Olden Camera & Lens Co.

OLDEN CAMERA & LENS COMPANY 35 earlier termination notice and its continuing meetings with the Union did not constitute a waiver of the Employer's right to terminate the contract, especially in view of the Union's con- tinuing breach of the no-strike clause. Therefore, we find that the basic contract in issue has been effectively terminated and does not constitute a bar to this proceeding.5 Accordingly, a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees constitute an appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act: All employees in the Employer's Brightwood and Chicopee plants working on dies and parts of dies used in the manufacture and completion of forgings, ex- cluding all other employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Election. 5 In the light of this fording, we find it unnecessary to pass upon the remaining reasons advanced by the Employer and the Petitioner as grounds for finding the contract here involved no bar to this proceeding. Furthermore, we also deem it unnecessary to rule upon other conten- tions advanced by the Union. WILLIAM OLDEN AND KURT OLDEN, co-partners d/b/a OLDEN CAMERA & LENS COMPANY and OFFICE EM- PLOYEES INTERNATIONAL UNION, LOCAL 153, AFL, Petitioner and AMALGAMATED UNION LOCAL 136, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Cases Nos . 2-RC-6464and 2-RC-6475. March 24, 1954 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 Jacob Lazarus, 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 this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting 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. 108 NLRB No. 9. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Office Employees International Union, Local 153, AFL, herein termed Local 153, and Amalgamated Union Local 136, Retail Clerks International Association, AFL, herein termed Local 136, request that the Board find appropriate a unit of selling and nonselling employees employed at the Employer's New York City retail camera store, including office, sales, shipping department, stockroom, cardex, order department, repair department, and outside repair employees, but ex- cluding guards, watchmen, professional employees, and all supervisors as defined in the Act. The Employer contends that the office employees should be placed in a unit separate from other store personnel because of a marked difference in their training, skills, interests, and conditions of employment. The Petitioners and the Employer also differ as to the unit place- ment of a number of individual employees. The Employer owns and operates a camera andphotographic supply store. Personnel of the store consists of salesmen, shipping employees, office employees, stockroom man, outside repairman, and one employee assigned to each of the cardex, repair, and order departments. The store differs from ordi- nary camera shops in that it specializes inlenses and imported equipment and does little developing or printing work. A large percentage of the store business is with professional photog- raphers. The Employer requires that prospective salesmen for the firm have 7 years' experience in the photographic field. Many of its salesmen have experience considerably in excess of that requirement. The salesmen not only make sales for cash but, in a considerable percentage of cases, take "trade-in" equip- ment as part or full payment on the purchase price of other equipment. In such cases, the valuation placed upon the trade-in is assessed by the salesman on the basis of his own discretion and judgment. Salesmen are paid between $80 and $160 a week plus a commission on sales and work a 6-day, 48-hour week, including some Saturday and night work. The Employer's other personnel, with the exception of the office employees, also have a background of experience in photographic work and are con- sidered in training for full-time sales positions. Employees in the shipping department, stockroom, order department, and cardex department do sales work on occasion or otherwise consult and advise customers. Salaries in this group range from $ 70 a week on up, and the workweek is the same as that of the salesmen. There are 7 employees assigned to the office where they work a 5-day, 40-hour week and do no Saturday or night work. The office employees' salaries range from $45 to $80a week and no prior experience in the photographic or optical field is required. The duties of the office personnel are of the ordinary clerical nature. Vacation privileges for the office group are slightly less than those granted the remainder of the working force. There is no transfer or interchange between the office staff and other store personnel. OLDEN CAMERA & LENS COMPANY 37 Upon the entire record, the Board finds merit in the Em- ployer's contention that the office employees and the sales and nonsales personnel should not be merged into one unit. Although sales and office workers have frequently been placed in the same bargaining unit, the Board has previously noted that photographic equipment sales personnel may, as is clearly the case herein, be required to have specialized knowledge and training not comparable to that of other sales employees.' In the instant case the training, skills, and duties of the store em- ployees, other than those assigned to the office, are comparable to those of technical employees. The Board has previously held that technical employees and clerical workers will not be included in the same unit where any party objects to such a grouping.2 Accordingly, we shall not include the office clerical employees in the same unit with the remainder of the store personnel but shall grant a separate election for each group. There remains the question of the inclusion of several indi- viduals concerning whom the parties are in dispute. Local 136 and Local 153 both urge that Erna Cohnreich be excluded from any unit because of a family relationship with the Employer. The record shows that Cohnreich, a part-time office employee, is a mother-in-law of one of the partners, but contains no evidence that because of such relationship she has been granted a special status in the store which would ally her interests with those of management. Accordingly, we shall include Erna Cohnreich in the office clerical unit.3 Local 153 would also exclude Alfred Kohn, a salesman, as a supervisor. Inasmuch as there is no evidence that Kohn possesses authority to hire, discharge, or effectively recommend such action or that he exercises any of the other indicia of supervisory au- thority as set forth in Section 2 (11) of the Act, we find that Kohn is not a supervisor and we shall include him in the unit with the other sales personnel. Local 136 contends that Irma Leon, the head bookkeeper, is a supervisor and should be ex- cluded. As there is evidence that Leon has effectively recom- mended the hiring of employees and responsibly directs the work of other office employees, we find that she is a super- visor as defined in the Act and we shall exclude Irma Leon from the office clerical unit. Finally, the Employer urges that the repair department employee, Nathan Powolsky, be excluded from both units on the grounds he is essentially a machinist. Powolsky is the only employee in the repair department although one other em- ployee, whom the Employer would include, handles outside repair work. His duties consist of the repair of broken or de- fective cameras and he may, on occasion, make necessary parts. The repair department is located in a separate room 'See The Muller Company, Ltd., 98 NLRB 737 at 739. 2Brady Aviation Corporation, 104 NLRB 220; American Locomotive Company 92 NLRB 115. $See International Metal Products Company, 107 NLRB 65. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Powolsky has no immediate supervision. He is paid $100 a week and works the same hours as the sales force except for the 1 night a week when the store, but not the repair depart- ment, is open. While the Employer contends that Powolsky has divergent skills and interests, it is clear that his duties and work are closely related to those of employees in the technical unit. Moreover , no other labor organization seeks his repre- sentation and, as there is only one employee in the repair de- partment, it could not, by well-established Board rules, com- prise a separate unit. Accordingly, we shall include Powolsky in the unit of selling and nonsales personnel. Upon the entire record, the Board finds that the following employees of the Employer constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (1) All office employees at the Employer's New York City store, excluding the head bookkeeper and all other supervisors as defined in the amended Act (2) All full - and part-time sales , , shipping department, cardex, stockroom , order department, repair department, and outside repair employees of the Employer's New York City store , excluding guards , watchmen, professional employees, and all supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Elections. THE ENGLANDER COMPANY, INC. and MIROSLAWA POWCH and ANDREW POWCH LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO and MIROSLAWA POWCH and ANDREW POWCH. Cases Nos. 2-CA-2781 and 2-CB-858. March 25, 1954 DECISION AND ORDER On October 14, 1953, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above -entitled pro- ceeding , finding that the Respondents had engaged in certain unfair ` labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents each filed exceptions to the Inter- mediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was com- 108 NLRB No. 7.