New York Merchandise Co., Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1943

50 N.L.R.B. 41 (N.L.R.B. 1943)

In the Matter of NEW YORK MERCHANDISE COMPANY, INC. and NEW
YORK MERCHANDISE COMPANY EMPLOYEES ORGANIZATION
In the Matter of NEW YORK MERCHANDISE COMPANY , INC. and WHOLE-
SALE & WAREHOUSE WORKERS UNION, LOCAL 65, C. I. O.
Cases Nos. R5232 and R-5233, respectively.Decided June 3, 19/3
Messrs. Scandrett, Tuttle cC Chalaire, by Mr. Bernard Phillips, of
New York City, and Mr. Emanuel Turberg, of 'New York City, for
the Company.
Mr. Edward Kuntz, of New York City, for the Union.
Messrs. Epstein & Rosenblum,, by Mr. Lee Epstein, of New York
City, for the Organization.
Mr. David V. Easton, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon petitions duly filed by New York Merchandise Company
Employees Organization, herein called' the Organization, and Whole-
sale & Warehouse Workers Union, Local 65, C. I. 0., herein called
the Union, alleging that questions affecting commerce had arisen con-
cerning the representation of employees of New York Merchandise
Company, Inc., New York City, herein called the Company, the Na-
tional Labor Relations Board consolidated the cases by an order
dated March 13, 1943, and provided'for an appropriate hearing upon
due notice before Samuel H. Jaffee, Trial Examiner. The notice of
hearing, dated March 27, 1943, provided that, in addifion to an in-
vestigation of the questions of representation, evidence was, to be
received upon the- issue of whether or not the Organization is a suc-
cessor or continuation of new York Merchandise Company Employees
I
50 N. L R. B., No.11.
41
42 DECISIONS OF NATIONAL LABOR REcLATIONS BOARD
Association, herein called the Association, heretofore ordered dis-
established by the Board., Said hearing was held at New York City
on April 5, 6, 7, 8, 12, 13, 14, 15, and 19, 1943. The Board, the Com-
pany, the Organization, and the Union appeared, participated, and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
At the commencement of the hearing the Organization moved to dis-
miss that section of the notice` of hearing wherein it was directed'
that evidence be received upon the issue of whether or not the Organi-
zation is a successor or continuation of the Association. This motion
was denied by the Trial Examiner. At the close of the hearing both
the Company and the Organization moved to dismiss that portion
of the proceeding relating to said issue. They Trial Examiner re-
served rulings upon these motions for the Board. For reasons here-
inafter stated, the motions are denied. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. Both the Company and the Organization filed briefs which
the Board has considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
New York Merchandise Company. Inc., a New York corporation,
is engaged in, jobbing and wholesaling a wide variety of products,
including dry goods, notions, ready-to-wear products, and drug sun-
dries. For those purposes it maintains sales offices and warehouse
facilities in Los Angeles, California, Dallas, Texas, and New York
City. We are concerned herein with the Company's operations in
New York City. In the calendar year 1942, the Company purchased
merchandise valued in excess of $1,000.000 from domestic manufac-
turers, of which more than 50 percent in value was shipped to the
New York offices and warehouses from points outside the State of
New York. The Company sells its products to jobbers, wholesalers,
retailers,'and chain stores throughout the United States, and more
than 50 percent of its products is shipped to points outside the State
of New York. The Company admits that it is engaged in commerce
within'the meaning of the National Labor Relations Act.
1 Matter of New York Merchandise Company, Inc and United Wholesale and Warehouse
Employees of N Y Local 65, affiliated with the United Retail and Wholesale Employees
of America, C I: 0., 41 N L R B 1078
NEW YORK ME RCHANDISE COMPANY, INC.
IT. THE ORGANIZATIONS INVOLVED
43
Wholesale & Warehouse Workers Union, Local 65, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Company.
New York Merchandise Company Employees Organization is an
unaffiliated labor organization admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has 'refused to recognize either labor organization
as the exclusive bargaining representative of its employees unless and
until the Board has determined the appropriate unit and a labor
organization has been duly certified by the Board.
