H. P. Wasson and Co.

National Labor Relations Board - Board Decisions

Jun 5, 1953

105 N.L.R.B. 373 (N.L.R.B. 1953)

H. P. WASSON AND COMPANY 373
ployees, all other employees, and all supervisors as defined
in the Act: (1) Millwright helpers and (2) pipefitter helpers. If
a majority of the employees in either group(1) or (2) votes for
the Petitioner, they will be taken to have indicated a desire
that their group be included in the appropriate craft unit, and
the Regional Director conducting the elections directed herein
is instructed to issue a certification of representatives to that
effect. If, however, a majority in either of the groups votes for
the Intervenor, they will be taken to have indicated a desire
that their group remain in the existing multiplant unit, and the
Regional Director conducting the elections directed hereinwill
issue a certification of results of election to that effect.
[Text of Direction of Elections omitted from publication.]
H. P. WASSON AND COMPANY and RETAIL, WHOLESALE &
DEPARTMENT STORE UNION, CIO, Petitioner . Case No.
35-RC-853. June 5, 1953
SUPPLEMENTAL DECISION AND ORDER
On April 21, 1953, the Board issued its Decision and Direc-
tion of Election in the above-entitled proceeding.' In its De-
cision the Board held, inter alia, that "on call" employees
were included in the unit, but not eligible to vote in the election,
of the regular full-time and part-time employees at the Em-
ployer's Indianapolis, Indiana, department store. On April 27,
1953, the Employer filed a petition for reconsideration, re-
questing that the Board reconsider its disposition of the right
to vote of the "on call" employees and find that these employees
are eligible to vote.* On April 28, the Petitioner filed a
telegram opposing the Employer's request. On May 12, the
parties further filed a stipulation stating that the cafeteria
employees were part of the appropriate unit and requesting
that the Board amend its original Decision and Direction of
Election specifically to include the cafeteria employees.
The Boards has considered the Employer's petition for
reconsideration, the Petitioner's opposition thereto, and the
entire record in the case and makes the following disposition
of the matters raised:
As to the Employer's petition for reconsideration, the Board,
in its original decision, found that the Employer's "on call"
employees were included in the same unit as the Employer's
1104 NLRB 249.
2 The Employer also filed a motion to "vacate" the direction of election pending determina-
tion of the issue raised by its petition for reconsideration. On May 6, 1953, the Board issued
an Order which amended the direction of election by directing that the election be held within
60, rather than 30, days from the direction of election.
3 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, Styles, and Peter-
son.]
105 NLRB No. 50.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regular full-time and part-time employees because they per-
formed the same work as these employees. However, because
of the limited and irregular nature of the employment of the
"on call" employees, the Board further found that they were
essentially casual, rather than regular part-time, employees
and were ineligible to vote. The Employer contends that this
decision is erroneous because it denies the right to vote to
employees found to be part of the unit. We find no merit in
this contention. As indicated in our original decision, the
Board's unit determinations are based on functionally related
work categories, and all employees performing like work are
necessarily included in the unit regardless of their tenure of
employment. However, eligibility to vote of other than regular
employees hinges on whether the employees have sufficient
interest in the terms and conditions of employment to warrant
their participation in the election of a collective-bargaining
agent.4 As the Board has often held, casual employees, by
reason of their limited employment, lack such interest. To
permit such employees to vote for a collective-bargaining
agent, despite their lack of substantial interest, might well
permit the selection of a collective-bargaining representative
by employees who will be only remotely and insubstantially
affected by the activities of that agent. $ We shall adhere to the
Board's usual policy as enunciated in our original decision.
The Employer further contends that, in any event, the Board
erred in finding the interests of the "on call" employees in-
sufficient to permit them to participate in the election and
claims that such a holding is contrary tothe Board' s decisions
in Bonwit Teller & Company, 101 NLRB 358, and Franklin
Simon & Company, 96 NLRB 671. The "contingent" employees
whom the Board found eligible to vote in Bonwit Teller worked
from 1 to 4 days each week for 6 to 7 months a year.6 In
Franklin Simon, the contingent employees, who were also found
entitled to vote, averaged about 2 days of work, totaling about
15 hours, each week for a 10-month period. The employment
of the employees in those cases was considerably more ex-
tended than that of the "on call" employees in the instant case.
Here, as indicated in the original decision, the "on call" em-
ployees work only during the busy seasons, for special sales,
and sometimes during the absence of an unusual number of
regular employees, and 75 percent of the "on call" employees
worked either not at all, or averaged less than 1 day a week,
4See Sixteenth Annual Report of the National Labor Relations Board, pp. 120-121.
5 The Employer contends that the result of the Board's decision may lead, among other
things, to a casual employee' s being deprived of a right to vote and yet required to join a
union, if the latter successfully demands a union-security clause. However, such contention
is based on the speculative possibility that the casual employees would be covered by the union-
security clause, if such a clause is granted by the Employer. Moreover, there is no require-
ment that an employee, before being impelled to join a union, be granted the right to vote in
the selection of that agent.
6In that case the parties agreed to exclude "extra" employees , who worked part time during
peak rush seasons. The Board found that these employees were included in the unit but in-
eligible to vote.
H. P. WASSON AND COMPANY 375
in the 7 -week period preceding the hearing . The Bonwit Teller
and Franklin Simon cases are therefore clearly distinguishable
on their facts. Under these circumstances , we adhere to our
original decision and hold that the interests of the " on call"
employees of the Employer are insufficient to warrant their
participation in the election . Accordingly , we shall dismiss the
Employer ' s petition for reconsideration.
As to the stipulation concerning the cafeteria employees, the
parties agreed at the hearing that the cafeterias located in the
Employer ' s Indianapolis store were a leased department and
that cafeteria employees , together with the employees of the
other leased departments , should be excluded from the unit.
The unit found appropriate by the Board in its original decision
excluded employees of all leased departments without specific
reference to the cafeteria employees . In their stipulation of
May 12 , 1953, the parties agree that the cafeterias are not a
leased department , that the cafeteria employees are employees
of the Employer , and that they should be included in the unit.
The parties request that the unit be amended specifically to
include the cafeteria employees . The Petitioner has submitted
a showing of interest sufficient to support a petition in a unit
including the cafeteria employees . We shall amend the unit in
accordance with the stipulation of the parties.
ORDER
IT IS HEREBY ORDERED that the Employer ' s petition for
reconsideration be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the Board ' s Decision and
Direction of Election herein be , and it hereby is, amended by
adding cafeteria employees to the unit found appropriate in
paragraph numbered 4 thereof.?
7The appropriate unit as amended consists of all regular full- time and part- time employees
at the Employer 's Indianapolis , Indiana , store , including cafeteria employees , truckdrivers
and warehouse employees , assistant buyers other than the assistant buyer in the shoe de-
partment , the assistants in the display , receiving , and alterations departments , and in the
fur workroom, the assistant managers in the traffic and credit departments, the assistant to
the superintendent in the delivery department , the head of the shopping service, the clerk in
the personnel department , the secretary to the credit manager, the accountant , the head of
adj s ments , the head of accounts receivable , the audit manager , and the comparison shoppers,
but excluding employees in the leased departments , carpenters , painters , guards, profes-
sional employees , the assistant in the personnel department , the secretaries to the executives,
the employee counselor , the section managers , the assistant buyer in the shoe department,
the supervisor of the warehouse employees , the group leader of the appliance repairmen,
and all other supervisors as definedbytheAct . As noted in the original decision , the inclusion
of the head of accounts receivable and the audit manager is solely for the purpose of permitting
them , to vote subject to challenge and is not a final determination of their supervisory status,
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