Clark-O'Neill, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1964

147 N.L.R.B. 370 (N.L.R.B. 1964)

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark-O'Neill, Inc., Clark-O'Neill List Maintenance Corp ., Clark
O'Neill Service Corp . and District 65, Retail , Wholesale and
Department Store Union , AFL-CIO, Petitioner. Case No.
P2-RC-9d063. June 9, 1964
DECISION ON REVIEW
On July 31, 1963, the Regional Director for the Twenty-second
Region issued a Decision and Direction of Election in the above-
entitled proceeding. As the. Regional Director broadened the unit
sought by the Petitioner by including mail sorters, he conditioned
his Direction of Election upon the Petitioner's demonstrating, within
10 days from the date of issuance of his Decision, that it had an ade-
quate showing of interest in the broader unit found appropriate. The
Petitioner was also given the option, if it did not wish to participate
in an election in the unit found appropriate, of withdrawing its,
petition upon written notice to the Regional Director within the same
10-day period. Thereafter, on August 13, 1963, no adequate showing
of interest in the broader unit having been submitted within .the al-
lowed period, the Regional Director issued a Supplemental Decision
and Order in which he vacated his Direction of Election and dismissed
the petition. On the same day, the Petitioner, in accordance with
Section 102.67 of the Board's Rules and Regulations, as amended,
filed with the Board a timely request for review of the Regional
Director's Decision and Direction of Election, asserting, inter alia,
that substantial questions of fact and policy were raised by the deci-
sion to include mail sorters in the requested unit of production and
maintenance employees. The Employer filed a memorandum in op-
position thereto. . The Petitioner also filed a timely request for review
of the Regional Director's Supplemental Decision and Order, contend-
ing that, in view of its timely request for review of the inclusion of
the sorters in the unit, the Regional Director erred in dismissing the
petition. The Petitioner requested a stay of all proceedings and in
the event of denial of review, or affirmance of the Regional Director's
decision, an opportunity to show interest in the broader unit. The
Employer filed a supplemental memorandum of opposition. The
Board, by telegraphic- Order dated November 22, 1963, granted the
requests for review. Both the. Petitioner and the Employer filed
briefs on review.
After consideration of. the entire record in this case with respect
to the Regional Director's determinations under review, including the
briefs of the parties, we have concluded that the Employer's mail
sorters have substantial interests in common with other employees
I The Board subsequently denied the Employer ' s telegraphic request for reconsideration
of the order granting review as raising no matter not previously considered.
147 NLRB No. 44.
CLARK-O'NEILL, INC., ETC. 371
sought to be represented and that the interests which the sorters share
apart from such other employees are not sufficient to warrant ex-
cluding them from the appropriate unit.2 We therefore affirm the
Regional Director's Decision and Direction of Election, which is at-
tached hereto.
In view of such action, we hereby grant the Petitioner 10 days from
the date of issuance of this Decision on Review in which to demon-
strate to the Regional Director that it has an adequate showing of
interest in the appropriate unit. In the event that an adequate show-
ing is made, the Regional Director shall vacate his Supplemental
Decision and Order and conduct an election pursuant to his Decision
and Direction of Election, except that the payroll period for determin-
ing eligibility shall be that immediately preceding the date of this
Decision.
MEMBERS BROWN and JENKINS, dissenting in part :
The Petitioner seeks an election in a unit of some 295 production
employees employed by Clark-O'Neill Service Corp., Clark-O'Neill,
Inc., and Clark-O'Neill List Maintenance Corp. However, the Re-
gional Director and our colleagues find, in effect, that the only appro-
priate unit is one which includes some 215 mail sorters, 210 of whom
are part-time employees employed by a fourth corporation, Clark-
O'Neill Mail Sorting Corp. We disagree, and would find that the
mail sorters have interests separate from those of the other employees
and, therefore, that the unit requested by Petitioner is appropriate.
This case completes a full circle with respect to the treatment of
part-time employees. Until 1955, part-time employees would be in-
cluded in the unit whenever their work was functionally related to
that of the other employees, but eligibility to vote was determined
separately on the basis of the substantiality of interest of the part-
time employees. In Sears Roebuck d Co., 112 NLRB 559, 569, foot-
note 28, the Board announced for the first time that voting eligibility
is coextensive with unit inclusion. While the equities of such a policy
are apparent, it also sometimes results in part-time employees con-
trolling the results of elections contrary to the wishes of a majority
of those employees who devote full time to such work. This occurs
2 Other findings of the Regional Director which were the subject of the Petitioner's re-
quest for review are supported by the record.
