Morris Kirschman & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1955

111 N.L.R.B. 776 (N.L.R.B. 1955)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frequently, have different assignments, and are under separate imme-
diate supervision, the record shows that they all have maintenance
and repair functions, frequently work together, have substantially
the same hours and rates of pay, and are under the general super-
vision of the Employer's Tacoma manager.
The crew members, particularly the engineers and oilers, spend a
comparatively small amount of their time at shoreside tasks in the
machine shops or assist in mechanical work on the vessels when they
are brought in for repair. As indicated above, only the crew mem-
bers are covered by the nnlltiemployer master contract which deals
with their special problems as crew members and provides for rates
of pay and conditions of employment that are basically different from
those of the machine shop and shipways employees.
In view of the foregoing, we find that the machine shop and ship-
ways employees have sufficient interests in common as shoreside main-
tenance employees to constitute an appropriate unit.5 As the crew
members have a bargaining history as part of a multiemployer con-
tract unit and have interests pertaining essentially to their principal
job of operating the Employer's vessels, we shall not include them
in the maintenance unit.
Accordingly, we find that the following employess of the Employer
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act: All machine shop
and shipways employees at the Employer's Tacoma, Washington,
shore operation, including helpers and laborers, but excluding all
crew members, clerical employees, guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
5 George R Tollefson and Margaret A Tollefson d/b/a Tollefson Brothers, 108 NLRB
1666 Cf. The Cartes Bay Towing Company, 105 NLRB 524
MORRIS KIRSCHMAN & Co., INC. AND VICTOR KIRSCHMAN BARGAIN
ANNEX, INC.' and GENERAL TRUCK DRIVERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS LOCAL UNION No. 270, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, PETITIONER . Case No. 15-RC-1174.
February 23, 1955
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Fred A. Lewis, hearing
1 The name of the Employer appears as corrected at the hearing.
111 NLRB No. 123.
MORRIS KIRSCHMAN & CO., INC. 777
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. Morris Kirschman & Co., Inc., herein called Morris, a Louisiana
corporation, which, in 1953, made purchases in excess of $1,000,000
directly from out of State, operates a furniture store, 2 warehouses,
and a garage in New Orleans, Louisiana, where it is engaged in the
retail sale of furniture and appliances. Victor Kirschman Bargain
Annex, Inc., herein called Victor, is a separate Louisiana corporation
engaged in the retail sale of used and damaged furniture and appli-
ances in New Orleans where it operates a store and repair shop. The
Employer does not contest jurisdiction, and takes no position thereon.
The record discloses that Morris and Victor are owned, operated, and
controlled by a single family.' Victor Kirschman, as president of
Victor and general manager of Morris, takes the lead in setting the
overall labor relations and personnel policies for both corporations.
Victor, which receives 50 percent of its sales merchandise from Morris,
is located in the same block, and shares certain facilities on a rental
basis. Moreover, although each corporation is a separate legal entity,
it appears that on occasion some employees of one Company perform
work for the other; that several employees are regularly supervised
simultaneously by officials of both Companies; that credit cards and
bookkeeping records for both Companies are kept in the Morris store;
that some clerical employees of both Companies share the same office
space in the Morris store; that the actual credit approval and collec-
tion is performed through the Morris credit department; and that
the latter's accounting department regularly helps Victor's bookkeeper
in preparing its payroll.
Under these circumstances, and particularly in view of the common
ownership and control by the Kirschman family, the similar nature
of the two Companies, and the interrelationship, if not actual inter-
change, of the employees of both Companies, we find that, for juris-
dictional purposes, Morris and Victor constitute a single employer
within the meaning of Section 2 (2) of the Act.' Accordingly , as Mor-
ris made direct purchases in excess of $1,000,000 in value from points
outside the State, we find that the Employer herein, consisting of Mor-
ris and Victor, is engaged in commerce and that it will effectuate the
purposes of the Act to assert jurisdiction over this Employer.
