T. P. Taylor & Co., Inc.

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims- to represent certain employees of the Employer. .3. For a number of years the Employer has recognized the Union as the exclusive bargaining representative of a unit of all its employ- ees, excluding guards, confidential employees, professional employees, and supervisors as defined in the Act, and such other employees who may be excluded from time to time by mutual agreement. The parties have had contractual relations on this basis without benefit of a Board certification. . However, the Employer now would exclude from this unit the following classifications- of employees upon the ground that they are supervisory within the meaning of Section 2 (11) of the Act : Head lineman, head switchman, service assistant, and head house serviceman. The Union contends that the aforemen- tioned classifications are nonsupervisory and that they have been, and are now, properly a part of the overall unit which both parties agree is appropriate. The Employer concedes that the Union represents a majority of its employees including those holding the job titles in question. Neither party requests an election. Therefore, the sole issue which the parties are asking the Board to determine is as to the status of the head linemen, head switchmen, service assistants, and head house serviceman. For the detailed reasons which' we have given in the recent Bell Telephone case,l we find that the Board is without power to make the requested determination. Accordingly, we shall dismiss the petition forthwith? [The Board dismissed the petition.] MEMBER BEAN took no part in the consideration of the above Deci- sion and Order. i The Bell Telephone Company of Pennsylvania, 118 NLRB 371. 2 Although Chairman Leedom disagreed with the holding in the Bell case, footnote 1, supra, he now deems himself bound by the majority finding therein. T. P. Taylor & Company, Inc.; T. P. Taylor Drugs, Inc.; and T. P. Taylor & Company of Indiana 1 and Retail Clerks Union Local No. 445, Retail Clerks International Association, AFL-CIO, Petitioner. Case No. 9-RC-4963. June 27,1957 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold M. Kennedy, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 3 The name of the Employer appears as amended at the hearing. 118 NLRB No. 49. T. P. TAYLOR & COMPANY, INC. 377 Upon the entire record in this case, the Board finds: 2 1. T. P. Taylor & Company, Inc., operates 17 retail drugstores in Louisville, Kentucky, and in the surrounding area in Jefferson County, Kentucky, as well as a warehouse and general office building in Louisville. T. P. Taylor Drugs, Inc., operates 1 retail drugstore in Elizabethtown , Kentucky, approximately 55 miles from Louisville. T. P. Taylor & Company of Indiana operates three stores in Jefferson- ville and New Albany, Indiana, immediately across the Ohio River from Louisville. None of the corporations has any other operations related to or connected with these functions. All of the drugstores are operated under the name "Taylor Drug Stores." The principal officers in all three corporations are the same. The stock in all three corporations is owned by members of the same family, although in varying proportions. The books and records of all three corporations are kept in the general office in the warehouse building of T. P. Taylor Company, Inc., in Louisville , Kentucky. Payroll records and per- sonnel operations for all three corporations are handled at this same general office. All bills for merchandise are paid from this office. Bank deposits of receipts by the various stores are recorded here and all shipments made from the warehouse to the various stores are charged at cost against each store through bookkeeping transactions. The administrative and warehouse expenses are charged against the accounts of each store on a pro rata basis according to its sales. It is clear from the foregoing , and the Employer so concedes, that T. P. Taylor & Company, Inc., T. P. Taylor Drugs, Inc., and T. P . Taylor I& Company of Indiana constitute a single employer within the meaning of Section 2 (2) of the Act.' Total retail sales for all stores of the three corporations were ap- proximately $6,500,000, during the latest fiscal year. Approximately $3,500,000 worth of merchandise at cost were shipped to all 21 stores from the warehouse , of which $272,000 represents the cost of. items sent to the Indiana stores. Of the merchandise shipped by the ware- house, approximately $2,785,000 represents the value of items received by the warehouse from points outside the State of Kentucky. In view of the foregoing and for the reasons as stated in the Board decision of T. H. Rogers Lumber Company,' that apart from other considerations, the Employer's total retail activity shows at least $1,000,000 direct inflow and $100,000 direct outflow, we find that it will effectuate the policy of the Act to assert jurisdiction over the Employer. 9 The request for oral argument made by the Petitioner is hereby denied as , in our opin- ion, the record and briefs adequately present the issues and the positions of the parties. 3 See Chemical Express, 117 NLRB 29; Pacific Fine Arts, et at., 116 NLRB 1607; Blue Rock Quarry, 116 NLRB. 1778. 4 117 NLRB 1732. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. No 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, for the following reasons: The Petitioner originally requested a unit including the employees of the 21 retail drugstores of all 3 corporations. During the hearing the Petitioner amended its petition, in the alternative, for a unit to consist of all regular full-time and regular part-time em- ployees at the 17 retail stores of T. P. Taylor & Company, Inc., in Jefferson County, Kentucky, excluding guards, professional em- ployees, and supervisors as defined in the Act.' The Employer, on the other hand, urges that only a unit of all employees of the Employer, including the 21 stores, the warehouse operation, and the general of- fices, is appropriate. All of the retail drugstores except for the one located at Eliza- bethtown, Kentucky, are geographically located in the greater Louis- ville, Kentucky, area. Temporary interchange of employees of the 20 stores in this area is not uncommon although such temporary detail to the Elizabethtown store is less frequent, occurring primarily dur- ing illness or vacation periods of Elizabethtown employees. As noted above, all 21 retail drugstores are directly serviced by the Employer's