John Dritz & Sons

National Labor Relations Board - Board Decisions

Mar 29, 1950

88 N.L.R.B. 1521 (N.L.R.B. 1950)

In the Matter of JOHN DRITZ, LAWRENCE L. DRITZ, STANLEY L. DRITZ,
JULES ELSON, AND EUGENE F. DRITZ, CO-PARTNERS, DOING BUSINESS
AS JOHN DRITZ & SONS, EMPLOYER and DEPARTMENT STORE EM-
PLOYEES UNION, LOCAL 1250, INDEPENDENT, PETITIONER
In the Matter of JOHN DRITZ, LAWRENCE L. DRITZ, STANLEY L. DRITZ,
JULES ELSON, AND EUGENE F. DRITZ, CO-PARTNERS, DOING BUSINESS
AS JOHN DRITZ &- SONS, EMPLOYER and UNITED WIRE AND METAL
WORKERS FEDERAL LABOR UNION, LOCAL 24368, A. F. or L.,
PETITIONER
Cases Nos. 2-RC-1632, 2-RC-1782, and 2-RC-1884.-Decided March
29, 1950
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidated hearing was
held before Jack Davis, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed with the exception noted below.,
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Members Reynolds, Murdock, and
Styles].
Upon the entire record in these cases , the Board finds
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner in Cases Nos. 2-RC-1632 and 2-RC-1782, herein
called Local 1250, and the petitioner in Case No. 2-RC-1884, herein
called the Metal Workers, are labor organizations claiming to repre-
sent certain employees of the Employer.
3. The question concerning representation :
i At the hearing Wine, Liquor and Distillery Workers Union, Local No. 1, AFL, herein
called the Distillery Workers, appeared and moved to intervene. The hearing officer granted
this motion. The Distillery Workers has not complied with the filing requirements of
Section 0 (f), (g), and (h) of the Act, nor did it allege or show a current contractual
interest in this matter. Accordingly, the hearing officer's ruling permitting the intervention
is reversed and we shall not place the name of the Distillery Workers on the ballots in the
elections hereinafter directed . Remington Rand, Inc., 77 NLRB 200.
88 NLRB No. 262.
1521
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 14, 1949, Local 65, Wholesale and Warehouse Work-
ers Union, Independent, herein called Local 65, which has not com-
plied with the filing requirements of Section 9 (f), (g), and (h)
of the Act, requested recognition of the Employer as representative
of its employees. On September 20, 1949, the Employer advised
Local 65 that it would not recognize Local 65 without a Board certifica-
tion. On the same day the Employer issued a notice to its employees
stating, in effect, that it would not recognize Local 65 or any other
union which could not conform to the requirements of the National
Labor Relations Board and also stating inter alia, that Local 65 had
not filed the necessary non-Communist affidavits. From September
20 to September 26, 1949, the employee members of Local 65 held
several meetings on the subject of securing a bargaining representa-
tive. In view of the definite impression they had received that the
Employer would maintain an adamant position with respect to recog-
nizing Local 65 because of the latter's failure to achieve a status of
compliance, they decided on September 26, 1949, to join Local 1250,
which was and still is in compliance with the filing requirements of the
Act. Membership application cards were distributed to the employees
and practically all those present at the meeting signed the cards of
Local 1250. On September 27, 1949, Local 65 by telegram advised the
Employer of its withdrawal of any claim to represent the employees
and in a separate telegram Local 1250 made a claim for recognition.
The Employer contends, in effect, that the petitions in Cases Nos.