The Board found in the complaint case 2 that the Company had
formed the Association, and thereafter dominated and interfered
with its administration, and had contributed financial and other sup-
port to it. The Board ordered, inter alia, that the Company withhold
recognition from and completely disestablish the Association, and
post notices to this effect.3 On March 26, 1943, the Company and
the Board entered into a stipulation whereby the Company consented
to the entry of,a decree which provided for the enforcement of the
Board 's order heretofore made. As stated above, evidence was re-
ceived at the hearing herein on the, issue of whether the Organization
is the successor to or continuation of the Association, the organization
heretofore ordered disestablished. We turn first to a consideration of
the evidence bearing on this issue.
The Intermediate Report of the Trial Examiner was issued on Jan-
uary 19, 1942. Thereafter, on January 24, the executive board of the
Association met with its attorney, Lee Epstein ,4 for the purpose of
discussing the report. Epstein told the executive board that the
Association had been found illegal in that it included within its mem-
bership several employees who were supervisors or' representatives
of the Company, and that the Company had contributed financial sup-
port to the Association's hospital fund. He suggested at this meeting,
that, in the event a new organization was to be formed, a number of
steps should be taken to assure that it was free of any taint. He
advised that it would be necessary to bar executives and supervisory
employees of the Company from membership, refuse to accept and
return to the Company any financial support given by it, and further
' See footnote 1, supra
8 As of , the time of hearing herein, these notices had not been posted.
• Mr. Epstein now represents the Organization
44 DECISIONS , OF NATIONAL LABOR REIL ATIONS BOARD
suggested that the Hospitalization Fund be handled separately. The
executive board decided to adopt Epstein's suggestions , and sent no=
tices to the members of the Association that a special meeting was to
be held bn February 3 at the Hotel Imperial .5 The notice stated that
the meeting was called for the purpose of creating a new Hospitali-
zation Fund , to dissolve the Association , and to , receive the recom-
mendations of the executive board as to "the future welfare of all
employees ..."
Prior to the meeting of the 'memnbers on February 3, the executive
board again convened. A change of mind had taken place with
regard to Epstein's suggestions. Oscar Spero'- 'testified that lie told
the executive board that he had a meeting with Milton Slimy,-the
president of the Company, in Shaw's office, shortly after the meeting
of January 24, and that Shaw stated'"he would not support a dual
organization, neither would he support an organization that had
only . .. the hospitalization matter- . . and as far as the people to
be admitted into the organization .... according to his opinion most
of the people should be admitted with the exception of a few and only
such an organization will he support. ,' Simon Cohen testified that
at the second meeting of the executive board Eugene Wickers pro-
posed that the executive board discard Epstein's recommendations,,
and recommend one organization with hospitalization for its mem-
bers, and permit , all employees except members of the firm to be eli-
gible; that when asked why he had changed his mind, he stated that
Shaw had spoken to him and told him that he ( Shaw ) wanted one
organization with all employees except firm members included, and
if such all organization was not formed, he would not recognize the
new organization and would see that it received no hospitalization;
and that Arthur Keller told the meeting of a similar conversation
with Shaw. Herman Cohen testified that he had spoken to Shaw with
regard to the new organization and corroborated the testimony of
Simon Cohen, and Spero that several members 'of the executive board
had changed their minds with regard to Epstein's recommendations,
on the ground that Shaw would not support them. He further testi-
fied that he asked them "wliy they had changed their minds, that
they had •a mind of their own" but that he did not protest to Shaw
with regard to these conversations . ' Shaw denied having had ' any
such conversations and stated that he was first approached by mem-
bers of the Organization in May 1942 . We find that Shaw did have
conversations with several members of the executive board, and that
as a result of these conversations these nienibers changed their minds
B This was the usual place of meeting foi• the Association, and it became the usual meet-
ing place for the Organization also
NEW YORK MERCHANDISE COMPA\TY, INC. 45
with regard to `Epstein's recommendations. We further find that,
these actions of Shaw constituted an interference with and a direct
attempt to dominate the formation of the Organization.