Our dissenting colleagues emphasize a number of differences in working conditions be-
tween the mail sorters , whom the Union would exclude from the unit , and the so-called
"production" employees, whom it seeks to include . These differences , however, stem not
from their classification as sorters , but from the fact that most sorters are part -time em-
ployees. The Union has not sought in this case to exclude part-time employees from the
unit, and in fact more than one-third of the employees whom it seeks to represent are part-
time employees receiving the same benefits as the sorters . For this reason , whatever might
be the merits of our dissenting colleagues '- views as to the inclusion of part-time employees
in units of full - time employees , the facts of this case afford no basis for such a distinction.
Nor do we consider it controlling as to their unit placement that the sorters perform an
operation which the Employer might, at greater expense, have had performed by someone
else, in this case the Post Office Department.
372 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
even though part-time employees are usually only a minority of the
unit. In this case the inclusion of 215 mail sorters, 210 of whom are
part-time employees, in a unit of production workers (184 regular-
111 part-time) achieves an incongruous unit of 321 part-time employees
and 189 full-time. The fact that a majority of the part-time employees
work full time elsewhere and are represented by another collective-
bargaining representative merely emphasizes the distortion in this
case. While the broad question of unit placement of part-time em-
ployees may warrant exploration, the exclusion of the mail sorters
here would result in an appropriate unit.
The regular work performed by the mail sorters differs from that
performed by the production employees. Thus, the production em-
ployees insert, fold, address, and prepare mailing lists, and perform
other similar work in the Employer's direct mail operation. The
mail sorters, when in the sorting and zoning room, perform only the
normal post office function of sorting and zoning the mail immediately
before it is delivered to the United States Post Office which is lo-
cated adjacent to the Employer's sorting and zoning room. Indeed,
there are two doors from the sorting and zoning room leading directly
into the post office. Normally, post office employees would do the
sorting and zoning. However, the Employer's mail sorters perform
this function to obtain a cheaper postal rate. Substantially all of
these mail sorters are regularly employed as United States Govern-
ment postal employees and work only part time for the Employer.3
In addition, the sorters, for the most part, work in a room physically
separate from the rest of the plant. Although the mail sorters may
be assigned to the various production departments for periods of time,
it appears that the production employees are rarely assigned to work
in the sorting room, and do not perform that work normally assigned
to the mail sorters.. The mail sorters have their own immediate su-
pervision and their own timeclock which is located in the sorting
room. The sorters work part time on a three-shift schedule for an
average 'of 20 hours per week, but the total hours vary from week
to week. Full-time production employees work on a regular time
schedule 'and have only one scheduled shift.
It also appears that the skills of the mail sorters are different from
the other employees; they receive a higher starting rate of pay than
some of the production employees, and are, listed on a separate pay-
roll. The mail sorters are paid on an hourly basis, whereas other
employees are paid on an hourly basis with a number receiving piece
rate or incentive pay which the sorters do not get. In addition, the
210' mail sorters are also treated differently from the full-time pro-
3 A few of the sorters and zoners are regularly employed as municipal firemen and
policemen ; they, like the other sorters, work only part time for the Employer . The majority
of the production employees herein sought by the Union are employed full time by the
Employer.
CLARK-O'NEILL, INC., ETC. 373
duction employees in that the latter are paid overtime rates after
40 hours work per week, while the mail sorters receive overtime pay
after 20 hours work; the full-time production employees receive
double-time pay for work on Sundays and holidays, and the mail
sorters receive time and a half for work on those days; and to qualify
for holiday pay, the mail sorters need work only 1 hour before and
1 hour after the holiday, while the full-time production employees
must work the full day before and the day after the holiday.
Still other facts reveal separate interests and conditions of employ-
ment between those employees herein sought and the mail sorters.
Thus, the part-time mail sorters receive no sick leave and have no
insurance plan or lunch breaks, while the full-time, production em-
ployees receive sick leave, do have an insurance plan, and have regu-
larly scheduled lunch breaks. On the other hand, the mail sorters
have clearly defined coffee breaks, and the production employees have
none. In addition to these differences in working conditions, the
Employer sponsors a club for all production employees, but has
excluded the mail sorters from this benefit.
