Franklin Simon & Co. Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1951

96 N.L.R.B. 671 (N.L.R.B. 1951)

FRANKLIN SIMON & CO. INC. 671
they have supervisory authority as defined in Section 2 (11) of the
amended Act.
Employees in the warehouse department, whom the Petitioner
would also exclude, work in close proximity to, and under the same
general supervision as, the remainder of the employees in the unit.
The work of the warehouse personnel is predominantly manual and
there is considerable interchange between employees assigned to the
warehouse and those working at the mill and lumberyard. All em-
ployees in the three groups have the same hours, wage rates, and
general working conditions. Warehouse employees have consistently
been included in the unit represented by the Intervenor for the past
10 years. As the Petitioner advances no reason for the exclusion of
these employees; other than a disinclination to assume jurisdiction
over warehouse work, and as the warehouse employees have the same
interests and conditions of employment as the remainder of the em-
ployees, we shall include them in the unit .5
The Board finds that all employees in the Employer's lumberyard,
sawmill, and warehouse at Cuyahoga Heights, Ohio, excluding office
and clerical employees, truck drivers, boiler room operators, profes-
sional employees, guards, watchmen, working foremen and all other
supervisors as defined in the amended Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
6 See Pennington Bros., Inc., 92 NLRB No. 78 ; Camp Concrete Rock Company, 94 NLRB
296, and cases cited therein The reluctance of a labor organization to assume jurisdiction
over certain classifications of employees , we have consistently held, does not constitute a
cogent reason for exclusion from an otherwise appropriate unit. See Tennessee Packers,
Inc., 87 NLRB 90, and cases cited therein.
FRANKLIN SIMON & Co. INC. and DEPARTMENT STORE EMPLOYEES
UNION, LOCAL 2, -AFFILIATED WITH RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL, PETITIONER . Case No. 2-RC-3777. October 9,
1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before I. L. Broadwin, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are.hereby affirmed.'
I The hearing officer referred to the Board the Employer 's motion to dismiss the petition
herein on the ground , inter alsa, that the Petitioner had failed to make an adequate show-
ing of representation In an appropriate unit. The Board has consistently held that the
adequacy of a -union 's showing of Interest Is a waiter for administrative determination,
96 NLRB No. 103.
X672 DECISIONS OF NATIONAL LABOR RELATIONS 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 [Members Houston, Reynolds, and Styles].
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 Petitioner is a labor organization claiming to represent em-
ployees- of the Employer.
3. 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, a New York corporation, operates retail clothing
stores at various locations in the States of New York, New Jersey,
Connecticut, Ohio, Georgia, and Massachuset4s, and in the District of
Columbia. The Petitioner seeks a unit of all regular full-time and
regular part-time selling employees at the Employer's East Orange,
New Jersey, store, the only store involved in this proceeding. The
parties agree that employees of leased departments should be excluded
from any unit found appropriate herein. They disagree, however, as
to the unit placement of nonselling employees and of so-called con-
tingent employees, whom the Employer would include in the unit and
the Petitioner would exclude therefrom. There is no history of col-
lective bargaining affecting these employees.
The Employer employs three categories of selling employees : (1)
Regular full-time selling employees; (2),regular part-time selling em-
ployees, who work less than full time but on a regular schedule; and
(3) contingent selling employees. The Employer maintains a list of
these contingent employees, and calls them to work as they are needed.
There is relatively little turnover among this group of contingent em-
ployees, and many of them have worked for the Employer'for over
10 years. During the period from September through June of each
year,2 the contingent employees average about 2 days work, totaling
approximately 15 hours, each week. When employed, the contingent
selling employees perform the same duties, and work under the same
conditions and supervision, as the regular selling employees. They do
not, however, receive certain benefits which the regular employees
receive, such as vacations, insurance, hospitalization, and sick leave,
and is not litigable by the parties . J. I. Case Company, 95 NLRB 1493. We are admin-
istratively satisfied , however, for the reasons set forth hereinafter , that the Petitioner has
failed to make an adequate showing of interest among the employees who would be eligible
to vote in an election in an appropriate unit. As we are dismissing the petition for that
reason, we find it unnecessary to consider the alternative grounds advanced by the
Employer in support of its motion to dismiss.
2 Contingent employees are normally not employed during July and August.
THE. BUREAU OF NATIONAL AFFAIRS, INC. 673'
except that during the pre-Christmas and pre-Easter rush seasons,
when contingent employees are employed as regular employees, they
receive, except for vacations, the same benefits as the regular employees.
As the Board's unit findings are based upon functionally related
occupational categories, contingent selling employees would neces-
sarily be included in any unit which also included regular selling em
ployees.3 We find, moreover, that the contingent employees con-
stitute a relatively stable group of part-time employees who have a
reasonable expectation of substantial yearly employment in such a.
unit. We find, therefore, that they have a substantial interest in em-
ployment conditions at the store and, accordingly, that they would
be eligible to vote in any election which might be directed in such a
unit.,
Before directing an election, the Board must be administratively
satisfied that the petitioning union has a sufficient representative inter-
est among the employees in question.' The Petitioner has, however,
failed to make the necessary showing of interest in a unit of selling
employees in which contingent selling employees are eligible to vote.,,
We shall, therefore, dismiss the petition without prejudice to the filing
of a new petition at such time as the required showing of interest
can be made.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed without prejudice.
3 The Sheffield Corporation, 94 NLRB 1781 ; J. C. Penney Company, 86 NLRB 920.
4 R. L. Polk & Co., 91 NLRB 443.
5 Standard & Poor's Corporation, 95 NLRB 248, and cases cited therein ; cf. J. I. Case
Company , supra.
The petitioner's showing of interest would be inadequate, whether the nonselling em-
ployees are included in or excluded from such a unit . Accordingly , we deem it unnecessary
to make any findings concerning the unit placement of such nonselling employees.
THE BUREAU OF NATIONAL AFFAIRS, INC. and WASHINGTON NEWS-
PAPER GUILD, OF TIIE AMERICAN NEWSPAPER GUILD, CIO, PETITIONER.,
Case No..5-RC--850. October 9, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before David S. Sachs, 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-mem-
ber panel [Members Houston, Murdock, and Styles].
96 NLRB No. 102.