and write many of the orders eventually used for shipping and filling at the warehouse. There was testimony that these floorboys are salesmen trainees, with an eventual, normal ex- pectancy of becoming salesmen. Billers and fanfold operators perform work that is interchangeable. They do the billing of the merchandise shipped from the Los Angeles warehouse to the Employer. This is wholly paper work. The checker-comparers also do paper work and apparently work in close association with the other employees in the disputed group. All of the categories of employees contended by the Employer to constitute an appropriate unit have the same working hours, same holidays and vacations, and work under the same health, bonus, and pension plan. Rates of pay of all the employees are approximately the same with any differences based on longevity of service. On the other hand, although there is some transfer among and be- tween the various jobs at the warehouse and certain of the clerical 2 There was testimony that because of crowded conditions in Los Angeles, the Employer has been obliged to depart from its usual practice of having the warehouse and the record- keeping employees in one building . Arrangements are now being made to move the checker-calculators to the warehouse building. This move is being delayed pending arrival of calculating machines. COHN-HALL-MARX COMPANY 103 record-keeping jobs, transfers are limited by the technical knowledge required for certain of the clerical jobs, such as the ability to operate the bookkeeping machines. The west coast divisional manager of the Employer testified that the change of status of the employees is basically progression and advancement rather than a true inter- change between departments, although some interchange does occur. It appears moreover, that, at least from a supervisory standpoint, -there is a clear division between the office employees and the ware- house employees. The Employer's supervisory hierarchy consists of the divisional manager, a general office manager in charge of all em- ployment, located in the main office, and under him, a. warehouse fore- man located in the warehouse. The divisional manager testified that "All of our instructions really emanate from . . . the general office manager, but if it has to do with physical work that is being done at the warehouse itself, those orders are given by [the warehouse foreman] . . . ." Further, it is clear from the record that the greater part of the work performed at the warehouse is physical work and that the greater part of the work done at the main office is paper work. Most of the Employer's billers and all of the calculators, with one excep- tion, are women: These women employees do not regularly perform physical warehouse work, although on occasion they perform some. The Employer maintains a perpetual inventory and when there is a stock record variance, main office employees may go over to the ware- house for the purpose of rechecking the inventory. Normally, how- ever, the actual physical inventory would be taken by the men within the warehouse themselves. On the basis of those facts and on the entire record in the case, including the separate location and supervision of warehouse em- ployees, their lack of interests in common with those of the general office, sales, and record-keeping employees, and the absence of any bargaining history, we find 3 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 shipping and receiving clerks, warehousemen, packers, wrap- pers, order fillers, and drivers at the Employer's Los Angeles, Califor- nia, warehouse, excluding all office and clerical employees, floorboys, checker-calculators, checker-comparers, billers, fanfold operators, professional employees, guards, and supervisors as defined in the Act. 3 Matter of Mayflower Sales Company, 78 N. L. R. B. 69. Cf. Matter of Thalhimer Brothers, Inc., 77 N. L. R. B. 1249; Matter of Milllron's, 72 N. L. R. B. 69. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 su- pervision 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 Garment Shipping & Receiving Clerks, Warehousemen, Drivers & Helpers Local 994, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.