W. C. DuComb West

National Labor Relations Board - Board Decisions

Dec 20, 1978

239 N.L.R.B. 964 (N.L.R.B. 1978)

DECISIONS OF NA rIONAL LABOR RELATIONS BOARD
W. C. DuComb West, a Division of W. C. DuComb
Co., Inc., Employer-Petitioner ' and DuComb West
Employee Association. Case 7 RM- 1112
December 20, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election by the Regional Director for Re-
gion 7 on October 28, 1977, a representation election
was conducted among a unit of employees 2 at the
Employer's Wyandotte, Michigan, location on No-
vember 8, 1977. A majority of the valid ballots were
cast for DuComb West Employee Association, and
that labor organization was certified by the Regional
Director for Region 7 as the representative of em-
ployees in that unit on November 16, 1977.
On March 24, 1978, the Regional Director for Re-
gion 7, sua sponte, issued an Order To Show Cause
why the above certification should not be revoked,
based on information purporting to show that the
Employer had filed the representation petition in the
face of a colorable claim that Teamsters Local 299,
the Intervenor herein, may have represented these
employees and that no party to the representation
proceeding informed the Region of this claim. The
Employer and the Intervenor submitted briefs and,
on April 28, 1978, the Regional Director for Region 7
issued an order setting aside election, vacating certi-
fication, and dismissing petition. Pursuant to a re-
quest for review of the Regional Director's order, the
Board, by telegraphic order dated July 13, 1978,
granted the request for review,3 reinstated the repre-
sentation petition, stayed the certification previously
issued, and remanded the case for a hearing as to
whether the Wyandotte facility (hereinafter called
Wyandotte) was an accretion to the Employer's ex-
isting facility located in Detroit (hereinafter called
Detroit). On August 11, 1978, a hearing on this mat-
ter was held before Hearing Officer Richard M.
Whiteman. Thereafter, the Employer and the In-
tervenor submitted briefs. On September 1, 1978, the
case was transferred to the Board for consideration.
Pursuant to the provisions of Section 3(b) of the
The name of the Employer appears in the caption as amended at the
hearing.
2 According to the stipulation, the unit consisted of all full-time and regu-
lar part-time office, warehouse, and customer service employees employed
by the Employer at its facility located at 4072 13th Street, Wyandotte.
Michigan. but excluding outside salesmen, guards. supervisors as defined in
the Act, and al' other employees.
3Chairman Fanning, dissenting, would have denied review.
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer, a Michigan corporation engaged
in the business of selling, warehousing, and shipping
power transmission equipment at its Wyandotte,
Michigan, facility, is engaged in commerce within the
meaning of the Act and it will effectuate the purpose
of the Act to assert jurisdiction herein.
2. The Union and the Intervenor are labor organi-
zations claiming to represent certain employees of
the Employer.
3. Prior to September 1977 the Employer operated
solely out of its Detroit location. The Intervenor
herein has represented the warehouse and the office
clerical employees at this facility in separate units
since approximately 1968 and 1972, respectively, and
has negotiated collective-bargaining agreements on
their behalf. Out of a total work force of approxi-
mately 55 at Detroit, approximately 45 employees
are represented by the Intervenor. At all times mate-
rial herein, the bargaining agreements executed be-
tween the Employer and the Intervenor have includ-
ed a clause stating that the agreement shall cover all
"employees in the classifications of work set forth
herein and shall cover all accretions to or relocations
of bargaining unit operations, including newly estab-
lished or acquired warehousing, transportation or
processing operations of the Employer." In Septem-
ber 1977 the Employer opened a second facility in
Wyandotte, whose employees are the subject of the
instant proceeding. The Intervenor contends that
these warehouse and office clerical employees are ac-
cretions to the units of employees represented by it at
the Employer's existing Detroit facility and that no
question concerning representation has been raised
by the instant petition. The Employer and the Union
contend that no accretion has occurred and that the
representation petition was properly filed and pro-
cessed.