At the meeting held February 3, Herman Cohen, the president of
the Association, announced the findings of the Trial Examiner in
the Intermediate Report and the recommendation of Epstein that
the Association dissolve. A vote was taken in which the members
voted to dissolve the Association as of March 31, 1942, in order to
permit employees to receive hospitalization, if necessary, until such
time as a new organization could be formed 6 Immediately there-
after,,Morris Weininger ° proposed that a new organization be started.
Hyman Hills was elected chairman, and he immediately appointed
an organizing committee.
Thereafter, the organizing committee secured applications from
the members of the Association, the Organization was formed, and
its constitution drafted, and adopted on March 24. The constitution
provided that all employees of the Company in the New York offices
and warehouses were eligible for membership except officers and
directors of the Company and executives; it also provided that a
Hospitalization Fund be set up, and for monthly dues.° Several of
the leaders of the Association became leaders in,the formation and
administration of the Organization; they were also persons found
both in the complaint case and hereinafter to be employed in super-
visory capacities with the Company." After the adoption of the
constitution and election of officers a membership committee was
formed to pass upon certain employees whom the Organization con-
sidered to be questionable for membership and to make recommenda-
tions with regard to these applicants. On April 28, the membership
committee made its report, recommending that all executives,- ad-
ministrative.,employees, and outside salesmen should either be declared
ineligible, or admitted to membership without power to vote or to
This is based upon credible testimony of S Cohen
Weininger was found in the complaint case to be an assistant foreman. As hereinafter
indicated, we find that he is an assistant buyer, it person holding an executive or admin-
istrative position with the Company
8 Hill occupies a supervisory position in the shipping department See Supervisors and
Assistant Soper visors , infi a. -
° The clues were the same as those levied by the Association.
10 Hyman Hill , who was vice president of the Association , became president of the Or-
ganization Herman Cohen , the last president of the Association , formally became a mem-
ber of the Organization on June 10, although he was nominated for the vice presidency
at the first election , and had declined the nomination On May 6 he was made chairman
of the hospitalization committee of the Organization . Daaid Setdisan, who was treasurer
of the Association ; became treasurer of the Organization . Jack Brenner, who was financial
secretary of the Association , was on the organizing committee of the Organization and
acted as recording secretary of the Organization He used the records of the Association
for the Organization 's purposes Morris Weinsnger, who was an officer of the Association,
was on the organizing conimittee,of the Organization.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hold office.ii However, the,menibers rejected the recommendations
of the committee as to buyers and outside salesmen; both classifica-
tions, with certain exceptions, were declared eligible for membership
in the Organization. Those employees who were listed as administra-
tive employees were also declared eligible, with the exception of some
who were officers of the'Company.
It was common practice, during the 'existence of the Association,
to withdraw money from its Hospitalization Fund for the purpose of
making loans to members; these sums were carried,on the books as
clue to the Hospitalization Fund. Prior to the actual date of dis-
solution of the Association (March 31), the Association returned
$200 to the Company of a'balance of $400 in the flid,'' and the
remainder, together with the general fund, was then .placed in the
hospitalization account of the Association. A letter dated April
24, 1942, on Association stationery, was sent to the n lembers asking
them to designate their choice as.to the disposition of this money.13
A majority indicated that they wished the money to be placed in
the Hospitalization, Fund of the Organization, which was apparently
done. However, the Organization continued the practice of' the
Association in withdrawing money from this fund for the purpose
of making loans to its members. In addition, the Organization
insisted upon the payment of all clues to the Association before a
member could become in "good standing" with the,Organization; a
notice to this effect was posted upon the Company's bulletin board.
This was allegedly based upon the theory that the money was owed
to the Hospitalization Fund, although it actually went to the Organi-
zation via its Hospitalization Fund.
