J. J. Newberry Co.

National Labor Relations Board - Board Decisions

Sep 26, 1945

63 N.L.R.B. 1180 (N.L.R.B. 1945)

In the Matter of J . J. NEWBERRY COMPANY and WHOLESALE & WARE-
HOUSE WORKERS UNION LOCAL 65, CIO
Case No. 2-R-5689-Decided September 26, 1945
Putney, Twombley, Hall & Skidmore, by Messrs. Thomas M. Kerri-
gan and T. H. Hochstrosser, both of New York City, for the Company.
Mr. Mac Mattis, of New York City, for the Union.
Mr. Joseph D. Manders, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
0
Upon a petition duly filed by Wholesale & Warehouse Workers
Union, Local 65, CIO, herein called the Union, alleging that a question
affecting commerce had. arisen concerning the representation of em-
ployees of J. J. Newberry Company, Brooklyn, New York, herein
called the Company, the National Labor Relations Board provided for
an appropriate hearing upon due notice before Henry J. Kent, Trial
Examiner. The hearing was held in New York City on July 11, 1945.
The Company and the Union appeared and participated. All parties
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 preju-
dicial error and 'are hereby affirmed. All parties were afforded an
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
J. J. Newberry Company, a Delaware corporation, is engaged in the
retail merchandising business and operates 492 stores, located through-
out the United States. The Company's warehouse, located in Brook-
lyn, New York, is the sole operation involved in the present proceeding.
63 N. L. R. B., No. 183.
1180
J. J. NEWBERRY COMPANY 1181
This warehouse serves as the central receiving and shipping point
for the major portion of all goods sold at the Company's retail stores.
The Company annually purchases various items of goods, wares, and-
merchandise valued in excess of $1,000,000, approximately 60 percent
of which is shipped to the Brooklyn warehouse from points outside
the State of New York. The Company annually ships merchandise,
valued in excess of $1,000,000, from, this warehouse to its numerous
retail stores. Approximately 90 percent of these shipments are trans-
ported to points outside the State of New York.
The Company admits that its operations at the Brooklyn warehouse
affect commerce within the meaning of the National Labor Relations
Act, and we so find.
II. THE ORGANIZATION INVOLVED
Wholesale & Warehouse Workers Union, Local 65, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company..
111. THE QUESTION CONCERNING REPRESENTATION
In a letter dated May 25, 1945, the Union requested the Company to
recognize it as the exclusive bargaining representative of the employees
in the Brooklyn warehouse. The Company made no reply to this
letter, but indicated at the hearing that it refuses to bargain with the
Union until it has been certified by the Board.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter 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 Union contends that all employees at the Brooklyn warehouse,
excluding office employees and supervisory employees, constitute the
appropriate unit. The Company is in substantial agreement with
the composition of the above unit, but disagrees with the Union's
requested inclusion of department heads. It contends that the depart-
ment heads are supervisory employees, and, therefore, should be
excluded.
'The Field Examiner reported that the Union submitted 48 application and authoriza-
tion cards , all of which bore apparently genuine signatures of persons appearing on the
Company's pay roll of June 21, 1945, which contained the names of 56 employees in the
appropriate unit ; and that the cards were dated in May and June 1945.
' 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Department heads : The Company's warehouse is composed, inter
alia, of the hardware, stationery, household goods, toilet goods, and
notion departments. The employees in these departments are engaged
in the receipt, storage, and shipment of merchandise. Each depart-
ment has a complement-of from two to seven employees, in addition
to a department head. Each department head supervises the admin-
istration of his department, allocating approximately 60 percent
of his time to the direction and instruction of the employees under him,
and approximately 40 percent of his time to the performance of manual
labor. The department heads have the authority to recommend the
permanent ' transfer, the disciplining and discharging of employees
in their respective departments. The majority of the recommenda-
tions made by the department heads receive the approval of the
higher-ranking supervisory staff,2 who, alone, possess the authority to
hire and discharge. Furthermore,. the department heads may tem-
porarily transfer employees from their respective departments with-
out the approval of their superiors. Working conditions for all ware-
house employees, including the department heads are substantially
the same. However, the department heads receive weekly salaries
which are approximately 30 percent higher than the salaries of em-
ployees under their supervision. On the basis of the above facts, we
find that the department heads are supervisory employees within the
meaning of our customary definition; accordingly, we shall exclude
them from the appropriate unit.
We find that all persons employed at the Company's warehouse
located in Brooklyn, New York, excluding office employees, the de-
partment heads, the manager, foremen, assistant foremen, and all or
any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by 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 the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.3
2 The staff consists of Manager Boughner , Foremen Knoblauch and Murray , and Assistant
Foreman Dinger.
s The Union requests certification on the basis of evidence of representation introduced
Into the record , but the Company objects to this method of certification . We find the
Union's request for certification on the above basis to be without merit, and it is herewith
denied. See Seventh Annual Report of the National Labor Relations Board, 1942 , at p. 58.
J. J. NEWBERRY COMPANY
DIRECTION OF ELECTION
1183
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, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with J. J. Newberry
Company, Brooklyn, New York, 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.
Article III, Sections 10 and 11, of said Rules and Regulations, among-
the employees 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 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 any who have since quit or been discharged for cause,
and have not been rehired or reinstated prior to-the date of the elec-
tion, to determine whether or not they desire to be represented by
Wholesale & Warehouse Workers Union, Local 65, CIO, for the
purposes of collective bargaining.