Louis Weinburg Associates, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1939

13 N.L.R.B. 66 (N.L.R.B. 1939)

In the Matter of Louis WEINBERG ASSOCIATES, INC. and UNITED
WHOLESALE AND WAREHOUSE EMPLOYEES , LOCAL No. 65, U. It.
W. E. A.
Case No. R-121"91.-Decided June 3, 1939
Millinery Supplies and Related Products Jobbing Industry-Investigation of
Representatives: controversy concerning representation of employees : contro-
versy as to appropriate unit; controversy as to majority; refusal of employer to
recognize petitioning union-Unit Appropriate for Collective Bargaining : all em-
ployees of the Company, excluding executives, supervisors, outside salesmen,
and children of Company 's president and vice president-Representatives: proof
of choice: comparison of union cards with pay roll-Certification of Representa-
tives: upon proof of majority representation.
Mr. Will Maslow, for the Board.
Mr. Jerome Tannenbaum, of New York City, for the Company.
Mr. Harry Sacker, of New York City, for the Union.
Mr. Ralph S. Rice, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On December 2, 1938, United Wholesale & Warehouse Employees,
Local No. 65, U. R. W. E. A.,' herein called the Union, filed with the
Regional Director for the Second Region (New York City) a peti-
tion alleging that a question affecting commerce had arisen concern-
ing the representation of employees of Louis Weinberg Associates,
Inc., New York City, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On January 13, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
3 The correct and full designation of the Union is United wholesale & Warehouse Em-
ployees of New York, Local No 65, affiliated with the United Retail & Wholesale Employees
of America, in turn affiliated with the Committee for Industrial Organization.
13 N. L. R. B., No. 9.
66
LOUIS WEINBERG ASSOCIATES, INCORPORATED 67
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On February 7, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
upon the Union. Pursuant to the notice, a hearing was held on Feb-
ruary 20, 1939, at New York City, before Howard Myers, the Trial
Examiner duly designated by the Board. The Board, the Company,
and the Union were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties. During the course of the hearing the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The rul-
ings are.hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Louis Weinberg Associates, Inc., is a New York corporation engaged
in the business of buying, selling, and jobbing millinery supplies and
related products. The Company has its principal office and plant in
New York City, and has some salesmen outside the State of New
York. It purchased in 1938 approximately $600,000 worth of mate-
rials consisting principally of ribbons, silks, velvets, felts, and milli-
nery supplies. During the same period, its sales amounted in value
to approximately $800,000. About 10 per cent of the materials pur-
chased by the Company were obtained from outside the State of New
York. About 25 per cent of the products sold by the Company were
shipped outside the State of New York.
H. THE ORGANIZATION INVOLVED
United Wholesale &. Warehouse Employees of New York, Local
No. 65, is a labor organization affiliated with the United Retail &
Wholesale Employees of America, which in turn is affiliated with the
Committee for Industrial Organization, admitting to its membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Some time prior to the date of filing the petition herein with the
Regional Director, the Union requested the Company to recognize
it as the bargaining agent for the Company's employees. These re-
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quests continued after the filing of the petition and included personal
calls and telephone calls on the president of the Company and the
transmittal of registered letters. The Company refused to bargain
with the Union, asserting as a ground for its refusal that it was un-
certain as to whether the Union represented a majority of its
employees.
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE` QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union claims as the appropriate bargaining unit all the em-
ployees of the Company, including office employees, exclusive of
executives, supervisors, outside salesmen, and two children of the
president and vice president of the Company. The Company, on the
other hand, contends that the outside salesmen and the children of
the Company's president and vice president should be included in the
unit and that the office employees should be excluded therefrom. It
further contends that the four persons the Union desires to exclude as
supervisors do not exercise supervisory functions and that the said
persons should be included in the unit.
The office employees of the Company work on the same floor as
the other inside employees, observe the same working hours, and are
subject generally to the same employment conditions and problems.
They are eligible to membership in the Union and a majority have
indicated a desire to be represented by the Union. The nature of the
business here involved is such that there is not here the sharp differ-
entiation in function and interests between office and other employees
as exists in certain other types of business enterprises. There is only
one labor organization here involved and that labor organization
desires that the office employees be included in the bargaining unit.
Under such circumstances, we shall include the office employees in the
bargaining unit.
