Dolnick's Furniture Co., Inc.

844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dolnick's Furniture Co., Inc. and Teamsters Local Union No. 688, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Petitioner. Case 14-RC-6905 August 10, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c)(1) of the National Labor Relations Act, as amended,' a hearing was held before Leo D. Dollard, Hearing Officer. Following the hearing, pursuant to Section 102.87 of the National Labor Relations Board Rules and Regulations and Statement of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. There- after, the Employer and the Petitioner filed briefs, all of which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case including the briefs, 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. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of warehouse employees, drivers, and helpers employed at the Employer's 10725 Trenton Avenue (Trenton) St. Louis, Missouri, warehouse facility.2 The Employer contends that the unit of the employees sought is closely integrated with that of the other employees who are employed in its retail operations at a I The Petitioner filed its petition on December 10, 1971, and subsequent- ly the parties entered into a Stipulation for Certification Upon Consent Election On January 20, 1972, the Regional Director for Region 14 dismissed the petition The Petitioner pursuant to Section 102 71 of the Board's Rules and Regulations on January 28, 1972, filed an appeal to the Board On February 27, 1972, the Board granted the Petitioner's appeal from Regional Director's ruling and ordered reinstatement of the petition and directed that a hearing be held in this proceeding 2 At the hearing, the Petitioner indicated that it was willing to represent a separate location. There is no bargaining history for either group of these employees. 5. Dolnick's Furniture Co., Inc., operates a retail furniture business in St. Louis, Missouri. These operations are carried on at two separate locations: (1) A retail residential-type furniture store on Page Avenue (Page) and (2) another facility on Trenton Avenue (Trenton)-one block away, which is mainly a warehouse facility. There is a commercial-type furniture showroom at Trenton which is separated from the warehouse by a fixed wall. The Employer employs six sales persons and four clericals in addition to the warehouse employees. In the show- room at Trenton there is one salesman and a clerical. The other sales persons and clericals are employed at Page. In the warehouse portion of Trenton, one clerical, Mona Moore, handles invoices and receiving tickets. Four employees perform warehouse func- tions, including deliveries from the warehouse in two trucks. Also, employed in the warehouse are two employees who perform furniture refinishing.3 Two corporate officers, Ed Dolnick and Julian Dolnick, exercise supervisory functions at the top management level, Ed Dolnick is primarily responsi- ble for supervision of the sales personnel and J. Dolnick is primarily responsible for supervision of warehouse personnel and clericals. The record discloses that J. Dolnick's direct supervision over the warehouse employees, including the drivers is limited to less than 20 percent of the time, and during the remainder of the time these employees are subject to the immediate supervision of employee David Nolting.4 The Employer contends that Nolting is not a supervisor within the meaning of the Act. The record does not support this contention. The record reveals that at all times pertinent herein, Nolting, in the absence of direct supervision by J. Dolnick, has the responsibility of routing drivers on their deliveries, he decides which employee is to be a driver or a helper on a given workday, directs warehouse employees as to the functions they are to perform, authorizes time off, selects employees to work overtime when such overtime work is authorized by J. Dolnick pursuant to Nolting's request for such overtime work, he is paid a higher wage rate than the other employees, he is considered by other employees to be their supervisor, his recommendations for hiring new clerical employee, Mona Moore. employed in the warehouse if the Board included her I The two furniture refinishers are represented by a union and are excluded from the requested unit by stipulation of the parties The two truckdrivers also perform warehouse duties when not occupied with their truckdriving duties a Nolting at the time of the filing of the petition herein was employed in the warehouse facility, however, subsequently he became a furniture finisher which necessitated his joining another union 198 NLRB No. 105 DOLNICK'S FURNITURE CO., INC. 845 employees have been accorded weight by J. Dolnick, and he has directly hired an employee . In all the circumstances, we find that Nolting is a supervisor within the meaning of the Act and that in the absence of J. Dolnick, he directly supervises the warehouse employees. The employees in the requested