Charles Bruning Co., Inc

National Labor Relations Board - Board Decisions

Jan 13, 1960

126 N.L.R.B. 140 (N.L.R.B. 1960)

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date on which the election was scheduled, rather than the date of the
actual balloting, is controlling for the purpose of determining the
insulated period As the above speech of the Employer was made
within 24 hours of the scheduled election, we find that the conduct
violated the Peerless Plywood rule We shall, therefore, set the elec-
tion aside and order a second election 3
[The Board set aside the election ]
[Text of Direction of Second Election omitted from publication ]
CHAIRMAN LEEDoni took no part in the consideration of the above
Supplemental Decision, Order, and Direction of Second Election
3In light of this disposition we find it unnecessary to answer the other issues raised
by the Petitioner
Charles Bruning Company, Inc.' and Office Employees' Interna-
tional Union Local 10, AFL-CIO , Petitioner. Case No 7-RC-
4117 January 13, 1960
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 Donald F Sugerman, hear-
ing officer The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed
Upon the entire record in this case , the Board finds
1 The Employer is engaged in commerce within the meaning of the
Act
2 The labor organization involved claims to represent certain em-
ployees 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
4 The parties stipulated that an overall unit of office clerical em-
ployees, shipping and receiving employees , and service repair me-
chanics of the Employer at its Detroit, Michigan , branch, excluding
salesmen , all other employees, guards, and supervisors as defined in
the Act, was appropriate They disagreed only as to the unit place-
ment of the service manager, who the Petitioner contends is a super-
visor and as to whom the Employer refused to take a position
The Employer is engaged in the manufacture , sale, and service of
copying equipment to customers such as Ford Motor Company, Gen-
eral Motors Corporation , and Chrysler Corporation Its home office
'The name of the Employer appears as amended at the hearing
126 NLRB No 13
CHARLES BRUNING COMPANY, INC. 141
is located in Illinois, with a sales and service branch office at Detroit,
Michigan, which is the only installation of the Employer herein in-
volved. The top official of this branch office is the branch manager.
Immediately responsible to him are the assistant branch manager and
the sales supervisor. The assistant branch manager, in turn, super-
vises the office manager, the service manager, and the leadman of the
shipping department. There are 14 or 15 employees in the stipulated
unit, consisting of approximately 4 servicemen, 2 or 3 shipping em-
ployees, and approximately 9 office clerical employees. Insofar as the
record shows, there is funtcional integration of these employees in
that a girl at the desk writes up service orders based on telephone
calls from customers. She gives the orders to the service manager,
who assigns them; or, during his absence while he is in the field, she
relays such orders to a serviceman when he checks in from the field
by telephone. There is no bargaining history. In all the circum-
stances herein, particularly because the Employer is engaged in a
wholesale operation, because of the small group of employees herein
involved, and because the office clericals and servicemen work under
the same overall supervision and have a community of interest, and,
finally because the parties have stipulated to this unit, we find that the
unit to which the parties have agreed is appropriate?
As noted above, the supervisory status of the service manager is
disputed. He is in charge of four servicemen. In this connection, he,
in addition to spending 50 percent of his time in the field doing service
work, prepares orders on the basis of customer contracts and assigns
these orders to the servicemen. He also prepares 6-month rating
sheets for the four servicemen, appraising them as to quality of work,
cooperation, absenteeism, and initiative. Although such ratings are
reviewed on a higher level and the service manager can make no final
decision in this connection, the record shows that he would make the
recommendations as to whether a rating should be increased or pay
raise given and that, in the majority of cases in the last 2 years, his
recommendations have been followed. Unlike the four men under
his direction and like the agreed supervisors, he is salaried. In these
circumstances, we find that he is a supervisor and exclude him from
the unit.
