D. H. Overmyer Co., Inc.

D. H. OVERMYER CO 341 D. H. Overmyer Co., Inc . and Teamsters "General" Local Union No. 200 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers'of America. Case 30-CA-1283 May 13, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 21, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed timely exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, D. H. Overmyer Co., Inc., Milwaukee, Wis- consin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. ' Since we agree with the Trial Examiner that we have jurisdiction in this case, based on his finding that the parent corporation maintains control over the labor relations policies of the subsidiary corporations, we find it unneces- sary and do not pass upon his comparison of a lease warehousing facility as being comparable to office buildings for purposes of applying the Board's jurisidictional standards TRIAL EXAMINER'S DECISION PAUL E. WEIL, Trial Examiner. On June 2, 1970, Team- sters General Local Union No 200, hereinafter called the Union, filed a charge alleging that D. H. Overmyer Co., Inc.,' hereinafter called Respondent, engaged in unfair labor prac- tices in violation of Section 8(a)(5) and (1) of the Act. On September 4, 1970, the Regional Director for Region 30 (Mil- waukee, Wisconsin), on behalf of the General Counsel of the National Labor Relations Board, hereinafter called the ' The name of the Respondent was amended at the hearing 190 NLRB No. 71 Board, issued a complaint and notice of hearing alleging that Respondent violated Section 8(a)(5) and (1) of the Act. By its duly filed answer as amended at the hearing Respondent denied that the Board has jurisdiction, admitted the acts alleged to constitute violations of Section 8(a)(1) and denied the other allegations of the complaint. On the issue, thus joined, I conducted a hearing in Milwaukee, Wisconsin, on October 12 and 13, 1970, at which all parties were repre- sented, had an opportunity to adduce relevant and material evidence, to call, examine, and cross-examine witnesses, to argue on the record and to file briefs. Oral argument was waived by all parties, and briefs have been received from Respondent and the General Counsel. On the entire record in this case and in consideration of the briefs, I make the following. FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT D. H. Overmyer Co., Inc., a Delaware corporation, is a holding company among the assets of which are D. H. Over- myer Co., Inc., an Ohio corporation which in its turn owns subsidiaries including some 40 companies, each named D H. Overmyer Co., Inc., and each incorporated in the State in which they do business. The named Respondent herein, D. H. Overmyer Co., Inc., a Wisconsin corporation, is one of the subsidiaries of the Ohio corporation.' The Ohio corporation operates as a service company pro- viding marketing, financing, tax, planning, insurance, legal and other services to the operating branches. Each operating branch pays a monthly assessment for these services and it appears that there is some degree of choice on behalf of general manager of each branch as to the extent to which the services are used. The parent corporation has recently under- taken a large expansion program with a large advertising budget. The national sales organization calls on national ac- counts selling space for the various local corporations, but may also work in the area of a local corporation at the request of its manager. Various vice presidents of the Ohio corporation are district managers with jurisdiction over a number of the operating corporations Their function is to work closely with the branch managers regarding running the branch, help with sales and pricing and act as liaison with the central office. The General Counsel contends that jurisdiction may be asserted over the Wisconsin corporation either on the basis of its own business or on the basis of its status as a portion of a nationwide concern. The Wisconsin corporation operates approximately 240,000 square feet of warehousing space at the present time Prior to January 1, 1970, all of the space was utilized on a rental basis, that is to say it was simply rented on a monthly basis to various tenants and no other activity was engaged in by Respondent. Commencing on the first day of 1970 Respondent took over the operation of a public ware- housing concern, which had theretofore utilized 80,000 square feet of its warehouse space, and went into the public warehousing business in the Milwaukee facility. Since that time the public warehousing facility has earned some $37,000 to the end of September 1970. In the calendar year immedi- ately preceding October 1, 1970, the Respondent received rental of that portion of its space not utilized in public ware- housing in a sum slightly in excess of $100,000, some of it from enterprises which are themselves engaged in interstate commerce. The General Counsel would project a 9-month ' It appears that there are two Ohio corporations with the same name, one is the service company, the other is an operating company similar to the Wisconsin corporation 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD experience and tack the services performed to interstate oper- ations, achieving thereby a total of $50,000, and assert juris- diction under the Board's decision in H P 0 Service, Inc., 122 NLRB 394, applying the jurisdictional standard of $50,000 for enterprises engaged as links in commerce. Respondent contends that to the extent that it is engaged in the leasing of warehouse space it is not a link in the chain of commerce and that only that portion of its business which it operates as public warehousing in connection with goods which are in the interstate flow may be counted to meet this standard. In the warehousing industry the Board has applied the jurisdictional standard for links in the transporation of pas- sengers or commodities in interstate commerce, with the warning that jurisdiction will not be asserted under this standard on the basis of services performed for enterprises as to which the Board would assert jurisdiction