Barrie-Morell & Co.

National Labor Relations Board - Board Decisions

Jul 28, 1942

42 N.L.R.B. 967 (N.L.R.B. 1942)

In the Matter of BARRIE-MORELL & CO and WHOLESALE & WAREHOUSE
WORKERS UNION, LOCAL 65, C I 0
Case No. R-3818 -Decided July 28, 1942
Jurisdiction : woolen jobbing industi y
Investigation and Certification of Representatives : existence of question re-
fusal to bargain with any labor organization until certified by the Board,
election necessary
Unit Appropriate for Collective Bargaining all employees attached to New Yolk
City office, including shipping, stock, office, and Rand Card Department em-
ployees, sample clerks, cutters, and inside floor salesmen, but excluding supei-
visoiy employees, outside salesmen, and employees of the Chicago office, outside
salesmen excluded because union had not organized them, and they lacked coin
munity of interest with other employees, Chicago office employees excluded
because they comprised a separate group apait from New York City employees
Mr. Lester-Mr Friedman, of New Yolk City, for the Company.
Mr Daniel Sale and Sue Pedolsky, of New York City, for the Union.
Mr Robert E. Tillman, of counsel to the Board ,
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Wholesale & Warehouse Workers Union,
Local 65, C I. 0, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Barrie-Morell & Co, New York City, herein balled the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before Fredei ick R Livingston, Trial Exam-
iner. Said hearing was held at New York City on May 7, 1942 The
Company 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 The Trial Examiner's
rulings made at,the hearing are free from prejudicial erior and are
hereby affirmed
On May 25, 1942, the Company filed a motion for rehearing on the
grounds that abnormal business conditions in the woolen business had
42NLRB No182
967
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessitated a ieoiganization and reduction of personnel, and that the
Company's business has materially changed since the time of the hear-
ing We have considered the motion and are of the opinion that the
j eduction in personnel and volume of business therein alleged do not
materially affect the issues presented in this pioceednng The motion
for rehearing is hereby denied
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I TIIE BUSINESS OF THE 'COMPANY
Barrie-Moi ell & Co is a limited partnership with its pinicipal office
and place of business in New York City The Company is engaged
in the business of jobbing woolens The raw materials purchased by
the Company consist of woolens, of which 90 percent is purchased
from manufacturers outside the State of New York Sales of cloth
are made largely to merchant tailors throughout the United States.
During the 5-month period ending April 15, 1942, the Company pur-
chased raw materials from outside the State of New York of a value
of $50,000 During the same period, the Connpany sold woolens of a
-,alue in excess of $50,000, of which approximately 75 percent in value
was 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
II THE ORGANIZATION INVOLVED
Wholesale & Warehouse Workers Union, Local 65, is a labor organ-
ization affiliated `firth the Congress of Industrial Organizations It
admits to membership employees of the Company
III TIIE QUESTION CONCERNING REPRESENTATION
The parties stipulated that a question concerning representation had
arisen in that the Company had refused to bargain with any labor
organization unless and until it is certified by the Board
A statement of the Regional Director, introduced in evidence at
the hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate 1
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act
I The Regional Directoi stated that the Union submitted 22 application -for-membership
cards, bearing dates between October 29, 1941 , and April 3, 1942 , and that all of the
cards bole apparently genuine original signatures , which Aeie names of poisons listed on
the Company s New York City office pay loll of Apiil 1, 1942, nhich listed 27 employees in
the unit heremnaftei found appropriate
BARRIE-MOREiLL & CO
IV THE APPROPRIATE UNIT
969 _
The Union requests a unit of employees attached to the Company s
New Yoik City office, including shipping, stock, office and Rand Card
Department employees, sample cleiks, cutteis, and inside floor sales-
men, but excluding supei visory employees and outside salesmen The
Company contends that all of its employees throughout the United
States, excluding the owneis, should be ti Bated as a single unit.
At the time of the hearing, the Company's New Yoik City office
employed 35 persons, 4 of whom were salesmen The Company also
employed 13 other salesmen in various other States of the United
States and maintained a Chicago office with 2 salesmen and 2 other
employees The Company thus employed a total' of 50 persons
throughout the United States, all of whom the Company contends
should be in the appiopiiate unit The Company has no history of
collective bargaining with its employees
The patties are thus in dispute over,the inclusion in the appropiiate
unit of salesmen and employees of the Chicago office
Salesmen. The Union would exclude all 17 of the Company's sales-
men on the, ground that none is an inside floor salesman, wheieas
the Company would include all of them as being veiy vital to the
operation of its business As defined by the Union, an inside floor
salesman works exclusively in the place of business and does not ti avel
outside to interview customers The Company conceded that it had
no inside floor salesmen within the scope of this definition The 4
salesmen working in New York City ate engaged pact of their woi king
time in the New Yolk City office and pait of the time in the field'
