The Goldenberg Co.

National Labor Relations Board - Board Decisions

Apr 23, 1948

77 N.L.R.B. 335 (N.L.R.B. 1948)

In the Matter of TIIE GCLDENBERG COMPANY, EMPLOYER and OFFICE
EMPLOYES INTERNATIONAL UNION, LOCAL # 2, A. F. OF L., PETITIONER
Case No. 5-R-3017.-Decided April 23, 1948
Mr. Theodore D. Peyser, of Washington, D. C., for the E,nployer.
Padway, Woll, Thatcher and Green; by Herbert S. Thatcher, Esq.,
and Mr. Paul R. Hutchings, of Washington, D. C., for the Petitioner.
Mr. H. A. McIntyre, for the Board.
DECISION
AND
DIRECTION
On November 13, 1947, pursuant to a Stipulation For Certification
Upon Consent Election executed October 22, 1947, by the Petitioner
and the Employer, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Fifth Region
among the employees in the unit agreed upon by the parties. Upon
the conclusion of the election , a Tally of Ballots was furnished the
parties in accordance with the Rules and Regulations of the Board.
The Tally shows that, of the approximately 94 eligible voters, 83 cast
ballots of which 40 were for the Petitioner, 39 were against the Peti-
tioner, and 4 were challenged.
Inasmuch as the number of challenged ballots was sufficient to affect
the results of the election , the Regional Director, in accordance with
the Stipulation and the Board's Rules and Regulations, conducted an
investigation, and thereafter issued and duly served upon the parties
a Report on Challenged Ballots, dated December 8 , 1947. The Re-
gional Director recommended therein that the Petitioner 's challenges
to the ballots of Gloria Lyons and Ruth Scheinman, as well as the
Employer's challenges to the ballots of Richard Wentz and Dorothy
Gladman, be sustained. The Employer filed exceptions to the Regional
Director's report. Because the exceptions raised substantial and ma-
terial issues , the Board ordered a hearing, which was held at Washing-
ton, D. C., on February 6, 1948, before George L. Weasler, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
77 N L R. B No. 48.
335
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the National Labor Relations
Board I makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE EMPLOYER
The Goldenberg Company, a Maryland corporation, operates a
retail department store in Washington, D. C. During the year 1946,
the Employer purchased merchandise exceeding $500,000 in value,
more than 90 percent of which represented shipments to it from places
outside the District of Columbia. During the same period, the Em-
ployer's sales exceeded $2,000,000, of which 10 percent represented
shipments to points outside the District of Columbia.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
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.
IV. THE APPROPRIATE UNIT
We find, in agreement with the parties, that all office and clerical
employees, including auditing, bookkeeping, adjustment, personnel,
advertising, collection, billing and posting employees, floor and office
cashiers, interviewers, markers, stenographers, secretaries and tele-
phone operators, but excluding artists, sales employees, warehousemen,
delivery and service employees and all supervisors, constitute a unit
appropriate for. the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.2
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -man panel consisting
of the undersigned Board Members [ Houston , Murdock , and Gray].
2 Although the stipulated unit includes advertising clerical employees , we are satisfied,
on the basis of the record before us , that there are currently no employees who fall within
this category . In this connection , see our disposition of the challenge to the ballot of Gloria
Lyons, infra, and our adoption , infra, of the agreement of the parties to exclude employee
Ruth Scheinman.
THE GOLDENBERG COMPANY
V. THE DETERMINATION OF REPRESENTATIVES
The challenged ballots
337
Gloria Lyons: This employee's ballot was challenged by the Peti-
tioner on the ground that she is not a clerical employee. Lyons works
in the advertising department under the immediate supervision of
the advertising manager. The only other employees in the depart-
ment, besides Lyons and the advertising manager, are the copywriter
and two artists. Copy, describing merchandise to be advertised for
sale, is sent by the various store buyers to the advertising manager
who prepares a lay-out of the advertisement. Lyons then distributes
the buyer's copy to the copywriter and the lay-out to the artists in
the department. The completed copy and art work are then returned
to Lyons who marks thereon the type faces to be used in the printing
of the advertisement by the newspapers in which they appear. The
type faces and type size are designated by the advertising manager.
Lyons also checks the completed art work to see that it properly fits
the lay-out. She then sends the completed copy, lay-out, and art work
to the newspapers. Upon the return of newspaper proofs of the ad-
vertisement she distributes portions of it for correction to the persons
concerned. The corrected material is returned by them to Lyons who
enters all corrections, including those made by the advertising man-
ager, on a conformed master proof which is sent to the newspaper for
final printing. In addition to the foregoing duties, Lyons spends
approximately 50 percent of her time in performing various other
related departmental functions such as filing advertisements of the
Employer and its competitors , checking advertising bills, and order-
ing supplies. The salary of the highest paid employee in the clerical
unit, other than Lyons, is $46 a week; that of Lyons is $60 a week.
Her prior experience has consisted of performing similar advertising
functions for other employers.
Although Lyons performs no copy, lay-out or art work, as such, her
duties are closely integrated with the advertising process as a whole
and her primary functions more closely resemble those of a coordi-
nator of such advertising work than those of a clerical employee. In
view of all the foregoing, we are of the opinion that the functions and
collective bargaining interests of Lyons are more closely allied to
those of the other advertising department employees than to those
of the clerical employees sought by the Petitioner. Accordingly, we
shall exclude her from the unit and shall sustain the challenge to her
ballot.3
3 Matter of Denver Dry Goods Company , 74 N. L. R. B. 1167, 1173.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ruth, Scheinman: The ballot of this employee, who is a copywriter
