Martin-Burns Sportables, Inc.

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1869 for a separate election among the former employees of Brooklyn Borough based on their separate bargaining history for, as we have found, they have lost their identity as a separate established unit and have become merged with the Employer's other Brooklyn and Queens employees. Therefore, as no question exists concerning the representa- tion of former Brooklyn Borough employees, we shall dismiss the petition filed by Local 1869 herein." However, we shall grant the Petitioner's motion and amend the description of its certified unit to specifically include therein all employees of the Employer who were formerly employed by Brooklyn Borough Gas Company.'" [The Board dismissed the petition in Case No. 2-RC-10853.] [The Board amended the certification of representatives in Cases Nos. 2-RC-9689 and 2-RC-9727 issued on April 24,1959, to Local 101, Utility Division, Transport Workers Union of America, AFL-CIO, to include all physical and office clerical employees of the Employer who were formerly employed by Brooklyn Borough Gas Company and who work in or are permanently assigned to the Employer's operations in the boroughs of Brooklyn and Queens, New York.] 'Continental Can Company, Inc., 127 NLRB 286. 10 The alternative request of Local 1869 made at the hearing and in its brief to the Board, that an election be held among all employees in the certified unit is denied because there is a contract bar to an election in such a unit, and further because Local 1869 has not demonstrated a sufficient petitioner's showing of interest and none of the other parties has filed a petition for an election in such unit. Martin-Burns Sportables, Inc. and Local 1010, Retail Employees Union of South Florida, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioner. Case No. 12-RC-510. Octo- ber 11, 1960 DECISION AND ORDER ON MOTION TO AMEND OR CLARIFY CERTIFICATION In a Decision and Direction of Election issued on June 16, 1959, the Board found that "all employees of the Employer at its retail stores in the Americana Hotel and the Fontainebleu Hotel, Miami Beach, Florida,' including selling assistant managers, salesmen, bushelmen, and cashiers, but excluding office employees, guards, pro- fessional employees, and supervisors as defined in the Act" consti- tuted an appropriate unit. On October 28, 1959, following an election and a Supplemental Decision and Direction dated October 12, 1959, in which the Local 1010, Retail Employees Union of South Florida, 1 The parties agreed to the two-store unit. However , the Employer also operates stores in Palm Beach , Boca Raton, Fort Lauderdale, and Hollywood , Florida. 129 NLRB No. 39. MARTIN-BURNS SPORTABLES, INC. 365 Retail, Wholesale and Department Store Union, AFL-CIO, was suc- cessful, the Board certified the said Union as the bargaining agent for the above-described bargaining unit. On May 11, 1960, the aforementioned Union filed a motion in which it requests the Board to amend or clarify its certification. It alleges that the Employer closed its retail store in the Fontainebleu Hotel, Miami Beach, Florida, on October 31, 1959, and opened another retail store 11/2 miles distant at 829 Lincoln Road, Miami Beach, Florida, under the same name and with essentially the same employees on December 18, 1959; that following such action the Employer refused to bargain with the Union as the legal bargaining representative of the employees at the Lincoln Road store. The Union therefore re- quests the Board to amend its certification to show the change of address of the Employer's store, and to find that the removal of the store does not materially affect the rights and obligations of the parties under the original certification. On May 16, 1960, the Employer filed a motion to "Strike and Dismiss" the motion to amend. The Em- ployer contends that at all times material to the original proceedings in this case the Lincoln Road store was not in existence and the in- clusion of the employees at the Lincoln Road store was not within the contemplation of the parties. It further urges that the store at Lincoln Road is no more a part of the existing unit than are other stores of the Employer located in Hollywood, Fort Lauderdale, Palm Beach, and Boca Raton, Florida. On June 2, 1960, the Board issued an order referring the matter to the Regional Director for the Twelfth Region and directing that a hearing be held for the purpose of taking testimony with respect to the issues raised by the motion to amend. Pursuant to said order, a hearing was held before Herbert N. Watterson, hearing officer, on June 15, 1960. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Board 2 has considered the motion to amend or clarify, the briefs of the parties, the motion to strike and dismiss, and the entire record in this case, and hereby makes the following supplemental findings : The Employer closed its store in the Fontainebleu Hotel on October 31, 1959. Of the 10 employees in the store, 3 were terminated prior to its closing. Employees Bookman and Barron were transferred to the Americana store, as were Eisen and Wilkens who had previously divided their time between the two shops. According to the Em- ployer's testimony, employees Greenberg, Epstein, and Barbara were terminated. However Greenberg testified that he was told he would be employed at the Employer's Lincoln Road store, that he was not z Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Leedom and Members Jenkins and Fanning]. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminated, and that after taking a vacation he awaited the opening of the new store. The Lincoln Road store opened on December 18, 1959. Some fix- tures used in the Fontainebleu shop were installed in the new shop. Approximately 2 weeks prior to the opening, Bookman and Barron were transferred from the Americana store to Lincoln Road. Green- berg and Barbara were hired before the opening date, and Wilkens and Eisen were assigned to the new store on the same part-time basis they formerly worked at the Fontainebleu store. At the time of the hearing, there was only one employee in the Lincoln Road store who had not formerly worked at the Fontainebleu shop. Further, the new store is 11/2 miles distant from the Fontainebleu store, carries essen- tially the same merchandise, and is under the supervision of the same manager. Employees Greenberg and Wolf work 1 day a week at the Americana Hotel store, and alteration work has and is being trans- ferred between the two stores as well as a limited amount of mer- chandise. It is clear that the factors of common supervision, inter- change of employees and merchandise, and proximity of the stores presently exist between the Americana Hotel store and the Lincoln Road store just as they existed when the Fontainebleu store was in operation. With the exception of one employee, the new store is staffed with the same employees as the former store. In these cir- cumstances, we find that the new shop is properly included within the purview of the original certification. We shall, accordingly, amend our certification of representatives by describing the unit as including the Lincoln Road store and deleting therefrom the Fon- tainebleu Hotel store. [The Board amended the certification of representatives issued herein to Local 1010, Retail Employees Union of South Florida, Retail Wholesale and Department store Union, AFL-CIO, specifically to include in the certified unit the Employer 's retail store at Lincoln Road, Miami Beach, Florida, and to exclude the Employer's former store at the Fontainebleu Hotel , Miami Beach, Florida.] 3 3 This is not to be construed as a new certification. Geronimo Service Company and Bartenders and Culinary Work- ers Union, Local 628, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, Petitioner. Case No. 33-RC-778. October 12, 1960 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 Byron E. Guse, hearing offi- 129 NLRB No. 43.