Samuel A. Ellsberry Co.

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Retail Clerks in Case No. 21-RC-18718 we further find that the unit sought by the Teamsters is too limited in scope and therefore inappropriate for bargaining purposes.7 Accordingly, we shall dis- miss the petition in Case No. 21-RC-1870. We therefore find that all employees of the Employer's three Bakers- field, California, stores, excluding truck drivers, guards, watchmen, outside salesmen, confidential employees,8 and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. Order IT IS HEREBY ORDERED that the petition in Case No. 21-RC-1870 be, and it hereby is, dismissed. [Text of Direction of Election omitted from publication in this volume.] 6 Schenley Distillers Corp., supra; Lindy Optical Company, 85 NLRB 940; Lone Star Producing Company, 85 NLRB 1137; Bethlehem Fairchild Shipyard Inc, 58 NLRB 579. 7 Under all the circumstances, the Teamsters' unit could be considered appropriate only by regarding as controlling the extent of that Union's organization. This the statute prohibits. C. Pappas Company, 80 NLRB 1272. 8 Although the parties agreed that two secretaries are employed in a "confidential" capacity and should be excluded, the record is silent as to the specific duties of these employees. If they act in a confidential capacity for individuals charged with managerial responsibilities in the field of labor relations they are excluded , otherwise they are included. SAMUEL A. ELLSBERRY, SR., AND SAMUEL A. ELLSBERRY, JR., D/B,.1 SAMUEL A. ELLSBERRY COMPANY and SHOPMEN'S LOCAL UNION 536, OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL, PETITIONER. Case No. 16-RC- 699. July 18,1951 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 Charles Y. Latimer, hearing officer. On May 15, 1951, the Board issued an order reopening the record and remanding the proceeding to the Regional Director for further hearing. Accordingly, a further hearing was held on May 25, 1951, before Glenn L. Moller, hearing 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 Houston, Murdock, and Styles]. 1 For the reasons stated below, the Employer's motion to dismiss the petition on the grounds of lack of jurisdiction and inappropriate unit is hereby denied. 95 NLRB No. 41. SAMUEL A. ELLSBERRY COMPANY 277 Upon .the entire record in this case, the Board finds : 1. The business of the Elr.ployer The Employer is engaged in Dallas, Texas, in the distribution and installation of metal windows, doors and building specialties. During the year 1950, the Employer purchased materials and supplies valued at. approximately $593,000, of which amount approximately $452,000 represents materials and supplies shipped to the Employer's opera- tions from points outside the State. The remaining $141,000 represents purchases made within the State, of which amount materials in the value of approximately $94,000 were produced outside the State. Dur- ing the'year 1950, the Employer's sales amounted to approximately $1,500,000, all of which were made to customers located within the 'State. During the same period, the Employer sold and delivered to a contractor engaged in the construction of a building for the Gillette Motor Freight Company, an interstate carrier, materials-. valued at $7,000. In 1950, the Employer contracted to furnish metal windows and partitions valued at $42,500 to a general contractor engaged in the construction of the terminal building at the new Fort Worth Inter- national Airport, financed by Federal funds and designed to service international traffic. In the same year, the Employer agreed to furnish to American Airlines materials valued at $22,900 for installation at the new airport .2 The Employer holds exclusive sales franchises with 10 manufacturers of metal doors and windows located in various parts of the United States. The Employer contends that as the combined direct and indirect out-of-State purchases fall short of the Board minimum jurisdictional standard of "100 percent," the Board should not exercise its jurisdic- tion herein. However, the materials furnished American Airlines by the Employer constitute approximately 40 percent of the $50,000 minimum requirement of materials furnished an instrumentality of commerce.3 Under an alternative jurisdictional requirement estab- lished by the Board, this per when added to the direct and indirect inflow percentages bring the total percentages above the "100 percent" jurisdictional requirement. We find therefore that the Em- ployer is engaged in commerce within the meaning of the Act, and that it would effectuate the policies of the Act to exercise jurisdiction herein. 2. The labor organization involved claims to represent certain employees 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. 2 Although the airport materials were not to be: delivered until 19.51, the Employer included the money value of these sales in its total sales for 1950. 3 Depew Paving Co., 92 NLRB 142. 