Franklin Simon & Co. Inc.

FRANKLIN SIMON & CO. INC. 671 they have supervisory authority as defined in Section 2 (11) of the amended Act. Employees in the warehouse department, whom the Petitioner would also exclude, work in close proximity to, and under the same general supervision as, the remainder of the employees in the unit. The work of the warehouse personnel is predominantly manual and there is considerable interchange between employees assigned to the warehouse and those working at the mill and lumberyard. All em- ployees in the three groups have the same hours, wage rates, and general working conditions. Warehouse employees have consistently been included in the unit represented by the Intervenor for the past 10 years. As the Petitioner advances no reason for the exclusion of these employees; other than a disinclination to assume jurisdiction over warehouse work, and as the warehouse employees have the same interests and conditions of employment as the remainder of the em- ployees, we shall include them in the unit .5 The Board finds that all employees in the Employer's lumberyard, sawmill, and warehouse at Cuyahoga Heights, Ohio, excluding office and clerical employees, truck drivers, boiler room operators, profes- sional employees, guards, watchmen, working foremen and all other supervisors as defined in the amended Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 6 See Pennington Bros., Inc., 92 NLRB No. 78 ; Camp Concrete Rock Company, 94 NLRB 296, and cases cited therein The reluctance of a labor organization to assume jurisdiction over certain classifications of employees, we have consistently held, does not constitute a cogent reason for exclusion from an otherwise appropriate unit. See Tennessee Packers, Inc., 87 NLRB 90, and cases cited therein. FRANKLIN SIMON & Co. INC. and DEPARTMENT STORE EMPLOYEES UNION, LOCAL 2, -AFFILIATED WITH RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Case No. 2-RC-3777. October 9, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are.hereby affirmed.' I The hearing officer referred to the Board the Employer 's motion to dismiss the petition herein on the ground , inter alsa, that the Petitioner had failed to make an adequate show- ing of representation In an appropriate unit. The Board has consistently held that the adequacy of a -union 's showing of Interest Is a waiter for administrative determination, 96 NLRB No. 103. X672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Reynolds, and Styles]. 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 Petitioner is a labor organization claiming to represent em- ployees- of the Employer. 3. No 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, for the following reasons: The Employer, a New York corporation, operates retail clothing stores at various locations in the States of New York, New Jersey, Connecticut, Ohio, Georgia, and Massachuset4s, and in the District of Columbia. The Petitioner seeks a unit of all regular full-time and regular part-time selling employees at the Employer's East Orange, New Jersey, store, the only store involved in this proceeding. The parties agree that employees of leased departments should be excluded from any unit found appropriate herein. They disagree, however, as to the unit placement of nonselling employees and of so-called con- tingent employees, whom the Employer would include in the unit and the Petitioner would exclude therefrom. There is no history of col- lective bargaining affecting these employees. The Employer employs three categories of selling employees : (1) Regular full-time selling employees; (2),regular part-time selling em- ployees, who work less than full time but on a regular schedule; and (3) contingent selling employees. The Employer maintains a list of these contingent employees, and calls them to work as they are needed. There is relatively little turnover among this group of contingent em- ployees, and many of them have worked for the Employer'for over 10 years. During the period from September through June of each year,2 the contingent employees average about 2 days work, totaling approximately 15 hours, each week. When employed, the contingent selling employees perform the same duties, and work under the same conditions and supervision, as the regular selling employees. They do not, however, receive certain benefits which the regular employees receive, such as vacations, insurance, hospitalization, and sick leave, and is not litigable by the parties . J. I. Case Company, 95 NLRB 1493. We are admin- istratively satisfied , however, for the reasons set forth hereinafter , that the Petitioner has failed to make an adequate showing of interest among the employees who would be eligible to vote in an election in an appropriate unit. As we are dismissing the petition for that reason, we find it unnecessary to consider the alternative grounds advanced by the Employer in support of its motion to dismiss. 2 Contingent employees are normally not employed during July and August. THE. BUREAU OF NATIONAL AFFAIRS, INC. 673' except that during the pre-Christmas and pre-Easter rush seasons, when contingent employees are employed as regular employees, they receive, except for vacations, the same benefits as the regular employees. As the Board's unit findings are based upon functionally related occupational categories, contingent selling employees would neces- sarily be included in any unit which also included regular selling em ployees.3 We find, moreover, that the contingent employees con- stitute a relatively stable group of part-time employees who have a reasonable expectation of substantial yearly employment in such a. unit. We find, therefore, that they have a substantial interest in em- ployment conditions at the store and, accordingly, that they would be eligible to vote in any election which might be directed in such a unit., Before directing an election, the Board must be administratively satisfied that the petitioning union has a sufficient representative inter- est among the employees in question.' The Petitioner has, however, failed to make the necessary showing of interest in a unit of selling employees in which contingent selling employees are eligible to vote.,, We shall, therefore, dismiss the petition without prejudice to the filing of a new petition at such time as the required showing of interest can be made. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed without prejudice. 3 The Sheffield Corporation, 94 NLRB 1781 ; J. C. Penney Company, 86 NLRB 920. 4 R. L. Polk & Co., 91 NLRB 443. 5 Standard & Poor's Corporation, 95 NLRB 248, and cases cited therein ; cf. J. I. Case Company, supra. The petitioner's showing of interest would be inadequate, whether the nonselling em- ployees are included in or excluded from such a unit . Accordingly, we deem it unnecessary to make any findings concerning the unit placement of such nonselling employees. THE BUREAU OF NATIONAL AFFAIRS, INC. and WASHINGTON NEWS- PAPER GUILD, OF TIIE AMERICAN NEWSPAPER GUILD, CIO, PETITIONER., Case No..5-RC--850. October 9, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before David S. Sachs, 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-mem- ber panel [Members Houston, Murdock, and Styles]. 96 NLRB No. 102.