Home Exterminating Co.

1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this sort-unless sanctioned by the bargaining contract 0-is in dero- gation of the Union's statutory right as collective-bargaining agent and may not be accomplished without consultation with the bar- gaining agent. On the other hand, as stipulated, the Respondent had changed the working hours and shift arrangements of maintenance employees within the Monday to Friday workweek without union objection III an effort to meet maintenance needs when equipment was not in oper- ation. Finding such arrangements inadequate, particularly in connec- tion with some new mobile equipment, the Respondent instituted the change to a Tuesday to Saturday worl:%ceel: for on11ly 1 of its 16 to 18 maintenance employees. Although it did not consult with the bargaining representative in advance, Respondent did discuss the matter with the Union promptly upon the ]atter's request at two grievance meetings and at an addi- tional meeting with a Federal mediator. In these circumstances, although we do not agree with Respond- ent's contention that it was under no obligation to bargain about the workweek of maintenance employees generally,10 we do not believe the stipulated facts support a finding of such a substantial variation from past scheduling practice,':' or such a refusal to discuss the mat- ter upon request of the bargaining representative, as would warrant a remedial order. ORDER IT is IIEREBY ORDERED that the complaint filed herein be, and it hereby is, dismissed. 11 The waiver by a union of its etattitoiv right to be consulted concerning wages, hours, and terms and conditions of employment must be clear and unmistakable See The Teniken Roller Bearing Co. v N L It B . 325 F 2d 746 ( C.A 6), cert denied 376 U.S 971 ; N L N B v The Item Company, 220 F 2d 956 , 958-959, cert. denied 350 U S 836 10 Smith Cabinet Manufacturing Co , Inc , supra ; Century Papers, Inc , 155 NLRB 358 ; Huttig Sash and Door Company, Incorporated , 154 NLRB 811. 11 As might be the case if the workweek of it number of the maintenance employees had been changed Home Exterminating Company and Truck Drivers & Helpers Lo- cal Union No. 355, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 5-.RC-54422. September 29, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Bearing Officer 160 NLRB No. 108. HOME EXTERMINATING COMPANY 1481 Robert A. Gritta, of the National Labor Relations Board. The Hear- ing 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 Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Brown and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein.' 2. The labor organization involved claims to represent certain employees of the Employer.2 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tions 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer is a Maryland corporation engaged in pest and termite control. Its main office is in Baltimore, Maryland. It operates branch offices in Annapolis, Salisbury, Frederick, and Lexington Park, Maryland, in Statesville and Wallace, North Carolina, and in Win- chester, Virginia.3 The Petitioner seeks to represent a unit of employees employed by the Employer at its main office in Baltimore, Maryland. The Employer contends that the requested unit is too limited in scope because it does not include the employees in its Maryland branches. Neither party would include employees working in the branches out- side of the State of Maryland. There is no history of collective bar- gaining for any of the employees involved in this proceeding. Each branch office has a manager who is responsible to the Employ- er's president, Tilley. The branch office in Frederick has no other employees, the Lexington Park branch has one employee, and the Annapolis and Salisbury branches have two employees each, in addi- tion to the branch manager. The Baltimore service department is 1 On April 13, 1966, the Board remanded this case to the Regional Director for the pur- pose of receiving additional evidence as to whether the Employer ' s operations meet the Board's jurisdictional standards. Subsequently, the parties entered into a stipulation with respect to certain jurisdictional facts which show, inter alga, that the Employer annually receives at its Baltimore, Maryland, home office in excess of $61,000 from its North Carolina branch offices. Consequently, as the Employer's multistate business is an inte- grated operation engaged about equally in wholesale and retail work, we find that the Employer's business meets the Board's applicable nonretail standards. See Slam, Products, Inc, 128 NLRB 546 2 At the hearing, the petition and other formal papers were amended to show the correct name of the Petitioner as it appears in the caption 3 The branch offices are approximately the following distances from Baltimore : Frederick, 50 miles ; Annapolis, 27 miles ; Salisbury , 110 miles ; Lexington Park, 86 miles. 