2-RC-1632 and 2-RC-1782 should be dismissed upon the ground
that Local 1250 is not the real party in interest, but is acting as a
"front" for Local 65. In support of its position that Local 1250 is
acting for and on behalf of Local 65, the Employer refers to the
following facts : That Local 1250's New York City office is located on
the same floor as Local 65's office in a building at 13 Astor Place;
that both unions have a joint telephone switchboard, purchase supplies
in common, and utilize all service functions in common where it is
possible to make savings by doing those things together; that Eisen-
berg, an organizer for Local 65, attended meetings of the Employer's
employees which were called by Local 1250, as well as those that were
sponsored by Local 65; that he assisted Local 1250 in organizing the
employees, although he is paid by Local 65, and continued to visit
frequently the Employer's plant after the "transfer" of employees
from Local 65 to Local 1250 had been effected; that Eisenberg ar-
ranged for members of Local 65 employed by other employers to
participate in a demonstration at the Employer's plant after the
"transfer"; that Zelman, acting shop steward, and the shop commit-
tee at the Employer's plant, all of whom were elected under the
JOHN DRITZ & SONS 1523
auspices of Local 65, have in the main continued in such capacities
under the aegis of Local 1250 ; that Zelman collected monies from the
employees for the purpose of building up a strike fund, both before
and after they had signed cards applying for membership in Local
1250, and had deposited such monies in the credit union of Local 65;
that Zehnan stated that, although the employees had signed cards
for membership in Local 1250 , they did not sign cards withdrawing
from Local 65; and that the Employer is the only company engaged
exclusively in wholesale and warehouse operations with which Local
1250 is concerned , while Local 65 has numerous employers engaged
in such operations under contract with it.
Opposing the Employer 's contentions , Local 1250 directs attention
to the following facts : That Local 1250 is an established labor organi-
zation which has been in existence since about 1932; that it has offices
in Brooklyn and New York City and that a number of other unions,
as well as commercial tenants, occupy offices in the building at 13 Astor
Place; that although for economic reasons Locals 65 and 1250 use
certain facilities in common , each pays its share for the use of these
facilities ; that although Local 65 paid for the meeting rooms up to and
including September 26,1949, the date when the Employer 's employees
met and signed membership cards in Local 1250 , thereafter Local 1250
paid for them and all other expenses involved in organizing the em-
ployees; that there is no organizational relationship between Locals
1250 and 65 ; that neither their members nor their executive com-
mittees meet together ; that each union determines its own policies
independently of the other; and that both have contracts with many
other employers . Local 1250 further argues in support of its position
that while the organizer of Local 65 has continued to assist in the
organization of the Employer 's employees , he had done so at the request
of Local 1250 and with the approval of Local 65 ; that after September
26, 1949, organization of the Employer's employees was handled under
the direction of, and primarily by, one Meisler , Local 1250's vice presi-
dent; that the "transfer " from one union to the other was arranged
on an amicable basis and that Local 65 has an established policy of
transferring members to other labor organizations when it is deemed
to be in the best interests of the employees to do so; that Local 65 has
cooperated with other unions in demonstrations similar to that which
occurred at the Employer's plant, although the employees involved
were not members of Local 65; that while the shop committee under
Local 1250 is substantially the same as under Local 65, it has continued
in office with the approval of the employee members and that such
approval was granted after the "transfer"; that funds placed in the
credit union of Local 65 have had nothing to do with the payment of
882191-51-97
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union dues or initiation fees; and that such people as had accounts
with the credit union, merely continued their accounts with it after
the "transfer."
We are not persuaded that the evidence before us compels the con-
clusion that Local 1250 is a "front" or is acting on behalf of Local 65,
the noncomplying union. It is clear that Local 1250 is a bona fide
labor organization which has functioned for many years and was not
created in order to enable Local 65 to evade the filing requirements
of the Act. There is nothing here to indicate that Local 1250, if suc-
cessful in an election, could not or would not represent the employees
involved. We find that Local 1250 is not a "front" for Local 65, but
is the real party in interest herein ; accordingly, the Employer's con-
tention is without merit 2 If Local 1250 wins in the election which we
shall order, it alone will be certified and the Employer will have the
right to refuse to recognize any other labor organization claiming to
represent its employees.
We find that a question affecting commerce exists concerning 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 appropriate units :
Cases Nos. 2-RC-1632 and 2-RC-1884
The parties agree that the appropriate unit in these cases should
consist of all production, maintenance, and shipping employees. Lo-
cal 1250 contends that Victor lula is a supervisor and should be
excluded from the unit. The Employer and Metal Workers contend
that lula is a production worker and should be included in the unit.
