Gimbel Brothers, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1949

87 N.L.R.B. 449 (N.L.R.B. 1949)

In the Matter of GIMBEL BROTHERS, INC., EMPLOYER and DELIVERY AND
WAREHOUSE EMPLOYEES, LOCAL 804, AFFILIATED WITH INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CIIAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, A. F. L., PFTITIONER and RETAIL, WHOLE-
SALE AND DEPARTMENT STORE UNION, C. I. 0., INTERVENOR
Case No. 2-RC-1327.-Decided December 7,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before I. L. Broad-
win, hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. The Inter-.
venor's request for oral argument is hereby denied inasmuch as the
record, in our opinion, adequately presents the issues and the positions
of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the employer.
3. The question concerning representation :
The Employer and the Intervenor have had contractual relations
covering the Employer's warehouse employees since 1941. On August
1, 1946, the Employer and the Intervenor entered into a 3-year contract
which was to terminate on July 31, 1949, with a proyision for a wage
reopening on August 1, 1948. However, on August 31, 1948, the
parties executed a new agreement, extending the term of the existing
contract from July 31, 1949, to June 30, 19511
' The extended contract also provided for a wage increase and certain monetary benefits
payable to union members only. In view of our decision that the Intervenor's contract is
not otherwise a bar to an investigation of the question of representation, we find it
unnecessary to consider the effect of this provision on the contract bar issue.
87 NLRB No. 77. 449
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter on May 31, 1949, a date timely with regard to the August
1, 1946, contract, the Petitioner, having informed the Employer of its
representative interest on May 27, 1949, filed its petition in this case.
The Intervenor contends that the extended contract is a bar to this
proceeding.2 It is established Board policy that a contract, prema-
turely extending an existing contract, cannot operate as a bar to our
investigation of a question of representation raised by a petition filed
timely with regard to the expiration date of the original contract.'
The Intervenor takes the position, however, that this doctrine should
not be applied to the instant case because, among other reasons, the
warehouse employees ratified and received substantial benefits under
the terms of the extended agreement. We find no merit in this conten-
tion. The premature extension rule rests on the proposition that the
parties to a collective bargaining agreement cannot forestall a change
of representatives beyond a reasonable term.' Nothing in the circum-
stances of this case warrants setting that rule aside.
Accordingly, we find that a question affecting commerce exists con.
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All the regular full-time employees employed at the Employer's
three warehouses located at 36-02 Northern Boulevard, Queens, New
York, New York; 47-02 31st Place, Long Island City, New York, New
York; 829 East 134th Street, Bronx, New York, New York; including
clericals, stock and clericals, receiving and marking employees, stock-
men, bulk packers, interior bulk delivery employees, furniture finishers
and polishers, house-furnishing workroom employees, carpet work-
room employees, furniture finishers and polishers (basement) ; but
excluding building service and maintenance employees, superannuates;
protection department employees, employees in the paymaster's office,
secretaries to excluded persons, causal, contingent, and part-time
employees, per diem demonstrators, employees of concessionaires or
leased departments, students, temporary and seasonal employees,
apprentices (except where union members are placed in apprentices'
position), guards, watchmen, personnel department employees,
2 Although the Employer joined the Intervenor in this contention at the hearing, subse-
quent thereto it withdrew from this position and no longer contends that the existing
contract bars a further investigation at this time.
3International Harvester Co. (McCormick Works), 85 NLRB 1260, and cases cited therein.
4 See Wichita Union Stockyards Company, 40 NLItB 369.
GIMBEL BROTHERS, INC. 451
employees performing services for the Employer in confidential capac-
ities, executives, professional employees, and all supervisors.5
DIRECTION OF ELECTION 6
As part of the investigation to ascertain representatives for the,
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and su-
pervision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National La-
bor Relations Board Rules and Regulations, among the employees in
the unit found appropriate in paragraph numbered 4, above, who
were employed during the pay-roll period immediately preceding
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 temporarily laid off, 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, and also excluding em-
ployees on strike who are not entitled to reinstatement, to de-
termine whether they desire to be represented, for purposes of col-
lective bargaining, by Delivery and Warehouse Employees, Local 804,
affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L. or by Retail, Whole-
sale and Department Store Union, C. I. 0., or by neither.
6 This unit corresponds to the unit set forth in the August 1 , 1946, contract between
the Employer and the Intervenor. The Petitioner and the Intervenor at all times have
agreed that this unit is appropriate. Although the Employer contested its appropriateness
during the hearing , it has since withdrawn such objections.
6 Any participant in the election directed herein may , upon its prompt request to, and
approval thereof by, the Regional Director, have its name removed from the ballot.
87'1359-50-vol. 87-30