Grinnell Brothers

In the Matter of GRINNELL BROTHERS, EMPLOYER and INTERNATIONAL BROTHERHOOD OF. TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL #22, DISTRIBUTION & WAREHOUSE WORKERS UNION (AFL) UNION Cases Nos. 8-RM-- 8 and 8-RM11-58..Decided January 31, 1950 DECISION DIRECTION OF ELECTION AND ORDER Upon petitions duly filed, hearing in these consolidated cases 1 was held before Carroll L. Martin, 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 [Chairman Herzog and Members Houston 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. 4. The Employer, through its main office in Detroit, Michigan, operates 31 stores, including its musical instrument and household appliance retail store at Toledo, Ohio, the only store involved in this proceeding. ° The Employer, the Petitioner in Case No. 8-RM-28, contends that employees at its Toledo store, including sales, service, and maintenance employees, but excluding office employees and supervisors, constitute an appropriate unit. The Union, the Petitioner in Case No. 8-RC- 582, contends. that service and maintenance employees at the Toledo store, including office employees, but excluding sales employees and I These cases were consolidated by order of the Regional Director , Issued November 2, 1949. 88 NLRB No. 85. 397 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors, constitute an appropriate unit. The Union, in the alter- native, seeks to represent the Employer's employees in whatever unit this Board may find appropriate. The Employer's Toledo store is housed in a 5-story building, of which the first 3 floors are used for selling merchandise ; the basement, for storage, finishing, and repairing; the fourth floor, for storage, and the fifth floor, for storage and instruction in musical instruments. On the sales floors, merchandise is segregated by type into depart- ments, each with separate sales records. There is, however, a con- siderable overlapping of departments, so that employees in one de- partment often demonstrate or sell merchandise in other departments, on the same or on different floors. There are approximately 48 em- ployees in all. On the first floor is the Employer's office, where office workers are employed. The remainder of the first floor is occupied by the china and glass and the small appliances departments, the large appliance department, the camera, band instruments, and luggage and leather goods departments, the radio service and television service departments, and the records and sheet music departments. On the second floor are the piano service department and the organ service department; carpets are also displayed on this floor by employees of other departments. On the third floor is the furniture department.. There are approximately 26 employees on the 3 selling floors. The radio and television service employees on the first floor set up new radios, television sets, and other merchandise for sale in the store and install- and adjust radios and television sets at customers' homes to their satisfaction. The piano and organ service employees, on the second floor, similarly set up and service pianos and electronic organs. Piano service employees often work in the basement, while organ service employees, using electrical equipment similar to that of the radio and television service employees, often work in the radio and television service department? Employees on the nonselling floors include two finishers, in the basement; a stock boy, on the fourth floor; and five music teachers, on the fifth floor. Other employees, who work throughout the store, include five porters, who move, pack, and unpack merchandise and do general maintenance work; an elevator operator, who runs the com- bination freight-and-passenger elevator, which serves all floors of the building; and a maid, who wraps packages and performs other service jobs for the sales employees. Whether or not they are primarily engaged in selling activities, all employees at the Toledo store may sell merchandise during or after ' There is nothing in the record to indicate that any of these service employees possess craft skills or have undergone any extensive training for their work. GRINNELL BROTHERS 399 working hours on commission, and are encouraged to do so. The com- missions on sales which they initiate are divided with the regular salesmen who complete the sales. Although sales employees primarily sell, and service employees primarily service, merchandise, the activi- ties of these two employee groups are not confined to any one location in the store. Service employees often spend a considerable portion of their time selling and demonstrating merchandise throughout the store and at homes of customers. Of the five office workers, four post books, check invoices,. open mail, type, handle cash, operate the switchboard, and prepare reports for the Employer's main office in Detroit; the fifth worker passes on credit applications, collects on accounts, and prepares credit reports, which are transmitted to the Employer's De- troit office for approval. All employees of the Toledo store are under the general supervision of the manager. All are paid at a basic rate and have similar conditions of employment. We have on several occasions found appropriate store-wide units of selling and nonselling employees, where it appears that these employ- ees constitute a close homogeneous group with similar employment interests.' We find that the sales, office, and service and maintenance employees at the Employer's Toledo store form such a group and therefore constitute an appropriate bargaining unit.4 The unit pro- posed by the Union in Case No. 8-RC-582 is not marked by craft skills nor sufficiently broad in scope to include the Employer's entire work- ing force, which the record demonstrates forms a cohesive group. For this reason we find it inappropriate and shall dismiss the petition filed by the Union.5 The unit proposed by the Employer in Case No. 8-RM-28 broadly covers all these employees, although the Employer would exclude from its proposed units the office workers, whom we shall include.7 The parties agree that television and radio service employees, fin- ishers, porters, and the elevator operator at the Toledo store should 3 Spiegel, Inc., d/b/a Spiegel Fashion Shops, 85 NLRB 437, and cases cited therein. 