unit-warehouse- men, drivers, and helpers-spend the majority of their time working at the Trenton facility or delivering furniture to customers . Occasionally, the warehouse employees deliver furniture to and pickup furniture from the Page facility. At times the warehouse employees assist in helping move furni- ture and setting up display areas at the Page facility. The Employer argues that there is integration between the two facilities because the employees are more or less in constant contact with one another. The evidence tends to show that the contact between the warehouse employees and the sales and office clericals is at most minimal and does not establish a community of interest between the two groups of employees. However, the evidence does establish that there does exist a community of interest between the warehouse employees and the warehouse clerical, Mona Moore. A substantial part of the work she performs at the warehouse is directly related to the functions performed by the warehouse employees. The facts of this case do not reveal the degree of integration or the merger of operations as would require our dismissal of the Petitioner's request for a separate unit of the employees employed in the warehouse facility (Trenton), consisting of ware- housemen, drivers, helpers, and warehouse clerical employees .5 These employees constitute a homogene- ous, identifiable, and distinct group having a close community of interest . In view of the separate location of the warehouse facility from the Page facility where the petitioned-for employees perform substantially all of their work, the autonomous day- to-day operations of the warehouse employees under separate and direct supervision, the lack of other than minimal contact with the other employees of the Employer, the absence of a history of collective bargaining, and the fact that no other union requests a broader unit, we find that a unit limited to the warehousemen , drivers, helpers, and warehouse clericals is appropriate.6 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 warehousemen , drivers, helpers, and warehouse clerical employees employed at the Employer's Trenton Avenue warehouse facility, St. Louis, Missouri, excluding all office clerical employees, sales people, professional employees, guards, supervi- sors as defined in the Act, and all other employees. [Direction of Election and Excelsior footnote omitted from publication.] CHAIRMAN MILLER, dissenting: The record does not persuade me that the unit sought qualifies for separate representation. The Board has repeatedly stated 7 that it will not permit a separate warehouse unit unless the following three factors are present : ( 1) the employees are under separate supervision ; (2) they perform substantially all their work tasks in buildings geographically separated from those in which the bulk of the remaining employees work; and (3) they are not integrated , to any substantial degree, with employees in the performance of their ordinary duties. Those factors are not met here. The Employer operates a retail furniture store only one block from its warehouse, which also contains a display and sales room for the purpose of selling office furniture . The Employer's relatively small operation is directed by two brothers who are its corporate officers . Although the warehouse function is directed day-to-day to some extent by one Nolting, who possesses some indicia of supervisory authority and who is now a furniture refinisher, at least one of the corporate officers makes numerous trips to the warehouse each day and spends up to 25 percent of his time there . Thus, it would be highly unrealistic to find, on this record, substantial , autonomous, sepa- rate supervision at the warehouse . Furthermore, the warehousemen sought not only perform warehouse and driving functions but work in the retail sales store delivering furniture for display, setting up displays, removing merchandise that is to be deliv- ered to customers , and moving furniture to be repaired or refinished . On occasions, sales people, whom the petitioner would exclude, visit the ware- house with customers for purposes of selling furni- ture located at the warehouse . Obviously, sales of office furniture are made exclusively from the warehouse location. In view of this degree of employee, functional, and supervisory integration, and the fact that the two locations are separated geographically by only a block, I would not depart from the more recent Board decisions8 and would find the requested unit inappropriate. 5 We find the Employer's reliance on our decision in Levitz Furniture NLRB 777, Sears, Roebuck & Co , 180 NLRB 862, A Harris & Co, 116 Co, 192 NLRB No 13, to be misplaced NLRB 1628 6 J W Robinson Co, 153 N LRB 989, Joseph Loveman and Loeb Div of " Levitz Furniture Co, supra, Sears, Roebuck & Co , 191 NLRB No 84, City Stores Co, 152 NLRB 719, Sears, Roebuck & Co , 151 NLRB 1356 Sears Roebuck & Co, 191 NLRB No 85 1 Levitz Furniture Co, 192 NLRB No 13, Sears, Roebuck & Co. 182