A. Baldwin & Co., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1941

33 N.L.R.B. 934 (N.L.R.B. 1941)

In the Matter of A. BALDWIN & CO., INC. and INTERNATIONAL LONG-
SHOREMEN 'S & WAREHOUSEMEN 'S UNION, UNIT #2 OF LOCAL 2-7,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-1696.Decided July 30, 1941
Jurisdiction : wholesale hardware industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition until it is certified by the Board ; election
necessary.
Unit Appropriate for Collective Bargaining : all warehouse employees , includ-
ing truck drivers, packers , floor supervisors and stockkeepers , order runners,
checkers , elevator operators , and porters , excluding executives and department
managers , stenographers , bookkeepers , clerks, receiving and shipping clerks,
city salesmen , country salesmen , telephone operators , watchmen , radio techni-
cians, salesmen -clerks, floor salesmen, salesmen in retail departments , service
mechanics , and a porter employed by a subsidiary company.
Mr. George E. Weigel, of New Orleans, La., for the Company.
Mr. Caleb D. Green, of New Orleans, La., for the Union.
Mr. William H. Bartley, of counsel to the Board.
DECISION -
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 20, 1941, International Longshoremen's & Warehousemen's
Union, Unit #2 of Local 2-7, affiliated with the Congress of Industrial
Organizations, herein called the Union, filed with the Regional Direc-
tor for the Fifteenth Region (New Orleans, Louisiana), a petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of A. Baldwin & Co., Inc., New Orleans,
Louisiana, 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
June 23, 1941, 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 2, as amended, ordered an investigation and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
33 N. L.R.B,No 167.
934
A. BALDWIN- & CO., INC. 935
On June 26, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Union.
Pursuant to notice, a hearing was held on July 2, 1941, at New Or-
leans , Louisiana, before C. Paul Barker, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company was repre-
sented by counsel and the Union by its representative. Both parties
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses , and to introduce evidence bearing upon
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 Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Louisiana corporation located in New Orleans,
Louisiana, where it is engaged in the wholesale hardware business.
In 1940 it purchased hardware goods and supplies totaling $1,300,000,
90 per cent of which was shipped to the Company from States other
than the State of Louisiana. Its total sales in 1940 exceeded $1,500,-
000, 20 per cent of which required shipments to customers outside the
State of Louisiana. The sales territory of the Company covers the
States of Louisiana, Alabama, Mississippi, and Texas. The Com-
pany admits that it is engaged in interstate commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Longshoremen's & Warehousemen's Union, Unit #2
of Local 2-7 is a labor organization affiliated with the Congress of
Industrial Organizations which admits to membership employees of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize the Union until it is certified
by the Board. A statement of the Regional Director, introduced at
the hearing, shows that the Union represents a substantial number of
employees in the unit alleged by it to be appropriate.'
' The Regional Director 's statement shows that the Union has submitted to him 54
application cards bearing the names of employees whose names appear on the Company's
pay roll of May 24, 1941. Five of the cards were undated and the remainder were
dated between, April 28, 1941, and May 4, 1941, except for 2 which were dated June-14
and June 16 , 1941. Of the 49 dated cards 40 bore apparently genuine signatures, while
on the remaining 9 the signatures were printed in pencil or typewritten. There are
approximately 60 employees in the unit which the Union alleges is appropriate.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 rela-
tion 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 urges that a unit composed of all warehousemen, truck
drivers, packers, floor supervisors and stockkeepers, order runners,
checkers, elevator operators, shipping and receiving clerks, porters,
and floor salesmen,2 is appropriate for bargaining purposes. The
Company contends that the unit should be limited to warehousemen,
-truck drivers, and packers. Both the Company and the Union agree
that all executives and department managers, stenographers, book-
keepers, clerks other than receiving and shipping blerks, city sales-
men, country salesmen, telephone operators, watchmen, radio tech-
nicians, salesmen-clerks other than the floor salesmen, service
mechanics, and salesmen in retail'departments, should be excluded.
