Sidney Myers, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1947

74 N.L.R.B. 112 (N.L.R.B. 1947)

0
In the Matter of SIDNEY MYERS, INC., EMPLOYER and FOOD, TOBACCO,
AGRICULTURAL & ALLIED WORKERS UNION, LOCAL No. 75, C. 1. 0.,
PETITIONER
Case No. 16-R-2168.-Decided June 13, 1947
Fulbright, Crooker , Freeman & Bates , by Messrs . Leon Jaworski
and George N. Edwards, of Houston, Tex., for the Employer.
Mandell & Wright, by Messrs . Herman Wright and Jack Frye, of
Houston, Tex., for the Petitioner.
Mr. Edmund J. Flynn, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Houston,
Texas, on April 3, 1947, before Elmer Davis, hearing officer. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Sidney Myers, Inc., a Texas corporation, is engaged in the whole-
sale grocery business in connection with which it operates two ware-
houses in Houston, Texas. Annually the Employer purchases gro-
ceries valued in excess of $5,000,000, of which 75 percent is shipped
to it from points outside the State of Texas. The Employer's annual
sales of groceries exceed $5,000,000 in value of which less than 1
percent is shipped to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the, meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The'Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
74 N. L. R. B., No. 27.
112
SIDNEY MYERS, INC. 113
M. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting. commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner and Employer are in general agreement that the unit
should include all warehouse packing, service and clean-up employees,
and all truck drivers and their helpers at both of the Employer's
warehouses in Houston, Texas, but excluding office clerical and super-
visory employees. However, the Employer would also include cer-
tain other categories all of whom the Petitioner would exclude.
Clerical employees: The Employer employs about 90 clerical em-
ployees. Both the Employer and Petitioner would exclude all but
21 of these employees inasmuch as their work is admittedly office
clerical work. However, the Employer contends that these 21 other
clerical employees should be included in the unit for the reason that
their work continually brings them in close association with the rank-
and-file warehouse employees. The record indicates that these 21 em-
ployees handle all merchandise invoices and customers' accounts ;
and that in order to keep the customers' accounts up to date it is often
necessary for them to check the merchandise on hand and the con-
tents of the customers' orders being processed on the warehouse floor.
The offices, although variously located throughout the warehouse,
are enclosed and thus are physically separated from the main ware-
house operations. The 21 employees are not segregated from the
other office clericals, but on the contrary share office facilities with
them. Most of these disputed clericals spend more time in the offices
with other clericals not in dispute than on the warehouse floor, and
they are directly responsible to an assistant accountant who also su-
pervises the work of other office clerical employees. In view of all the
circumstances, we find that the interests of these 21 employees are
more closely allied with the interests of the other office clericals than
with those of the production employees. We shall, therefore, exclude
them from the unit.'
Shipping and receiving clerks: The Petitioner would exclude these
13 employees on the grounds that they are supervisors. The record
shows that these employees direct the assembling and loading of orders
'Matter of American Optical Company, 63 N. L. R. B. 924, 926 . See Matter of Rival
Foods, Inc., 71 N. L. R. B. 622; and Matter of Griryin -Goodner Grocery Company, 02
N. L. R. B . 1140, 1142.
:114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for transit but that they do not have the power to hire, discharge, or
to recommend changes in the status of other employees. We find that
the shipping and receiving clerks are not supervisory employees
within our customary definition of the term and we shall, therefore,
include them in the unit 2
Lena Claybourne directs the work of 22 employees in the packing
department. The Employer's vice president testified, without contra-
diction, that she has authority effectively to recommend changes in
the status of the employees under her direction. We shall, accord-
ingly, exclude her from the unit.
We find that all warehouse packing, service and clean-up employees
at the Employer's two warehouses in Houston, Texas, including ship-
ping and receiving clerks and truck drivers and their helpers, but
excluding all office clerical employees and all supervisory employees 3
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
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Sidney Myers, Inc., Houston,
Texas, an election by secret ballot shall be conducted as early as pos-
sible, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Sixteenth Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period imme-
diately 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 dis-
charged 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 Food, Tobacco, Agricultural & Allied Workers Union,
Local No. 75, C. I. 0., for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
2 Matter of Wilson t Co., Inc., 68 N. L. R. B. 592, 595.
$ Including Lena Claybourne.