The duties of the outside salesmen consist principally of soliciting
business outside the plant. While they come to the plant at various
intervals during the day and part of the time perform duties similar
LOUIS WEINBERG ASSOCIATES, INCORPORATED 69
to those of the inside salesmen and stock clerks, this work is merely
incidental to their outside sales work. The inside salesmen make no
outside sales. The only union involved desires the outside salesmen
excluded from the unit. The Union has not solicited membership
among the outside salesmen nor is there any showing that such sales-
men desire to be included in the appropriate unit here. In these
circumstances we shall exclude them from the unit.2
The Union seeks to exclude Sol Levine, Al Cohen, Gus Eisencraft,
and Harold Kifer from the bargaining unit on the ground that they
are supervisors in the silk department, ribbon department, felt and
straw department, and shipping department, respectively. The
Company contends that the four employees do not have supervisory
powers and that all the supervision of the plant is in the hands of
Louis Weinberg, the Company's president, and Henry Hirsch, an
officer of the Company. Although the evidence is conflicting as to
the precise scope of authority of the four employees, we are convinced
on the basis of the evidence presented that they exercise some measure
of supervision over the employees in their departments. It is to be
noted in this connection that each receives a considerably higher
wage than the other employees in his department. Since we are
satisfied that the status of the four employees is such as to differ-
entiate them from the other employees, and inasmuch as the only
union here involved desires their exclusion from the unit, we shall
exclude them.
We shall also exclude the son and daughter of the president and
vice president of the Company from the bargaining unit. We think
that by virtue of the relationship of these employees that their
interests are sufficiently distinguished from those of the other
employees to warrant their exclusion from the unit where, as here,
the only union involved desires their exclusion.
We find that all the employees of the Company, excluding execu-
tives, supervisors, outside salesmen, and children of the Company's
president and vice president, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act. .
VI. THE DETERMINATION OF REPRESENTATIVES
There was introduced in evidence at the hearing a list of the em-
ployees of the Company for February 18, 1939, showing 22 employees
z See Hatter of Minnesota Broadcasting Company Operating WTCN and Newspaper
Guild of the Twin Cities, Minneapolis and St. Paul, Local No. 2 of the American News-
paper Guild , 7 N. L. R . B. 867.
187930-39-vol. 13-6
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the unit which we have found to be appropriate. The Union
submitted in evidence application cards signed by 16 of these 22 em-
ployees. The business agent of the Union testified that one additional
employee had signed an application card which had been lost. Ten
of the sixteen application cards bear the words "United Wholesale
Employees of New York, Local 65, affiliated with the Textile Workers
Organizing Committee of the Committee for Industrial Organiza-
tion" and were signed in the late spring of 1937. Two of the applica-
tion cards bear the words "United Wholesale Employees of New
York, affiliated with the C. I. 0." and were signed about the summer
of 1937. Four of the application cards bear the words "United
Wholesale & Warehouse Employees of New York, Local 65 of the
United Retail & Wholesale Employees of America, affiliated with the
C. I. 0." and were signed in September 1938. The evidence shows
that "United Wholesale Employees of New York, Local 65" affiliated
with the Textile Workers Organizing Committee became affiliated
with the United Retail Employees of America in about the month
of August 1937; that in December 1937, the name of the local was
changed to "United Wholesale Employees of New York, Local 65"
and the name of its international was changed to "United Retail &
Wholesale Employees of America"; and that in the spring of 1938
the name of the local was changed to "United Wholesale & Ware-
house Employees of America, Local 65." Throughout the foregoing
period the local was affiliated through the respective internationals
with the Committee for Industrial Organization. It is clear that the
said 16 application cards are applications for membership in the same
organization notwithstanding the several changes in affiliation and
name. The evidence also discloses that all of the employees knew and
approved of the changes in affiliation and name.
The Union also submitted in evidence 16 ledger sheets, kept by the
financial secretary, showing payment of dues to the Union by 16 of
the 22 employees within the appropriate unit who were employed on
February 18, 1939. The ledger sheets show payment by 12 of said
employees up to February 17, 1939, and by 4 other of said employees
up to December 20, 1938.
We find that the Union has been designated and selected by a
majority of the employees in the appropriate unit as their representa-
tive for the purposes of collective bargaining. It is, therefore, the
exclusive representative of all employees in such unit for the purposes
of collective bargaining, and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
LOUIS WEINBERG ASSOCIATES, INCORPORATED 71
CONCLusIONs OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Louis Weinberg Associates, Inc., New York
City, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All employees of the Company, excluding executives, supervisors,
outside salesmen, and children of the Company's president and vice
president, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National Labor
Relations Act.
3. United Wholesale & Warehouse Employees of New York, Local
No. 65, affiliated with the United Retail & Wholesale Employees of
America, in turn affiliated with the Committee for Industrial Organi-
zation, is the exclusive representative of all the employees in such
unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that the United Wholesale & Warehouse
Employees, Local No. 65, U. R. W. E. A., has been designated and
selected by a majority of all employees of Louis Weinberg Associates,
Inc., New York City, excluding executives, supervisors, outside sales-
men, and children of the Company's president and vice president, as
their representative for the purpose of collective bargaining and that
pursuant to the provisions of Section 9 (a) of the Act, United Whole-
sale & Warehouse Employees of New York, Local No. 65, affiliated
with the United Retail & Wholesale Employees of America, in turn
affiliated with the Committee for Industrial Organization, is the ex-
clusive representative of all such employees for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Certification of Representatives.