Victor Tula works as a leadman in the tinting or coloring depart-
ment. He cuts burlap to size from large rolls. Upon specific instru-
tions of one Leopold, his supervisor, as to the amount of burlap to cut,
when to cut it, and to which tinter to give the work, he gives the cut
burlap to the tinter for coloring. He does not have the authority to
hire, discharge, or effectively recommend such action; nor does he have
any disciplinary authority. On occasion, when told by Leopold, he
inspects the work for quality. Except as Leopold instructs him, he
has no authority to assign work to or direct the work of any of the
employees. He spends practically all his time doing manual work.
2 See Mine Safety Appliances Company, 85 NLRB 290 ; Modern Upholstered Chair Com-
pany, Inc., 84 NLRB 95; Stokely Foods, Inc ., 83 NLRB 795 ; Morrison Turning Company,
Inc., 83 NLRB 687; Gluck Bros., Inc., 83 NLRB 683.
The cases of Sampsel Time Control, Inc., 80 NLRB 1250; R. J. Reynolds Tobacco com-
pany, 83 NLRB 348, and Tanners Association of Fulton County, Inc., 87 NLRB 211,
cited by the Employer , are not authority to the contrary . They are all distinguishable on
their facts from the instant case.
JOHN DRITZ & SONS 1525
He is physically located in the tinting department where he spends
almost all the time. Upon the basis of these facts, we find that Tula,
is not a supervisor within the meaning of the Act and shall include
him in the unit.
We find that all production, maintenance, and shipping employees
at the Employer's New York, New York, plant, excluding office and
clerical employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
Case No. 2-RC-1782
The parties agree that the appropriate unit in this case should con-
sist of all office and clerical employees. Local 1250 apparently con-
tends that certain employees should be excluded from the unit as
supervisors : Betty Strudler and Evelyn Pach, on the ground that they
are assistants to the head of the correspondence department; Fanny
Gibson, on the ground that she is the assistant to the office manager;
and Myron Harris, on the ground that he is assistant to the head book-
keeper. The Employer, who denies that any of the named individuals
are supervisors, contends that Strudler and Pach are routine clerical
and stenographic workers; that Gibson is a file clerk; and that Harris
is a bookkeeper. The Employer would therefore include these em-
ployees in the unit.
Betty Stmuwdler is secretary to Nellie D. Rose who is in charge of
correspondence and art needlework publicity. Rose occupies an office
in the correspondence department. Strudler as well as Evelyn Pach
is located in that office. There are two other girls in the department.
All consumer mail goes to the correspondence department and is
answered there. Rose is charged with running the department and
answering all correspondence. Strudler helps here in that work.
Strudler helps formulate the answers to consumer letters and also
types. She occasionally assists Rose in making contacts with news-
papers and furnishing material for publicity purposes. When Rose
is absent, Strudler sees to it that the work is done. Less than 10 per-
cent of her time is spent in this manner. Strudler has no authority
to hire, discharge, or effectively recommend such action.
Evelyn Pack, does stenography and typing and assists in the formula-
tion of letters in reply to the consumer mail. The letters that she
formulates are ordinary and routine letters. Pach has no authority
to hire, discharge, or effectively recommend such action.
Fanny Gibson works under the supervision of the office manager.
She does clerical work and some typing. She is a regular part-time
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worker and works 20 hours per week, whereas the office is operated
on a 40-hour week basis . Gibson works only during the busy seasons.
Local 1250 , however , does not ask for her exclusion from the unit
on the part -time aspect of her employment , but contends that she is
an assistant to the office manager. Gibson does not have any authority
to hire, discharge , or effectively recommend such action ; nor does
she direct the work of any other employees.
Myron Harris is classified as a senior clerk and does bookkeeping.
He handles the accounts payable. He aids in the preparation of the
payroll by checking the time cards. He works in a large office with
the other clerical workers. He is under the supervision of Florence
Harron, the head bookkeeper . Harris does not have any authority
to hire, discharge , or effectively recommend such action . He does
not direct the work of any other employees.