under its in- direct outflow or indirect inflow standards. This does not mean that it must be shown that the warehoused goods are necessarily themselves destined for interstate commerce. The Board has not in the past dealt with the issue of a warehous- ing corporation which simply leases space to other enterprises with no knowledge of the use put to it by those enterprises. In my opinion the transportation yardstick is not applicable to such businesses. I believe that Respondent's enterprise insofar as the lease space is concerned is more nearly comparable to an enterprise operating an office building than to an enterprise in the trans- portation business. I know of no case in which the Board had dealt with the leasing of space for warehouse purposes but I can see no basic distinction between a lease of that nature and a lease for office purposes. The applicable jurisdictional stand- ard for office buildings requires gross annual revenue of at least $100,000, of which at least $25,000 must be derived from organizations which meet the Board's jurisdictional standards.' The evidence in the instant case reveals that dur- ing the year last preceding the hearing the Milwaukee ware- house received somewhat in excess of $100,000 for leased space of which $23,950 was billed to Pabst Brewing Company and $11,506.88 to Arlans Department Stores, both concerns over which the Board has in the past taken jurisdiction.' I find therefore that under the jurisdictional standard for office buildings the Board clearly would take jurisdiction over the Milwaukee (West Allis) warehouse facility. In the alternative the General Counsel contends that juris- diction should be asserted on the enterprise as a whole, in- cluding all of the local operating companies under the control of the Ohio corporation which in its turn is under the control of the Delaware holding company. The general manager and vice president of Respondent (the Wisconsin corporation) testified that he is completely autonomous. However, the record reveals that the Ohio corporation substantially con- trols the operations of the Wisconsin subsidiary. The general managers are hired by the Ohio corporation. Normally they are sent, before hire, to New York for a period of training. The Ohio corporation has published a guide or manual which is supplied to all general managers of the warehouses for the purpose of determining Respondent's policies. Although Manager Kruer testified that he is not required to follow the Longwood Investment Co., Inc., 165 NLRB 138. Respondent's records show billings to Arlan Department Store of an additional sum somewhat in excess of $20,000, however, the manager's testimony reveals that the additional sum was never collected and has been written off. policies and procedures set forth in the manual, it is clear from his testimony that he does.' Michael Fitzgerald, operations manager and a vice presi- dent of the Ohio corporation, testified that the manual con- tains among other things the "company benefit or package as it applies broadly to all of the employees-D. H. Overmyer employees ... the health and welfare, pension, insurance, ac- cident policy," and he further testified that the manual out- lines vacation benefits which vary depending on the geo- graphical area and whether or not the particular branch has an existing labor agreement. The benefits are determined by the Ohio corporation. Finally he testified that in most in- stances when the employees of a facility are organized the Ohio corporation furnishes assistance, either in his person or in that of one of his colleagues or the legal counsel provided by the Ohio corporation, to the general manager in dealing with the Union. In my opinion the record contains ample evidence to war- .rant a finding that the parent corporation maintains control over the labor relations policies of the subsidiary corporations sufficient to warrant the assertion of jurisdiction over the subsidiary on the basis of its relationship with the parent. It is clear that the parent is a multimillion dollar concern with revenues in excess of $20 million annually and taken as a whole clearly meets the Board's jurisdictional standards.' Accordingly I find that either the Wisconsin corporation or the entire enterprise is within the Board's jurisdiction, and is an employer engaged in operations affecting commerce as provided in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is and at all times relevant hereto has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The three employees in Respondent's warehouse in West Allis, a suburb of Milwaukee, Wisconsin, signed cards desig- nating the Charging Party as their collective-bargaining rep- resentative at the end of April 1970. On May 4, 1970, the Union sent a letter requesting recognition from Respondent in a unit of warehouse employees. The letter further asked the manager to come to the Union's office on May 7 for the purpose of negotiating a collective-bargaining agreement or offered to meet at a more convenient date if that was not convenient. Plant Manager Kruer answered on May 6 with a letter to the Union stating that he did not believe its claim of represen- tation of a majority and declined to meet with it. At various times in the year 1970 General Manager Kruer admittedly threatened employees with physical harm if they engaged in union activities, interrogated them, threatened them with dis- charge, warned them that they had made a serious enemy, presumably himself, withdrew their washroom privileges, in- formed them that their activities would be futile, promised economic benefits if they should withdraw their support from ' Kruer's testimony was very evasive with regard to the relationship between the Wisconsin corporation and the Ohio corporation. However, in an examination regarding a memorandum from the Ohio corporation setting forth the Company's rules as to vacation, he candidly answered, to a ques- tion whether he returned certain forms to the personnel department in New York, "If it says so there in the order I imagine I did." He also testified that the manual is "more instructionary than is directional." ' Fitzgerald testified that approximately 30 percent of the Company's 28 million square feet of warehouse space was used in public warehousing. The corporation expects a return of $2.50- to $2.60-a-foot-per-year total reve- nue. D. H OVERMYER CO the Union, offered them individual contracts and promised them wage increases . The unit consisted of only three em- ployees. I find that by this conduct Respondent rendered it impossible for the Board to conduct an election among these employees at which they could be expected to cast their votes free of Respondent's coercion. Inasmuch as the General Counsel proved that all three of the employees signed union cards and inasmuch as clearly a unit consisting of all warehouse employees with the statutory exclusions is a valid unit, I find that by its conduct Respond- ent violated 8(a)(5) and 8(a)(1) of the Act.' Although Respondent admits the commission of the viola- tions of Section 8(a)(1) and the representative status of the Union, Respondent contends that the Board should not apply the bargaining order as a remedy due to the peculiar circum- stances of this case. After the demand for bargaining Respondent's business fell off, necessitating the layoff of one of the three employees in the unit. Also since the demand for bargaining, the foreman, who was the only supervisory employee between the members of the unit and the manager, was terminated and one of the three employees in the unit was promoted to take his place. Where the former foreman had the authority to hire and discharge employees the newly promoted foreman does not, however, Respondent contends he has all of the other indicia of supervisory status. Finally the third employee who was in the unit resigned! It appears that a fourth man was hired somewhere in the interim and is also in a layoff status. At the present time there are no employees working in the ware- house other than Fred Miller whom Respondent contends to be a supervisor. Respondent raises a dual contention on the above facts, first, that in light of the complete change in the unit a Board- conducted election could be held without any coercive effect from Respondent's admitted misconduct. I reject this conten- tion for the following reasons: One and perhaps two of the employees of Respondent are on layoff subject to recall, Re- spondent contends that their recall is to be expected within a reasonable time. The record is not clear as to the period of time the second employee, Kruse, was employed. However, it is admitted that the most recent unfair labor practice took place only a few weeks prior to the hearing when an employee was threatened with physical harm as a result of the NLRB proceedings. Additionally while Respondent contends that Fred Miller is now a supervisor it is clear that at no time had he ever supervised anyone He appears to have achieved this position after all the other employees were no longer em- ployed and at the present time he himself is doing all of the warehousing work in the unit. Without regard to Miller's status, however, it is clear that if the unit is reconstituted to its former size with three employees, at least one and perhaps two of them would have been subjected to the unfair labor practices; so the factual basis for Respondent's assertion does not support it. Additionally the Board has already considered the precise issue in Gibson Products Company, 185 NLRB No. 74, cited by the General Counsel, and decided there that "the situation must be appraised as of the time of the commis- sion of the unfair labor practices, and not currently. For, in virtually every case, by the time a Board decision is reached, there is likely to be sufficient employee turnover and other changes to make it arguable, where the employer has mean- while refrained from committing new unfair labor practices, that an election held now would be free of the taint of the old NL.R B. v Gissel Packing Co., 395 U.S 575 (1969). ° It appeared that following his resignation an unfair labor practice charge was filed contending that he had been discharged The Regional Director declined to issue a complaint based on this charge 343 unfair labor practices." I consider the Gibson case dispositive of this issue. Respondent additionally contends that it has shown that the unit is an expanding unit and the greater number of employees to be expected in the expanded unit should not have their collective-bargaining representation decided by the former employees in the small unit. Respondent contends it showed that an additional 440,000 square feet of space would shortly become available and it was contemplated that 50 percent of all of this space would be turned into public ware- housing use, wherefore over 300,000 square feet of public warehousing space will be at Respondent's disposal. Re- spondent produced testimony that the public warehousing industry guideline on manpower needs is a minimum of one man per 10,000 square feet of warehousing space wherefore it is to be contemplated that some 30 employees would be required. However, Respondent has had 80,000 square feet of public warehousing space since January 1, 1970, and never had eight employees. It appears that at the most it had three. At the present time it has only one employee in the 80,000 square feet of space. Respondent's manager testified that he has no new business under contract or under negotiation with any reasonable ex- pectancy of contract. The vice president of the Ohio corpora- tion testified, with regard to the new facilities which were to be provided, that one of them is currently under construction and could be completed within 90 days if and when the contractor obtains financing but the contractor is not pres- ently working on it. Second and third properties are now under negotiations, and no contracts have been signed, and a fourth is only in contemplation with an acquisition team from the Ohio holding company just then arriving in town to negotiate for the purchase of an existing facility. Further- more, Respondent's present goal is based on a 30-percent