As hereinabove stated, the Company had posted no notices of the
disestablishment of the Association as of the time of the hearing,
"The follo,iing employees were considered by this committee as holding either an
executive of administrative position with the Company
Admtinistratsve Buyers
B Alaslansky J Brendel
Af Cohen E Bodenheinier
V Tropp Al Balm
I, Hirschhorn I Mutt
D Seidman L Giusbeig
AI Tatken I Alillstein
I Schwaitz H Schulman
S Bloom S Alellis
I Stoiar M Glenn
Af Lipschitz L Friedman
I: Tleberall
J Steeves
Al weininger
It night he noted that, although the Conipany contends that many of the above are
merely salesmen or oider fillets, the Organization was in no doubt that there i^ as at least
some question with regard to them.
The Company had contiibuted one-lialt of-the hospitalization Fund
13 Association lists weie used for the purpose of getting out this letter.
NEW YORK MERCHANDISE COMPANY, INC. 47
although it had been directed to do so by the Board order and had
agreed to do so in signing the consent decree stipulation.
The facts set forth above make it clear that the Organization is
,merely a continuation of the Association under a new name, and it
must have appeared so to the employees of the Company. The Com-
pany had never, by notices or otherwise, disestablished the, Asso-
ciation. The president of the Company had conversations with em-
ployees, which interfered with their choice of conduct; many of the
same employees, several of whom are found herein to be supervisory,
were leaders of both the Association rind the Organization; the dis-
solution of the Association overlapped the formation of the Organi-
zation ; they sane amount of dues and the same meeting place and
attorney were utilized by both the Association and the Organization;
the Organization took over the funds of the Association and con-
tinued its practices with regard to them, even to the point of taking'
money from^the Hospitalization Fund and putting it in the general
account of the Organization; finally, the, Organization insisted upon
the payment of all back dues of the Association before permitting a
member to be in good standing. Under the circumstances, we find
that the Organization is merely a continuation of the Association
and is therefore the same organization which the Company agreed,
by the terms of the consent decree, to disestablish. It follows that
the Organization is incapable of acting as the representative of the
Company's employees for the purpose of collective bargaining. Its
petition for investigation and certification must, therefore, be
dismissed 14
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the Union represents a substantial number
of employees 'iii the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Coinpany within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit comprised of all inside employees of the
Company, excluding executives, supervisors and assistant supervisors,
buyers, assistant buyers and assistants to the buyers, outside salesmen,
private secretaries, switchboard operators, elevator operators, nurse,
Matter of J Greenebaann Tanning Company, Plant No 3 and American Leather
Workers Union, 49 N L R B 787. Matter of H E Fletcher Company and West
'Chelmstord Gr ante Workers Un ion, 41 N L R B 420, Mattei of R C LeToni neon, Inc
and Independent Industrial Workers' Union, 36 N L R. B 774
15The Regional Diiector reported that the Union submitted 68 application cards bear-
ing apparently genuine oiiginal signatures and containing names appealing upon the Coin-
, pany's pay roll of January 22, 1943 This pay roll contained apps oxunately 138 em-
ployees in the unit hetemafter found appropuate
l
-48 DECISIONS OF NATIONAL 'LABOR RELATIONS' BOARD
construction staff, repairmen, porters, and watchmen.,. The Company
contends that all employees, excluding officers of the Company, execu-
tives, and hair net assembly girls, constitute an appropriate unit. The
Company claims that it has no categories except executives, officers,
buyers, and ordinary employees; that because of the War and the
curtailment of its business, all employees have taken on multiple
`duties, the character of which qualify them for membership in an'
employee organization; and that the only persons exercising super-
visory authority so as to warrant ' excluding them from the unit are
,the officers and executives and buyers. The record does not, fully
support the contention of the Company. There has been a marked
change in the duties of its personnel due to the decrease in business
and personnel caused by the War, and employees now perform func-
tions in addition to those which they had previously performed, and
-in many instances their former duties have been somewhat modified.
However, the weight of the credible evidence indicates and we find
that, in the main, persons exercising supervisory functions prior to the
War continue to do so., We shall discuss the disputed groups and,
specific individuals seriatim.