Finally, in determining that the mail sorters need not be included
in the production unit, we also note that the Employer has treated
separately with the mail sorters, apart from its other employees, and
thus has recognized their disparate community of interests. It ap-
pears, in this connection, that the Employer has entered into discus-
sion of working conditions and the settlement of grievances with a
committee of mail sorters. While we do not consider that the rec-
ognition accorded the committee of mail sorters constitutes a con-
trolling history of bargaining for purposes of unit placement, we do
consider such circumstances in combination with all of the other
facts herein to warrant establishing a unit without the mail sorters.
Accordingly, we would direct an election in Petitioner's proposed unit.
DECISION.. AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Hearing Offi-
cer Irwin P. Weiner of the National Labor Relations Board. The
Hearing Officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to Regional Director John J. Cuneo.
Upon the entire record in this case, the Regional Director finds:
1. The Employer herein is engaged in commerce within the mean-
ing of the Act.
2. The labor organization involved claims to represent certain em-
ployees of these Employers.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all employees of Clark-O'Neill
Inc., Clark-O'Neill List Maintenance Corp. and Clark-O'Neill Service
Corp.,' excluding all office clerical employees, IBM programers, pro-
fessional employees, guards, and supervisors as defined in the Act.
The Employer, on the other hand, contends that such a unit is in-
appropriate and that the appropriate unit must be an overall unit
which includes employees of Clark-O'Neill Maill Sorting Corp., who
are classified as mail sorters. No union is seeking the more compre-
hensive unit, nor is any union seeking to represent only the employees
of Clark-O'Neill Mail Sorting Corp. There is no history of collective
bargaining with respect to any of the Employer's employees.'
Clark-O'Neill Inc. and its three wholly owned subsidiaries, Clark-
O'Neill Service Corp., Clark-O'Neill List Maintenance Corp., and
Clark-O'Neill Mail Sorting Corp., are all New Jersey corporations in
the business of processing and distributing specialized direct mail
advertising literature to physicians and allied professional persons.
These corporations have common corporate officers who own all the
stock in the parent corporation, Clark-O'Neill Inc., which in turn
owns all the stock of the three subsidiary corporations. All four
corporations occupy one building in Fairview, New Jersey, identified
by a single sign as Clark-O'Neill Inc., and their operations within this
building are separated only by walls or partitions.
The record reveals that John J. Owens is executive vice president
in charge of personnel and labor relations for all corporations. Pros-
pective employees for these four corporations fill out the same appli-
cation form, are interviewed by Owens, and are hired and discharged
by him. Although there are separate payrolls for these corporations,
payroll numbers are assigned as each employee is hired without re-
gard to the corporation upon which list he is to be placed, and all
personnel and payroll records are maintained in one bookkeeping de-
partment. Thomas Coby is vice president of production for all four
corporations and there is one manager in charge of the production of
all the corporations.
On the basis of the foregoing, and upon the record as a whole, in
view of their common officers, ownership, and control, functional and
physical integration of operations, centralization of management, com-
1 The Employer's name appears as amended at the hearing.
z The record reveals that since 1961 the Employer has entered into discussions concern-
ing terms and conditions of employment, as well as the settlement of grievances with a
committee of sorters. However, no contract has ever been executed and it is not clear that
the Employer has recognized the sorters' committee as collective-bargaining representative
of its sorters. Accordingly, such discussions and relations may not be regarded as estab-
lishing a controlling collective-bargaining history. See Central Coat, Apron & Linen
Service, Inc., et at ., 126 NLRB 958; Aerovox Corporation, 93 NLRB 1101.
CLARK-O'NEILL, INC., ETC. 375
mon overall supervision, and labor relations policy, I conclude that
Clark-O'Neill Inc., Clark-O'Neill Service Corp., Clark-O'Neill List
Maintenance Corp., and Clark-O'Neill Mail Sorting Corp. operate as
a single enterprise and constitute a single employer within the mean-
ing of the Act.'
The employees of the composite corporations constituting the Em-
ployer herein are administratively divided as follows : Employees in
the addressograph, folding, Chesire, shipping, warehouse, and office
departments are carried on the Clark-O'Neill Inc. payroll; computer
'employees, programers, keypunch operators, and so-called EAM em-
ployees are carried on the payroll of Clark-O'Neill Service Corp.;
file clerks, addressograph employees, plate assemblers, graphotype
operators, and employees working in the Pfizer room are carried on
the payroll of Clark-O'Neill List Maintenance Corp.; and all mail
sorters, the employees at issue herein, are on the payroll of Clark-
'O'Neill Mail Sorting Corp.