In support of the unit which it contends to be appropriate, the
Union urges that all of the employees it seeks to include are in jobs
closely allied with warehouse operations, receive similar wages, and
are eligible for membership in the Union. The Company contends
that only the warehousemen, truck drivers, and packers are directly
engaged in warehouse operations. We shall consider the specific
groups sought by the parties to be included and excluded from the
unit.
Floor supervisors and stookkeepers: These men check on incoming
merchandise, put it in stock, write receiving reports, and occasionally
run orders. They also are responsible for keeping their floors clean.
Some of them have several helpers who are warehousemen but the
floor supervisors have no power to hire or discharge these helpers.
The average weekly wage in this group is $17.00 as compared with
the salaries of warehousemen who receive $13.80 to $18.00, truck
drivers who receive,$20.00 to $21.00,- and packers who average .$15.00
to $17.50. We shall include them in the appropriate unit.
2 The Company employs 10 "salesmen -clerks." The Union contends that 5 of these
men are floor salesmen and should be included in the unit.
A. BALDWIN * CO., INC. 937
Order runners: These employees deliver merchandise from the ware-
house to the various' places it is needed and place it on the counters
'in an orderly manner. The men who do similar work on the upper
floors of the Company's building are listed as warehousemen on the
pay roll because they handle bulkier items. Order runners receive
'approximately $13.80 per week. We shall include them in the unit.'
Checkers: It is the duty of these employees to go from floor to floor
checking outgoing orders and correcting mistakes. Almost all of
their time is spent in the warehouse. They are paid $16.00 per week.
We shall include them in the unit.
Elevator operators: There are two elevators in the building. One
is entirely for passengers, and the other is used for freight and pas-
sengers. The operators, therefore, work in close contact with the
warehousemen. We shall include them in the unit.
Porters: There are three porters on the pay roll and their duties
consist of cleaning up and doing some manual labor for an average
weekly wage of $13.00. The Company and the Union agree that one
of the porters, Peter Francis, is an employee of a subsidiary company
and not of the Company. We shall include all porters except Peter
Francis in the unit.
Floor salesmen: The Company employs 10 men whom it lists as
"salesmen-clerks." The Union contends that five of these, L. J. Mun-
hausen, Lawrence Labat, Richard Oriol, Jack Shega, and Alvin
Comfort, should be included in the appropriate unit because they
are floor salesmen doing w6rk closely allied to that of the ware-
housemen. The Company contends that these men are engaged in
sales work and should be excluded from the unit.3 The record does
not clearly indicate the' nature of the duties of other men listed as
salesmen-clerks but does show that those whom the Union contends
are floor salemen work in the store downstairs writing mail orders
for hurried customers. When necessary the floor salesmen take
customers into the warehouse to show them the stock. On perhaps
three or four occasions during each day floor salesmen go into the
warehouse, get the -mechandise, and bring it downstairs to the
customer. They are employed as apprentice salesmen and are trained
for future work on the regular city or country sales force of the
Company. We shall exclude them from the unit.
Receiving and shipping clerks: The Union contends that the re-
ceiving and shipping clerks are more closely allied to warehouse opera-
tions than other clerks of the Company and therefore should be included
in the unit. The Company contends that the duties of these men
are purely clerical, and that they should, therefore, be excluded. The
8 Oliver Landry is also a floor salesman , but both parties agree that he should be
excluded from the unit as a supervisory employee.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receiving clerk checks in all freight and makes out receiving reports.
Occasionally he helps load wagons for'outgoing orders,, but he is not
obliged to, do this and has 11 helpers to - do the physical work of
loading. He has no power to hire or discharge these helpers. The
receiving clerk has a desk in the main office but much of his work
is in the warehouse. He receives $13.66 per week. The shipping
clerks do no manual labor. One of them directs the work of the truck
drivers and 11 warehousemen but has no power to hire or discharge
them. He has a desk in the office and receives $20.00 per week. The
other clerk writes up bills of lading, keeps records of rug and linoleum
stock in the warehouse, and receives $16.00 per week. We find that
the work of these men is primarily clerical and we shall exclude them
from the unit.
