Binyon O'Keefe Fireproof Storage Co.

National Labor Relations Board - Board Decisions

Feb 12, 1946

65 N.L.R.B. 992 (N.L.R.B. 1946)

In the Matter of BINYON O'KEEFE FIREPROOF STORAGE COMPANY and
INTERNATIONAL LONGSHOREMEN'S AND AVAREHOUSE_MEN'S UNION7
C. I. O.
Case No. 16-R-150.5-Decided February 12, 1946
Messrs. Rawlings, Sayers and Scurlock, by Mr. Sam R. Sayers, of
Fort Worth, Tex., and illr. B. S. Singleton, of Fort Worth, Tex., for
the Company.
Messrs. Howard Goddard and Robert R. Hollowwa, of Fort Worth,
Tex., for the Union. -
Mr. Julhis Topol, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon a petition duly filed by International Longshoremen's and
Warehousemen's Union, C. I. 0., herein called the Union, alleging
that a question affecting commerce had arisen concerning the rep-
resentation of employees of Binyon O'Keefe Fireproof Storage Com-
pany, Fort Worth, Texas, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before William J. Scott, Trial Examiner. The hearing
was held at Fort Worth, Texas, on October 24, 1945. The Company
and the Union appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the hearing the
Company moved to dismiss the petition. The Trial Examiner referred
the motion to the Board for determination. The motion is hereby
denied for the reasons set forth in Section III, infra. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to
file briefs with the Board.
Upon the entire record iii the case, the Board makes the following :
FINDINGS OF FAOT
1. TILE BU SINESS OF THE COMPANY
Biuyon O'Keefe Fireproof Storage Company, a Texas corporation
with its principal place of business at Fort Worth, Texas, is engaged
65 N. L. It B, No 176.
992
BINYON O' KEEFE FIREPROOF STORAGE COMPANY 993
in the warehousing, storing, and trucking of goods. fn excess of 25
percent of its revenue is derived from goods originating in, or destined
for, States other than the State of Texas.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Longshoremen's and Warehousemen's Union is a
labor organization affiliated with the Congress of Industrial Organiza-
tions, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated September 27, 1945, the Union requested a confer-
ence with the Company for the purpose of discussing and obtaining
from the Company recognition as the collective bargaining agent of
certain of its employees and in order to set a tentative date for start-
Ing negotiations for a union contract. The Company, in a letter dated
September 28, questioned the Union's majority membership in the
unit and refused to bargain with the Union.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.,
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union contends that all warehouse employees and office employ-
ees, including regular part-time employees and the household goods
foreman, but excluding solicitors, collectors, the steno-clerk, sales
i The Field Examiner reported that the Union submitted 51 authorization cards, 49 of
which contained signatures of employees appearing on the Company's pay roil for the
period ending September 28, 1945, and that, on that date, there were 75 employees in the
alleged appropriate unit.
The Company objected to the admission into evidence of the Field Examiner's report for
the reason that it es:cludes from consideration former employees who have been or soon
will be released from the armed forces and who may exercise their right of reinstatement
to their former positions The Trial Examiner overruled this objection and his ruling
is hereby upheld. The Board has heretofore held that employees in the armed forces are
not to be added to the number of employees noF working for purposes of evaluating the
Union's showing of interest. See Matter of Lalance & Gros)ean, 63 N L. R B 130.
In addition the Company moved at the hearing to dismiss the petition, contending, in
effect, that no question concerning representation has arisen in view of the failure of the
Union to make a showing that a majority of the employees in the proposed unit have
authorized the Union to act as its bargaining agent This contention is clearly without
merit. The Board has frequently held that it is not necessary that a petitioner make a
majority showing in order to obtain an election. See Matter of Celanese Corporation of
America. 60 N L R B 1144 Moreoer, as appeals above, a majority showing in the
proposed unit has in fact been made
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager, Binyon O'Keefe warehouse foreman, Katy warehouse fore
man, truck dispatcher, garage foreman, assistant secretary, superin-'
tendent, and all other supervisory employees within the meaning of
the Board's usual definition, constitute an appropriate unit. The
Company agrees generally with the proposed unit; it disagrees with
the Union, however, with respect to the household goods foreman,