A. Assistant buyers and assistants to the buyers
The Union would exclude all such employees from the appropriate
unit on the ground that they exercise supervisory functions, whereas
the Company contends-that they should be included because of the fact
that their duties are non-supervisory. The record discloses that the
assistant buyers and the assistants to the buyers both make business
trips for the Company, as a result of which they are away much of the
time. Although they do perform some order filling and picking, and'
-make sales from the floor, essentially their duties are the same as they
were prior to the War. Their salaries and bonuses are considerably
higher than those of ordinary employees, and their bonuses are figured
upon a different basis 16 The record discloses that the inside employees
have received orders from persons herein classified as assistant buyers
and assistants to the buyers, and look upon them as supervisors. In
addition, the nature of the duties of assistant buyers and assistants to
the buyers is functionally different from that,of the inside employees:
.Under these circumstances, we shall exclude assistant buyers and as-
'sistants to the buyers from the unit hereinafter found appropriate.17
- 14 Ordinary employees receive bonuses figured upon a weekly salary basis
11 We find' that the following persons are either assistant buyers or assistants to the
buyers Jacob Brendel, Melvin Kahn, Lawrenc,> Ginsberg, Michael Glenn, Samuel Mellis,
Irving Millstem,'Abram (Al) Ort, Harry, Schumann, Benjamin Ueberall, and Morris
Weininger. It is significant to note that among the employees in this category and in
other categories found to be supervisory hereinafter are several persons who were active
both in the Association and in the Organization.
NEW YORK MERCHANDISE COMPANY, INC. 49.
B. Outside salesmen or sales agents
These employees are "on the road" approximately 20 weeks a year,
selling on behalf of the Company, and the remainder of their time is
spent in' the New York office. They are paid on a commission basis,
with the exception of some who are paid both a salary and commission.
They do not receive any bonus. All have drawing accounts; some
have outside offices; and there is no check on their time. Some of
them earn approximately $2,000 per year and others between $5,000
and $6,00013' The Company would include these employees within the
unit on the ground that, for the major part of their time, they act as
ordinary salesmen, pick and fill orders, and help generally. However,
we agree with the contention of the Union that the duties and interests
of the outside salesmen are functionally different from those of the
inside employees of the Company, and we shall exclude them.19
C. Private secretaries
The Company claims that it employs no private secretaries. How-
ever, the record discloses that at least one person, Belle Rabb, is known
as Shaw's private secretary and that appointments with Shaw are made
through her. In the complaint case ' hereinbefore referred to, the
'Board found that Rabb was Shaw's secretary, and there is no evidence'
to indicate any change in her status. 'The evidence with regard to four
other employees alleged to be private secretaries is hardly conclusive.
Their salaries and bonuses are no higher than those of ordinary stenog-
raphers, and they perform similar duties. We agree with the Union's
contention that private secretaries, as such, are in a confidential posi'
tion with regard to management, and should be excluded. However,
We are of the opinion that the evidence herein is of such a character that
only Belle Rabb appears to be definitely within this category. With
regard to the other employees alleged by the Union to be private secre-
taries 20 we shall permit them to vote under challenge, and a disposition
of their-votes will be made, if necessary, after further investigation.
Accordingly, we shall exclude all private secretaries, including Belle
Rabb.
D. Supervisors and assistant supervisors
The Union would exclude all employees performing supervisory
functions. The Company contends that the only employees perform-
ing such functions sufficient for their exclusion are the buyers, officers,
"These estimates were niade•by the Company
"We find the following employees are outside salesmen : Mark Brill, Ben Gang, Frank
Garber, Murray Garber , Harry Ginsberg , Jack Greenberg, 'Abraham , Hattenbach , Jerome
Hattenbach , Ricardo ( Richard ) Katz, Joseph Martin, Alexander May, Paul Side], John
F. Steeves, and Leslie Wain.
20 Sylvia Weinberg, Yetta Schonfield, Rita Solomon, and Ruth Farber.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and directors of theCompany, and that all others should be included
within any unit of its employees. However, the record-discloses that
several employees are the heads or assistant heads of departments
and sections of departments of the Company ; that they give orders,
have hired and discharged employees, and are looked upon by the
ordinary employees as supervisors or assistant supervisors. Their
salaries and bonuses are substantially higher than those of the em-
ployees -,vorlci_ with them, and-in many cases their,bonuses are com-
puted in a manner different from that used to determine the bonuses
of the ordinary employees. We agree with the Union's contention
that the Company employs supervisors and assistant supervisors, and
we shall exclude such employees from the unit hereinafter found
appropriate."
