53 N.L.R.B. 53 (N.L.R.B. 1943)

Gold & Baker

National Labor Relations Board - Board DecisionsOct 25, 1943

53 N.L.R.B. 53 (N.L.R.B. 1943)

In the Matter of BERNARD GOLD AND JACK WASSERMAN, CO-PARTNERS DOING BUSINESS UNDER THE NAME OF GOLD & BAKER and WHOLF.s LE AND WAREHOUSE WORKERS UNION, LOCAL 65, C. I. O. Case No. RD899 (2-R-3943).-Decided October 25,1943 Mr. Frederick R. Livingston, for the Board. Mr. Bernard Gold, of New York City, for the Company. Mr. Irving Lebold, of New York City, for the C. I. O. Mr. Murray Gurtman and Markewich, Rosenhaus cC Markewich, by Mr. Irwin Panken, of New York City, for the A. F. of L. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Wholesale and Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organiza- tions, herein called the C. I. 0., alleging that a question affecting com- merce had arisen concerning the representation of employees of Bernard Gold and Jack Wasserman; co-partners doing business under the name of Gold & Baker, New York City, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William F. Guffey, Jr., Trial Exam- iner. Said hearing was held at New York City on August 26, 1943. The Board, the Company, the C. I. 0., and Joint Board of Millinery Workers Union, Local 90, affiliated with the American Federation of Labor, herein called the A. F. of L., 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 error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. 53 N. L. R. B., No. 10. 53 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Bernard Gold and Jack Wasserman, co-partners, have been doing business under the name of Gold & Baker since January 1943. The Company, a successor of Gold & Kaufman; is engaged in the selling and distribution of ladies' hats at wholesale in New York City. Dur- ing,the first 6 months of 1943, the Company purchased merchandise valued in excess of $15,000, approximately 25 percent of which was shipped to the Company's store from points outside the State of New York. During the same period, the Company's sales exceeded $25,000, over 50 percent of which represented sales of merchandise shipped from the store to points outside the State. The Company admits that it is engaged in commerce, within the meaning of the National Labor Relati,3ns Act. II. THE ORGANIZATIONS INVOLVED Wholesale and Warehouse Workers Union, Local 65, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. Joint Board of Millinery Workers Union, Local 90, is a labor organ- ization affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In the spring of 1943, the C. I. O. asked the Company for recog- nition as exclusive bargaining representative of its employees, and the Company refused. The Company's predecessor, a member of the Association, had recognized the A. F. of L. as sole bargaining repre- sentative of its shipping employees. A contract between-the A. F. of L. and members of the Association expired on February 15, 1943. So far as the record discloses, the Company had never recognized the A. F. of L. as bargaining representative of any employees. 'Bernard Gold and Peter Kaufman were the stockholders of the corporation of Gold & Kaufman Upon dissolution of the corporation, Gold entered into partnership with Wasserman, under the name of Gold & Baker, the employer herein concerned, and Kauf- man became an employee in the wholesale hat industry Customers of the corporation became customers of the succeeding partnership. Gold & Kaufman was a member of The New York Association of Wholesalers of Ladies' and Childien's Hats, Inc., herein called the Association Gold & Baker is not. See Matter of The New York Association of Wholesalers of Ladies' and Children's Hats, Inc, decided this day, 53 N. L. R. B. 38. GOLD & BAKER 55, A statement prepared by the Regional Director and introduced into evidence at the hearing indicates that the C. I. O. has a substantial interest among employees in the unit herein found, appropriate? 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. IV. THE APPROPRIATE UNIT The C. I. O. contends that all employees of the Company, excluding executives and supervisory employees, constitute an appropriate bar- gaining unit. The A. F. of L. contends that the Company's shipping employees constitute a bargaining unit apart from-other employees. , The Company's store consists of- a basement floor, at the rear of which office space is set off by partition. The two partners are actively engaged in the management and conduct of their business. One of them is present in the store during business hours. The Company regularly employs a bookkeeper, two salesmen, a shipping clerk, and an errand boy. At the time of the hearing, the Company employed only two persons, a salesman and an errand boy. The salesman is chiefly concerned with the receipt and arrangement of stock and the selling of merchandise to customers at the store. He assists in packing and does some incidental buying. One of the partners does the buying and the greater part of the shipping work. The errand boy delivers hats according to directions given him by the partners or the salesman. The C. I. O. and the Company agree that the salesman and the er- rand boy should be included in the same bargaining unit. The A. F. of L. contends that the salesman is a supervisory employee and should not be included in the unit. Gold, who testified at the hearing, first described the salesman as his "man Friday" and his "general man- ager. " In response to an initial question respecting the extent of the salesman 's managerial powers, Gold testified that the salesman "man- aged himself." Gold further testified in general terms that the sales- man had authority to hire and discharge errand boys at his discretion and within his understanding of the Company's needs. So far as the record discloses, however, the only specific authority that the salesman exercises over the errand boy is to instruct him concerning the places where the deliveries of hats are to be made. As noted above, one of the partners is present at the store during business hours, and both 2 The C I O. submitted two authorization cards bearing the apparently genuine signa- tures of employees on the Company's pay roll of June 3, 1943 At the time of the hear- ing there were two employees in the unit hereinafter. found appropriate. The' A. F of L. submitted no evidence of present interest among the Company's employees . The A. F. of L. was the recognized bargaining representative of employees of the Company' s predecessor. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partners are active in the business. We find that the salesman is not a supervisory employee and we shall include him in the unit. In a separate representation proceeding, decided this day,' we found that salesmen , shipping employees, and errand boys employed by members of the Association, the Company's competitors, constituted a single appropriate unit. The Company does not presently employ any shipping clerk or packer. The salesman shares this work with one of the partners. Salesmen and errand boys employed by members of the Association perform services similar to those performed by the Company's employees in the respective work categories. Since we have found that salesmen, shipping employees, and errand boys em- ployed by the Company's competitors in New York City are properly included in the same bargaining unit, we shall include in the same unit the employees of the Company engaged in similar work Shortly before the hearing the Company lost the services of the bookkeeper, whom it expected to replace, but whom it had not replaced at the time of the hearing. The bookkeeper is essentially an office employee and we do not regularly include office employees in the same bargaining unit with non-clerical workers. We shall, therefore, in accordance with our usual practice, exclude office employees from the unit we now find appropriate for bargaining. We find that all employees of the Company, excluding supervisory and office employees, 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 find that the question affecting commerce which has arisen concerning the "representation of employees of the Company can best be resolved by an election by secret ballot. Although the A. F. of L. did not submit any evidence to indicate that it presently represented any employees of the Company, the A. F. of L. was lately the bargaining representative of employees of the Company's predecessor. The A. F. of L. desires to participate in the election and we shall, therefore, permit the A. F. of L. to ap- pear upon the ballot. Those eligible to vote in the election shall be 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 the Direction of Election herein, subject to the limita- tions and additions set forth in the Direction. 3 See footnote 1, above. • Although the A. F. of L. conterds that the appropriate bargaining unit should be limited to shipping employees , the A F. of L filed no petition for certification of such employees and no evidence to disclose that it represented either of the employees presently in the Company 's service. GOLD & BAKER DIRECTION OF ELECTION 57 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain repre- sentatives for the purposes of collective bargaining with Bernard Gold and Jack Wasserman, co-partners doing business under the name of Gold & Baker, 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 super- vision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, 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 said pay-roll period because they were ill0 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 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 Wholesale and Warehouse Workers Union, Local 65, C. I. 0., or by Joint Board of Millinery Workers Union, Local 90, A. F. of L., for the purposes of collective bargaining, or by neither. MIi. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.