McDowell Maytag

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the absence of the shipping clerks at night or on week ends, the operators and occasionally the truck drivers do the work of the ship- ping department when customers call to pick up supplies. It also appears that there have been some transfers between the shipping and operating departments.7 It is clear that the shipping clerk and the assistant shipping clerk do not exercise distinctive craft skills. Nor does it appear that their duties and interests are otherwise so clearly distinguishable from those of other employees in the plant to warrant the establishment of an appropriate unit limited to the shipping clerks alone. Such a finding would require the Board to accord controlling weight to the Petitioner's extent of organization among the employees at the Ein- ployer's plant. However, Section 9 (c) (5) of the amended Act forbids this result 8 As the unit sought by the Petitioner is inappro- priate, we shall dismiss the petition herein.9 Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 7 The record also discloses the transfer of a truck driver to the shipping department. R ene P. Wasserman and Marie Rose Wasserman , Co-Partners, d/b/a Alpine Metals Manufacturing Company, 95 NLRB 1190; Arnold Hoffman & Co., Incorporated, 91 NLRB 1371. a In view of this conclusion , Ai e find it unnecessary to decide whether the contract between the Employer and the Intervenors constitutes a bar to this proceeding. P. R. MCDOWELL D/B/A MCDOwELL MAYTAG 1 and INTERNATIONAL ASSOCIATION OF MACHINISTS , PETITIONER . Case No. 21-RC-2531. August 26,1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Ben Grodsky, 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]. Upon the entire record in this case, the Board finds : 1. The labor organization involved claims to represent employees of the Employer. 1 The name of the Employer appears as amended at the hearing. 100 NLRB No. 122. SIMPLOT FERTILIZER COMPANY 771 2. 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 is the sole proprietor of an appliance store located at Phoenix, Arizona. The Employer purchases between $40,000 and $50,000 in value of appliances each year, all of which are delivered to the Employer from a Phoenix warehouse and are sold within the. State of Arizona. The Employer currently operates under a fran- chise agreement with the Maytag Rocky Mountain Company, Colorado Springs, Colorado, providing for the sale and advertisement of May- tag products by the Employer under various restrictions exercised by the distributing Maytag Company. Although the Employer's operations are not unrelated to com- merce, the interstate aspects of these operations are not of sufficient magnitude to justify the assertion of jurisdiction under the Board's announced jurisdictional policy.2 Accordingly, we shall grant the motion of the Employer, made at the hearing, to dismiss the petition filed herein. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 2 See Reiley's Stores, Inc., 96 NLRB 516, and cases cited therein . Cf. Avedie Baxter and Ben Baxter d/b/a Baxter Bros., 91 NLRB 1480. J. R. SIMPLOT COMPANY, D/B/A SIMPLOT FERTILIZER COMPANY 1 and INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 370, AFL, PETITIONER . Case No. 19-RC-1045. August 26, 1952 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 Howard E. Hilbun, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 ' The name of the Employer appears as amended at the hearing. 2 The hearing officer . referred to the Board the Employer 's motion to dismiss this pro-. ceeding cn the following grounds: ( 1) Its operations are not subject to the jurisdiction of the Board; (2) the Petitioner has failed to make an adequate showing of interest as the Petitioner's showing was based upon the number of employees working at the time the petition was filed and when the Employer was operating on an off -season basis ; and (3) the. Bard should not direct an election before the start of the Employer's mining . season.. The Employer's motion to dismiss is hereby denied . For the reasons stated in paragraph numbered 1, infra, we find no merit in the Employer's first contention . With respect to. 100 NLRB No. 115. 2272 60-53-r o 1. 100--50