Carter Camera & Gift Shops

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate. In the event a majority of voting group (a) selects the Petitioner and a majority of group (b) selects the Teamsters, we find that each group is a separate appropriate unit. In the event a majority of voting group (a) selects the Teamsters and the majority of voting group (b) selects the Petitioner, we find that each group is a separate appropriate unit. If a majority of the employees in voting group (a) vote for the Petitioner or for the Teamsters and a majority of employees in voting group (b) reject representation, we find the employees in voting group (a) constitute a separate appropriate unit. If a majority of the employees in voting group (a) vote for no union, the employees in both voting groups shall remain unrepresented re- gardless of the vote in voting group (b). The Regional Director is instructed to issue a certification or certifications as decided by the results of the elections.12 [Text of Direction of Elections omitted from publication.] 12 Waikiki Biltmore, Inc., d/b/a The Waikiki Biltmore Hotel, 127 NLRB 82. For the reasons stated in his dissenting opinions in the above case as well as in Cook Paint and Varnish Company, 127 NLRB 1098 , and Star Union Products Company, 127 NLRB 1173, Member Fanning dissents from the failure to provide for a pooling arrangement herein. Arthur S. Carter, d/b/a Carter Camera & Gift Shops i and International Alliance of Theatrical Stage Employees & Mov- ing Picture Machine Operators of United States & Canada, Local 665, affiliated with AFL-CIO,' Petitioner. Case No. 37-RC-666. February 15, 1961 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 Joseph Kulkis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.* 1 The Employer presently has on file with the Hawaii Aeronautics Commission an appli- cation for permission to change his present space permit at his Honolulu International Airport operations to read in the name of Waikiki Advertising & Visitors' Information Service, Ltd., d/b/a Visitors ' Information Service, Ltd. As it is uncertain whether the contemplated change will be effected , we are framing the Decision and Direction of'Election herein in the name of the present Employer . For this reason we find, apart from any other consideration as to the unit herein, that there is no merit to the Employer's con- tention that because of the contemplated change in his Airport operations there should be a separate unit of the Employer's employees employed at the Airport. 2 The name of the Petitioner appears as amended at the hearing. *On March 1, 1961, the Board was administratively advised that the Petitioner has requested permission to withdraw its petition for certification of representatives previously filed herein , and that the Employer has no objections to approval of the request provided it is with prejudice, The Petitioner's request is granted with prejudice to its filing a new petition for a period of 6 months from March 1, 1961, unless good cause is shown why the Board should entertain a new petition filed prior to the expiration of such period. 130 NLRB No. 37. CARTER CAMERA & GIFT SHOPS 277 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 [Chairman Leedom and Members Fanning and Kimball]. Upon the entire record 3 in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A 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. 4. The Employer is engaged in the operation of 13 gift shops at various locations in Honolulu, Hawaii. In addition it separately carries on a photographic business at the Royal Hawaiian Hotel, hereinafter referred to as the Hotel, and at the Honolulu Interna- tional Airport, hereinafter referred to as the Airport, both of which are located in Honolulu. He also has two freelance roving pho- tographers. These operations are called the photographic depart- ment. The Petitioner seeks a unit of all employees in the Employer's photographic department. The Employer contends that there should be two units, one unit to consist of its photographic department em- ployees employed at the Hotel and another unit to consist of its photographic department employees at the Airport. The Employer operates a film processing laboratory in the basement of the Hotel, employing several photographic production and darkroom employees, a movie film splicer, and a camera repairman. In addition, the Employer employs two photographers whose primary function is to photograph tourists at the Hotel and two other photographers who work themselves at other tourist areas and who are under the super- vision of the manager of the Employer's Hotel operations. The Employer also employs approximately four photographers at the Airport, whose primary function is the photographing of incoming and departing tourists. There is no prior bargaining history of the employees sought herein. The record discloses that, except for the distance of approximately 5 miles between the Airport and the Hotel, there are no particularly distinguishing features between the employees at these two opera- tions and there is frequent interchange of employees between the two operations. Employees from these two operations are also assigned to work on special assignments at other tourist areas with the two $A posthearing stipulation was entered into by the parties concerning the placement in the unit of certain employees . The hearing is reopened to accept such stipulation and it is hereby made it part of the record in this case. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD photographers who normally work by themselves. All employees work under the same working conditions, including hours of em- ployment and general rates of pay, and have related duties and interests. In view of the above facts, particularly the geographical proximity and functional integration of operations, the frequent interchange of employees, the same general type of work, and the absence of any bargaining history, we find that a single unit of all employees in the Employer's photographic department is appropriate.' The Employer contends that Frank Silva and Peter Nelson, who are the respective managers of the Hotel and Airport operations, should be excluded from the unit because of their supervisory status. The Petitioner would include them in the unit. Both managers have the authority to hire and discharge employees under their respective supervision; they arrange the employees' work schedules, direct the activities of the employees, and approve sick leave. Silva and Nelson receive a higher wage rate than any of the other employees and they are responsible directly to Arthur S. Carter, the Employer. Under these circumstances, we find they are supervisors within the meaning of the Act and we shall exclude them. We find no merit in the Peti- tioner's contention that Michael Scott should be excluded from the unit because he is the son of the resident housekeeper of Arthur S. Carter, the Employer, and resides in Carter's house. Accordingly, we will include him in the unit as a regular part-time darkroom em- ployee. The Petitioner would exclude the two photographers who work by themselves on the ground that they are supervisors. As the record does not disclose that they perform any supervisory functions, nor are there any employees under their direction, we find that they are not supervisors within the meaning of the Act and we shall include them.5 Accordingly, we find that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All regular full-time and part-time employees of the Employer's photographic department at Honolulu, Hawaii, including photog- raphers, photolab technicians, camera and optic technicians, finishers, and apprentices, but excluding office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] ' Connecticut Packing Co , Inc, 120 NLRB 150 6 All of the Employer's photographic department employees are paid an hourly wage with the exception of these two photographers who are salaried The Board has previ- ously held that salaried employees who have the same job as hourly rated employees in the unit should be included in the unit of hourly paid employees Temco Aircraft Corporation, 121 NLRB 1085, 1089.