In determining whether there is an accretion to an
existing unit, this Board has recently stated in Bryan
Infants Wear Company,4 quoting from Peter Kiewit
Sons' Co.,5 that:
[T]he following factors are particularly relevant:
the bargaining history; the functional integra-
tion of operations; the differences in the types of
work and the skills of employees; the extent of
centralization of management and supervision,
particularly in regard to labor relations, hiring,
discipline, and control of day-to-day operations;
4235 NLRB 1305 (1978).
5231 NL.RB 76 (1977).
964
W. C. DUCOMB WEST
and the extent of interchange and contact be-
tween the groups of employees.
Based on the evidence adduced at the hearing with
respect to these factors and as set forth below, we
conclude that the employees at Wyandotte are not an
accretion to the existing units of employees at De-
troit.
The Employer's Wyandotte operation was opened
in September 1977, primarily in response to the fail-
ure of the Employer's Detroit facility to service ade-
quately customers located in the vicinity of the new
facility, located at least 16 miles south of the Detroit
operation. Prior to that time, the Employer had dis-
covered that sales to such customers had been falling
off or were being terminated.
In preparation for the opening of the new facility,
separate purchasing accounts were set up with sup-
pliers, and items constituting approximately 50 per-
cent of the inventory in the new facility were deliv-
ered there. Due to difficulties in establishing
accounts with other suppliers, the remaining half of
the inventory was transferred from the Detroit ware-
house. At the time of the hearing, approximately 30
percent of the inventory at Wyandotte was still pur-
chased by and delivered to Detroit and immediately
routed to Wyandotte. The primary basis for such in-
direct delivery is the Employer's desire to avail itself
of discounts for quantity orders placed with sup-
pliers. As currently structured, approximately 50-55
percent of Wyandotte's inventory is not duplicative
of the inventory at Detroit, in part due to the fact
that a greater percentage of Wyandotte's customers
are engaged in basic industry and typically need dif-
ferent equipment.
In order to staff the Wyandotte facility, three em-
ployees and a supervisor were transferred from De-
troit. None of these individuals was represented by
the Intervenor in the established units at the time of
their transfer. At the time of the hearing, the number
of employees actively employed at Wyandotte had
increased to five, including two working part time.
There is no evidence that any collective bargaining
has occurred with respect to the Wyandotte employ-
ees prior to the filing of the instant petition.6
With respect to the functional integration of the
two facilities, there does appear to be some overlap
of suppliers and customers at the two locations, but
additional evidence indicates that separate accounts
are maintained and that each location transacts busi-
ness directly and independently with its suppliers
and customers, except as otherwise indicated herein.
6 We note. however, that the Intervenor and the Employer executed a
previously negc 'ated contract covenng the warehouse employees at Detroit
on November 14, 1977.
In filling the orders of its customers, the Wyandotte
facility is not always able to fill the customer's order
from its own inventory. The percentage of orders af-
fected in this manner has decreased from about 75
percent at the start of 1978 to 40 percent at the time
of the hearing in August 1978. In order to complete
the customer's orders, Wyandotte acquires roughly
half of the needed items from its suppliers and ap-
proximately half from the inventory at Detroit. Con-
sequently, about 20 percent of the orders placed with
Wyandotte are filled, at least in part, with inventory
from Detroit. Usually someone from Wyandotte
picks up the needed items from Detroit and delivers
it to the customer, although infrequently a Detroit
driver either delivers it to Wyandotte or, on an emer-
gency basis, delivers the items directly to the custom-
er. The evidence indicates, however, that such direct
delivery by a Detroit driver to a Wyandotte customer
occurs in filling about 2-2-1/2 percent of
Wyandotte's orders.
In transferring inventory between Detroit and
Wyandotte, deliveries are made several times a week,
involving drivers from both facilities, and printed
transfer forms are utilized to account for the trans-
actions. In view of the maintenance of separate in-
ventories, the formalized nature of the transfers be-
tween the two facilities, and the separate relations
with respect to customers and suppliers, we conclude
that no significant functional intergreation exists be-
tween the two facilities.
We also find that there is a minimal degree of in-
terchange and contact between the two groups of
employees. No employees represented by the In-
tervenor have been transferred from Detroit to
Wyandotte,7 and, in the 11 months Wyandotte was in
operation prior to the time of the hearing, only one
employee was transferred from Wyandotte to De-
troit. This transfer was on a permanent basis and was
not covered by any formalized job-bidding proce-
dure. In transferring inventories between locations,
drivers from each facility come in contact with em-
ployees from the other facility, but as this contact
does not appear to differ from that involved in mak-
ing deliveries of inventory to customers, such contact
is not significant.