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 office clerical employees, shipping and receiving employees, and
service and repair mechanics of the Employer at its Detroit, Michigan,
branch, excluding salesmen, all other employees, guards, the branch
2 See Interstate Supply Company, 117 NLRB 1062; 0 E McIntyre, Inc., 118 NLRB
1290, The Eavey Company, 115 NLRB 1779, 1780, Oregon Macaroni Company et at.,
124 NLRB 1001, footnote 11
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manager, assistant branch manager, the office manager, the service
manager, and all other supervisors as defined in the Act.
Our dissenting colleague asserts that there is no precedent for the
foregoing unit determination. While we agree with him that the
Board will not honor unit stipulations between the parties to repre-
sentation proceedings which conflict with Board policy, we do not
agree with his conclusion that the stipulation herein conflicts with
such policy. In this connection, we also agree with him that it has
been, and is, Board policy to prevent the commingling in production
and maintenance units of office clerical employees and those who per-
form manual labor.' However, we uniformly include office clerical
employees in retail selling and nonselling units,4 although such units
include service and repair employees and many other categories of
manual employees. Moreover, in units involving wholesale opera-
tions, the Board includes office clericals in units which also include
manual workers where there is no objection by the parties.' In the
instant case not only is there a complete absence of objection to their
inclusion, but there is present an unequivocal intent that the office
clericals be included in the overall unit. The stipulated unit is much
more similar, from the point of view of work done and mutual inter-
ests of the employees involved, to the units held to be appropriate in
retail and wholesale operations, than to units in manufacturing plants.
In these circumstances, we conclude that our unit determination herein
complies fully with the rules and policies which our dissenting col-
league claims are in conflict with such determination.
[Text of Direction of Election omitted from publication.]
MEMBER JENKINS , dissenting :
I do not agree with the majority's determination that a single unit
of office clerical employees and manual employees constitute an ap-
propriate unit simply because the parties have so agreed among them-
selves. Concededly, there is no precedent for such a unit determina-
tion ; on the contrary, it is a plain departure from settled Board policy,
which is to separate these two groups of employees for collective-
bargaining purposes.
s Although the Board customarily excludes office clerical employees from production
and maintenance units even where there is a bargaining history including them ( Marston
Corporation, 120 NLRB 76 , 78, Dura Steel Products Company , 109 NLRB 179, 182), it
should be noted that the Board has recently extended this policy to include office clericals
in a production and maintenance unit where there is a bargaining history of inclusion
coupled with a stipulation to include them. Oregon Macaroni Company , 124 NLRB
1001, footnote 11; Arrow Linen Supply Company, Inc , Case No 2-RC-9912, issued
July 31, 1959 , unpublished.
4 Interstate Co , Glass House Restaurants , 125 NLRB 101 ; Duane's Miami Corporation,
119 NLRB 1331, 1335.
5 Interstate Supply Company, 117 NLRB 1062, 1064; see also Nathan Warren and
Sons, Inc., 119 NLRB 292, 297 ; Walgreen Company, 89 NLRB 1397, 1398-1399;
Worth Hardware Co., Inc., 71 NLRB 684, 686.
CHARLES BRUNING COMPANY, INC. 143
From the very inception of the Act until today, the Board has
recognized the essentially different functions, status, and interests of
office clerical employees from those of employees who perform manual
labor, customarily denominated production and maintenance em-
ployees.6 For this reason, it has been the Board's considered and
consistent judgment that a commingling of these two groups in a
single unit would not be conducive to effective collective bargaining.'
Accordingly, it has excluded office employees from production and
maintenance units and has established them in separate appropriate
units. It has applied this policy even in the face of a contrary col-
lective-bargaining history 8 and where there was no objection to merg-
ing the office clerical employees with the production and maintenance
employees in a single unit .9 In the countless number of cases coming
before the Board, the Board has not been able to find any special
circumstances which would persuade it to depart from the above
policy.
Notwithstanding the foregoing, the Board, in the instant case, is
giving its imprimatur to a collective-bargaining unit which up to
the present time it has always regarded to be ineffective and inappro-
priate for collective-bargaining purposes because of the unquestioned
dissimilarity in interests of the office clerical and manual employees.