They distribute samples among the vaiious customers in the New
York metropolitan aiea and invite them to the New Yoik City office to
inspect the various goods chstiibuted by the Company
The 13 salesmen not attached to the New York City office have offices
of their owh in vaiious sections of the country They cover given
territories, pay theft own traveling expenses, and, with the exception
of those at the Chicago office, pay their own office rent
All salesmen are paid upon a commission basis, their aveiage
gloss earnings ranging fiom $2,000 to $14,000 a year Most, of them
receive between $3,000 and $5,000 annually The aver age normal
wage of the employees of the New York City office who ate claimed
by the Union, is approximately $23 a week '
Spice the Union has not oiganizecl the outside salesmen, and since
the salesmen have little community of interest with the other em-
ployees of the Company, we shall exclude all the outside salesmen
from the appropriate unit.
The Chicago office employees: The Union maintains that the em-
ployees of the Chicago office 'comprise a group, separate and apart
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the New Yolk City office employees The jurisdiction of the
Union is confined to the Port of New York area The Chicago office
serves as a distiibution center or relay station in aid of the Company's
delivery of woolens After exclusion of the Company's salesmen,
there remain at the Chicago office only an office manager and an office
or eirand boy who might be included in the appropriate unit In view
of these circumstances, we shall exclude the employees of the Chicago
office fiom the appropi sate unit
The parties are in disagreement as to whether certain employees of
the Company should be excluded as supervisory employees Thus,
the Union would exclude-one Gould, the Company's credit man The
Company denies that Gould is supervisory and contends that if the
Board finds him to be supervisory, then Jack Knirsch, Nat Gabin,
and John Koschin are also supervisory. The Union did not take any
'position as regards these latter employees
Gould: An employee witness for the Union testified that Gould
lined and discharged employees at the New York City office, appar-
ently without conferiing with the owners of the Company, and fur-
therinore that he assigned duties to the employees. Benjamin Morell,
one of the owners, denied that Gould had any supervisory powers,
maintaining that he, Moiell, and his partner, George Klein, were the
only peisons in the Company who could hire and discharge When
testifying later in the hearing, howevei, Morell admitted that he
delegated the power to hire to Gould, after first setting the qualifica-
tions to be met and the wages to be paid, so that, in fact, Gould has
the power to hire without consultmg,the owners of the Company
Morell stated however, that employees were discharged only after a
conference v ith one of the owners and instructions from him to that
effect Gould has his own office He alone in the New York City
office is paid a salary' His salary is $70 per week, which, not includ-
ing the salesmen, is double the earnings of the next highest paid
employee We find that Gould is employed in a supervisory capacity,
and we shall exclude him as such from the appropriate unit
Knirsch, Gabin and Kosehin • Knirsch and Gabin are regarded as
utility employees, whose general duties are to see that the stock is in
order Sometimes they help with cutting - At other times, they show
piece goods and bolts to customers, but they receive no commission for
sales Morell testified that there were occasions when Knnsch had
been delegated the power to hire He stated that Knirsch had 8 or
10 employees under him and that it was one of his functions to see
that instructions,of the management were carried out. He stated
further that Gabin had at times hired delivery boys. Koschin is
the shipping clerk He is permitted to hire the delivery boys so that
they will render him better service. In addition he has power to
B ARRIE-\IORELL & CO 971
recommend their discharge We find that Knirsch, Gahm, and
Koschin ale also supervisory employees, and we shall exclude them as
such from the appropriate unit
We find that all employees attached to the Company's New York
City office, including shipping, stock, office, and Rand Card Depart-
ment employees, sample clerks, cutters, and inside floor salesmen,2
but excluding supervisory employees, outside salesmen, and employees
of the Chicago office, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act
V THE DETTRDIINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of our Direction of
Election, subject to the limitations and additions set forth therein.
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 Rela-
tions Act. 49 Stat 449, and pursuant , to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hetebv
DIRECTED that. as part of the investigation to ascertain representa-
tives foi the put poses of collective bargaining with Barrie-Morell &
Co, 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 of Election, 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, Section 9, of said Rules and Regulations, among all
employees of the Company 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 such pay-roll period because they were ill or on
vacation or in the active military service or training of the United
States, of temporarily laid-off, but excluding those employees who
have since quit or been discharged for cause, to determine whether
or not they desire to be represented by Wholesale & Warehouse Work-
ers Union, Local 65 C I O , for the purposes of collective bargaining.
'In the absence of objection we include inside floor salesmen , although none were
employed at the time of the heaxing
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