M. Lowenstein & Sons, Inc.

National Labor Relations Board - Board Decisions

May 31, 1941

32 N.L.R.B. 218 (N.L.R.B. 1941)

In the Matter of M. LOWENSTEIN & SONS, INC. and LOCAL 16, UNITED
OFFICE & PROFESSIONAL WORKERS OF AMERICA, C. I. O.
Case No. R-2433.-Decided May 31, 1941
Jurisdiction : textile coverting industry.
Investigation and Certification of Representatives : existence of question: Com-
pany did not reply to union's letter requesting recognition ; election necessary.
Unit Appropriate for Collective Bargaining : office employees at one of the Com-
pany's offices exclusive of supervisory employees, including specifically named
employees found to be supervisory employees, and private secretaries to
executives, maintenance employees, including matrons and janitors, and
persons doing creative designing and studio work.
Mr. Christopher W. Hoey, for the Board.
Mr. Irving D. Lipicowitz and Mr. William H. Lewis, of New York
City, for the Company.
Boudin, Cohn c6 Glicicstein, of New York City, by Mr. Leonard B.
Boudin, for the Union.
Mr. Louis S. Penfield, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 13, 1941, Local 16, United Office & Professional Work-
ers of America, C. I. 0., herein called the Union, filed with the
Regional Director for the Second Region (New York City) a peti-
tion alleging that a question affecting commerce had arisen con-
cerning the representation of employees of M. Lowenstein & Sons,
Inc., New York City, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449; herein
called the Act. On March 11, 1941, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, ordered an in-
vestigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On March 14, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and upon
32 N. L. R. B., No. 45.
218
M. LOWENST'EIN & SONS, INC. 219
the Union. Pursuant to notice, a hearing was held on March 27,
28, and 29, 1941, at New York City, before Gustaf B. Erickson, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the Company, and the Union were represented by counsel
and participated in the hearing. At the opening of the hearing the
Union moved to amend its petition in certain respects hereinafter
noted. The Trial Examiner granted this motion. At the conclu-
sion of the hearing the Company moved to dismiss the petition on
the ground that there had been no substantial showing of member-
ship on the part of the Union. Ruling was reserved by the Trial
Examiner. The motion is hereby denied. At the conclusion of the
hearing the Company also made a formal offer to prove that the
Union was dominated and controlled by communists and members of
the communist party, and that by reason of such domination the
petitioner could not be deemed a bona fide labor organization within
the meaning of the Act. The Trial Examiner refused to receive
testimony on this question. His ruling is hereby affirmed. During
the course of the hearing the Trial Examiner made several rulings
on motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On April 24, 1941, pursuant to notice, a hearing for the purpose
of oral argument was held before the Board at Washington, D. C.
The Company and the Union were represented by counsel and par-
ticipated in the hearing. Prior to this hearing the Company and
the Union filed briefs, which the Board has considered.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At the hearing the Board and the Company stipulated that the
Company is engaged in interstate commerce within the meaning of
the Act and that findings of fact with respect to its business are
set forth in a prior Board Decision,' and that there has been no
material change in the Company's business since that Decision was
issued by the Board.2
'Matter of M. Lowenstein & Sons, Inc.,' and Bookkeepers, Stenographers and Account-
ants Union, Local No. 16, United Office & Professtional Workers of America, C. I. 0., et al.,
6N.L.R.B 216.
2 It was agreed at the hearing that at the present time more employees are employed in
the Leonard Street office and at the 18th Street office and warehouse in New York City
than formerly, and that, the annual pay roll has been substantially increased. It was
also brought out that the Company now owns another subsidiary firm known as the
Yankee Export Company In other respects, the findings relating to the business set
forth in the former Decision are stipulated to•be substantially correct.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In that Decision we found and we now find as follows : The
Company is engaged in the business of converting cotton and rayon
goods. In connection therewith, it maintains an office at Leonard
Street in New York City and a warehouse on 18th Street, New
York City. It has five wholly owned subsidiaries, four of which
are operated as an integral part of the New York City operations.