2 All of the stock of both corporations is owned by Morris Kirschman , his son , Victor
Kirschman , his daughter , Mrs Ben Well, and his daughter-in-law, Mrs Victor Kirschman.
The ownership of stock of Morris is evenly divided between Morris Kirschman , president,
and Victor Kirschnian , secretary-treasurer The stock of Victoi is owned by Victor Kirsch-
man, president ( 49 percent), Mrs Ben Well , vice president ( 50 percent ), and Mrs Victor
Kirschman , secretary-treasurer (1 percent)
'Venus Die Engineering Company, 110 NLRB 336 ; Sanitary Mattress Company, Rest
Line of California, Inc, 109 NLRB 1010 ; East Detroit Stevedore Co, Nicholson Terminal
and Dock Co , 110 NLRB 929.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner, the only labor organization here involved, seeks
a unit comprised of truckdrivers, truckdrivers' helpers, warehouse-
men, cabinetmen, shipping clerks, receiving clerks, and porters em-
ployed by the Employer at its above-described operations.' The Em-
ployer, in effect, argues,5 however, that the requested unit, based solely
upon extent of organization, is too limited in scope, and thus is
inappropriate.
With the exception of 2 contracts entered into in 1946, 1 by the Peti-
tioner and 1 by a carpenters' local union,' with Morris Kirschman &
Co., the partnership predecessor of the 2 corporations here involved,
covering some of the above-named employee classifications, and lasting
but a little over a year, there has been no history of collective bargain-
ing for any of the employees.
As partially noted above, the Morris store operation, over which Mr.
Harrison has general supervision, includes, in addition to its main
store, a main warehouse (which encompasses a cabinet shop), an aux-
iliary warehouse, and a garage, all located within a 5-block radius of
its store. Victor's store, under the supervision of its manager, Mr.
Bouterie, includes a repair shop which is located in the Morris garage.
The unit requested by the Petitioner would include, in addition to all
the employees employed in the main warehouse and cabinet shop, in-
cluding truckdrivers and helpers and the sole warehouseman in the
auxiliary warehouse, several porters in both stores and two combina-
tion employees in the Victor store.
The personnel of the main warehouse, under the direction of Mr.
Fogarty, warehouse superintendent, is made up of a receiving clerk,
who receives and records merchandise; a shipping clerk, who sorts
delivery tickets; ticket runners; checkers, who check merchandise on
and off trucks; stackers-warehousemen; a utility man, who is a com-
bination handyman and rough carpenter; a cage man, who stores small
items in the "cage," a portion of the warehouse; and 18 truckdrivers
and helpers, who load and unload trucks. Employed in the cabinet
shop, under a shop foreman who is responsible to the warehouse super-
intendent, are uncraters, who uncrate all merchandise that is received
by the warehouse; a setup man, who uncrates and sets up furniture; a
4 There are approximately 20 classifications employed throughout the entire operation
in the described unit. Subsequent to the close of the bearing, the Petitioner advised the
Board that, should it find the requested unit inappropriate, it will take a smaller unit,
if such be found appropriate.
5 At the hearing, the Employer took no position as to the appropriate unit. It first
made its unit contention known in its brief filed subsequent to the hearing.
e Ship Carpenters, Caulkers and Joiners Local Union No. 584.
MORRIS KIRSCHMAN & CO., INC. 779
cabinetmaker, who repairs broken furniture; a cabinetmaker-uphol-
sterer; a finisher, who touches up furniture; a spray man, who sprays
reconditioned furniture and appliances for the Victor store; and a
polisher-oiler, who cleans and polishes furniture.
The auxiliary warehouse, referred to as the Fouchler building, con-
tains a gasoline pump and is used as an auxiliary warehouse by both
stores. The soli employee there employed is a warehouseman who re-
ceives and checks out merchandise, dispenses gasoline to drivers of
both operations, and is directly supervised by Mr. Fogarty, the ware-
house superintendent.