We find that all warehouse employees, including truck drivers,
packers, floor supervisors and stockkeepers, order runners, checkers,
elevator operators, and porters, employed in the New Orleans, Louisi-
ana, warehouse of A. Baldwin & Co., Inc., but excluding executives
and department managers, stenographers, bookkeepers, clerks, re-
ceiving and shipping clerks, city salesmen, country salesmen, telephone
operators, watchmen, radio technicians, salesmen-clerks, floor salesmen,
salesmen in retail departments, service mechanics, and Peter Francis,
a porter employed by a subsidiary company, constitute a unit appropri-
ate for the purposes of collective bargaining and that such unit will
insure to employees of the Company 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
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by an
election by secret ballot. We shall direct that the employees eligible
to vote shall be those employees in the appropriate unit who were
employed during the pay-roll period immediately preceding the date
of the Direction herein, subject to such limitations and additions as
are set forth in the Direction of Election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONOLIISIONS OF LAw
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of A. Baldwin & Co., Inc., New Orleans,
Louisiana, within the meaning of Section 9 (c) and Section 2 (6}
and (7) of the National Labor Relations Act.
A. BALDWIN & co., I NC. 939
2. All warehouse employees, including, truck drivers, packers,•floor
supervisors and stockkeepers, order .runners, checkers, elevator oper-
ators, and porters, employed in the New Orleans, Louisiana, ware-
house of A. Baldwin & Co., Inc., but excluding executives and depart-
ment managers, stenographers, bookkeepers, clerks, receiving and
shipping clerks, city salesmen, country salesmen, telephone operators,
watchmen, radio technicians, salesmen-clerks, floor salesmen, salesmen
in retail departments, service mechanics, and Peter Francis, a porter
employed by a subsidiary company, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
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 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with A. Baldwin & Co., Inc., New Orleans, Louisiana, 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 of Election, under
the direction and supervision of the Regional Director for the Fif-
teenth Region, acting in this matter as agent for the National Labor
Relations Board and subject to Article III, Section 9, of the said
Rules and Regulations, among all warehouse employees, including
truck drivers, packers, floor supervisors and stockkeepers, order run-
ners, checkers, elevator operators, and porters, employed at the New
Orleans, Louisiana, warehouse of A. Baldwin & Co., Inc., whose names
appear on the Company's pay roll for the period immediately pre-
ceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill
or on vacation or in the active military service or training of the
United States or temporarily laid off, but excluding executives and
department managers, stenographers, bookkeepers, clerks, receiving
and shipping clerks, city salesmen, country salesmen, telephone oper-
ators, watchmen, radio technicians, salesmen-clerks, floor salesmen,
salesmen in retail departments, service mechanics, and Peter Francis,
a porter employed by a subsidiary company, and employees who have
since quit or been discharged, for cause, to determine whether or not
they desire to be represented by International Longshoremen's &
Warehousemen's Union, Unit #2 or Local 2-7, affiliated with the
Congress of Industrial Organizations, for the purposes of collective
bargaining.
940 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
MR. EDWIN S. SMITH, dissenting in part and concurring in part-.'
I dissent from the ruling of the majority excluding the receiving
and shipping clerks from the appropriate unit. The receiving and
shipping clerks are engaged in work that places them on the fringe
of the functions of other employees who are to be included in the
unit. Following the long established rule of the Board in the case
of such "fringe groups," I would include these employees in the unit
on the ground that the only labor organization involved desires their
inclusion.4
I concur in the remainder of the Board's Decision and Direction
of Election. -
* See my dissenting opinion in Matter of National Lead Company ( Titansum Division)
and Gas, By-Product, Coke d Chemical Workers, Local No. 12212, District 50, United Mine
Workers of America, 32 N. L. R. B . 697, and authorities cited therein