The Company does an annual business in excess of 30 million dol-
lars. The principal raw material purchased is unfinished greige
cloth which is purchased from mills located throughout the country
and shipped to the Company's finishing mills and after finishing
distributed by it throughout various States of the United, States.
Seventy-five per cent of the goods purchased and finished by the
Company go to States other than those in which they originate.
Instructions for finishing goods are given by the Leonard Street
office as are instructions for their subsequent shipment. The mer-
chandising of the goods, the selection of styles and patterns, the
determination of the amount of each brand which is to be made up
and kept on 'hand, and the securing of a proper amount of raw
material to supply the finishing plant are all done in New York.
All the records of the Company, including those for inventory, cost
accounting, bookkeeping and crediting, are handled and checked at
its Leonard Street office.
This proceeding is concerned solely with approximately 460
persons employed in connection with the Company's business offices
in New York City.
II. THE ORGANIZATION INVOLVED
Local 16, United Office & Professional Workers of America, is
a labor organization affiliated with the Congress of Industrial Organi-
zations. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In a letter dated February 10, 1941, the Union requested of the
Company, recognition as the statutory representative of the Com-
pany's employees. The Company made no reply to this letter and
thereafter the Union filed the petition herein.
A statement of the Regional Director introduced into, evidence
shows that the Union represents a substantial number of employees
in the collective bargaining unit hereinafter found to be appropriate."
3 The statement of the Regional Director shoos that 165 union authorization blanks were
submitted to him, 9 undated , 77 dated January , February , and March 1941, 15 in October,
November , and December 1940, 4 in July , August, and September 1940, 9 in the period
between January 1 and January 30, 1940 , 7 on various dates in 1939 , 5 on various dates in
1938. One hundred and twenty -six appeared to bear genuine, original signatures of
persons whose names appear on the Company ' s pay roll of February 20, 1941. The names
of 404 persons within the alleged appropriate unit appeared on the February 20, 1941,
pay roll.
M. IsOWENSTEIN & SIGN , ME. 221
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON CO- MERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among,the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union in its petition, as amended, alleges that all office em-
ployees at the Company's Leonard Street offices, exclusive of super-
visory employees, private secretaries to executives, maintenance em-
ployees, including porters and matrons, and persons doing creative
designing and studio work, constitute a unit appropriate for the pur-
poses of collective bargaining.' The Company contends that in
addition to office employees at the Leonard Street offices, the unit
should also include office employees at the Company's 18th Street
warehouse, and maintenance employees and persons doing creative
designing and studio work at the Leonard Street office. Although
both parties agree that supervisory employees and private secretaries
should be excluded, they disagree as to the persons who properly fall
within these classifications.
The Company maintains a warehouse on 18th Street in New York
City where, in addition to warehouse employees, it employs 20 office
workers. Although these office workers perform clerical work similar
to that done by office workers at the Leonard Street office, the ware-
house office is situated 2 or 3 miles from the Leonard" Street office.
The Union has not sought to organize the office workers there and the
record shows that because they work in connection with the ware-
house they are eligible to membership in a labor organization repre-
senting warehouse employees which is not a party to this proceeding.
The Union does not admit them to membership. In a former proceed-
ing the Board found that one unit comprised of office workers at
the Leonard Street office, and another comprised of all employees
of the 18th Street warehouse constituted separate appropriate units
for collective bargaining purposes.5 Under the circumstances we shall
4 The original petition alleged that "all employees at the employer 's Leonard Street
office, exclusive of supervisory employees , private secretaries to executives" constitute a
unit appropriate for the purposes of collective bargaining . It is the Union's position that
the unit alleged in the petition as amended is identical , and that the purpose of amend-
ment was to clarify the meaning of the allegations originally made in the petition:
5 See footnote 1, supra.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclude all office workers at the Company's 18th Street warehouse
from the unit.