use of its warehouse space for public warehousing rather than a 50-percent use on which Respondent's argument is based. Respondent is merely on this point contemplating a more extensive public warehousing function than presently exists. Respondent's contention therefore is based on a triple con- tingency, first that the additional space will become available, second that customers will be found to use it, third that an additional percentage of all available space will be used for public warehousing, to this contingent situation Respondent proposes to apply a manning ratio which the evidence shows has never been applicable at this facility. The Board has long held that it cannot defer action based on highly speculative predicated expansion and pointed out that if the parties had entered into a contract on the date of the demand which would appropriately have been done, such contract would have barred a later filed petition.' I consider that the compu- tation by Respondent of a potential 14-30 additional em- ployees is at best highly speculative and that an order is warranted at the present time. However, Respondent specifi- cally stated its expectation that the two employees presently in layoff status would be recalled in the near future. Accord- ingly, the unit is in existence with every expectation of con- tinuing. For this reason I conclude that an order to bargain is appropriate and should be issued in the instant case and I shall so provide. ' West Penn Hat and Cap Corp., 165 NLRB 543. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in the unfair labor practices, as set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Such affirmative action will include recognition and bargaining on demand with the Union as the representative of its employees in the unit spelled out below. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the admitted conduct recited above Respondent in- terfered with, restrained and coerced its employees in viola- tion of Section 8(a)(1) of the Act; 4. All warehousemen, excluding office clerical 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. 5. By failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of Respondent's employees in the unit described above with respect to rates of pay, wages, hours and other terms and conditions of employment of such employees, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" Respondent, D. H. Overmyer Co., Inc., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating employees as to their own or other em- ployees' activities in support of Teamsters General Local Union No. 200 or any other labor organization ; promising employees economic benefits if they should withdraw their support from the Union ; threatening employees with dis- charge, physical harm or withdrawal of privileges because of their support of the Union; soliciting employees to withdraw their support of the Union; and promising collective-bargain- ing agreements between the employees directly and the Em- ployer, or in any other manner interfering with, coercing and restraining employees in violation of their rights guaranteed in Section 7 of the Act. `° In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, Conclusions, and order, and all objections thereto shall be deemed waived for all purposes. (b) Refusing to bargain collectively in good faith concern- ing rates of pay, hours of employment and other terms and conditions of employment with Teamsters General Local Un- ion No. 200 as the exclusive representative of the employees in the appropriate unit described above. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act.: (a) Upon request bargain collectively in good faith with the above-named Union as the exclusive representative of all em- ployees in the appropriate unit and embody in a signed agree- ment any understanding reached. (b) Post at its warehouse in West Allis, Wisconsin, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Re- gion 30, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of the Decision, what steps have been taken to comply herewith." " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." " In the event that this Recommended Order is adopted by the Board after exceptions have been filed, notify said Regional Director, in writing, within 20 days from the date of the Board's Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence the National Labor Relations Board has found that we vi- olated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: 1. To engage in self-organization. 2. To form, join or help unions. 3. To bargain collectively through representa- tives of their own choosing. 4. To act together for collective bargaining or other mutual aid or protection. 5. To refrain from any or all of these things. WE WILL NOT do anything that interferes with, re- strains or coerces employees with respect to these rights. WE WILL NOT interrogate employees as to their own or other employees' activities in support of Teamsters General Local Union No. 200 or any other labor organi- zation, promise employees economic benefits if they should withdraw their support from the Union, threaten employees with discharge, physical harm or withdrawal of privileges because of their support of the Union, solicit employees to withdraw their support of the Union and promise collective-bargaining agreements between the employees directly and the Employer, or in any other manner interfere with, coerce and restrain employees in violation of their rights guaranteed in Section 7 of the Act. D H. OVERMYER CO 345 WE WILL NOT refuse to bargain collectively with Teamsters General Local Union No. 200 and upon re- quest we will bargain with that Union as the representa- tive of our'employees in the unit consisting of all ware- housemen in our West Allis facility excluding office employees, guards and supervisors as defined in the Act. This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Second D. H. OVERMYER Floor Commerce Building, 744 North Fourth Street, Mil- Co., INC. waukee, Wisconsin 53203, Telephone 414-272-8600 Ext. (Employer) 3861. Dated By (Representative) (Title)