278 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD 4. The appropriate unit : The Petitioner seeks a unit composed of all production and mainte- nance employees at the Employer's Dallas, Texas, warehouse, includ- ing welders, glass cutters, helpers, warehousemen, and truck drivers, but excluding office and clerical employees, guards, watchmen, profes- sional employees, and all supervisors as defined in the Act .4 The .Employer contends that the unit sought is composed of unrelated job categories and is therefore inappropriate.6 The Employer's operations are conducted in a warehouse, one corner of -which houses a welding shop. The warehouse is used to store windows and doors not shipped directly to the installation site. In the welding shop, doors and windows are revamped and cut down to re- quired size. The Employer has 2 welders and a helper in the shop, a glass cutter and helper, 4 warehousemen, 2 truck drivers, and a ship- ping clerk. Although the warehousemen and truck drivers work under the direction of the shipping clerk, and the welders and glass cutter are separately supervised, final supervision of all 12 employees is the responsibility of the Employer's chief engineer. . The welders, glass cutter, and helpers are engaged in converting factory-made windows to special size by a process of cutting, grinding, rewelding, and painting. The warehousemen load and unload ma- terials from trucks and freight cars, clean the warehouse, and move windows and doors in and out of the welding shop. While there is' no essential interchangeability of work among the employees involved, on occasion truck drivers help unload materials and clean the ware- house and warehousemen assist the.welders' helper in painting win- dow sash in the welding shop. It appears that the employees involved are all hourly paid and work the same number of hours under the same working conditions. The welders receive a substantially higher rate of pay than do the remaining employees. There is no prior history of collective bargaining affecting the Employer. As no union seeks to represent the warehousemen or the truck ,drivers in separate units, we believe, in,view of the small size and integrated character of the Employer's operations's the common super- vision, the absence of strict departmental limitations on the assign- ment of work, the similar hours and working conditions, and the fact that the Petitioner seeks to represent the employees on an over-all basis, that the Employer's warehouse employees and truck drivers 4 The Petitioner does not seek the inclusion of the outside. glazers and iron workers employed by the Employer at the installation site. 5 The Employer further contends that the unit requested is inappropriate because the Petitioner admits to membership only the welders and helper . The Board, however, has held that the jurisdictional inability of a union to represent certain employees is no ground for excluding them if their inclusion in the unit would otherwise be appropriate. Connell ct Chaffln, Inc., 85 NLRB 887. •Cf. Memphis Cold Storage Warehouse Company, 91 NLRB 1404. SAN JOAQUIN COMPRESS AND WAREHOUSE coAeANY 279 should be included in the same unit with the production employees.' We find that all production and maintenance employees at the Em- ployer's Dallas, Texas, warehouse, including. welders, glass cutter, helpers, warehousemen, truck drivers, and shipping clerk,8 but ex- cluding office and clerical employees, guards, watchmen, professional employees, and all supervisors as defined in the Act, constitute a unit appropriate. for the purposes of collective bargaining within the meaning of Section 9 (b) of the Acts [Text of Direction of Election omitted from publication in this volume.] 4 Bushnell Steel Company, 93 NLRB No. 96. 8 The Petitioner would exclude the shipping clerk as a supervisor . However, the shipping clerk has no authority effectively to recommend the hire or discharge of employees, nor is his direction of the warehousemen and truck drivers other than routine. Accord- ingly, the shipping clerk is included in the appropriate unit. 9 The Employer maintains that the welders and helper should not be included in the unit because difficulties in obtaining materials and unprofitable operations may necessitate the closing of the welding shop. The record indicates that although the,Employer's principal supplier has ceased furnishing materials , the date of termination of the Employer's shop operations is indefinite. Under these circumstances , we are of the opinion that there exists sufficient expectancy of continued employment of the welders and helper to warrant their inclusion in the unit. Cf. Lone Star Seat Mfg. Co., 94 NLRB 19 . Moreover, the Petitioner has indicated its willingness to represent the remaining employees in the event the Employer is forced to close the shop. SAN JOAQUIN COMPRESS AND WAREHOUSE COMPANY and. INTERNA- TIONAL LONGSHOREMEN AND WAREHOUSEMEN'S UNION, LOCAL, 6, PETITIONER CALCOT COMPRESS AND WAREHOUSE and INTERNATIONAL LONGSHORU- MEN AND WAREHOUSEMEN'S UNION, LOCAL 6, PETITIONER CALCOT COMPRESS AND WAREHOUSE 1 and BUTCHERS UNION LOCAL NO'.. 193, AMALGAMATED MEAT C>TrnlRS & BUTCHER WORKMEN OF NORTH AMERICA, AFL, PETITIONER. Cases Nos. 21-RC-1800, 921-RC-1801, and P31-RC-1916. July 18,1951 Decision and Direction of Election Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Bern Grodsky, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. I The Employer named in the petition filed in 21.-RC-1916 is California Cotton Coopera- tive Association, Ltd. Calcot .Compress and Warehouse is the wholly owned subsidiary of California Cotton Cooperative Association , Ltd., and is the actual employer of the employees for whom representation is sought in both Case No. 21-RC-1501 and Case No. 21-RC-1916. Accordingly, and on its own motion , the Board hereby orders that the petition and other formal papers in Case. No. 21-RC-1916 be, and they hereby are, corrected to show the correct name of the Employer. 95 NLRB No. 49.