Ardlee Service, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1943

52 N.L.R.B. 1509 (N.L.R.B. 1943)

In the Matter of ARDLEE SERVICE, INC . and UNITED OFFICE & PROFES-
SIONAL WORKERS OF AMERICA, LOCAL 16, CIO
Case No. f2-R-4202.Decided October 21, 1943
'Hr. Daniel Arvan, of New York City, for the Company.
Boudin, Cohn cC Glickstein by Dir. I. Philip Sipser, of New York
City, for the Union.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Office & Professional Workers,
Local 16, CIO, herein called the Union, alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Ardlee Service, Inc., New York City, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Daniel Baker, Trial Ex-
aminer. Said hearing was held at New York City on September
9, 1943. The Company and the Union appeared and participated,
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Ardlee Service, Inc., is a New York corporation engaged in the
business of duplicating, lithographing and mailing duplicated and
related material in behalf of clients to individuals situated through-
out the United States. Annually, the Company uses paper, its princi-
pal raw material, in excess of $10,000 in value, more than 15 percent
of which is delivered to its place of business from points outside the
52 N. L. R. B., No. 254.
1509
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State of New York. Its annual volume of business is in excess, of
$50,000. More than 10 percent of its finished products is mailed and
delivered to points outside the State of New York. Fifty percent
of its work is war work for the United States Government.
For the purposes of this proceeding, the Company concedes that
it is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATION INVOLVED
United Office & Professional Workers of America, Local 16, affili-
ated with the Congress of Industrial Organizations is a labor or-
ganization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of the Company's office and
clerical employees until it has been certified by the Board in an ap-
propriate unit.
A statement of the Regional Director supplemented by a state-
ment of the Trial Examiner, introduced into evidence at the hearing,
indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union contends for a unit of office and clerical employees,
consisting of a bookkeeper, an order clerk, a billing clerk, a general
clerical employee, a switchboard operator and a secretary-stenog-
rapher.2 The Company contends that the order clerk should be
excluded as an administrative and supervisory employee and that
its salesmen should be included in the unit.
The order clerk's "supervisory" authority consists of taking a job
to the person who is to do it and giving directions for its comple-
tion. She has no discretion in formulating the instructions but
merely carries out a routine operation. She works in the office, is
'The Regional Director reported that the Union submitted six application -for-member-
ship cards , all of which bore apparently genuine original signatures. The Trial Examiner
stated that the five persons appearing on the cards correspond with names listed by the
Company at the hearing as office and clerical employees employed in a non -supervisory
capacity. The sixth card was apparently signed by Ethel Livingston who, the Union
alleges, was discriminatorily discharged for union activities . This charge is now pending
before the Board in Case No. 2-C-5219
2 No secretary -stenographer worked in the Company 's office at the time of the hearing.
The one claimed by the Union is Ethel Livingston See footnote 1..,
ARDLEE SERVICE, INC. 1511
subject to the same working conditions as the other clerical em-
ployees in the office, and her interests are similar to theirs. Her
salary is no greater than that of the girls who, the Company admits,
belong in the unit. The fact that she is classified as administrative
under the Fair Labor Standards Act, as asserted by the Company, is
immaterial here because all factors relating to her duties support
her inclusion in the unit .3
The salesmen work under the supervision of the sales manager;
the clerical workers work under the supervision of the office man-
ager. The salesmen do not sign in and out of the office as do the
office workers, nor do they have regular hours, but may use their
own discretion as to how to budget their time. They have desks in
the office at which they prepare reports, lay-outs for advertising, and
other matter pertaining to their orders. The Union has made no
attempt to organize them. We find that the interests of salesmen and
office workers are divergent and shall exclude salesmen from the
unit.
We find that all office and clerical employees of the Company
including the order clerk but excluding the office manager , credit
manager , inside contact man, salesmen, executives 4 and all other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, 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 direct that the question concerning representation which
has arisen be resolved by an election by secret ballot. The Company
contends that employees who have worked for it for less than a year
should not be eligible to vote in the election. The employees in ques-
tion are permanent employees with substantial expectation of inde-
terminate tenure with the Company. Their interests are vitally in-
volved in the designation of a bargaining representative. We find
no merit in the Company's contention, and we shall provide that the
employees eligible to vote in the election shall be all those in the ap-
propriate unit, who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject
to the limitation and additions set forth in the Direction.
The Union urges that Ethel Livingston, who it alleges has been
discriminatorily discharged, be permitted to cast a separate sealed bal-
lot to be opened and counted only in the event the election turns upon
See Matter of Worthington Creamery d Produce Co., 52 N. L. R. B. 121.
This is the unit petitioned for. Only the categories contested have been discussed herein.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that vote, and that should the election be decided by her ballot, that
the final disposition of the representation proceedings be deferred
until the Board has decided in Case No. 2-C-5219 whether or not
her discharge was in violation of Section 8 (3) of the Act. The re-
quest is hereby granted, but our decision permitting Ethel Livingston
to vote is not to be interpreted as in any way passing upon the legality
or illegality of her discharge."
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 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 Ardlee Service,
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 supervision 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, Sec-
tions 10 and 11, 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 Ethel Livingston and employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and 'including employees in the armed forces
of the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged 'for
cause and have not been rehired or reinstated prior to the date of
the election, to determine whether or not they desire to be represented
by United Office & Professional Workers of America, Local 16,
CIO, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
5 See Matter of Kilburn Mfg. Co., Inc., 45 N. L. it. B. 322; Matter of Rudolph Wuriitzer
Co., 32 N. L. R. B. 163.