Imperial Textile Co. of New York, Inc.

National Labor Relations Board - Board Decisions

May 16, 1967

164 N.L.R.B. 675 (N.L.R.B. 1967)

IMPERIAL TEXTILE CO. 675
Imperial Textile Company of New York, Inc.
and District 65, Retail , Wholesale and
Department Store Union, AFL-CIO.
Case 2-RC-14527.
May 16, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joel P.
Biblowitz. The hearing officer's rulings made at the
hearing are free from prejudicial error and are
hereby affirmed.' Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, and
by direction of the Regional Director for Region 2,
this case was transferred to the National Labor
Relations Board for decision. A brief has been filed
by the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. No question affecting commerce exists
concerning the representation of the employees of
the Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act for the reasons noted
below:
The parties agreed that the appropriate unit would
consist of "all warehouse employees, including
shipping and receiving employees and stock
employees," with the usual exclusions. This unit
presently consists of two individuals and the
Employer claims that one of these two, Roger
Archer, is a supervisor and therefore the unit
contains only one employee and the petition should
be dismissed.
The Employer is a textile converter. It purchases
what are known as "grey goods," has them printed,
and sells these printed goods to customers through
salesmen. The operations consist of a sales
department, an office department, and a warehouse
department which is the subject of the instant
petition. The warehouse operation consists of the
placing of goods in stock, the keeping of inventory
records, the preparation of goods for samplemakers,
the receipt of orders from customers based on the
sample books, and the filling and shipping of these
orders. According to his testimony, Archer's work is
equally divided between sample work (preparing the
format of the sample book and sending it to the
samplemaker to put together) and the receiving,
grading, and placing in stock of goods. John Tucker,
the other individual employed in the warehouse
department, is primarily concerned with the filling
and shipping of customer orders. Imperial Textile
has two owners, Eli Bell and Bernard Levine. Bell
has overall responsiblity for the selling operations
while Levine oversees the operations of the New
York office.
The record indicates that Archer receives $120
per week in salary, which does not vary regardless of
the number of hours he works. 2 Archer also
determines his own working hours and is paid
approximately the same salary as the Employer's
office supervisor. Tucker receives $85 per week, is
compensated at time and a half for overtime work,
has fixed working hours, and receives his
instructions as to when overtime work is necessary
through Archer. Moreover, in contrast to Tucker,
Archer has the keys to the Employer's premises and
the authority to pledge independently the
Employer's credit for the purchase of supplies.
It is apparent that Archer plays a substantial role
in the hiring of new employees for the warehouse.
He interviews job applicants to determine their
educational and vocational qualifications, discusses
probable salary ranges, and evaluates his own ability
to function compatibly with the potential employee.
Archer makes effective recommendations regarding
these matters to the Employer. In addition, on at
least one occasion, Archer made an effective
recommendation regarding a wage increase for a
warehouse employee.
There is conflicting testimony on Archer's role in
the discharge of the warehouse employees.
However, the record clearly indicates that he is
consulted in regard to discharge decisions.
Partner Levine is an active participant in the
business and he testified that he is in and out of the
warehouse department at least 50 times a day.
Levine seeks information on various aspects of the
business operation such as the status of inventory
records, and he also checks on the progress of
certain orders with which he is especially
concerned. Although Archer consults Levine when a
difficult decision concerning the warehouse
operation must be made (such as grading the quality
of a particularly ambiguous piece of goods), Archer
In view of the disposition of this case, the Board does not
deem it necessary to pass on the hearing officer's denial of the
Employer's request before cross-examination for production of an
affidavit The affidavit was taken in connection with a prior unfair
labor practice case which was settled informally, involving the
164 NLRB No. 83
same parties and the same issue
' In the past, Archer had customarily received bonuses in
appreciation for overtime work but he has not received one since
March 1966
298-668 0-69-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directs the functioning of the warehouse operation.
Tucker's testimony revealed; that he has always
accepted instructions from Archer without question
in regard to the necessity for working overtime, the
priority of orders to be filled, the running of neces-
sary errands, the personal delivery of goods within
the area, and the actual physical labor involved in
the receipt of goods.4
Archer is not merely a receiving clerk and Tucker
a shipping clerk as the Petitioner contends. Archer's
functions in regard to the priority of orders to be
filled, his designation of Tucker to perform
necessary errands in regard to the warehouse
operation, and the fact that Tucker performs the
actual physical labor involved in the receipt of
goods preclude such stereotyped vocational
descriptions for these two individuals. Although
Archer's authority is circumscribed to some extent by
the presence of partner Levine, he exercises
sufficient independent judgment and responsibly
directs employee John Tucker to a degree sufficient
to cloak him with supervisory status. On the basis of
' Particular credence must be given the testimony of John
Tucker on the subject of Archer's authority since Tucker was
clearly hostile to the Employer's position on Archer's supervisory
status
4 Imperial's premises are on the fifth floor and goods are
the foregoing considerations and the record as a
whole, we find that Roger Archer is a supervisor
within the meaning of the Act.
Our finding that Roger Archer is a supervisor
within the meaning of the Act reduces the number of
individuals which the Petitioner seeks to represent
to one employee. The Board has consistently held
that it will not certify a one-man unit because the
principle of collective bargaining presupposes that
there is more than one eligible person who desires to
bargain. Therefore, the Act does not empower the
Board to certify a one-man unit.5
As the stipulated unit consists at most of two
individuals and we find that one of the individuals is
a supervisor within the meaning of the Act, the unit
requested by the Petitioner is inappropriate for the
purposes of collective bargaining. Accordingly, we
shall dismiss the petition.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.
delivered to the sidewalk and must be brought upstairs Tucker
testified that he invariably performs this function
' See, for example, Foreign Car Center, Inc , 129 NLRB 319,
Joe White IGA, 154 NLRB 1