J L Brandeis & Sons, Inc.

J. L. BRANDEIS & SONS, INC. 825 In view of the Respondent's unfair labor practices, particularly the discriminatory -discharges found above, there exists a threat of future violations, which warrants a broad cease-and-desist order. CONCLUSIONS OF LAW 1. All Respondent's production and maintenance employees at its Akron, Ohio, plant, excluding office clericals, professional employees, guards, and supervisors .as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. At all times material the Union has been and still is the exclusive representa- tive of all the employees in the aforesaid unit for the purposes of collective bar- gaining, within the meaning of Section 9(a) of the Act. 3. By refusing to bargain collectively with the aforesaid labor organization as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Secton 8 (a) (5) and (1) of the Act. 4. By threats of reprisals for engaging in concerted activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By discharging its 16 day-shift employees for engaging in concerted activity, the Respondent has violated Section 8(a) (3) and (1) of the Act. [Recommended order omitted from publication.] J. L. Brandeis & Sons, Inc. and General Drivers and Helpers Union, Local No. 554, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 17-RC-4048. May 27, 1963 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 a hearing officer of the National Labor Relations Board. The hearing officers' rulings made at the hearing 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 this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. 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 named below claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 'The Employer's request for oral argument is denied, as the record and the briefs, in our opinion, adequately present the Employer's position. 142 NLRB No. 90. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner seeks to represent a unit of all truckdrivers and helpers (including regular part-time drivers and helpers) 2 employed at the Employer's locations at Omaha, Nebraska, but excluding ir- regular or "on-call" drivers, employees who drive trucks as an incident to their principal function of selling or servicing particular merchan- dise. The Employer contends that its Omaha locations constitute "one integrated department store operation," and that the only ap- propriate unit is one comprised of all its 2,400 selling and nonselling employees. There is no history of collective bargaining, and no union is seeking to represent all the selling and nonselling employees in a single unit. The Employer's Omaha operation consists of five retail stores and a separate warehouse located eight blocks from the main store. The entire operation of all retail locations and warehouse facilities is directed by a superintendent of operations in the main store. The warehouse has its own manager and a foreman who directs delivery op- erations and the movement of some merchandise. A merchandise manager at the main store directs the movement of all merchandise throughout the operation. There are 24 truckdrivers and helpers whose principal function is the delivery of merchandise to customers and to the various retail outlets. These employees consist of : panel (package) truckdrivers, furniture and appliance drivers, special handling drivers (who deliver fragile or expensive merchandise), and one shuttle driver who moves merchandise between store and warehouse locations, all under the direct supervision of the warehouse foreman ; and other shuttle drivers under the supervision of the merchandise manager at the main store. From 60 to 90 percent of the drivers' time is spent away from the stores and warehouse, and about 30 to 40 percent of their time is spent in actual driving. In addition to the above categories, other employees drive trucks as an incident to their sales and service work in particular departments of the Employer's operations. Typical of these are drapery employees, appliance service employees, and furniture repairmen. These em- ployees work under the direct supervision of their respective depart- ment heads. The Employer contends that even if its principal argu- ment for an overall unit is rejected, the proposed unit is in appropriate because it would exclude such employees even though they regularly drive trucks in connection with their work assignments. Finally, the Employer contends that the proposed unit of drivers and helpers should not be found appropriate because it is more limited 2 One of the Employer's officials testified that regular part -time drivers and helpers are those employees who regularly work 24 hours per week or more delivering and moving the Employer' s merchandise, and the Union has not contested this fact PHOENIX NEWSPAPERS, INC. 827 in its scope than the unit of warehousemen and drivers which was -found inappropriate for collective-bargaining purposes in 1949.1 We find no merit in the Employer's contentions. The Board, since the Brandeis case cited by the Employer, has found that where, as here, truckdrivers and helpers, whose principal function is to deliver and move an Employer's merchandise, constitute a homogeneous, identifi- able group, and there is no history of collective bargaining, and no union request to represent them in a storewide unit, they may be represented in a separate unit.4 The record in this case shows that the truckdrivers and helpers constitute such a homogeneous and identifi- able group, and that they have a close community of interest. The evidence further shows that the other employees who drive trucks, but only as an incident to the performance of their principal func- tions of selling or servicing merchandise, are not appropriately part of the unit here sought. In view of the foregoing, and the entire record, we find 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 truckdrivers and their helpers employed in the Employer's opera- tions at Omaha, Nebraska, including regular part-time drivers and helpers, but excluding irregular or "on call" drivers and helpers, and employees who drive trucks as an incident to their principal function of selling or servicing particular merchandise, all other employees, office clerical employees, professional employees, guards, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] 3 J. L. Brandeis & Sons, 82 NLRB 806. 4 Sears, Roebuck & Company, 118 NLRB 277, 279. Phoenix Newspapers, Inc. and Sales Drivers & Helpers Local 274, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case No. 28-CA-739. May 08, 1963 DECISION AND ORDER On April 4, 1962, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- 142 NLRB No. 97.