The Union also seeks to exclude from the appropriate unit approxi-
mately 20 persons engaged in creative designing and studio work
at the Leonard Street office. The record shows that the work of
these employees consists in coloring cards with paints and brushes
in accordance with directions given by superiors. They are required
to have some degree of art school experience, and perform a portion
of their work in the evenings at their homes. The Union does not
admit them to membership or desire to represent them. We are of
the opinion that these employees are not engaged in clerical work
and that under the circumstances, they should not be placed in a
unit of office workers. Accordingly, we shall exclude all persons at
the Leonard Street offices engaged in designing, coloring, and studio
work, from the unit. -
The Union also requests that maintenance. employees at the Leon-
ard Street office, including the janitors, matrons, porters, and elec-
tricians, be excluded from the appropriate unit. The Union does
not admit such employees to membership and it is clear that they
are not engaged in, clerical work. Accordingly, we shall exclude all
maintenance employees at the Leonard Street office from the unit.
The parties agree that confidential secretaries to executives should
be excluded from the unit and that certain employees who work as
secretaries to officers of the Company fall within this category.'
The Union contends that 10 other persons employed as secretaries to
department heads should likewise be classified as secretaries to execu-
tives. The record is clear that these 10 employees devote from 40 to
70 per cent of their time taking dictation from and transcribing the
work of department heads who are conceded by both parties to be
supervisors. We are of the opinion that inasmuch as a substantial
portion of the time of these employees is consumed in performing,
confidential work under the direction of persons concededly closely
identified with the management, they occupy a position substantially
similar to that of the secretaries to Company officers, whom the
parties agree should be excluded from the unit.
Accordingly, we shall exclude persons performing secretarial duties
for department heads from the unit.'
The Union does not admit salesmen to membership and contends
that persons working as house salesmen at the Leonard Street offices
should be excluded from the unit. These employees are not engaged
O This group includes the following persons : Rose Becker, Helen Bryman, Ida Lang,
Viola Rockstrow , and R A. Michton.
' The record shows that this group includes the following persons • E Ain Hopp, Anne
Sidowsky , Maisie Handler , Mae Horowitz , Frances Burke , Gertrude Krug, Estelle Berko
witz, Sarah Kay, Betty Lefkowitz, and Helen Sklar.
M. LOWENSTEIN & SIONS, INC. 223
in clerical work and accordingly we shall exclude house salesmen -from
the unit.'
The parties agree that officers of the Company and certain depart-
ment heads should be excluded from the appropriate unit.9 However,
the Company contends that these officers and department heads are
the only persons of the Leonard Street office who possess supervisory
authority, while the Union contends that approximately 50 other
persons designated by various titles in fact possess supervisory au-
thority and as a consequence should be excluded from the unit. All
employees in, this disputed group perform some work in departments
in which they are employed, none has the power to hire and discharge,
and all work under the general supervision of the Company officers
and department heads. However, most of them are senior employees
in their respective departments and all receive salaries in excess of
those paid other workers in their departments. Although the Com-
pany contends that all of them are engaged in the performance of
purely routine duties, the record is clear that the Company relies
on them to assign work, give orders, and in many instances to main-
tain discipline in their respective departments. They are frequently
consulted by other employees concerning matters connected with
their work and are regarded by such employees as their superiors.
Many are designated by the Company as junior and senior super-
visors and have attended meetings of supervisors. A number in
this group were found by the Board in a prior proceeding to be as-
sistant department heads with supervisory authority and to have
engaged in unfair labor practices 10 There is no showing that any
employee so' involved has subsequently been demoted. Under all
the circumstances we are of the opinion that the record supports
the contentions of the Union with respect to the supervisory authority
possessed by this disputed group of employees. Accordingly, we find
that all employees listed in Apendix A, attached hereto, are super-
visors, and, as a consequence, we shall exclude them from the unit.