The processing of the mail advertising material constituting the
service performed by the Employer commences with an order from an
advertising agency or manufacturer. Various materials are drawn
from stock for addressing in the addressograph or Chesire depart-
ment according to previously determined mailing lists or various pro-
fessional classifications. The materials are then delivered in bulk to
the folding or insertograph department where they are assembled,
collated, and placed in envelopes. From there the materials are sent
to the postage metering or stamping department and thence to the
sorters who segregate the mail as to its area of destination. From the
sorters, the material is transmitted to the mailing and shipping de-
partments where it is dispatched. Thus, the record indicates that this
'operation is essentially a continuous straight line flow.of mail adver-
tising materials through all of the four corporations. `
. Clark-O'Neill Inc. employs approximately 200 employees, of which
'75 are employed part time; Clark-O'Neill List Maintenance Corp. has
70 employees, 30 of which are part time; Clark-O'Neill Service Corp.
has 25 employees, approximately 6 of which are part time; and Clark-
'O'Neill Mail Sorting Corp. has. 215 employees, of whom 210 are part
time. All of the part-time employees mentioned above, irrespective
of the corporation upon which payroll they are carried, regularly
work approximately 20 hours per week. The employees of all four
corporations, with the exception of salaried supervisors and Clark-
O'Neill List Maintenance workers who receive an additional piece rate
are. hourly paid with wage rates commencing between $1.25 to $1.50
per hour and ranging, depending upon the nature of their work and
9 See Hamilton Bros., Inc. and B & C Stevedoring Co., Inc., 130 NLRB 233; George H.
Braun, d/b/a Alamo -Braun Beef Company and George Braun Packing Co., 128 NLRB 32;
Florida General Linen Supply Company, 124 NLRB 1300 ; Harvey Radio Laboratories, Inc.,
117 NLRB 552 ; Stainless Welded Products, Inc., 116 NLRB 791.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
length of service, up to $3 an hour. All of the Employer's em-
ployees, whether part-time or full-time, receive similar fringe bene-
fits, including holidays, vacations, and, with the exception of part-
time employees who work less than 30 hours, hospital and insurance
benefits, irrespective of the corporation upon which payroll they are
listed.
Based upon the foregoing and upon the record as a whole, I find
that the Employer's part-time employees in its various departments,
including the sorting department, are regular part-time employees,
who have a substantial community of interest in terms and conditions
of employment with the Employer's full-time employees. In this con-
nection, I find no merit to the Petitioner's contention that, as some of
these part-time employees may utilize such employment as a "second
job," they do-not have the same interest as the full-time employees
and should be excluded. Accordingly, consistent with established
Board policy, I shall include them in the unit found appropriate
herein .4
The record reveals that the sorter's job consists of zoning, sorting,
tying, and bundling mail, loading and stacking mail bags, and loading
trucks. However, it further indicates that sorting employees do not
work solely in the sorting department. They frequently perform
other functions throughout the various departments located in the
building,-as do other employees.' Moreover, there are frequent trans-
fers and interchange of employees among the departments and cor-
porate entities constituting the Employer. When sorting and other
employees work in departments other than the one assigned to, they
come under the supervision of the individual in charge of that par-
ticular department. Further, the record discloses common supervision
in that various supervisors are in charge of employees in several de-
partments, and also of different departments in different corporations.
Based upon the foregoing, and particularly the common ownership,
officers, control, and centralized management of the Employer, the
common labor policy, common premises, substantial physical and func-
tional integration of operations resulting in a straight-line process, in
which employees of each of the Employer's composite corporations
perform an integral part, the substantial interchange and contacts
between the various employees of the Employer, the common super-
vision, frequent transfers from one department to another, and the
substantial similarity with respect to wage rates and other terms and
conditions of employment, I find that a unit which excludes the full-
Berea Publishing Company, 140 NLRB 516; Barr's Jewelers, 131 NLRB 235.
5In this connection , the record reveals that during the 3-month period preceding the
hearing in this matter , which is representative of the Employer 's normal practice, the
sorters devoted 10 to 18 percent of their working time to related work in other depart-
ments of the Employer and consequently in its corporate entities other than Clark -O'Neill
Mail Service Corp.
