Select Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1961

130 N.L.R.B. 1286 (N.L.R.B. 1961)

1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Electrical , Radio and Machine Workers,
AFL-CIO, Frigidaire Local 801 (General Motors Corporation,
Frigidaire Division ) and Donald L. Snyder
General Motors Corporation , Frigidaire Division and Donald L.
Snyder. Cases Nos. 9-CB-772 and 9-CA-1924. March 10, 1961
ORDER AMENDING DECISION AND ORDER
On January 19, 1961, the Board issued a Decision and Order in the
above-entitled proceeding, finding that Respondents had discriminated
against the Charging Party and directing them, inter alia, to make
him whole for loss of pay suffered as the result thereof. (129 NLRB
1379.) In making this finding, the Board reversed the Trial Ex-
aminer who had found that no unfair labor practice had been com-
mitted. Thereafter on February 16, 1961, Respondent Union filed a
motion with the Board seeking to amend the backpay provision of
the Order so as to toll backpay for the period between the date of
the Intermediate Report and the date of the Board's Decision and
Order in view of the Board's reversal of the Trial Examiner.
The Board having duly considered the matter finds merit in the
motion.,
Accordingly,
IT IS HEREBY ORDERED that the Decision and Order herein be, and it
hereby is, amended, by inserting the following after the next to last
sentence of the section entitled "The Remedy" :
Backpay shall be abated for the period from the date of the
issuance of the Intermediate Report to the date of the issuance
of the Decision and Order herein.
CHAIRMAN MCCuLLOCH and MEMBER JENKINS took no part in the
consideration of the above Order Amending Decision and Order.
1 Tame-O-Matic, Inc., 121 NLRB 179 , 181; Vogue Linger{e, Inc., 123 NLRB 1009, 1012.
130 NLRB No. 132.
Select Foods, Inc., and Teamsters Local Union No . 61, affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Petitioner. Case No.
11-RC-1405. March 10, 1961
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 Louis Perloff, hearing
1 The name of the Employer appears as amended at the hearing.
130 NLRB No. 88.
SELECT FOODS, INC. 1287
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 Rodgers, Leedom, and Fanning].
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
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of the employees of the* Employer within the meaning of
Section 9(c) (1) and Section 2(6) and. (7) of the Act.
4. The appropriate unit.
The Employer is engaged in the warehousing and wholesale dis-
tribution of food products. There is no collective-bargaining history
for its employees. The Petitioner seeks a unit comprising all drivers,
warehousemen, and mechanics employed at the Employer's ware-
house plant, Hendersonville, North Carolina, excluding office clericals,
guards, and supervisors within -the meaning of the Act. The Em-
ployer takes the position that the appropriate unit should include
all employees at the Hendersonville warehouse, except office clericals
and supervisors. Specifically, the parties are ' in disagreement con-
cerning the following categories :
The five clerks in the IBM room and the invoice clerk: The Em-
ployer contends that they are plant clericals and the Petitioner con-
tends that they are office clericals. Four of the IBM clerks do routine
work on the IBM machines, writing orders and assembling inventory
and sales data; they spend all but about 10 minutes a day in the IBM
room. The other IBM clerk (Vaughn) spends 95 percent of his time
in the IBM room processing data on the IBM machines for assem-
bling orders. On occasion he brings the orders out to the warehouse-
men to be filled. The invoice clerk (Harrison) makes up bank state-
ments, checks drivers' reports and C.O.D. orders, gets invoices from
the warehouse, makes up payrolls, and does typing and other routine
work. All these employees work in the office wing of the premises.
Their work does not bring them into contact with the production and
maintenance workers except on an incidental basis. We find that
these employees are office clericals and shall exclude them 2.
Drake and Pace alternate as watchmen during night and weekend
hours when no others are present. Both have the duty of protecting
the premises against intruders. They watch for fire, theft, or loiter-
2J. P. Stevens & Company, Inc., 123 NLRB 758. The IBM room "supervisor" (Dunn)
performs essentially the same work under the same conditions as the IBM clerks. While
there is insufficient evidence in the record to determine whether he is a supervisor, as
contended by Petitioner, he is in any event to be excluded as an office clerical.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing around the premises. Both are armed; Drake is deputized.
Pace may also assemble and give orders to customers who call on
Saturday and load or unload trucks that come in on Saturday or
Sunday. On these facts we find that both are guards within the
meaning of the Act and accordingly shall exclude them from the unit .$
White is designated by the Employer as the night shipping clerk.