It now evidently justifies its departure from settled practice only
because of the parties' agreement. Yet, the Board has also repeatedly
emphasized in its decisions that it will not honor unit stipulations
between parties in a representation proceeding which conflict with
Board policy.10 Thus, in Yale and Towne Manufacturing Company
case, which is particularly applicable here, the Board excluded from
an office clerical unit dispatchers, despite the parties' agreement to
include them, because, as the Board held, they were employees whom
the Board customarily included in production and maintenance units
and excluded from office clerical units. The Board there made clear
in unequivocal language that it was "not bound by stipulations of
parties to representation proceedings where the record facts disclose
an inconsistency between the stipulation and established Board
policy." 11 This is precisely the situation here 12 and yet the majority
is ordering an election in a unit manifestly inappropriate and will
0 Pacific Gas and Electric Company, 3 NLRB 835 ; Atlantic Basin Iron Works, 5 NLRB
402, Boston Edison Company, 51 NLRB 118, Buckeye Rural Electric Cooperative, Inc,
88 NLRB 196; The Yale and Towne Manufacturing Company, 112 NLRB 1268; Marston
Corporation, 120 NLRB 76.
7 I bid.
8 Boston Edison Company, supra ; Marston Corporation , supra.
9 Buckeye Rural Electric Cooperative, Inc., supra.
10 The Yale and Towne Manufacturing Company, supra ; United States Cold Storage
Corporation, issued November 10, 1959, unpublished
n The Yale and Towne Manufacturing Company, supra , at p. 1270.
37 The record indicates that the proposed unit consists of approximately nine office
clerical employees , four servicemen , and two or three shipping employees.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confer the benefits of a certification on the Petitioner, if it wins the
election.
In suln, I find nothing in the record or the majority's decision to
justify discarding Board policy and substituting the parties' agree-
ment for the Board's informed and considered judgment respecting
unit determinations. Accordingly, I dissent from the majority's
Decision and Direction of Election.
MEMBER FANNING took no part in the consideration of the above
Decision and Direction of Election.
Flatbush General Hospital and Local 144 , Hotel and Allied
Service Employees Union , Building Service Employees Interna-
tional Union, AFL-CIO. Case No. 0-RM-1064. January 13,
1960
DECISION AND ORDER
Upon a petition duly filed under Sections 9(c) and 8(b) (7) (C) of
the National Labor Relations Act, a hearing was held before James J.
Graham, hearing officer.' The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
The Union moved to dismiss the petition on the grounds, inter alia,
that the Employer is a proprietary hospital not engaged in commerce,
and that even if statutory jurisdiction is found to exist, the impact
of the operations of proprietary hospitals such as the Employer is
insufficient to warrant assertion of jurisdiction by the Board. The
Employer opposes the motion on the grounds that the New York State
Labor Relations Board decided, in three cases involving proprietary
hospitals, that the operations of such hospitals affected commerce to
such an extent that it was without jurisdiction,2 and that, in the cir-
cumstances, the National Labor Relations Board should assert juris-
diction in the instant proceeding.
The Employer is a private or proprietary hospital located in
Brooklyn, New York. It is owned and operated by Dr. Samuel B.
Berson under a license issued by the State of New York. The hos-
pital has 111 beds and employs about 140 employees. It has been in
i It is stipulated that the Union began to picket the Employer for recognition on
November 13, 1959 On November 17, the Employer filed a charge in Case No. 2-CP-4,
alleging a violation of Section 8(b) (7) (C) of the amended Act The instant petition was
filed on November 20 for an expedited election pursuant to the first proviso of Sec-
tion 8(b) (7) (C) The Regional Director, under the authority of Section 101 23(c) of
the Board's Statements of Procedure, ordered the hearing which was held herein.
2 See Hunts Points Hospital, 22 SLRB No. 18 , Medical Arts Sanito,sum, 22 SLRB
No 19, and Brunswick Home, Inc. 22 SLRB No 41 The Petitioner has filed a petition
with the New York State Labor Relations Board for an election among the employees of
the Employer in the unit which it claims to represent, which petition is still pending
126 NLRB No 22.