Liberty Music Shops, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1951

93 N.L.R.B. 178 (N.L.R.B. 1951)

178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brothers. We do not believe that this relationship is sufficient reason
for excluding him from the units We shall therefore include him.'
We find that all employees s employed in the photoengraving de-
partment of the Employer's Paterson, New Jersey, plant, excluding
all office employees, shipping employees, drivers, delivery clerks (in-
cluding errand boys), salesmen, guards, professional employees,
management ofiicials,9 and all other supervisors as defined in the Act,
constitute a unit appropriate 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 Clelland Bus Lines , Inc , 85 NLRB 306
'' The record does not disclose Piranian 's relationship to the third partner , the mother of
the Donigian brothers If, as may be the fact, he is her nephew , he is excluded from the
unit. Rosedale Passenger Lines, 85 NLRB 527, The E. J. Kelley Co , 90 NLRB No 239;
Peter Pan Bus Lines . 82 NLRB 830
1 Included within this category are Vahram Sanders , Peter Fleming , John Kawkiel, and
Arthur Plranian.
Including Martin Donigian and Harry Donigian
LIBERTY MUSIC SHOPS, INC. and LOCAL UNION 1430, INTERNATIONAL
BRo'rHEItHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER and
Loc&L 854, INTERNATIONAL BROTIIERIIOOD OF TEAMSTERS, AFL
INTERVENOR. Case No. 2-RC-2691. February 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 Merton C. Bernstein,
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-member
panel. [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in the retail sale and servicing of
radio and television sets and the sale of phonograph records. It
operates four retail stores and a warehouse in the State of New York.
During the fiscal year ending April 30, 1950, the Employer purchased
i adios, television sets, records, and electronic appliances valued in
excess of $1,000,000, approximately 90 percent of which was shipped
to its place of business in New York from States of the United States
other than the State of New York. During the same year, the Em-
ployer's sales were in excess of $1,000,000, approximately 15 percent
93 NLRIl No 24
LIBERTY MUSIC SHOPS, INC. 179
of which consisted of sales and shipments to places outside the State
of New York.
The Board finds, contrary to the contention of the Intervenor that
the Employer is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction
in this case.,
2. The labor organizations involved claim to represent employees
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:I
The Petitioner seeks to sever a group of installation and repair
employees from the existing unit of warehouse employees employed
at the Employer's New York City warehouse . The Intervenor con-
tends that the requested employees are appropriately included in the
unit set forth in its current contract , which covers truck drivers, ware-
housemen, stock department employees , and radio and television
installation and repair men. The Employer takes no position as to
the appropriate unit.
As indicated above, the Employer operates four retail stores and
a warehouse in the State of New York. The warehouse and three
of the stores are located in New York City.3 The fourth store is
located in White Plains, New York.4
There are 42 employees in the warehouse unit presently repre-
sented by the Intervenor . Of these 30 are installation and repair
employees whom the Petitioner would establish as a separate appro-
priate unit . The requested employees are divided into 4 categories;
television outside servicemen , television installation teams, radio and
television repair outside men, and radio repair outside men. The
'Federal Dairy, Inc, 91 NLRB 638 Stanislaus Implement and Hardware Company,
Limited, 91 NLRB 618
ewe find no meat , however , in the Intervenor ' s contention that an existing collective
bargaining agreement between it and the Employer is it bar to this proceeding . The con-
tract has been in effect since December 19, 1949 , and expires on April 1 , 1952 Paragraph
"Second" of the contract provides that all employees , after a 4-week trial period, shall
become members of the Intervenor This requirement is subject only to the general appli-
cability of a severability clause in paragraph "Fourteenth" which provides further "that
any provisions of this agreement in contravention of federal , state of city rule or regulation
shall be null and void - No union -security authorization election has been held
under Section 9 ( e) (1) of the Act to authorize the union -security clause
The Board has held in these circumstances that such a clause is to be interpreted as be-
coming immediately effective and remaining so until the proper tribunal declares that it is
invalid. The union -security clause is therefore unlawful and the contract containing It
cannot operate as bar to a representation proceeding. Hickey Cab Co , 88 NLRB 327
Dluntz Television , Inc, 92 NLRB 29
$ Sales and other personnel at the Company 's stores at 450 and 795 Madison Avenue,
New York City , are represented by Local 721, Retail and Department Store Union.
4 No union represents the employees of this store.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner does not seek to represent 3 employees who perform similar
functions at the White Plains store.
The record reveals that all operations of the Employer are under
the general supervision of its president and secretary. The ware-
house and each store has a manager who reports to the president.
At the warehouse the installation and repair employees are directly
supervised by the service department manager and a shop foreman.
On occasion the former also directs the work of employees in other
classifications. At the White Plains store service department enz-
ployees are under the direct control of the store manager.
Although the warehouse radio and installation employees sought
by the Petitioner are required to have some formal training or previ-
ous experience, it is clear that, with few exceptions, they do not possess
that degree of skill sufficient to constitute them a recognized craft
group. When inventory is high they are used by the Employer to
move stock in the warehouse. Of late this practice has been a fre-
quent occurrence. Several warehouse service department employees
were also used by the Employer to assist in the opening of a New York
City branch store in December 19:50. Generally, however, no service
work is performed at the New York City stores.
All warehouse and store employees in New York City work the
same number of hours. All employees are paid on the same payroll
and all enjoy the same vacation and sick leave benefits. Holidays are
the same for all groups, except that White Plains personnel have one
less holiday, and there is a Blue Cross Plan available to all employees.
In the past the Employer has paid bonuses to all employees.
From the foregoing it is clear that the employees requested by the
Petitioner are neither skilled craftsmen nor a sufficiently homogeneous
group to Wararnt their severance from the established warehouse unit.
Accordingly, we shall dismiss the petition.5
Order
Upon the basis of the entire record in this proceeding, the National
Labor Relations Board hereby orders that the petition by the Local
Union 1430, International Brotherhood of Electrical Workers, AFL,
in the instant matter be, and it hereby is, dismissed.
5 Montgomery Ward d Co , Incorporated, 89 NLRB 1370; May Department Stores Co.,
82 NLRB 731; Retail Employees Relations Commission , 80 NLRB 1473.