in the advertising department, was challenged at the election by the
Petitioner, on the ground that she was not a clerical employee. At
the hearing the parties stipulated that the challenge should be sus-
tained. We shall, therefore, exclude this employee from the unit and
shall sustain the challenge to her ballot.
Richard TVcntt.r: The ballot of this employee was challenged by the
Employer on the ground that he is not a clerical employee within the
stipulated unit. Wentz works in the supply room where he handles
supplies, consisting principally of printed or mimeographed forms,
tickets, sales slips, and other items including wrapping paper, bags,
and twine. In addition, he devotes about half hid entire working time
to the operation of various office duplicating machines in preparing
blank forms for use in the merchandising and billing departments.
In the course of these duties, he operates a graphotype machine to cut
plates which are used, in connection with an addressograph machine,
to address bills used by the billing department. Although he works
in the basement of the store and has little contact with the office cleri-
cals in other depai Lntents, other employees located in the basement
have been included by the parties in the agreed unit. As pointed out
in another connection by the Employer in its brief, clerical employees
in the unit are located "in every location throughout the store or
premises of the Company." We are of the opinion that Wentz's func-
tions and interests are similar to those of the other clerical employees.
We shall therefore include him in the unit. For these reasons we shall
overrule the challenge to the ballot of Richard Wentz.
Dorothy Gladinan: The Employer challenged the ballot of this em-
ployee on the ground that her employment was terminated about
October 4, 1947, and she was therefore not in employment status on
November 8, 1947, the pay-roll date used to determine eligibility to vote
in the election. The Petitioner contends that Gladman's employment
had not been terminated but that she had been given a leave of absence
and, alternatively, that if her employment was terminated, she was
rehired before the pay-roll eligibility date and was therefore entitled
to vote in the election.
Gladman left her place of employment about October 4, 1947. At
the hearing, she testified that her husband had been transferred from
Washington to New York for 6 weeks only and that she had requested
and received the "permission" of the Employer's comptroller to accom-
pany her husband. However, the comptroller testified that at the
time of her departure he had merely indicated to her that should she
return to Washington she would be employed if a vacancy existed at
that time; he denied that Gladman had been given a leave of absence.
THE GOLDENBERG COMPANY 339
The record shows that, although the transfer of Gladman's husband
was a temporary one, his position might also have required his transfer
to places other than New York and that it was Gladman's intention to
accompany him wherever he might have been required to go. The
record shows further that the Employer grants leaves of absence only
for purposes of marriage, childbirth, illness or emergencies, and in
such instances does not remove an employee's name from the pay roll,
whereas Gladman was dropped from the pay roll.
In substantiation of its contention that Gladman had not terminated
her employment status, the Petitioner points out that at the time of
her departure she was not furnished with a withholding tax statement,
that upon her return to work she was not required to fill out a new
employment application, and was given the same employment number,
and that, despite her absence of approximately 5 weeks, she received a
Christmas bonus for a full year of employment whereas customarily
this bonus is prorated on the basis of actual employment during the
year. However, tax withholding statements are normally furnished
at the same time to all employees who have worked for the Employer
during the preceding year, and the record does not establish that re-
employed workers are required to complete new applications or that
they are treated differently with regard to their employment number
from employees on leaves of absence. Furthermore, the usual termi-
nation form was filled out for Gladman, as distinguished from the
form used for employees who take leaves of absence. We note also
that upon her departure Gladman received a farewell gift from her
fellow employees, which is customary only upon a permanent rather
than a temporary separation from the Employer. In view of all the
foregoing, and on the basis of the record as a whole, we are of the opin-
ion that Gladman terminated her employment about 5 weeks in ad-
vance of the voting eligibility date.
Nor are we able to agree with the Petitioner's alternative contention
that, even if 'G adman's employment was permanently terminated
about October 4, 1947, she was nevertheless eligible to vote inasmuch
as she was rehired before the pay-roll eligibility date. Assuming,
without deciding, that Gladman was rehired before November 8, 1947,
the pay-roll eligibility date, the record is clear that she did not resume
work until November 10, 1947. She had not, therefore, commenced
work before or during the pay-roll period which determined eligibility.
Accordingly, we find that Gladman was not an eligible voter, and shall
sustain the challenge to her ballot.¢
4Matter of Remington Rand, Inc, 74 N L. R. B. 447; Matter of General Chemical
Works, 67 N. L. R. B. 174.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, we have sustained the challenges to the ballots
of Gloria Lyons, Ruth Scheinman, and Dorothy Gladman and have
overruled the challenge to the ballot of Richard Wentz and declared
his ballot valid. Since the results of the election may depend upon
the counting of the one ballot declared valid, we shall direct that it
be opened and counted.
DIRECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with The Goldenberg Company, Wash-
ington, D. C., the Regional Director for the Fifth Region shall,
pursuant to the Rules and Regulations of the National Labor Rela-
tions Board, within ten (10) days from the date of this Direction,
open and count the challenged ballot of Richard Wentz, and shall,
thereafter, prepare and cause to be served upon the parties a Supple-
mental Tally of Ballots, including therein the count of said challenged
ballot.