E. Switchboard operators
Although it sometimes admits switchboard operators to member-
ship, the Union desires to exclude these employees from the bargain-
ing unit, contending that the "shop" did not wish to receive them as
members. The Union representative testified that several classifica-
tions of employees are questionable, and that the Union usually leaves
the decision in these hatters to the membership, for the reason that
fellow employees would be in a better position to know of their duties
and relationship to management. , However, this desire is not con-
trolling upon the Board, and in the absence of substantial evidence
indicating that these employees are closely attached to management
either as confidential employees, or in any other manner which we
recognize as a basis for exclusion, we shall include them within the
unit hereinafter found appropriate.
F. Elevator operators
The Union seeks to exclude these employees from the unit on the
the ground that they are not eligible for membership. These em-
ployees were not organized by the Union , inasinuch as they are eligible
to a labor organization which organizes the building trades employees
and maintenance men. The Company desires that they be included.
and argues that these employees also handle cases and hand trucks,
and that their elevator work is merely a portion of their ditties. In
view of the fact that these employees are eligible for membership
in another organization , and in view of the Union 's desire to avoid
any' semblance of a jurisdictional dispute, we shall exclude these
employees from the unit hereinafter found appropriate.22 -
21 Ave find the following employees to be supervisors or assistant supervisors : Jack
Brenner William J Bloom , Irving Brier, Herman Cohen , Oscar Ehrdreich, James Gal-_
legher,'ilyman Bill, Simon Katz, B Maslansky ,• John Sharkey,' and Ira Stolar.
"We find the following employees to be elevator operators : Fi,ink Dorman, Emil
-Scheublc , and Nick Sharoff.
I
NEW IORK. MERCHANDISE COMPANY, INC. 51
G. 111'atchmen
The Company contends that it does not employ any such classifi-
cation of employees. The evidence discloses that certain employees
are Stationed at the entrances to the Company and check upon persons
enterlnb and leaving ; they also have receptionist duties. In addition;
they make out bills on cash sales, and exercise some degree of control
and supervision over the ordinary employees, especially on days when
the employees are permitted to buy products of the Company. One,
of these employees assigns inside salesmen to customers. We are of
the opinion that the duties and interests of these employees are func-
tionally different from those of the ordinary employees, and, in
accordance with the Union's contention, we shall exclude them from
the unit hereinafter found appropriate.23
H. Nurse
The Company employs an individual which it designates as a ma-
tron, who, it contends, should be included within the unit. The
Union contends that this employee 24 is a nurse. She administers first
aid for minor hurts and takes no part in the distribution function of
the business. ' We are of the opinion that her duties are functionally
different from those of the regular employee and shall exclude her
front the unit hereinafter found appropriate.
1. Construction and maintenance men
The Union would exclude these employees 25 from the unit on the
same grounds upon which it excluded the elevator operators-namely,
that these employees are usually represented by the labor organiza-
tion which represents the building trades employees, and are, there-
fore, ineligible for membership in the Union. The Company desires
that they be included. The record discloses that these employees
grease machinery, perform carpentry work, paint, and on occasion
pack merchandise and act as stock clerks. However, we agree with
the contention of the Union that their duties are primarily concerned
with construction and maintenance work; we shall therefore exclude
them.
J. Repairmen of merchandise
The Union would exclude these two employees 26 on the ground that
the nature of their work and interests are functionally different from
13 we find the following employees to be watchmen Sam Alter, E Joslowitz, Leo Pieser,
and Benlamm Shippenberg
21 Helen Clancy.
Z' Louis Kirschner , Thomas Larson , Ezra Rosenblatt , and Philip Schmitt (Schmidt):
20 Israel Levy and Mike Speciale
52 DECISIONS OF NATIONAL LABOR RELATIONS BOAIR'Di
those of the other employees; the Company contends that they should
be included. Levy repairs the' Christmas tree light outfits, and Spe-
ciale repairs clocks. We agree with the Union's contention and shall
exclude them from the unit hereinafter found appropriate.
