Samuel A. Ellsberry Co.

National Labor Relations Board - Board Decisions

Jul 18, 1951

95 N.L.R.B. 276 (N.L.R.B. 1951)

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Retail Clerks in Case No. 21-RC-18718 we further find that the
unit sought by the Teamsters is too limited in scope and therefore
inappropriate for bargaining purposes.7 Accordingly, we shall dis-
miss the petition in Case No. 21-RC-1870.
We therefore find that all employees of the Employer's three Bakers-
field, California, stores, excluding truck drivers, guards, watchmen,
outside salesmen, confidential employees,8 and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining.
Order
IT IS HEREBY ORDERED that the petition in Case No. 21-RC-1870 be,
and it hereby is, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
6 Schenley Distillers Corp., supra; Lindy Optical Company, 85 NLRB 940; Lone Star
Producing Company, 85 NLRB 1137; Bethlehem Fairchild Shipyard Inc, 58 NLRB 579.
7 Under all the circumstances, the Teamsters' unit could be considered appropriate only
by regarding as controlling the extent of that Union's organization. This the statute
prohibits. C. Pappas Company, 80 NLRB 1272.
8 Although the parties agreed that two secretaries are employed in a "confidential"
capacity and should be excluded, the record is silent as to the specific duties of these
employees. If they act in a confidential capacity for individuals charged with managerial
responsibilities in the field of labor relations they are excluded , otherwise they are included.
SAMUEL A. ELLSBERRY, SR., AND SAMUEL A. ELLSBERRY, JR., D/B,.1
SAMUEL A. ELLSBERRY COMPANY and SHOPMEN'S LOCAL UNION 536,
OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND
ORNAMENTAL IRON WORKERS, AFL, PETITIONER. Case No. 16-RC-
699. July 18,1951
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 Charles Y. Latimer, hearing
officer. On May 15, 1951, the Board issued an order reopening the
record and remanding the proceeding to the Regional Director for
further hearing. Accordingly, a further hearing was held on May 25,
1951, before Glenn L. Moller, hearing officer. The hearing 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 [Members Houston, Murdock, and Styles].
1 For the reasons stated below, the Employer's motion to dismiss the petition on the
grounds of lack of jurisdiction and inappropriate unit is hereby denied.
95 NLRB No. 41.
SAMUEL A. ELLSBERRY COMPANY 277
Upon .the entire record in this case, the Board finds :
1. The business of the Elr.ployer
The Employer is engaged in Dallas, Texas, in the distribution and
installation of metal windows, doors and building specialties. During
the year 1950, the Employer purchased materials and supplies valued
at. approximately $593,000, of which amount approximately $452,000
represents materials and supplies shipped to the Employer's opera-
tions from points outside the State. The remaining $141,000 represents
purchases made within the State, of which amount materials in the
value of approximately $94,000 were produced outside the State. Dur-
ing the'year 1950, the Employer's sales amounted to approximately
$1,500,000, all of which were made to customers located within the
'State. During the same period, the Employer sold and delivered to a
contractor engaged in the construction of a building for the Gillette
Motor Freight Company, an interstate carrier, materials-. valued at
$7,000. In 1950, the Employer contracted to furnish metal windows
and partitions valued at $42,500 to a general contractor engaged in the
construction of the terminal building at the new Fort Worth Inter-
national Airport, financed by Federal funds and designed to service
international traffic. In the same year, the Employer agreed to furnish
to American Airlines materials valued at $22,900 for installation at
the new airport .2 The Employer holds exclusive sales franchises with
10 manufacturers of metal doors and windows located in various parts
of the United States.
The Employer contends that as the combined direct and indirect
out-of-State purchases fall short of the Board minimum jurisdictional
standard of "100 percent," the Board should not exercise its jurisdic-
tion herein. However, the materials furnished American Airlines by
the Employer constitute approximately 40 percent of the $50,000
minimum requirement of materials furnished an instrumentality of
commerce.3 Under an alternative jurisdictional requirement estab-
lished by the Board, this per when added to the direct and
indirect inflow percentages bring the total percentages above the "100
percent" jurisdictional requirement. We find therefore that the Em-
ployer is engaged in commerce within the meaning of the Act, and
that it would effectuate the policies of the Act to exercise jurisdiction
herein.
2. The labor organization involved claims to represent certain
employees 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.
2 Although the airport materials were not to be: delivered until 19.51, the Employer
included the money value of these sales in its total sales for 1950.
3 Depew Paving Co., 92 NLRB 142.
278 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
4. The appropriate unit :
The Petitioner seeks a unit composed of all production and mainte-
nance employees at the Employer's Dallas, Texas, warehouse, includ-
ing welders, glass cutters, helpers, warehousemen, and truck drivers,
but excluding office and clerical employees, guards, watchmen, profes-
sional employees, and all supervisors as defined in the Act .4 The