The above-sought employees, including the truckdrivers and helpers,
are under the same overall supervision. With the exception of the
auxiliary warehouse employee, these employees are located in the main
warehouse, which is geographically separated from the Employer's
two stores. The warehouse employees never work in the stores and al-
though they enjoy substantially the same privileges and benefits as
other hourly employees, there is no regular interchange between the
warehouse employees, truckdrivers and helpers, and the store em-
ployees?
As these employees are engaged essentially in warehousing activities,
are separated from the selling operations of the stores, are under sepa-
rate supervision, do not regularly interchange with, or come in contact
with, store employees, and receive a different rate of pay from selling
employees, we find that they comprise a homogeneous group entitled
to separate representation.'
There remains for consideration the question of including in the
warehouse unit several classifications. The employees in these classi-
fications work under different supervision and in an area apart from
the warehouse employees.
The first of these classifications to be considered is that of store por-
ters.9 These employees, sought by the Petitioner, are engaged in ar-
ranging furniture on the floor, receiving merchandise from, and "run-
ning out" merchandise to, the warehouses, and performing heavy clean-
ing. The work of the Morris porters, under the supervision of the
store decorator, and the Victor porters, supervised by the Victor store
manager, is confined exclusively to the respective stores where these
employees are in daily contact with other store employees. Accord-
ingly, we shall exclude the store porters from the unit.lo
The Petitioner also seeks to include in its unit two combination em-
ployees employed in the Victor store. One receives merchandise and
'It appears that on occasion the store carpenter and his helper help out in the ware-
house.
8 Montgomery Ward & Co., Incorporated, 89 NLRB 528 at 529.
9 Included in this group are a part -time truckdriver and a helper who spend all but '
hours a week performing the duties of porters in the Victor store.
10 Mayflower Sales Company, 78 NLRB 69 at 70.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does minor cabinet and touchup work, and the other loads and unloads
trucks and handles delivery and pickup tickets. Although it appears _
that the work performed by these 2 employees is similar to some ex-
tent to that exercised by 1 or 2 of the warehouse employees, it also ap-
pears that these combination employees, like the porters whom we have
excluded, do no work in the warehouses, are in daily contact with the
other store employees with whom they share common Aupervision, and
are geographically separated from, and do not interchange with, the
warehouse employees. Accordingly, we shall exclude the combination
employees from the unit."
The Petitioner would exclude the 3 garage employees, the 3 appli-
ance repair shop employees who work in a separate enclosure in the
garage, and the furniture and appliance servicemen who work in cus-
tomers' homes. As these employees are geographically separated from
the warehouse, have no contact with the warehouse employees, and are
separately and independently supervised, we shall not include them
in the unit.
We find that all employees at the Employer's main warehouse, ware-
house cabinet shop, and auxiliary warehouse, and all truckdrivers and
helpers," but excluding office clerical employees, all store employees
of both stores, store porters and combination employees, garage em-
ployees, appliance repair shop employees, furniture and appliance
servicemen, watchmen, guards, and supervisors 13 as defined in the Act,
constitute a unit appropriate for purposes of collective bargaining
within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
11 Sea) s, Roebuck & Co , 82 NLRB 985
Inasmuch as the sole full-time truckdriver and his helper who operate from the Victor
store have interests in common with the warehouse truckdrivers and helpers whom they
occasionally assist in their delivery work , we shall include them in the unit.
'A As it appears that the warehouse receiving supervisor and shipping supervisor have
the power effectively to recommend the discharge of employees , we find them to be super-
visors within the meaning of the Act, and , as such, shall exclude them from the unit.
ELIZABETH R. LYNETT AND EDWARD J . LYNETT D/B/A THE SCRANTON
TIMES and NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND
TECHNICIANS, CIO,' PETITIONER. Case No. /.-RC-2559. Febn Lary
14,1955
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before Thomas J.
Walsh, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
1 The formal papers herein were amended at the hearing to show the correct name of
the Petitioner as indicated above.
111 NLRB No. 128.