Utter-McKinley Mortuaries

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UTTER-MCKINLEY MORTUARIES and MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, AFL, PETITIONER FOREST LAWN MEMORIAL PARK ASSOCIATION , INC. and MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, AFL, PETITIONER PIERCE BROTHERS MORTUARIES and MORTUARY EMPLOYEES UNION, LOCAL No. 151, INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, AFL, PETITIONER. Cases Nos. 01-RC-2183,1 21-RC-V25, and 21-RC-f2226. March 4,1952 Decision and Order Upon separate petitions duly filed under Section 9 (c) of the National Labor Labor Relations Act, hearings were held before Jerome A. Reiner and Jack R. Berger, hearing officers. The hearing officers' rulings made at the hearings 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 these cases to a three- member panel [Chairman Herzog and Members Murdock and Styles]. Upon the entire records in these cases, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act.' 2. The labor organization involved claims to represent employees of the Employers. 3. No questions affecting commerce exist concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks to represent separate units of licensed em- balmers and registered apprentice embalmers employed by each of the 1 While these three cases involve separate Employers and were separately heard, they all involve the same basic issues and the same Petitioner , and are therefore hereby consoli- dated for purposes of decision. 2 The Board has heretofore asserted jurisdiction over two of the Employers involved herein-Pierce Brothers Mortuaries (97 NLRB 317) and Forest Lawn Memorial Park Association, Inc. (97 NLRB 309)-and, contrary to the contentions of these Employers, we find no basis on the present records for reconsidering those decisions With respect to the third Employer, Utter-McKinley Mortuaries , the parties stipulated that during the 12 months preceding the hearing the Employer received approximately $100,000 tor services rendered in connection with bodies which were ultimately shipped out of the State of California We therefore find that this Employer is engaged in commerce, and that it will effectuate the purposes of the Act to assert jurisdiction in that case . Hazen & Jaeger Funeral Home, 95 NLRB 1034. The motion of the Employer in Case No. 21-RC-2225 to reopen the record for the purpose of taking evidence regarding alleged changes in its operations since January 1, 1952, is denied in view of our disposition of this case 98 NLRB No. 76. UTTER-McKINLEY MORTUARIES 451 three Employers3 The Employers, contend that this unit is inappro- priate and that only an over-all unit is appropriate . There is no history of collective bargaining affecting any of the employees herein involved. Each of the Employers operates a mortuary business with several branches in Los Angeles, California, and vicinity. The Employers provide all mortuary services including making a "first call " to pick up a corpse at the place where the deceased died, embalming and otherwise preparing the corpse for burial , providing a casket, and arranging and directing the funeral and burial services . In pro- viding these services , the Employers employ, in addition to the em- balmers and- embalmer apprentices south by the Petitioner herein, funeral directors, assistant funeral directors , cosmeticians, hostesses, arrangement men (or memorial counselors), first-call men, drivers, and musicians 4 With few exceptions , all of these employees have the same supervision, benefits, and working conditions. The Petitioner asserts that embalmers and their apprentices are skilled craftsmen . These employees are responsible for the preser- vation and sanitation of bodies by injecting chemical fluid into the arteries or body cavities of corpses. Embalmers must be licensed by the State of California, and State statutes I require , among other things, a high school education , a 2-year apprenticeship during which 100 bodies are embalmed , 9 months' instruction in specified technical subjects, and passing a State examination . Under all the circum- stances, we agree with the Petitioner that these employees are highly skilled.,' However, despite this fact, there is undisputed evidence that in each of these three cases a majority of the working time of these employees is spent performing duties which are not connected e 3 The petition in Case No 21-RC-2153 requested a unit of licensed embalmers, registered apprentices, funeral directors, and assistant funeral directors. This unit is discussed below (footnote 7, snjra). 4In general, funeral directors make arrangements for and direct the funeral services and also make first calls and, in some instances, attend to dressing, applying cosmetics, and placing corpses in caskets, and drive hearses. Assistant funeral directors assist funeral directors in all of their duties. Cosmeticians apply cosmetics and dress hair of corpses; in most instances they also assist with funeral services. Hostesses act as receptionists and in some cases assist with the funeral. Arrangement men make arrange- ments for picking up corpses and for funeral services and occasionally make first calls. First-call nien drive hearses and pick up corpses and generally assist in most of the mortuary functions. Drivers drive hearses and also generally assist Musicians provide music and in some instances assist with the funeral. Utter-McKinley has no employees designated as arrangements men or drivers. Pierce Brothers employs no musicians. Utter-McKinley employs 41 embalmers and apprentices and 37 other nonclerical em- ployees. Forest Lawn employs 27 embalmers and apprentices and 60 other nonclerical employees. Pierce Brothers employs 36 embalmers and apprentices and 31 other non- clerical employees. " California Stats. 1939 Ch. 39 Sec. 1 p. 416 ff ; as amended Stats 1947 Ch 1079 Sec 7 p. 2489. 'The Boaid found that similar embalmers are not professional employees, however, in Xtivmside Memorial Chapel, Inc., 92 NLRB 1594. 452 DECISIONS OF NATIONAL LABQR RELATIONS BOARD with their basic skill and which are also performed by other em- ployees not sought to be included in the unit. Thus in Utter-McKinley the embalmers and apprentices spend only about 20 to 25 percent of their time performing embalming work; the rest of their time they perform the functions of funeral directors, assistant funeral directors, and cosmeticians, making first calls, and otherwise assisting with funeral services. In Forest Lawn, the em- balmers spend 25 to 331/3 percent of their time embalming, and the remainder directing funeral services, making first calls, and doing cosmetician work. In Pierce Brothers, embalming work occupies 30 to 40 percent of the time of embalmers and apprentices, the rest of their time being spent in acting as funeral directors, assistant funeral directors, cosmeticians, and first-call men. The record also shows that some of the funeral directors, arrangements men, and cosme- ticians of these Employers are also licensed embalmers and perform this function in emergencies or upon special request. In these circumstances the embalmers and assistant embalmers lack the homogeneity and the separate identity of interest which is re-' quired to constitute bargaining units apart from the other employees. Such units could be established in these cases only by giving control- ling effect to the extent of the Petitioner's organization. The Board is, however, precluded by Section 9 (c) (5) of the amended Act from basing a unit finding on extent of organization alone' Therefore, without deciding whether in other circumstances em- balmers and their apprentices may constitute a separate appropriate unit, we find that the units requested by the Petitioner in these cases are inappropriate.7 Accordingly, we shall dismiss the petitions. Order IT IS HEREBY ORDERED that the petitions in Cases Nos. 21-RC-2183, 21-RC-2225, and 21-RC-2226 be, and they hereby are, dismissed. s The unit originally sought by the Petitioner in Case No 21-RC-2183 , consisting of embalmers , apprentices , funeral directors , and assistant funeral directors , is an even less homogeneous group , and appears similarly to be based solely on extent of organization._ We therefore find that unit equally inappropriate The hearing officer denied the Peti- tioner 's motion to amend this unit description to include only embalmers and apprentices, on the ground that the Petitioner did ilot have a sufficient showing of interest in the smaller unit In view of our decision herein, that a unit limited to embalmers and appren- tice embalmers Is inappropriate in the circumstances of these cases , we need not pass on the correctness of that ruling. Under the circumstances present in these cases , over-all units of all nonclerical employees of each Employer would be appropriate, but the Petitioner does not have sufficient showing of interest in such a unit at any of the three companies involved herein to justify holding an election.