.Employer contends that the unit sought is composed of unrelated job
categories and is therefore inappropriate.6
The Employer's operations are conducted in a warehouse, one corner
of -which houses a welding shop. The warehouse is used to store
windows and doors not shipped directly to the installation site. In the
welding shop, doors and windows are revamped and cut down to re-
quired size. The Employer has 2 welders and a helper in the shop,
a glass cutter and helper, 4 warehousemen, 2 truck drivers, and a ship-
ping clerk. Although the warehousemen and truck drivers work under
the direction of the shipping clerk, and the welders and glass cutter
are separately supervised, final supervision of all 12 employees is the
responsibility of the Employer's chief engineer.
.
The welders, glass cutter, and helpers are engaged in converting
factory-made windows to special size by a process of cutting, grinding,
rewelding, and painting. The warehousemen load and unload ma-
terials from trucks and freight cars, clean the warehouse, and move
windows and doors in and out of the welding shop. While there is'
no essential interchangeability of work among the employees involved,
on occasion truck drivers help unload materials and clean the ware-
house and warehousemen assist the.welders' helper in painting win-
dow sash in the welding shop. It appears that the employees involved
are all hourly paid and work the same number of hours under the
same working conditions. The welders receive a substantially higher
rate of pay than do the remaining employees. There is no prior
history of collective bargaining affecting the Employer.
As no union seeks to represent the warehousemen or the truck
,drivers in separate units, we believe, in,view of the small size and
integrated character of the Employer's operations's the common super-
vision, the absence of strict departmental limitations on the assign-
ment of work, the similar hours and working conditions, and the fact
that the Petitioner seeks to represent the employees on an over-all
basis, that the Employer's warehouse employees and truck drivers
4 The Petitioner does not seek the inclusion of the outside . glazers and iron workers
employed by the Employer at the installation site.
5 The Employer further contends that the unit requested is inappropriate because the
Petitioner admits to membership only the welders and helper . The Board , however, has
held that the jurisdictional inability of a union to represent certain employees is no
ground for excluding them if their inclusion in the unit would otherwise be appropriate.
Connell ct Chaffln, Inc., 85 NLRB 887.
•Cf. Memphis Cold Storage Warehouse Company , 91 NLRB 1404.
SAN JOAQUIN COMPRESS AND WAREHOUSE coAeANY 279
should be included in the same unit with the production employees.'
We find that all production and maintenance employees at the Em-
ployer's Dallas , Texas, warehouse, including. welders, glass cutter,
helpers, warehousemen , truck drivers, and shipping clerk,8 but ex-
cluding office and clerical employees, guards, watchmen, professional
employees, and all 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 Acts
[Text of Direction of Election omitted from publication in this
volume.]
4 Bushnell Steel Company , 93 NLRB No. 96.
8 The Petitioner would exclude the shipping clerk as a supervisor . However, the
shipping clerk has no authority effectively to recommend the hire or discharge of employees,
nor is his direction of the warehousemen and truck drivers other than routine. Accord-
ingly, the shipping clerk is included in the appropriate unit.
9 The Employer maintains that the welders and helper should not be included in the
unit because difficulties in obtaining materials and unprofitable operations may necessitate
the closing of the welding shop. The record indicates that although the,Employer's
principal supplier has ceased furnishing materials , the date of termination of the Employer's
shop operations is indefinite . Under these circumstances , we are of the opinion that there
exists sufficient expectancy of continued employment of the welders and helper to warrant
their inclusion in the unit . Cf. Lone Star Seat Mfg. Co., 94 NLRB 19 . Moreover, the
Petitioner has indicated its willingness to represent the remaining employees in the event
the Employer is forced to close the shop.
SAN JOAQUIN COMPRESS AND WAREHOUSE COMPANY and. INTERNA-
TIONAL LONGSHOREMEN AND WAREHOUSEMEN'S UNION, LOCAL, 6,
PETITIONER
CALCOT COMPRESS AND WAREHOUSE and INTERNATIONAL LONGSHORU-
MEN AND WAREHOUSEMEN'S UNION, LOCAL 6, PETITIONER
CALCOT COMPRESS AND WAREHOUSE 1 and BUTCHERS UNION LOCAL NO'..
193, AMALGAMATED MEAT C>TrnlRS & BUTCHER WORKMEN OF NORTH
AMERICA, AFL, PETITIONER. Cases Nos. 21-RC-1800, 921-RC-1801,
and P31-RC-1916. July 18,1951
Decision and Direction of Election
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before Bern
Grodsky, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
I The Employer named in the petition filed in 21.-RC-1916 is California Cotton Coopera-
tive Association , Ltd. Calcot . Compress and Warehouse is the wholly owned subsidiary
of California Cotton Cooperative Association , Ltd., and is the actual employer of the
employees for whom representation is sought in both Case No. 21-RC-1501 and Case No.
21-RC-1916. Accordingly , and on its own motion , the Board hereby orders that the
petition and other formal papers in Case . No. 21-RC-1916 be, and they hereby are,
corrected to show the correct name of the Employer.
95 NLRB No. 49.