1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD headed by a manager, Grahn, who is responsible for the overall oper- ations of the department. The service department is divided into two sections, pest control and termite control. Working in pest control are a foreman, Keller, an assistant "foreman, Bantling, and 10 servicemen. Working in the termite control section are a foreman, Ruffin, and five termite operators. The record shows that there is a centralized management and administrative policy for all the Employer's operations. All policies concerning wages, hours, and working conditions are determined by Tilley, who is located in the Baltimore office. The Baltimore office con- tracts for the purchase of all supplies, and the branches get the material by picking it up either at a Baltimore warehouse or from the company with which the Employer has a contract. The branches can- not buy materials from other sources. The Baltimore office also sup- plies all branches with advertising material. The branch managers do not have authority to vary procedures and methods used in providing services for customers without getting prior approval from Baltimore. All employees are on a single payroll and the paid by check out of the Baltimore office. Although branch managers have authority to hire employees locally, such hiring must conform to company policy and all personnel records including the application forms, are kept in Baltimore. All servicemen have the same working conditions and receive the same benefits and privileges. They also have the same skills, and there is considerable temporary interchange of employees between the Bal- timore office and the Maryland branch offices, and between the vari- ous branches. Most termite eradication for Maryland customers is done by Baltimore servicemen. During the 5-month summer season, servicemen from Baltimore work in the geographic area of the branch offices from 1 to 3 days a week. When there is a large project, service- men from all branches may be sent to help complete the job. On the basis of the foregoing, particularly the integration and simi- larity of operations of all Maryland locations, the centralized control of labor relations and administration, the uniformity of working con- ditions of all employees, and the substantial interchange of employees between Baltimore and the branch offices, we find that the unit limited to the employees working out of the Baltimore office, which Petitioner requests, is not appropriate .4 However, these same factors show, and we find, that a unit 'also including employees in the Maryland branches is appropriate. As the Petitioner has made an adequate 4Cf. L & S Construction Company, Inc., 155 NLRB 524; Bear River Lumber Co., Inc., 150 NLRB 1295, 1297; Rose Exterminator Company of Northern California, Inc., 143 NLRB 59, 60. HOME EXTERMINATING COMPANY 1483 -showing of interest in such a broad unit, we shall direct an election in that unit.5 We now turn to a consideration of the Union's contention that cer- tain persons whom the Employer would include in the unit are super- visors. Bartling, the assistant foreman of the pest control depart- ment, is primarily a utility man. He spends over 90 percent of his -time doing work similar to that of the other servicemen in the depart- ment. He trains new employees and assumes the operational duties of Foreman Keller during the latter's absence. After a serviceman is trained and reaches the point of being an efficient employee, he requires no further supervision. Bartling has no authority to hire, discharge, or discipline employees, nor does he make effective recom- mendations with respect to personnel matters. The record shows that Keller is seldom absent, and that even when working as acting fore- man, Bartling does not have effective authority with respect to per- sonnel matters. We find that Bartling does not possess supervisory authority and, as he shares interests and duties in common with the -employees in the unit, he is included in the unit. Ruffin, the foreman of the termite department, assigns termite oper- ators to jobs that are posted on the board and supervises their work to see that it is done properly. Ruffin is a carpenter as well as an experienced termite operator and, together with another employee, does all the carpentry and brick repair or restoration work for the termite department. He has no authority to hire, discharge, or disci- pline employees, but the record indicates that his personnel recom- mendations would probably be effective without an independent investigation. We find, therefore, that he is a supervisor within the meaning of the Act and is excluded from the unit. Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All employees employed by the Employer at its offices in Baltimore, Annapolis, Lex- ington Park, Frederick, and Salisbury, Maryland, excluding sales- men, office clerical employees, watchmen and guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 6 s As the unit found appropriate is broader than that requested by the Petitioner, the Petitioner may withdraw without prejudice from the election directed herein upon written notice to the Regional Director within 10 days after the issuance of this Decision and Direction of Election. 6 An election eligibility list containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 5 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.