K. Porters
These employees are sometimes admitted to membership by the
Union. However, as in the case of switchboard operators , the inclu-
sion of this category is left to the membership . In spite of the fact
that one porter is already a member, the Union seeks to exclude these
employees on the ground that the "shop " voted to exclude them. As
in the case of switchboard operators , we are of the opinion this is in-
sufficient reason for depriving these employees of an opportunity for
collective bargaining . The record discloses that in addition to the
usual duties of porters, these employees act, on occasion , as stock clerks
and messengers . In view of the foregoing , we find that porters are
"inside" employees and shall include them within the unit hereinafter
found appropriate.
L. Hair net assemblers
The Company would exclude these employees on the ground that
they are "manufacturing" employees, whereas the Union would in-
clude them. These employees assemble and package hair nets already
manufactured; they do no','original manufacturing. We agree with
the Union's contention, and shall include then.
-M. Specific employees
Samuel Bloomz. The Union alleges that this employee is a buyer of
supplies and an executive , and would therefore exclude him ; the Com-,
pany contends that he is merely a clerk and should be included within
the unit . The evidence discloses that he keeps inventories of supplies,
reports on them to the office manager , and that there is a dispute as
to whether or not be actually buys supplies . He received $500 bonus
in 1942 , not based upon salary, as is usual with the ordinary employee
and is one of the employees whom even the Organization considered
doubtful . We are of the opinion that Bloom is an executive and shall
exclude him.
John F. Brwizs. The Union contends that he is a supervisory em-
ployee of Universal Camera Company, an affiliate of the Company. The
Company states that he is a bookkeeper employed by it, together with
three others , who works upon the books, of the Universal . He.receives
$65.00 per week and was given a bonus of $200 in 1942 . Although the
Company ' termed the ' work of Bruns and his three companions as
NEW YORK 'ME'RCHANDISE COMPANY, INC. 53
r
"confidential," it still contends that he should be included within the
unit. 'We are of the opinion that his duties are comparable-to those of
other bookkeepers of -the Company, a classification concerning which
there is no dispute. We shall include Bruns within the unit herein-
after found appropriate. ^ 0 ,
Sidney Franklin. The Union contends that Franklin is an'outside
salesman, and would therefore exclude him (see outside salesmen,
supra). - The Company contends that Franklin is' an ordinary inside
salesman and order filler,' a category about which there is no dispute.
The record discloses,that this-employee remains within the premises
of the Company and concerns himself with a specialized trade (Nova
Scotia and Newfoundland-customers). He receives a small salary, but
relies primarily upon his commissions,as distinguished from the or-
dinary salesmen.,, We, are of the opinion -that. Franklin, although he
does not travel, is more akin to the outside salesmen than to the regular
salesmen of the Company; we shall therefore'exclude him.
Louis Hirschhorn. The- Unioil' describes this employee as the ad-
vertising manager;' the Company, admitting that Hirschhorn used to
handle the advertising, contends that it, no longer advertises due to
the War, and that he is now merely a sales clerk. He receives a salary
of $65 per week and received a boiius',of $750 for 1942. Admittedly,
due to the War, his duties have changed; however, he is looked ,upon
by the employees as an executive, 'and was one of those whom even the
Organization considered as doubtful.=7 We shall exclude him from the
unit hereinafter found appropriate. '
Frank Kenney and John Weiss are described by the Union as as-
sistant supervisors, whereas the Company describes them as shipping
clerks. Both are in the shipping department; Kenney handles the par-
eel post and Weiss the freight forwardhigs. Although there is some
evidence that, these employees give orde s, they perform manual labor
in connection with the shipping of products of the Company. We are
of the opinion that there is not sufficient,evidence in the record,to war-
rant a finding that the functions of these employees rare -primarily
supervisory iii nature, and-we shall include,them within the unit,here-
inafter found appropriate.
