Charles Bruning Co., Inc

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date on which the election was scheduled, rather than the date of the actual balloting, is controlling for the purpose of determining the insulated period As the above speech of the Employer was made within 24 hours of the scheduled election, we find that the conduct violated the Peerless Plywood rule We shall, therefore, set the elec- tion aside and order a second election 3 [The Board set aside the election ] [Text of Direction of Second Election omitted from publication ] CHAIRMAN LEEDoni took no part in the consideration of the above Supplemental Decision, Order, and Direction of Second Election 3In light of this disposition we find it unnecessary to answer the other issues raised by the Petitioner Charles Bruning Company, Inc.' and Office Employees' Interna- tional Union Local 10, AFL-CIO, Petitioner. Case No 7-RC- 4117 January 13, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Donald F Sugerman, hear- ing officer The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed Upon the entire record in this case, the Board finds 1 The Employer is engaged in commerce within the meaning of the 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 parties stipulated that an overall unit of office clerical em- ployees, shipping and receiving employees, and service repair me- chanics of the Employer at its Detroit, Michigan , branch, excluding salesmen, all other employees, guards, and supervisors as defined in the Act, was appropriate They disagreed only as to the unit place- ment of the service manager, who the Petitioner contends is a super- visor and as to whom the Employer refused to take a position The Employer is engaged in the manufacture , sale, and service of copying equipment to customers such as Ford Motor Company, Gen- eral Motors Corporation, and Chrysler Corporation Its home office 'The name of the Employer appears as amended at the hearing 126 NLRB No 13 CHARLES BRUNING COMPANY, INC. 141 is located in Illinois, with a sales and service branch office at Detroit, Michigan, which is the only installation of the Employer herein in- volved. The top official of this branch office is the branch manager. Immediately responsible to him are the assistant branch manager and the sales supervisor. The assistant branch manager, in turn, super- vises the office manager, the service manager, and the leadman of the shipping department. There are 14 or 15 employees in the stipulated unit, consisting of approximately 4 servicemen, 2 or 3 shipping em- ployees, and approximately 9 office clerical employees. Insofar as the record shows, there is funtcional integration of these employees in that a girl at the desk writes up service orders based on telephone calls from customers. She gives the orders to the service manager, who assigns them; or, during his absence while he is in the field, she relays such orders to a serviceman when he checks in from the field by telephone. There is no bargaining history. In all the circum- stances herein, particularly because the Employer is engaged in a wholesale operation, because of the small group of employees herein involved, and because the office clericals and servicemen work under the same overall supervision and have a community of interest, and, finally because the parties have stipulated to this unit, we find that the unit to which the parties have agreed is appropriate? As noted above, the supervisory status of the service manager is disputed. He is in charge of four servicemen. In this connection, he, in addition to spending 50 percent of his time in the field doing service work, prepares orders on the basis of customer contracts and assigns these orders to the servicemen. He also prepares 6-month rating sheets for the four servicemen, appraising them as to quality of work, cooperation, absenteeism, and initiative. Although such ratings are reviewed on a higher level and the service manager can make no final decision in this connection, the record shows that he would make the recommendations as to whether a rating should be increased or pay raise given and that, in the majority of cases in the last 2 years, his recommendations have been followed. Unlike the four men under his direction and like the agreed supervisors, he is salaried. In these circumstances, we find that he is a supervisor and exclude him from the unit. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All office clerical employees, shipping and receiving employees, and service and repair mechanics of the Employer at its Detroit, Michigan, branch, excluding salesmen, all other employees, guards, the branch 2 See Interstate Supply Company, 117 NLRB 1062; 0 E McIntyre, Inc., 118 NLRB 1290, The Eavey Company, 115 NLRB 1779, 1780, Oregon Macaroni Company et at., 124 NLRB 1001, footnote 11 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager, assistant branch manager, the office manager, the service manager, and all other supervisors as defined in the Act. Our dissenting colleague asserts that there is no precedent for the foregoing unit determination. While we agree with him that the Board will not honor unit stipulations between the parties to repre- sentation proceedings which conflict with Board policy, we do not agree with his conclusion that the stipulation herein conflicts with such policy. In this connection, we also agree with him that it has been, and is, Board policy to prevent the commingling in production and maintenance units of office clerical employees and those who per- form manual labor.' However, we uniformly include office clerical employees in retail selling and nonselling units,4 although such units include service and repair employees and many other categories of manual employees. Moreover, in units involving wholesale opera- tions, the Board includes office clericals in units which also include manual workers where there is no objection by the parties.' In the instant case not only is there a complete absence of objection to their inclusion, but there is present an unequivocal intent that the office clericals be included in the overall unit. The stipulated unit is much more similar, from the point of view of work done and mutual inter- ests of the employees involved, to the units held to be appropriate in retail and wholesale operations, than to units in manufacturing plants. In these circumstances, we conclude that our unit determination herein complies fully with the rules and policies which our dissenting col- league claims are in conflict with such determination. [Text of Direction of Election omitted from publication.] MEMBER JENKINS , dissenting : I do not agree with the majority's determination that a single unit of office clerical employees and manual employees constitute an ap- propriate unit simply because the parties have so agreed among them- selves. Concededly, there is no precedent for such a unit determina- tion ; on the contrary, it is a plain departure from settled Board policy, which is to separate these two groups of employees for collective- bargaining purposes. s Although the Board customarily excludes office clerical employees from production and maintenance units even where there is a bargaining history including them (Marston Corporation, 120 NLRB 76 , 78, Dura Steel Products Company, 109 NLRB 179, 182), it should be noted that the Board has recently extended this policy to include office clericals in a production and maintenance unit where there is a bargaining history of inclusion coupled with a stipulation to include them. Oregon Macaroni Company, 124 NLRB 1001, footnote 11; Arrow Linen Supply Company, Inc , Case No 2-RC-9912, issued July 31, 1959 , unpublished. 