The Union News Co.

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties referred to the Board the question of the inclusion of one part-time employee who regularly works from 2 p. m. to 5: 30 p. m., 6 days a week in the warehouse. The record reveals that this employee performs duties similar to those of the full-time employees, and shares the same supervision and working conditions. It is the Board's policy to include in the unit regular part-time employees in related categories, and also to permit such employees to vote in repre- sentation elections.' Accordingly, we shall include the one part-time employee in the bargaining unit as a regular part-time employee and allow him to vote in the election herein directed. Upon the entire record in this case, we find that the following em- ployees of the Employer at its Birmingham, Alabama, plant consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All parts counter men, pickers, porter, receiving clerk, shipping clerk, part-time warehouse employee, stock clerks, truckdriver, price and location clerk, filing clerk (Miss Murchinson), inventory control clerks, specifier, billing clerk, daily report clerk, secretary and assistant manager (troubleshooter), but excluding all outside salesmen, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above De- cision and Direction of Election. 6 L Antonsanta, Inc., 100 NLRB 1485, at 1486 The Union News Company and Theatre & Amusement Service Employees Local 54, Building Service Employees International Union, AFL.' Case No. 2-RC-7?68. May 4,1955 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 George V. Byrnes, 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 a New York corporation which is a wholly owned subsidiary of the American News Company, owns and operates in ex- cess of 1,200 restaurants, newsstands, drug stores, lunch counters, book and toy shops, and other miscellaneous retail establishments located in approximately 30 States. During 1953, the gross annual income from these multistate operations exceeded $70,000,000. 3 The Petitioner's name appears as amended at the hearing. 112 NLRB No. 82. THE UNION NEWS COMPANY 585 Included among the foregoing establishments is an ice skating rink at Rockefeller Center, New York, New York, which the Employer op- erates under lease from the Rockefeller Ice Center, and whose em- ployees the Petitioner here seeks to represent. The rink, which is open from September to April, depending upon weather conditions, is ad- jacent to two restaurants which are also operated by the Employer. During the summer months, the Employer utilizes the rink as an al fresco dining area for the public. In an earlier case involving this Employer,2 the Board asserted juris- diction over the Employer's restaurant in the Northwestern Terminal in Milwaukee, Wisconsin. In doing so, the Board relied upon the jurisdictional standard set forth in /.hick f ord's Inc.,' in which the Board announced that it would henceforth treat multistate chains of restau- rants on the same basis as multistate retail establishments and apply the jurisdictional criterion set forth in Hogue and Knott Supermarkets 4 namely, that in cases involving "a multistate chain of retail stores or service establishments we will assert jurisdiction over the entire chain or any integral part of it if the annual gross sales of all stores or estab- lishments in the chain amount to at least $10,000,000." It is clear from the foregoing summary of jurisdictional facts that the Employer's multistate operations consist of a heterogeneous group of enterprises, ranging from public restaurants and drug stores to book shops and ice skating rinks, from which the Employer derives total revenues in excess of the jurisdictional amount held necessary in the Hogue and Knott and Bickford's cases for the assumption of jurisdic- tion over multistate restaurants or retail establishments or any integral parts thereof. In view of the nature of the Employer's multistate op- erations, and the relationship of the ice skating rink at Rockefeller Center to other enterprises operated by the Employer at the same loca- tion, we conclude that the ice skating rink involved constitutes an in- tegral part of the Employer's multistate restaurant and retail opera- tions.' Accordingly, we find that the Employer is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction over its ice skating rink at Rockefeller Center, New York, New York. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 2 The Union News Company, 13-RAf-212 (not reported in printed volumes of Board Decisions and Orders). 8110 NLRB 1904 ' 110 NLRB 543. 6 See Virginia Electric Power Co. v. N. L. R. B., 115 F. 2d 414 , 416 (C. A. 4 ) reversed on other grounds, N. L. R. B. v. Virginia Electric & Power Co , 314 U. S. 469, 476 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner seeks a unit of all instructors, skating attendants, and "barrier guards" at the Employer 's Rockefeller Center skating rink in New York City, including the chief instructors , but excluding the checkroom attendants, cashiers, watchmen, professional em- ployees, all other employees, and all supervisors as defined in the Act. The Employer contends that the chief instructors should be excluded on the ground that they are supervisors, and that the "barrier guards" should be excluded because they are guards within the meaning of Section 9 (b) (3) of the Act. We shall therefore consider the unit placement of these two categories of employees. A. Chief instructors The Employer employs two chief instructors on a day and a night shift basis. The daytime chief instructor testified that , during his working shift, the manager, who is his supervisor at the rink, is on duty; that he has no authority to hire or discharge instructors nor has he authority effectively to recommend such action ; that he and the in- structors give skating instructions on a rotational basis and both re- ceive the same share of the fee ; and, that the differential between his basic salary and that of the other instructors represents compensation solely for work performed in improving the surface of the ice. The nighttime chief instructor testified that he possesses authority effec- tively to recommend the hiring and discharge of instructors , as well as the authority to grant time off, and that he has exercised such authority. The Employer's labor relations adviser testified that both chief in- structors possess the authority to recommend the hire and discharge of instructors. However, there is no evidence that this authority was ever communicated to the daytime chief instructor or that he ever ex- ercised it . Under all the circumstances, we conclude that the day- time chief instructor is not a supervisor within the meaning of the Act, and we shall include him in the unit.e On the other hand, as the nighttime chief instructor does possess and has exercised the statutory indicia of supervisory authority , we find that he is a supervisor and we shall exclude him from the unit. B. "Barrier guards" The "barrier guards," who wear distinctive uniforms and badges, are empowered to prevent spectators from defacing the ice rink by throwing stones upon it; they restrain spectators from congregating in passageways leading to the rink; and they keep unauthorized per- sons from gaining admission to the skating area without payment of a fee. In addition , they patrol the skate house to insure that patrons do not permanently remove skates belonging to the Employer. In 6 See Standard Brands, Inc, 101 NLRB 1349, 1352 W. F. HEINE SUPPLY CO. 587 view of the foregoing, we find that the "barrier guards" are guards within the meaning of Section 9 (b) (3) of the Act.' We shall there- fore exclude them. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All instructors and skating at- tendants at the Employer's Rockefeller Center Ice Skating Rink, New York, New York, including the daytime chief instructor, but excluding the nighttime chief instructor, checkroom employees, cashiers, watchmen, "barrier guards," professional etiiployees, all other employees, and all supervisors as defined in the Act. 5. The record discloses that the ice skating season at the Employer's rink has, or is about to, come to an end. We shall therefore order that the Regional Director conduct the election directed herein on a date to be determined by him when employment for the next skating season shall have reached its peak, among those employees in the unit hereto- fore found appropriate who are employed during the payroll period immediately preceding the date of issuance of notice of election by the Regional Director. [Text of Direction of Election omitted from publication.] MEMBERS RODGERS and LEEDOM took no part in the consideration of the above Decision and Direction of Election. 7 Pinkerton's National Detective Agency, 111 NLRB 504 W. F. Heine Supply Co. and Local #128, Metal Polishers, Buffers, Platers and Helpers International Union, AFL, Petitioner. Case No. 20-1?C-2755. May 41,1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Shirley N. Bingham, hear- ing 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 meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer.' i Warehouse Union Local #12, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called the Intervenor, was permitted to intervene upon the basis of a card showing of interest 112 NLRB No 84