Equipment Sales Co., Inc.

EQUIPMENT SALES CO ., INC. 865 Board certification of August 6, 1963, is now the duly certified representative of Respondent's employees in the appropriate unit for the purposes of collective bargaining. 3. The Respondent has not engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, as alleged in the complaint, and it would not effectuate the policies of the Act to issue any order against Respondent at this time. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I, therefore, issue the following: RECOMMENDED ORDER It is hereby recommended that the complaint issued herein against the Respondent be dismissed in its entirety. Equipment Sales Co., Inc. and District Lodge No. 112, Inter- national Association of Machinists, AFL-CIO, Petitioner. Case No. 12-RC-1777. Apri114,1964 DECISION AND ORDER CLARIFYING CERTIFICATION `On October 3, 1963, following an election pursuant to stipulation for certification upon consent election in the unit agreed to by the parties, the Regional Director issued a certification of representatives in the above-entitled case, in which he certified the Petitioner as the bargaining representative of a unit of all production and maintenance employees, including plant clerical employees, at the Employer's Jack- sonville, Florida, plant.' The Employer's shipping and receiving clerk, Richard O. Bryan, cast a challenged ballot in the election held on September 25, 1963, but his eligibility to vote was not investigated at that time since the challenged ballots were not sufficient in num- ber to affect the results of the election. On November 20, 1963, the Petitioner filed a motion to clarify bargaining unit, requesting the Board to include in the unit the said Richard O. Bryan because of his alleged status as a plant clerical employee. On November 28, 1963, the Employer filed opposition thereto, requesting that the motion be dismissed, or, in the alternative, that evidence be taken before a duly appointed examiner of the Board. The Employer, however, failed to set forth any facts to support its opposition to the Petitioner's motion. Accordingly, on December 6,1963, the Board issued a notice to show cause why the Petitioner's motion should not be granted, and on December 16, 1963, the Employer filed its response in opposition to the Petitioner's motion, urging that the position presently held by Bryan be excluded from the bargaining unit on the ground that it is a combination sales and office clerical position. Thereafter, the Board, on January 8, 1964, issued an order remanding the proceed- i The certified unit includes all production and maintenance employees , including plant clerical employees, employed by the Employer at Jacksonville , Florida, excluding office clerical employees, salesmen , professional and technical employees, temporary and casual .employees , guards, and supervisors as defined in the Act. 146 NLRB No. 104. 866 DECISIONS OF 11^ATIONAL LABOR RELATIONS BOARD ing to the Regional Director for the purpose of holding a hearing on the issues raised by the Petitioner's motion and the Employer's re- sponse thereto. The hearing was held on January 26, 1964, before Hearing Officer Earnest W. Dean, Jr., following which the Employer filed a memorandum brief with the Board. 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 McCulloch and Members Leedom and Brown]. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Board has considered the Petitioner's motion, the Employer's response in opposition thereto, the Employer's brief, and the entire record herein, and hereby makes the following findings : The Employer, Equipment Sales Co., Inc., is engaged in the business of selling, repairing, and servicing parts and equipment, including fuel pumps, for gasoline service stations. At its Jacksonville, Florida, facility, involved here, the Employer operates a repair shop and a parts department. As noted above, the Petitioner was certified as rep- resentative of a unit of production and maintenance employees, in- cluding plant clerical employees, but excluding, inter alia, office cleri- cal employees. There are about 11 employees in the Employer's production and maintenance unit, including the classifications of in- side mechanics and helpers, outside servicemen, and a shop clerk, who also serves as radio dispatcher. Excluded from the unit are the man- ager, the shop foreman, the purchasing agent, an office secretary, and two outside salesmen. Richard O. Bryan, whose unit placement is disputed, is classified as a shipping and receiving clerk. Bryan is assigned to the Employer's parts department, which is adjacent to the shop area. He is supervised by Grady Phillips, the purchasing agent. Bryan spends about 25 percent of his time in serv- ing customers at the parts counter. The remaining 75 percent of his time is spent in putting up the parts, arranging for the shipment of parts to out-of-town customers, making outside deliveries to cus- tomers, going to the post office (twice daily), and assisting shop em- ployees. In connection with the latter duty, when the shop employees need parts for their work orders, they normally go into the parts department area and help themselves, receipting for the part taken on a so-called parts list, which Bryan turns over to Phillips at the end of the day. In the event, however, that a shop employee is un- able to find the part he needs, Bryan is asked to furnish the necessary assistance. Bryan does no mechanical work, but he sometimes goes into the shop area, as, for example, when it is necessary for him to move heavy parts and equipment and he requires the assistance of the shop employees. Bryan seldom, if ever, comes into contact with the PHILCO CORPORATION 867 office clerical staff, which is located in a separate area and is under the supervision of Manager William R. Giles. Although Bryan is guaranteed a 40-hour week, he is, like the shop employees, paid by the hour; he punches a timeclock, which is located in the shop area; and he works the same hours as shop employees and, like them, is paid time and a half for overtime. Bryan also re- ceives the same fringe benefits, such as vacations, hospitalization, and the like. In the light of the foregoing, particularly the facts that Bryan works in close proximity to the shop employees, and in association with them, receives similar fringe benefits, and has no administrative or functional connection with, and is under supervision separate from that of, the office clerical employees, we find that he is a plant clerical employee.2 We shall, therefore, clarify the certification and include him in the Unit .3 [The Board clarified the certification heretofore issued in the above- captioned proceeding to include within the unit, as a plant clerical employee, the employee discussed herein, namely, the shipping and receiving clerk.] 4 9 Ponce Electric Company, Ino., 120 NLRB 976, 976 ; Waterous Company, 92 NLRB 76, 77. s The record contains no evidence that Bryan is in training for a management position. Contrary to the contention of the Employer , we find no reason to exclude him from the unit on the ground that his interests are allied with those of management. See Newark Stove Co., 143 NLRB 583, footnote 6. ' This Decision and Order is not to be construed as a new certification. Philco Corporation and Freight, Construction, General Drivers, Warehousemen & Helpers Union, Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 2O-RC-5665. April 14i 19641 DECISION AND ORDER Upon a petition duly filed under Section 9(c) (1) (A) of the Na- tional Labor Relations Act, a hearing was held before Hearing Of- ficer John H. Arbuckle. 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 [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 146 NLRB No. 103.