4 The switchboard operator , whom the Union seeks to include in the unit, is classified by the Employer as an office employee and as such is included in the general classification of office employees. 6 Montgomery Ward & Company, Inc., 82 NLRB 1059; May Department Stores Company, d/b/a Famous-Barr Company, et al., 82 NLRB 731. 6 The Employer's contention that office employees should be excluded from the unit of store employees is apparently based upon its position that office employees as such are confidential employees . We find no merit in this contention . There is nothing in the record to indicate that any employees of the Employer are confidential employees within our meaning of that term . Chrysler Corporation, Chrysler Motor Division, 58 NLRB 239; The Ohio Associated Telephone Company, 82 NLRB 872. 7 Because the parties agree, and we find, that a question has arisen concerning the repre- sentation of the Employer's employees and the Union has made a substantial showing of interest in the unit which we find appropriate and seeks to be certified in this unit , we deny the Employer' s motion to ,withdraw its petition at this time. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be included in the appropriate unit and that the manager and the as- sistant manager should be excluded therefrom. The Employer would include organ service and piano service employees and the maid. The Union takes no position as to their placement. These employees per form functions similar to those of the other service and maintenance- elnployees and have the like employment interests. We shall therefore include them in the unit herein found appropriate. The parties disagree as to the unit placement of music teachers and- the status of certain persons. The Employer would include these: categories and the Union would exclude them. The music teachers are skilled musicians who spend their entire time teaching or demonstrating musical instruments on the fifth floor.- Unlike other employees in the store, the music teachers are paid a sal- ary computed on the number of lessons which they give. Although they may receive a commission for whatever instruments they may sell,, they do not sell outside the store or on the selling floors. Whether or not the music teachers are professional employees, they appear to have work interests separate and apart from those of the regular store employees, and we shall therefore exclude them from the unit. The persons whose status is in dispute direct the work of employees in departments on the selling floors and in the office, as follows : Pi att, with two employees in the china and small appliances departments;. Jablon, with one employee in the large appliances department; Rosen- dall, with three employees in the records and sheet music departments; Osterland, with two employees in the camera, band instruments, and luggage departments; Brown and Binkley, with seven employees in the: radio service and television service departments; Bland, with two em- ployees in the furniture department; Marsh, with three employees in_ the organ service department; and Capilki, with four employees in the- office. All of these persons participate in the work of the departments. in which they are located. The store manager refers to them as "man- agers" of their respective departments and so introduces them to cus-: tomers. As a group, they appear to have essentially similar duties and responsibilities and the Employer admits their similarity of status s` Some of them have interviewed applicants for employment, arranged work schedules, directed and reprimanded employees, and effectively recommended their hire and discharge. Although the Employer's; president testified that he alone had the power to delegate supervisory. powers, and that the store manager was the only other person author- ized by him to exercise such powers, he admitted that he visited the store only once or twice a month and had never had the occasion to 8 The Employer 's president admitted that these persons were "in about the same plane,. as to their lack of supervisory duties." GRINNELL BROTHERS 401 inquire into the actual practices at the store.9 We find that Pratt,. Jablon, Rosendall, Osterland, Brown, Binkley, Bland, Marsh, and Capilki are supervisors, and we shall therefore exclude them from the unit herein found appropriate. We find that all employees at the Employer's Toledo store, including office employees, sales employees, television, radio, piano, and organ service employees, finishers, porters, the elevator operator, and the maid, but excluding music teachers, the manager, the assistant man- ager, and supervisors 10 within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the: meaning 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 payroll period immediately preceding'the date, of this Direction of Election, including employees who did not work during said payroll 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 bargaining,. by International Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers of America, Local #22, Distribution Warehouse TT_-.,.... / A MIT \ ORDER IT Is HEREBY ORDERED that the petition in Case No. 8-RC-582 be,. and the salve hereby is, dismissed. 9 Testimony tending to support the supervisory status of the disputed persons was given, by other workers ; the former did not testify at the hearing. The sole testimony tending- to refute the supervisory status of these persons was given by the Employer 's president. 10 Excluded as supervisors are Pratt , Jablon, Rosendall , Osterland , Brown , Binkley, Bland, Marsh, and Capilki. 11 The compliance status of Local #22 has lapsed since the hearing in this matter. In, the event it fails to renew its compliance with Section 9 (f), (g), and ( h) within 2 weeks% from the date of this Direction , the Regional Director is to advise the Board to that effect. No election shall be conducted unless and until compliance has been renewed.