CLARK-O'NEILL, INC., ETC. 377
time and regular part-time employees of Clark-O'Neill Mail" Sorting
Corp. as sought by the Petitioner is too narrow in scope, and that, as
contended by the Employer, only the overall unit is appropriate for
collective-bargaining purposes.'
The Petitioner alleges that the following individuals 'are super-
visors within the meaning of the Act and should be excluded from the
unit: Robert Brown, Raul Palachios, and James Grazioso in the
Chesire department; Elinore Hadgood in the folding department;
Olga Perez and Jenny Gonzalez I in the list maintenance department;
Sal DeMato in the warehouse; Sal Brown in the maintenance depart-
ment; Herbert Heinsohn, Sidney Handler, Antonio George, Louis
Waldman, and Samuel Rosenberg in the sorting department; and
George Messino in the addressograph department.
Robert Brown, in addition to operating a Chesire 'machine, sets
machines to the correct postage denomination and also assigns em-
ployees to the machines. However, orders as to which, production
jobs must be commenced first are transmitted to him from the overall
production manager. He is hourly paid and receives the same over-
time and wage benefits as other employees. As he does not have the
authority to hire, layoff, recall, promote, reward, or discharge em-
ployees nor effectively recommend the same, and as the record indi-
cates his responsibilities are of a routine nature not requiring the
exercise of independent judgment, I find that he is not a supervisor
within the meaning of the Act and shall include him within the unit'
Raul Palachios also operates a Chesire machine and has the re-
sponsibility to see that such machines are in good operating order.
He has been designated by the Employer to "assume responsibility"
of the second-shift operators and employees were so notified. He
reports to Antonio Brown, an admitted supervisor, any infractions by
employees and the record indicates that he can and has in the past
effectively recommended disciplinary action with regard to employees,
and that Palachios' supervisor follows his recommendation with re-
gard to infractions of plant rules without conducting an independent
investigation. Although he does not possess the power to hire, fire,
layoff, recall, promote, reward, or discharge employees, as he may
effectively recommend disciplinary and other personnel action with
regard to employees, I find he is a supervisor within the meaning of
the Act and shall exclude him from the unit.'
James Grazioso, in addition to operating a machine, also sees that
other machines are in good operating order. Although it is stated
8 See Siemons Mailing Service, 122 NLRB 81. Cf. Florida General Linen Supply Com-
pany, supra ; Dayton Newspapers, Inc., 119 NLRB 566; and see Berea Publishing Company,
supra; Harvey Radio Laboratories, Inc., supra.
7 West Virginia Pulp and Paper Co., 122 NLRB 738, 745.
8 Cf. Des Moines Foods, Inc., 129 NLRB-890, and see West Virginia Pulp and Paper Co.,
supra, at 742.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the record that his duties are similar to those of Palachios, it is
not clear whether he possesses the same authority to effectively recom-
mend disciplinary and other personnel action and, therefore, I shall
allow him to vote subject to challenge.
Elinore Hadgood assists the folding department supervisor, Alanza,
Dixon, by distributing work to employees. In addition, she handles
special mailing lists. As the record is devoid of evidence that she pos-
sesses any indicia of supervisory authority and as her assignment of
work is of a routine nature, not requiring the exercise of independent
judgment, I shall include her in the unit.
Olga Perez in the list maintainence department similarly does make
some routine assignments of work with regard to special mailing lists.
However, as the record does not indicate she possesses any indicia of
supervisory authority, I shall include her in the unit.
Jenny Gonzalez in the performance of her duties as assistant to
the supervisor of the Consac and Pfizer room, handles traffic between
various departments and the office. In the performance of these
duties she may assign work to employees by having them make cards,
alphabetizing lists, and type reports. As the record does not indicate
that the performance of her duties as assistant to the supervisor in-
volves the use of independent judgment and as she has no other in-
dicia of supervisory authority, I shall include her in the unit.'
George Messino assists the supervisor of list maintenance, George.