general offices and warehouse which exist solely for that purpose, and the Employer contends that employees in those operations should be a part of any unit covering selling and nonselling employees lo- cated at the stores. We find merit in the Employer's contention. The Board has long regarded all selling and nonselling employees as a basically appro- priate unit in the retail industry." This is particularly apparent in department store cases 7 where the Board has had numerous occasions to pass upon issues with respect to the appropriate unit. Further, where a multiple outlet operation is involved the basic selling and nonselling unit includes all those within an appropriate adminis- trative division or area." This is not to say that a unit composed of s The parties were in agreement with respect to the classification of employees at the various stores which-should be included in any unit found appropriate by the Board. Further, the parties stipulated that the term "professional" referred to pharmacists where the individual in that classification was not a manager or assistant manager, and that those to be excluded as supervisors are store managers , assistant managers , and 4 depart- mental executive supervisors having authority over the drug, cosmetic, fountain , and cigar departments, respectively, of all 21 retail stores. 8 See', e. g., Florsheim Retail Boot Shop , 80 NLRB 1312 ; Singer Sewing Machine Com- pany, 87 NLRB 460; Grinnell Brothers, 88 NLRB 397. 7 See, e. g., The May Department Stores Company, 46 NLRB 305; Sears Roebuck t Co., 76 NLRB 167, 169 ; Maas Brothers, Inc., 88 NLRB 129, 131-137. 8 See Maas Brothers, Inc., footnote 7, supra; Crown Drug Company, 108 NLRB 1126; Jewel Food Stores, etc., 111 NLRB 1368. T. P. TAYLOR & COMPANY, INC. 379 less than all selling and nonselling employees in the retail industry would not be found appropriate under certain circumstances. Thus, in the recent Harris case,' where there was "no conclusive history of collective bargaining . . ." and "no other labor organization [was seeking] to represent employees of the Employer . . .," the Board restated the conditions under which a separate warehouse unit would be granted in a department store case as those : where the employer's warehousing operation is (1) geographically separated from its retail store operations; (2) there is separate supervision of the employees engaged in warehousing functions; and (3) there is no substantial integration among the warehous- ing employees and those engaged in other store functions. . . ." Having determined that the stated conditions had been met, the Board found the warehouse unit appropriate in that case. The Board has accorded similar treatment to maintenance employees in manufacturing operations to However, unlike the circumstances in the Harris case, the Peti- tioner here is seeking an overall unit of selling and nonselling em- ployees of the Employer, but excluding some of the nonselling employees-specifically those assigned to the office and warehouse. Analogous to this situation are the Board's unit determinations in, manufacturing industries wherein a production and maintenance unit, including crafts and other fringe groups of employees, is re- garded as basically appropriate,1' and wherein the Board will not. permit the establishment of a production unit excluding maintenance employees whom no union seeks to represent.12 Nor will the Board, absent agreement of the parties, establish a production and main- tenance unit excluding craft, departmental, or fringe groups where such excluded employees are not sought to be represented by any other union even though the proposed exclusions might otherwise form the basis for a separate unit.13 Thus, where, as here, there is no history of collective bargaining for any of the employees, and no labor organi- zation is seeking separately to represent the warehouse 14 or office 15 employees, we find that the appropriate unit should include all selling and nonselling employees of the Employer. Under all the circumstances and upon the facts contained in the record, we have found that both of the alternative units requested by the Petitioner are too limited in scope. Although the petitioner has e A. Harris & Co., 116 NLRB 1628. io See Shoreland Freezers, Inc., 108 NLRB 723, 727. n See Meter & Frank Company, 86 NLRB 517, 518. 12 Comfort Slipper Corporation, 111 NLRB 188, 189. 13 Central Carolina Farmers Exchange, Inc., 115 NLRB 1250, 1253; Rheem Manufactur- ing Company, 110 NLRB 904, and cases cited therein. Cf. A. Harris & Co., footnote 9, supra. is See Meter & Frank Company, footnote 11, supra. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not indicated an unwillingness to represent a more comprehensive unit, it has not made a substantial showing of interest in the larger unit. We shall, therefore, dismiss the petition without prejudice. The Board dismissed the petition.) MEMBERS RODGERS and BEAN took no part in the consideration of the above Decision and Order. Merritt-Chapman & Scott Corporation and United Brotherhood of Carpenters and Joiners of America , AFL-CIO; Carpenters District Council of Madison County, Illinois, and Vicinity, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Local 633, United Brotherhood of Car- penters and Joiners of America, AFL-CIO; and Local 377, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Henry Michel and Harold A. Hanlon. Cases Nos. 14-CA-1438 aind 14-CB-305. June 28,1957 DECISION AND ORDER On April 24, 1956, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the District Council, Local 633, and Local 377, herein called the Unions, lead engaged in and were engaging in certain unfair labor practices -within the meaning of Section 8.(b) (2) and (1) (A) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto; The Trial Examiner also found that the Company and the Brotherhood had not engaged in the alleged unfair labor practices. Thereafter, exceptions and briefs were filed by the Company, the General Counsel, and the Unions.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner insofar as they are consistent with the Decision and Order herein. 1. With respect to the company and the Brotherhood, the General Counsel alleged that in and after May 1955 they maintained and en- 1 The Unions also requested oral argument . In our opinion , the record , the exceptions, and the briefs fully present the issues and the positions of the parties . Accordingly, the request for oral argument is hereby denied. 118 NLRB No. 48.