Although as a whole the job classifications and
functions are identical at each facility, the distribu-
tion of such work and the exercise of related skills is
significantly different at the two locations. At De-
troit, warehouse and clerical workers perform limited
functions within a single classification,8 whereas, at
Robert E. Tusset, who had previously been a warehouse employee at
Detroit. was a nonunit management trainee at the time of his transfer to
Wrandotte in September 1977
The one exception to this is that drivers at Detroit spend 20 25 percent
of their time pulling and packing orders. a warehouse function
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wyandotte, the employees, although formally occu-
pying a single classification, typically spend a signifi-
cant part of their working time performing functions
in all other classifications. Furthermore, due to
Wyandotte's need to establish a market for its prod-
ucts at the new location, the employees there fre-
quently are given leeway to depart from established
list prices when making quotations for prospective
customers. While such overlap of functions and
greater degree of discretion is attributable in part to
the smaller size of Wyandotte and the frequent ab-
sence of its manager, it remains that individual em-
ployees at Wyandotte perform more varied tasks and
need to possess a greater range of skills.
Finally it does not appear that the two facilities at
Detroit and Wyandotte are centrally managed and
supervised. Since its opening, Howard Norris has
been manager at Wyandotte and is in control of its
day-to-day operations. He interviews job applicants
and has the authority to hire, fire, or lay off employ-
ees. He also schedules, assigns work, and grants time
off to employees in his charge. In addition he may
discipline them by verbal or written warnings and
can promote or grant them raises. While all employ-
ees at Wyandotte handle customer complaints, Nor-
ris is able to resolve complaints of a major nature.
Although some of the terms and conditions of em-
ployees at the two facilities are identical or similar,
such as insurance and retirement plans, and vaca-
tion, holiday, and sick days, additional evidence
shows significant differences. As previously noted,
employees at Wyandotte are separately supervised
and perform more varied functions. Full-time em-
ployees are salaried and participate in a profit-shar-
ing plan, but are not directly compensated for over-
time. Detroit employees are paid hourly and are not
involved in profit sharing. Hours of employment also
vary between the two locations.
While we note that the two operations are central-
ized for the purposes of certain accounting functions
such as invoicing, bill paying, and banking, and that
master personnel files are maintained in Detroit for
Wyandotte employees, this evidence does not coun-
terbalance the showing that in all other respects the
Wyandotte facility operates with a substantial degree
of autonomy from the larger Detroit operation.
For the reasons stated above, we find that the em-
ployees located at Wyandotte do not constitute an
accretion to the existing units located at Detroit. Fur-
thermore, as the Intervenor at no time presented the
Employer with proof that it had acquired majority
status at the Wyandotte facility, we find that the ac-
cretion clauses in the bargaining agreements for the
L)etroit employees did not obligate the Employer to
recognize the Intervenor as the representative of em-
ployees at Wyandotte. Houston Division of the Kroger
Co., 219 NLRB 388 (1975).9 See also Ringsby Truck
Lines, Incorporated, 211 NLRB 280 (1974). Accord-
ingly, a question of commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. In view of the above, we find that the following
employees constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time office, ware-
house, and customer service employees em-
ployed by the Employer at its facility located at
4072 13th Street, Wyandotte, Michigan, but ex-
cluding outside salesmen, guards, supervisors as
defined in the Act, and all other employees.
Accordingly, as a majority of the valid ballots cast
by employees in the above unit in the November 8,
1977, election were cast for DuComb West Employee
Association and that labor organization was certified
by the Regional Director for Region 7 as the repre-
sentative of employees in that unit, we shall order
that the stay of this certification previously issued by
us be withdrawn.
ORDER
It is hereby ordered that the stay of the certifica-
tion of DuComb West Employee Association as the
Dargaining representative of employees in the appro-
priate unit is hereby withdrawn and that such certifi-
cation be, and it hereby is, in full force and effect.
F or the reasons stated in his dissent in Houston Division of the Kroger
('ompani. supra. Member Penello finds that the accretion clauses, as word-
ed. would not have obligated the Employer to recognize the Intervenor,
regardless of the Intervenor's ability to show its majority status.
966