4 Interstate Co , Glass House Restaurants , 125 NLRB 101 ; Duane's Miami Corporation, 119 NLRB 1331, 1335. 5 Interstate Supply Company, 117 NLRB 1062, 1064; see also Nathan Warren and Sons, Inc., 119 NLRB 292, 297 ; Walgreen Company, 89 NLRB 1397, 1398-1399; Worth Hardware Co., Inc., 71 NLRB 684, 686. CHARLES BRUNING COMPANY, INC. 143 From the very inception of the Act until today, the Board has recognized the essentially different functions, status, and interests of office clerical employees from those of employees who perform manual labor, customarily denominated production and maintenance em- ployees.6 For this reason, it has been the Board's considered and consistent judgment that a commingling of these two groups in a single unit would not be conducive to effective collective bargaining.' Accordingly, it has excluded office employees from production and maintenance units and has established them in separate appropriate units. It has applied this policy even in the face of a contrary col- lective-bargaining history 8 and where there was no objection to merg- ing the office clerical employees with the production and maintenance employees in a single unit .9 In the countless number of cases coming before the Board, the Board has not been able to find any special circumstances which would persuade it to depart from the above policy. Notwithstanding the foregoing, the Board, in the instant case, is giving its imprimatur to a collective-bargaining unit which up to the present time it has always regarded to be ineffective and inappro- priate for collective-bargaining purposes because of the unquestioned dissimilarity in interests of the office clerical and manual employees. It now evidently justifies its departure from settled practice only because of the parties' agreement. Yet, the Board has also repeatedly emphasized in its decisions that it will not honor unit stipulations between parties in a representation proceeding which conflict with Board policy.10 Thus, in Yale and Towne Manufacturing Company case, which is particularly applicable here, the Board excluded from an office clerical unit dispatchers, despite the parties' agreement to include them, because, as the Board held, they were employees whom the Board customarily included in production and maintenance units and excluded from office clerical units. The Board there made clear in unequivocal language that it was "not bound by stipulations of parties to representation proceedings where the record facts disclose an inconsistency between the stipulation and established Board policy." 11 This is precisely the situation here 12 and yet the majority is ordering an election in a unit manifestly inappropriate and will 0 Pacific Gas and Electric Company, 3 NLRB 835 ; Atlantic Basin Iron Works, 5 NLRB 402, Boston Edison Company, 51 NLRB 118, Buckeye Rural Electric Cooperative, Inc, 88 NLRB 196; The Yale and Towne Manufacturing Company, 112 NLRB 1268; Marston Corporation, 120 NLRB 76. 7 I bid. 8 Boston Edison Company, supra ; Marston Corporation, supra. 9 Buckeye Rural Electric Cooperative, Inc., supra. 10 The Yale and Towne Manufacturing Company, supra ; United States Cold Storage Corporation, issued November 10, 1959, unpublished n The Yale and Towne Manufacturing Company, supra , at p. 1270. 37 The record indicates that the proposed unit consists of approximately nine office clerical employees , four servicemen, and two or three shipping employees. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD confer the benefits of a certification on the Petitioner, if it wins the election. In suln, I find nothing in the record or the majority's decision to justify discarding Board policy and substituting the parties' agree- ment for the Board's informed and considered judgment respecting unit determinations. Accordingly, I dissent from the majority's Decision and Direction of Election. MEMBER FANNING took no part in the consideration of the above Decision and Direction of Election. Flatbush General Hospital and Local 144, Hotel and Allied Service Employees Union , Building Service Employees Interna- tional Union, AFL-CIO. Case No. 0-RM-1064. January 13, 1960 DECISION AND ORDER Upon a petition duly filed under Sections 9(c) and 8(b) (7) (C) of the National Labor Relations Act, a hearing was held before James J. Graham, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Union moved to dismiss the petition on the grounds, inter alia, that the Employer is a proprietary hospital not engaged in commerce, and that even if statutory jurisdiction is found to exist, the impact of the operations of proprietary hospitals such as the Employer is insufficient to warrant assertion of jurisdiction by the Board. The Employer opposes the motion on the grounds that the New York State Labor Relations Board decided, in three cases involving proprietary hospitals, that the operations of such hospitals affected commerce to such an extent that it was without jurisdiction,2 and that, in the cir- cumstances, the National Labor Relations Board should assert juris- diction in the instant proceeding. The Employer is a private or proprietary hospital located in Brooklyn, New York. It is owned and operated by Dr. Samuel B. Berson under a license issued by the State of New York. The hos- pital has 111 beds and employs about 140 employees. It has been in i It is stipulated that the Union began to picket the Employer for recognition on November 13, 1959 On November 17, the Employer filed a charge in Case No. 2-CP-4, alleging a violation of Section 8(b) (7) (C) of the amended Act The instant petition was filed on November 20 for an expedited election pursuant to the first proviso of Sec- tion 8(b) (7) (C) The Regional Director, under the authority of Section 101 23(c) of the Board's Statements of Procedure, ordered the hearing which was held herein. 2 See Hunts Points Hospital, 22 SLRB No. 18 , Medical Arts Sanito,sum, 22 SLRB No 19, and Brunswick Home, Inc. 22 SLRB No 41 The Petitioner has filed a petition with the New York State Labor Relations Board for an election among the employees of the Employer in the unit which it claims to represent, which petition is still pending 126 NLRB No 22.