We find that all office employees at the Company's Leonard Street
office, exclusive of supervisory employees, including the employees
listed in Appendix A, and private secretaries to executives, mainte-
nance employees, including matrons and janitors, and persons doing
creative designing and studio work, constitute a unit appropriate for
8 Included among the house salesmen are the following persons • Abraham Kaufman,
Alan Kaufman , Eugene Feinerman , Herbert Simmons , and Melvin Lessner
0 Included among this group are the following persons : Leon Lowenstein , David Gottlieb,
Archie 0. Joslin, Milton Silverman, Edward Goldberger, Eric W Kath, and Henry G
Kletcher , all officers of the Company Also included in this group are the following
department heads and assistant department heads : Mr. Fisher , Mr. Lapin , Mr Oppen-
henner, Mr . Linial , Mr. Weiss, Mr . Cone, Mr. Kleiner , Mr. Goldstein , Mr Phillips, Mr.
Bush , Mr Cohen, Mr . Vasques, Mr. Aronstem , Mr Sachs, Mr Hoffman , Mr. Weinstock,
Mr. Rex, and Mr McCallon . The record indicates that there may be others in this group,
but they sere not named at the hearing.
10 See footnote 1, supra.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining and that such unit will insure
to employees of the Company the full benefit of their right to self-
-organization and to collective bargaining and otherwise effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees in the unit which we have found to be appro-
priate can best be resolved by an election by secret ballot.
The Union requests that the Board fix a pay-roll date immediately
prior to the filing of the petition herein for the purposes of deter-
mining the eligibility of voters. The Company requests a current
pay-roll date. The Union bases its position on the past history of
unfair labor practices engaged in by the Company and upon its
belief that at the present time the Company will pad its pay roll in
an effort to defeat the Union. We are of the opinion that the con-
tention of the Union affords us no sufficient basis for departing from
our usual rule. Accordingly, we find that those eligible to vote in
the election shall be the employees in the appropriate unit who were
employed by the Company during the pay-roll period immediately
preceding the date of the Direction of Election herein, subject to
such limitations and additions as are set forth in ' our Direction of
Election.
Upon the basis of the above findings of fact and upon the entire
record in the case the Board makes the following :
CONCLUSIONS or LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of M. Lowenstein & Sons, Inc., New York
City, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All office employees at the Company's Leonard Street office ex-
clusive of supervisory employees, including those listed in Appendix
A, and private secretaries to executives, maintenance employees, in-
cluding porters and matrons, and persons doing creative designing
and studio work, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the
National Labor Relations Act.
DIRECTION OF ELECTION
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, 49 Stat. 449, and pursuant to Article III, Section -8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
M. LOWENSTE'IN & SONS, IiNiC. 225
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with M. Lowenstein & Sons, Inc., 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
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, Section 9, of said Rules and Regulations,
among all office employees at the Company's Leonard Street office
whose names appear on the pay roll of the Company for the period
immediately preceding the date of this Direction of Election, in-
cluding employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing supervisory employees, including those listed in Appendix A,
private secretaries to executives, maintenance employees, including
porters and matrons, and persons doing creative designing and
studio -work, and those persons who have since quit or been dis-
charged for cause, to determine whether or not they desire to be
represented by Local 16, United Office & Professional Workers of
America, C. I. 0., for the purposes of collective bargaining.
APPENDIX A
Charles Saposhnik
Mabel Leitner
Jos Hess
Miriam Charin
Herman E. Gabel
Stuart Gow
Wm. Leinwohl
Alvin Marks
Helen Weissberger
Percy Kaufman
Sam Greenfield
James Goodison
Rose Levy
Otto Heinz
Arthur Gross
Helen Scheideberg
Milton Hirsch
David Schor
Lewis Goldstein
Seymour Rubinstein
Emil Gemake
Robert Bendheim
Howard Wagner
Wm. McGuffie
Bertha Willis
E. Dale Wooden
Eugene Marcus
Jack Yanpolsky
Bernard . Shapiro
Christine Galietta
Frances Krasner
Otto Sulzberger
Julian Rathe
Frieda Kaplan
Ida Lessner
Mae Rubin -
John Bowling
Mildred Morrell
Sam Braunstein
Frank Cooper
Abraham Jacobs
Benj. Lubow
Geo. Troike
Julian- Eichler
Rose Rind