David Seidman is,described by the Union as an executive. He, too,
was listed by the Organization as, one of those who are in the doubtful
group previously indicated. He is listed-by the Company as a book-
keeper. Iii,' the' complaint case, we found that Seidman was the
head bookkeeper. He handles, the credits of-the Company, receiving
$1;000 bonus in 1942, and is looked upon by the employees•as an execu-
tive. We agree with the Union's contention and shall exclude him.
'17 See footnote 12, supra. " -
536105-44-vol. 50--5 '
4 S` 'DECISIONS OF NATIONAL LABOR 'REILATIONS' BQAiRD
Julius Weiss is referred to by the Union as a supervisor; the Com-'
pany contends that he is' a billing clerk. He distributes the work to
other1billing clerks-and analyzes department, records. He receives a
salary of $40.42 per week, and his bonus of $200 for 1942 was apparently
figured upon aaweekly basis. We,are of'the opinion that such of his
duties which'are disclosed by the record are not* sufficiently supervisory
in nature to, warrant his exclusion. We shall therefore include him
within the unit hereinafter -found appropriate.
George Wer f elman. ,The Union described this employee as an
executive, whereas the-Company alleges that he 'is an order clerk.
He receives a salary of $75 per weekand received a bonus of $1,000
in 1942. Prior to the War he was in charge-of the import, department
of the Company and is iiow apparently in•charge':of the order depart-
went. Another employee, ' allegedly performing -similar work, re-
ceives $21 per week. There appears to be little doubt that his posi-
tion. is above that of the, ordinary employee, and we shall exclude
him from the unit hereinafter, found appropriate. ' .
In accordance with the foregoing, we find' all ,inside employees of
the Company, including switchboard operators,' porters, hair net as-
semblers, Bruns, Kenney, John Weiss, and Julius ,Weiss, but exclud-
ing executives, officers, buyers, assistant buyers and assistants to-the
buyers, outside salesmen, private secretaries, supervisors and assistant
supervisors, elevator operators, watchmen; nurse, construction and
maintenance men, repairmen` of merchandise, Samuel Bloom, Sidney
Franklin, Louis Hirschhorn;-David'Seidman, and George Werfelman,
1'
constitute a -unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b), of the Act.
V.,THE DETERMINATION OF REPRESENTATIVES
We 'shall, in. accordance witli our, usual procedure, direct that the
question concerning representation which-has arisen be resolved by
7 an election by secret ballot among the employees in the appropriate
4 - unit. The Union contends that eligibility to ' vote' iii 'the election
should be determined as of the date of the filing of its petition (Janu-
ary 11, 1943). 'However, in the absence of sufficient reason to the
contrary, we shall direct tliat the' election, be held among the, em-
ployees who were employed during t1fe pay-roll period immediately
preceding 'the- date of the Direction of 'Election herein, subject to
the limitations'and additions set forth'therein. I ; I '
DIRECTION OF,ELECTION '
By virtue of and pursuant to the,powei''vested in the National or
Relations Board by-Section 9 (c) of the National Labor Relations
NEW YORK MERCHANDISE COMPANY, INC. 55
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as ',amended, it is hereby
DIRECTED that, as part of -the investigation to ascertain representa-
tives for the purposes of collective bargaining with New York Mer-
chandise Company, Inc., New York City, an election by secret ballot
shall be conducted - as early as possible, but not later than thirty .(30)
days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Second Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 10, of said Rules and Regulations , among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction , including employees who did not work during
said pay-roll period because they were ill or on vacation or tempo-
rarily laid off , and including employees in the ' armed forces of the
United States who present themselves in person at the polls , but ex-
cluding any who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by Wholesale
& Warehouse Workers Union , Local 65, affiliated with the Congress
of Industrial Organizations, for the purposes of collective bargaining.,
ORDER
The National Labor Relations Board hereby orders that the peti-
tion for investigation and certification of representatives of employees
of New York Merchandise Company, Inc., New York City, filed by
the New York Merchandise Company Employees Organization be, and
it hereby is, dismissed.
0