whom it would exclude, and with respect to the steno-clerk, Binyon
O'Keefe warehouse foreman, sales manager, solicitors and collectors,
whom it would include in the unit. The disputed categories, as well
as the office employees, are discussed hereinafter :
Household goods foreman: The Company would exclude the house-
hold goods foreman on the ground that he is a supervisor. This em-
ployee works along with his subordinates and relays orders to them
from higher supervision. He has no authority to effect a change in
status of the employees under him or effectively to recommend such -
action. Accordingly, we find that he is not a supervisory employee
within the Board's customary definition of that term. We shall, there-
fore, include the household goods foreman.
Katy warehouse foreman: The record shows that this classification
has been eliminated with no expectation of its being restored in the
near future. Accordingly, we shall make no ruling as to this classifi-
cation.
Binyon O'Keefe warehouse foreman: E. L. Koenig, the employee so
classified, is also referred to in the record either as delivery clerk or as
receiving and shipping clerk. The Union would exclude him. on the
ground that he is a supervisor. Inasmuch as there is uncontradicted
testimony that this employee has supervisory powers, we shall exclude
him from the unit.
Solicitors and the sales manager: There is no one presently employed
in these categories. However, a witness for the Company testified that
the Company plans to reemploy several former solicitors and its for-
mer sales manager who are now in the armed services. These em-
ployees spend most of their time in the field dealing with the public
and work under the supervision of the office supervisor. They have lit-
tle, if any, community of interest with the warehouse employees. We
shall exclude them from the unit.
Collectors: The Company would include these employees in the
unit. Like the solicitors their work is also mainly in the field and
is subject to the supervision of the office supervisor. They have little
connection with the operation of the warehouse, storage, or trucking
facilities. We shall exclude them from the unit.
Office employees: Although the Union and the Company would in-
clude these employees in the unit, we find no cogent reason for depart-
ing from our customary policy of excluding clerical employees from
BINYON O'KEEFE FIREPROOF STORAGE COMPANY 995
units of production and maintenance emp]oyees.2 The difference in
type of work performed and the traditional divergence in their inter-
ests are compelling reasons for their separation. Accordingly, we
shall exclude all office employees from the unit.3
Steno-clerk: 4 This employee works in the office along with the office
employees whom we have excluded from the unit. Accordingly, for
the reasons stated above, we shall exclude the steno-clerk from the unit.
We find that all the employees of the Company, including regular
part-time employees and the household goods foreman, but excluding
office employees, solicitors, collectors, the steno-clerk, sales nianager,
Binyon O'Keefe warehouse foreman, truck dispatcher, garage foreman,
assistant secretary, superintendent, and all other supervisory employ-
ees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. T1:IE DETERMINATION OF REPRESENTATIVES
At the time of the hearing the Company requested that any election
to be directed herein be delayed for 90 days to permit employees re-
cently or soon to be discharged from the armed forces to participate in
the election. Inasmuch as 90 days have already elapsed since the date
of the hearing, the issue has now become moot.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as aliiended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Binyon O'Keefe
Fireproof Storage Company, Fort Worth, Texas, an election by secret
a See Matter of Sunray Oil Corporation, 61 N: L. R. B. 1648.
Our exclusion of the office clerical employees from the unit is, however , not to be taken
as precluding the Union from seeking to establish a separate unit of these employees at
some future date. See Matter of Pacific Gas & Electric Company , 49 N. L . R. B. 810 We
are not establishing a separate unit of such employees at this time because we are unable
to determine from the record before us whether the establishment of such a unit would be
consistent with the desires of the parties.
4 Stella Pearcy.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Sixteenth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election, to determine whether or not they desire to be represented
by International Longshoremen's and Warehousemen's Union, C. 1. 0.,
for the purposes of collective bargaining.
Mx. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
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