Dayton, Price & Co., Ltd.

National Labor Relations Board - Board Decisions

Apr 3, 1947

73 N.L.R.B. 149 (N.L.R.B. 1947)

In the Matter of DAYTON, PRICE & COMPANY, LTD., AND MULLER &
PHIPPS (ASIA), LTD., EMPLOYERS and UNITED OFFICE AND PRO-
FESSIONAL WORKERS OF AMERICA , LOCAL 16, CIO , PETITIONER
In the Matter of DAYTON , PRICE & COMPANY , LTD., AND MULLER &
PHIPPS ( ASIA), LTD., E-Nrriox.Rs and INDEPENDENT EMPLOYEES
ASSOCIATION or DAYTON, PRICE & COMPANY, LTD., AND MULLER &
PHIPPS (ASIA), LTD., PETITIONER
Cases Nos. 2-R-6921 and 3-R-6981, respectively.Decided April
3,19!7
Mr. Matthew Swerling, of New York City, for the Employers.
Mr. Samuel M. Sacher, of New York City, for the CIO.
Mr. Melvin M. Rein, of New York City, for the Independent.
Mr. Robert J. Freehling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon separate petitions duly filed, a consolidated hearing in these
cases was held at New York City, on October 2, 3, and 11, 1946, before
Bertram Diamond, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Dayton, Price & Company, Ltd., and Muller &- Phipps (Asia), Ltd.,
herein separately called Dayton and Muller, respectively, and col-
lectively called the Employers, are New York corporations, having
their principal offices and places of business in New York City.
Muller, a manufacturers' foreign trade sales representative, is engaged
in obtaining orders for products manufactured in the United States
and in other countries at its approximately 30 branch offices located
outside the United States. Dayton, a wholly owned subsidiary of
Muller, is engaged in exporting products of the United States and of
73 N. L. It. B, No. 25.
149
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Canada, and in serving directly as buying agent in the United States
for foreign concerns. Ill the course of its business, Dayton processes
the bulk of the sales made by Muller. During the 12 months pre-
ceding the hearing, the Employers caused to be shipped to countries
outside the United States products valued in excess of $1,000,000.
The Employers admit and we find that each of them is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Office and Professional Workers of America. Local 10,
herein called the CIO, is a labor organization affiliated with the
Congress of Industrial Organizations, claiming to represent em-
ployees of the Employers.' -
Independent Employees Association of Dayton, Price & Company,
Ltd., and Muller &- Phipps (Asia), Ltd., herein called the Independent,
is a labor organization, claiming to represent employees of the
Employers.2
III. TBE QUESTIONS CONCERNING REPRESENTATION
The Employers refuse to recognize either the CIO or the Independ-
ent as the exclusive bargaining representative of employees of the
Employers in the absence of Board certification.
We find that questions affecting commerce have arisen concerning
the representation of employees of the Employers, within the mean-
ing of Section 9 (c) and Section 2 (0) and (7) of the Act.
IV. TI-ni APPROPRIATE UNIT
The CIO and the Independent seek a single unit comprising, in
general, all office and clerical employees of the Employers at their
New York City offices, excluding executives and supervisory em-
ployees.a The Employers contend that the office and clerical em-
ployees of each corporation should constitute separate units. The
parties are also in disagreement with respect to employees in the
job classifications detailed below, whom the Employers and the In-
' The CIO has waived any right to object to any election which nmv be held in the.
instant pioccedvigs on the basis of any of the acts alleged as violations of Section 8 (1)
and (3) of the Act in Case No 2-C-6567
2 At the lieu ing, the CIO submitted a motion, and an offer of proof in connection there-
with, to exclude the Independent fiom participating in these pioccednigs and from appear-
ing on the ballot in any election directed herein, on the ground that the Independent is a
companv-donunated union, and not a labor oiganieation within the meaning of the Act
The hearing officer denied the CIO's motion and ieiected its offer of proof In the absence
of special circumstances, not lurid present, the Iloard customaiily- does not receive evi-
dence of nntair labor practice chaigee at representation beatings, accoidingly, the hearing
officer's inlings are hereby upheld clatter of Grinnell Company of the Pacific, 71
N. L R B 1370 , of platter of Crown iVorsted Mills, Inc , 21 N L It 13 1028
3 The unit contentions of the CIO and of the Independent appear above substantially as
amended at the hearing.
DAYTON, PRICE & COMPANY, LTD. 151
dependent would include in, and the CIO would exclude from, any
unit or units found appropriate
Scope of unit
There has been no prior history of collective bargaining with re-
spect to the employees involved herein. As previously noted, Muller
serves as a manufacturers' foreign trade sales representative, and
Dayton, a wholly owned subsidiary of --Muller, processes the bulk of
the sales made by the latter corporation. Muller has about 21, and
Dayton has approximately 171, employees. The chairman of the
board of directors, president, vice president, and treasurer of Day-
ton hold Identical positions in Muller, and the Employers occupy
adjoining offices located at the same address in New York City.4
Although the employees of each corporation usually handle only
the work of their immediate employer, certain employees, such as
swii.cliboard and dictaphoue operators, perform duties for both Em-
ployers. It appears that the Employers maintain separate records
and files, prepare separate pay rolls, and submit separate income
tax returns. However, it further appears that the treasurer of both
corporations, aided by a personnel assistant for Dayton and for Mul-