In view of the foregoing facts, we are of the opinion that Strudler,
Pach, Gibson , and Harris are not supervisors within the meaning of
the Act, and we shall include them in the unit.
The Employer apparently contends that Ann Lessinger and Marilyn
Pollack should be excluded as confidential employees because Pollack
is secretary to the comptroller and Lessinger is secretary to the man
in charge of patents and trade -marks . Local 1250 contends in effect
that Pollack and Lessinger are stenographers and not confidential
employees and should therefore be included in the unit.
Ann Lessinger is secretary to Alfred B. Caring, the assistant to
Lawrence Dritz, one of the partners . Caring is charged with the
duty of carrying out all work connected with notions . This includes
working on new items and the handling of patents and copyright
material in connection therewith . However, he does not formulate,
determine , or effectuate managerial policies with respect to general
labor relations . When Caring is too busy , Lessinger sees that the
work is carried out . Lessinger does stenography and typing almost
exclusively for Caring . She also, under Caring's supervision, follows
up orders for the purpose of expediting the delivery of material.
Caring spends all his time in the Employer 's offices and showrooms.
Lessinger occasionally takes dictation from the Employer 's salesmen
who stop in at the office . She also does the filing in Caring 's office.
Lessinger is classified on the Employer 's payroll , as a secretary.
Marilyn Pollack performs duties for Irving Finkelstein , the Em-
ployer's comptroller , similar to those performed by Lessinger for
Caring. She works in the comptroller 's private office and performs
the usual secretarial functions , including stenography and typing.
The comptroller 's duties include issuing all reports of a financial
nature, analysis of sales, and determining commissions and bonuses
JOHN DRITZ & SONS 1527
for salesmen. The entire financial aspect of the business is con-
trolled by him. However, he does not formulate, determine, or
effectuate managerial policies with respect to general labor relations.
Pollack is classified on the Employer's payroll as a stenographer.
The Employer considers as confidential certain matters handled in
the comptroller's office including Dun and Bradstreet reports of
other companies, financial reports of the Employer, analysis of sales
and records, and information concerning imports.
Since Lessinger and Pollack do not themselves perform any work
in connection with the field of general labor relations, nor do they
assist or act in a confidential capacity to any person exercising mana-
gerial functions in the field of labor relations, we find that neither of
them is a confidential employee within the Board's definition of that
term 3 Accordingly, we shall include Lessinger and Pollack in the
unit.
We find that all office and clerical employees at the Employer's New
York, New York, plant, excluding watchmen, guards, executives, pro-
fessional, administrative, and confidential employees, and all other
employees and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
DIRECTION OF ELECTIONS 4
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, separate elec-
tions by secret ballot shall be conducted at such time as the Board
shall in the future direct, upon advice from the Regional Director
that an election may appropriately be held, under the direction and
supervision of the Regional Director for the Region in which this
case was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the units found appropriate in paragraph numbered 4, above, who
were employed during the payroll period immediately preceding the
date of this Direction of Elections, including employees who did not
work during said payroll 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 rein-
stated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine :
IF. R. Squibb & Sons, 83 NLRB 792 ; Automatic Electric Company , 78 NLRB 1057.
4 Any participant in the election in Cases Nos . 2-RC-1632 and 2-RC-1884 may, upon its
prompt request to, and approval thereof by , the Regional Director, have its name removed
from the ballot.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Whether the employees in the unit found appropriate in Cases
Nos. 2-RC-1632 and 2-RC-1884 desire to be represented for the pur-
poses of collective bargaining by Department Store Employees Union,
Local 1250, Independent, or by United Wire and Metal Workers Fed-
eral Labor Union, Local 24368, A. F. of L., or by neither;
(2) Whether or not the employees in the unit found appropriate in
Case No. 2-RC-1782 desire to be represented by Department Store Em-
ployees Union, Local 1250 , Independent , for the purposes of collective
bargaining.