Lewis Supply Co. Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1946

67 N.L.R.B. 712 (N.L.R.B. 1946)

In the Matter of LEwIs STTPPLY COMPANY INCORPORATED and WHOLE-
SALE & WAREHOUSE WORKERS UNION, LOCAL 65, C. I. O.
Case No. 2-R--6236.Decided April 24, 1946
dir. Louis Braun, of New York City, for the Company.
Messrs. .11 Evanoff and Leonard 11. TVaeker, of New York City, for
the Union.
Mr. Harry R. Eh rli(h. of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon an amended petition duly filed by Wholesale & Warehouse
Workers Union, Local 65, C. I. 0., herein called the Union, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of einployees of Lewis Supply Company Incorporated,' New
York City, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon clue notice before
William T. Little, Trial Examiner. The hearing was held at New
York City, on March 11, 1946. The Company and the Union appeared
and participated. All panties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Lewis Supply Company Incorporated is a New York corporation
with its principal office and place of business in New York City, where
it is engaged in the business of wholesale purchase and sale of bicycles
and bicycle and baby carriage parts and accessories. During 1945 the
I At the hearing the name of the Company was amended as designated above.
67NLRB,No92
712
LEWIS SUPPLY COMPANY INCORPORATED 713
Company purchased component and replacement parts for bicycles
and baby carriages and other products involved in excess of $100,000,
of which approximately 90 percent was shipped to it from points out-
side the State of New York. During the same period, the Company's
total sales amounted in excess of $2,50,000, of which approximately 50
percent was shipped by it to points outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Wholesale & Warehouse Workers Union, Local 65, is a labor organ-
ization, affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, 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.
1V. THE APPROPRIATE UNIT
The Union contends that the appropriate unit should consist of all
shipping and production employees of the Company, excluding office
employees, salesmen, officers of the Company, executives, and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action. The Union and the Company agree that office
employees and outside salesmen who do not confine themselves to sell-
ing the Company's product exclusively and who are paid on a com-
mission basis are properly excluded from the unit. The Company
contends, however, that its production employees constitute a separate
unit from its shipping employees, and that certain employees whom
the Union would exclude should be included in the unit.
Bicycle assemblers: The Company, in addition to its wholesale buy-
ing and selling, assembles imported bicycles which it purchases dis-
' The Field Examiner reported that the Union submitted three cards of the Company's
employees There are approximately five employees in the appropriate unit.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mantled; it employs two assemblers at this work. The foregoing
comprises its production operations. The record discloses that there is
an interchange of personnel between the production and shipping
departments, and that the Company has a policy of offering production
employees work in the shipping department rather than lay them off
when no work is available. In view of the foregoing, we find that
the shipping and production employees together constitute a single
appropriate unit.
Gin.sbvey and Schulman: These employees devote 60 percent of their
time to sales work outside the Company's salesroom. When working
at the salesroom, they wait on buyers, and perform clerical work; on
occasion they also perform soiree shipping work. They are paid on it
commission basis on sales made away from the Company's salesroom
plus a 1 percent override as compensation for time spent in the sales-
room. It would appear from the foregoing that the interests of these
employees are more closely related to the other salesmen whom the
parties agreed to exclude. We shall exclude them from the unit.
T>iGaetano and Hess: Although they perform some shipping duties,
these employees spend the majority of their time in waiting on buy-
ers at the Company's salesroom and in performing clerical and admin-
istrative duties. They generally occupy desks in the company office,
read mail, dictate letters, verify prices charged buyers on invoices,
and allot quantities of scarce items to buyers. They both receive
substantially higher pay than the shipping employees.3 We shall
exclude them from the unit.
We find that all shipping' and production employees of the Com-
pany, excluding office employees, salesmen.' officers of the Company,
executives, and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. Till; DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among 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.
' Thev are each paid $75 per week whereas the three shipping department employees
Lange from $35 a week tot an inexperienced man to $55 for the oldest employee.
' Excluding Salvatore DiGaetano and Reginald Hess
5 Including Rube Ginsburg and Simon C Schulman
LEWIS SUPPLY COMPANY INCORPORATED
DIRECTION OF ELECTION
715
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 represent-
atives for the purposes of collective bargaining with Lewis Supply
Company Incorporated, 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 subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately pre-
ceding 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 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, to determine whether or not they desire to be represented
by Wholesale & Warehouse Workers Union, Local 65, affiliated with
the C. I. 0., for the purposes of collective bargaining.