ler, is in charge of personnel matters for both Employers, including
the hiring and discharging of employees, and the establishing of
wage policies; that employees of both Employers are subject to the
same rules with respect to hours of work and other conditions of
employment; and that virtually identical wage rates prevail for
employees of both Employers having similar job classifications. In
view of the foregoing, and on the entire record, we are of the opinion
that Dayton and Muller together constitute a single employer within
the meaning of Section 2 (2) of the Act, and that their employees
comprise a single appropriate -unit for purposes of collective bar-
gauung.
Cognposition of unit
We come now to a discussion of the disputed categories of em-
ployees :
Secretary to the president and secrettgry to the treasurer: The CIO
would exclude the Employers' two secretaries, Rebecca Seidenstein and
Ann Benjamin, herein called the secretary to the president and the
secretary to the treasurer, respectively, on the ground that they are
confidential employees. These individuals spend a portion of their time
4 Due to the present shortage of space, some employees of Dayton and of Muller are
located in the sane rooms
5 Cf 3fatter of American National Bank and Ti mist Company of Ch2cago, 71 N L R B.
503, and Matter of Shepherd Tractor and Equipment Co, 65 N L R B 3S
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performing substantially all the secretarial duties required by these
officers. During the balance of their time, the secretary to the president
works in the cable department and the secretary to the treasurer prin-
cipally handles claims problems. Inasmuch as the president and the
treasurer admittedly exercise "managerial" functions in the field of
labor relations, and inasmuch as they appear to rely on the individuals
in issue to perform substantially all secretarial work incidental to the
discharge of these functions, we are of the opinion that the latter are
employed in a confidential capacity, and we shall, therefore, exclude
the secretary to the president and the secretary to the treasurer from
the unit."
Department heads: The CIO contends that the Employers' depart-
ment heads 7 should be excluded as supervisory employees. The Em-
ployers' operations at their New York City offices are divided or-
ganizationally into various departments, which include the purchasing
sections, such as the India, Africa-Australia, Newfoundland-Iceland,
Mexico, China-Asia-New Zealand, and South Africa departments, and
the miscellaneous office and clerical divisions, e. g., the accounting, con-
tract, licensing, quotation, export management, traffic, billing, and
sales promotion departments. The heads of these departments assign
work to, and are responsible for the output of, groups of approximately
3 to 35 employees, and, in addition, are charged with the instruction
and orientation of new personnel. The record discloses that, although
they spend a substantial portion of their time performing the same type
of functions as their fellow employees, the department heads are paid
wages up to 50 percent more than the average received by the next
highest paid employees in their respective departments; that they fre-
quently grant employees time off for short periods; that they repri-
mand employees for failure to attend to assigned tasks; that they
have authority to direct employees to work overtime, for which pay-
ment is made by the Employers; and that they are regarded by some of
their fellow workers as the representatives of management in the de-
partments.8 Furthermore, the record indicates that, other than the
department heads, there is no intermediate supervision between the
treasurer, aided by his 2 personnel assistants, and the approximately
171 office and clerical employees of Dayton and 21 such employees of
Muller. Under these circumstances, we are of the opinion that the de-
partment heads are supervisory employees within the Board's usual
definition of that term, and, accordingly, we shall exclude them from
the unit.,
8 Cf Matter of S T. Johnson Company/, 67 N. L R B 1330 , Matter of Servel, Inc, 65
N. L R B . 1067 , and Matter of Star Watch Case Company, 61 N L R B 1389
7 This term , as used herein , embraces only those clerks glade 3 and buyers grade 3 who
are in charge of the Emplo3 ers' departments
8 The Employers ' treasures testified that the department heads were acting beyond the
scope of their authority in granting time off and in reprimanding employees.
9 Cf. Matter of Union Underwear Company, Inc , 63 N. L . R. B. 92.
DAYTON, PRICE & COMPANY, LTD. 153
We find that all office and clerical employees of the Employers at
their New York City offices, excluding the secretary to the president,
secretary to the treasurer, executives, department heads, and all other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Dayton, Price & Company,
Ltd., and Muller & Phipps (Asia), Ltd., both of 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 Sections 203.55 and 203.56, of National Labor
Relations Board Rules and Regulations-Series 4, among the employ-
ees in the unit found appropriate in Section IV, above, who were em-
ployed 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 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 they desire to be represented by United Office
and Professional Workers of America, Local 16, CIO, or by Inde-
pendent Employees Association of Dayton, Price & Company, Ltd.,
and Muller & Phipps (Asia), Ltd., for the purposes of collective bar-
gaining, or by neither.
CiIAiRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
10 Any participant in the election herein may, upon its prompt request to, and apps oval
thereof by, the Regional Director, have its name removed from the ballot.