De Rose, in distributing work to employees and, in the absence of: De
Rose, will make work assignments. He is also responsible for quality
control with regard to the Chesire machines and on occasion has per-
mitted employees to leave before the termination of their normal
working hours. The record also reveals, without contradiction, that
he has on at least one occasion effectively recommended that an em-
ployee receive a wage increase and that he will periodically assume
De Rose's functions in his absence. Messino performs no production
work. Based upon the foregoing and upon the record as a whole, I
find that Messino's duties involve the exercise of independent judg-
ment and that he responsibly directs employees in the performance
of their work. Accordingly, I conclude that he is a supervisor within
the meaning of the Act and I shall exclude him from the unit.10
Sidney Handler, Samuel Rosenberg, Louis Waldman, and Herbert
Heinsohn are designated by the Employer as supervisors in the sort-
ing department on various shifts. Although they have no authority
to hire or fire, they assign work to employees, oversee the performance
of sorting work so that the mail is properly processed, assign sorters
to other departments, handle grievances of employees, discipline em-
9 West Virginia Pulp and Paper Co., supra, at 746.
49 West Virginia Pulp and Paper Co., supra, at 748.
CLARK-O'NEILL, INC., ETC. 379
ployees, and effectively recommend such action. Each of these indi-
viduals is in charge of from 40 to 75 employees on various shifts and
performs no production work. Based on the foregoing factors, I find
these individuals are supervisors within the meaning of the Act and
shall, therefore, exclude them from the unit."
With regard to Antonio George, although it was alleged that he
is a relief supervisor in the sorting department, the record is devoid
of other evidence as to the nature of his responsibility or authority
over employees. Under these circumstances, as it is unclear whether
his responsibilities are similar to those of Handler, Rosenberg, Wald-
man, and Heinsohn, I shall allow him to vote subject to challenge.
Although Sal DeMato is designated as supervisor of the warehouse,
the Employer testified that he was an inventory clerk reporting inven-
tory and control records to individual customers. The record reveals,
however, that he does assign work to employees. As it is unclear
whether this direction is of 'a responsible nonroutine nature, I shall al-
low him to vote subject to challenge.
Sal Brown is responsible for plant maintenance and in the perform-
ance of these duties makes routine assignments to four or five porters
while personally performing maintenance work. Under these circum-
stances, and as the record does not reveal that he responsibly directs
other employees or possesses any other indicia of supervisory au-
thority, I shall include him in the unit.
The parties stipulated that employees classified as IBM computers
should be included in the unit. However, they disagree as to the place-
ment of the six employees classified as IBM programers, whom the
Petitioner contends are technical employees performing managerial
functions and should be excluded, and whom the Employer contends
should be included as production employees. Although the record
does not describe in detail the work of the IBM computers, it appears
that they feed data to the IBM machines in a clerical manner. As the
record does not establish that they are technical employees, and in
view of the stipulation of the parties, I shall include them in the unit.
The record establishes that the programers interpret IBM tapes and,
based upon such interpretations, ultimately submit data to the IBM
computers for processing through the IBM machines. As the record
does not indicate whether the programers formulate, determine,
or effectuate management policies or assist in the same, and as it'also
fails to establish whether they have access to confidential informa-
tion or whether they are technical employees within the meaning of
the Act, I shall not resolve their status at this time but shall allow
them to vote subject to challenge.la
n West Virginia Pulp and Paper Co., supra , at 741, 748.
12 Cf. The Dayton Power and Light Co., 137 NLRB 337.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find the following employees of the Employer at
its Fairview, New Jersey, plant constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b)
of the Act :
All employees of Clark-O'Neill Inc., Clark-O'Neill Service Corp.,
Clark-O'Neill List Maintenance Corp., and Clark-O'Neill Mail Sort-
ing Corp., including IBM computers, Robert Brown, Elinore Had-
good, Olga Perez, Jenny Gonzalez, and Sal Brown, but excluding
office clerical employees, professional employees, Paul Palachios,
George Messino, Sidney Handler, Samuel Rosenberg, Louis Wald-
man, Herbert Heinsolin, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Hod Carriers', Building & General Laborers' Union of America,
Local No. 652, AFL-CIO [Earl C. Worley] and Waverly Arnold
Brown. Case No. 21-CB-1974. June 10, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent and General Counsel filed exceptions to the Decision
and supporting briefs.
Pursuant to the provisions of 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 [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following amplification
and modifications.2
I Respondent 's request for oral argument is hereby denied as , in our opinion , the record,
including the exceptions and briefs , adequately presents the issues and positions of the
parties.
2 We agree with the Trial Examiner that Respondent violated Section 8(b)(2) and
(1) (A) of the Act. As alleged in the complaint, and as the Trial Examiner's Decision
clearly demonstrates, on and after October 18, 1962, Respondent withheld work oppor-
tunities from Brown and, on October 24, caused Brown's termination by Worley for un-
lawful considerations.
147 NLRB No. 50.