He is salaried and his earnings are 40 percent above those of the other
nine night employees. Although he cannot hire, fire, or promote, he
is the sole management representative present in the department at
night and directs the night employees in their work. On this record
we find that White responsibly directs the employees under him
and is a supervisor within the meaning of the Act 4 We shall, there-
fore, exclude him from the unit.
Stephens is a night shipping clerk who acts as White's assistant.
He assembles manifests, acts as checker while trucks are loading, and,
when White is available, will help load. He assumes the authority of
White when the latter is absent or on vacation. However, he is paid
on an hourly basis, and on the occasions when he substitutes for
White, which consumes about 5 percent of his time, he receives no
additional compensation. We find that Stephens is a plant clerical
having at best minimal, sporadic authority to direct the work of
others and none of the other indicia of a supervisor. Accordingly,
we shall include him in the unit.'
Bryson is a maintenance engineer who keeps the refrigeration
equipment in proper condition and does the necessary welding, car-
pentry, and electrical work in the plant. When a helper is required
he requests one from the plant manager. He has no authority to hire
or fire and makes no decisions affecting the helper's pay. Rhodes
repairs and maintains the Company's trucks. He cannot hire or fire
or make effective recommendations with respect to the tenure or work
conditions of the two mechanics who may assist him. As the only
directional authority these men possess does not involve the use of
independent judgment, but is routine in nature, we find that they
are -not supervisors. Accordingly, we shall include them in the unit
as mechanics.'
Newsom, who is salaried, checks the quantity and description of
goods arriving in the warehouse. In addition he helps load and un-
load. He has no supervisory authority. We shall include him as a
plant clerical?
8 Watchmanitors, Inc., 128 NLRB 903.
4 West Virginia Pulp and Paper Co., 122 NLRB 738, 741, 744.
S Seattle Automobile Dealers Association , 122 NLRB 1616, 1617-1618.
9 Southern Steel t Stove Company, Inc., et at., 124 NLRB 577, 578.
4 Atomic Power Equipment Department of General Electric Company, 118 NLRB
456, 460.
UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL NO. 469 1289
Williams is a full-time salesman from June through September.'
During the rest of the year he contacts schools for orders and relieves
other salesmen absent or on vacation. Like the other salesmen he is
paid on a salary and commission basis. When not engaged in selling
he is a part-time warehouseman. As it appears that Williams spends
the major portion of his time performing tasks like those of the
salesmen excluded from the unit, we shall exclude him.'
Accordingly, we find that the following employees at the Em-
ployer's warehouse plant, Hendersonville, North Carolina, constitute
an appropriate unit for the purposes of collective bargaining with the
meaning of Section 9(c) of the Act:
All drivers, warehousemen, and mechanics, including plant cleri-
cals, but excluding the IBM clerks, the invoice clerk, office clericals,
salesmen, watchmen, guards, professional employees, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 The parties agreed to exclude the full-time salesmen who are paid on a salary and
commission basis, contact customers for orders , and are away from the plant most of
the time.
9 Denver-Colorado Springs -Pueblo Motor Way, 129 NLRB 1184. Member Fanning, for
the reasons stated in his dissent in the latter case , would allow Williams to vote and
include him in the unit to the extent that he performs warehouseman work, as it appears
that such work regularly occupies a substantial part of his time.
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Local No. 469 , AFL-CIO; United Brotherhood of
Carpenters and Joiners of America , Local No. 1100, AFL-CIO;
International Hod Carriers , Building and Common Laborers
Union of America, Local No. 556, AFL -CIO [W. D. Don Thomas
Construction Company] and Howard C. Johnson .' Case No.
921-CC-343. March 10, 1961
SUPPLEMENTAL DECISION AND AMENDED ORDER
On September 12, 1960, the Board issued a Decision and Order,
generally adopting the Trial Examiner's findings, conclusions, and
recommendations.' The Trial Examiner had found and concluded
that the Respondents induced and encouraged the employees of
Thomas to engage in a strike with an object of forcing Thomas to
cease doing business with Johnson, in violation of Section 8 (b) (4) (A)
of the Act. The Trial Examiner had accordingly recommended, in
line with current Board practice, that the Respondents cease and desist
1129 NLRB 36.
130 NLRB No. 129.