Wilson & Rogers, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1946

69 N.L.R.B. 848 (N.L.R.B. 1946)

In the Matter Of WILSON & ROGERS, INC. and RETAIL, WHOLESALE, &
CHAIN STORE FOOD EMPLOYEES UNION, LOCAL 338, CHARTERED BY
UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF
AMERICA, C. I. O.
Case No. 2-R-646'7.-Decided July 2,i, 13.16
William, H. Long, by Messrs. Robert F. Finke and W. F. Schaeffer,
both of Chicago, Ill., for the Company.
Markewich, Rosenhaus d Markewich, by Mr. Arthur K. Garf^nkei,
of New York City, for the Union.
Mr. Jerome J. Dick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Retail, Wholesale, & Chain
Store Food Employees Union, Local 338, chartered by United Retail,
Wholesale and Department Store Employees of America, C. I. 0.,
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Wilson &
Rogers, Inc., New York City, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Richard J. Hickey, Trial Examiner. The hearing was
held at New York City, on May 23,1946. The Company and the Union
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings 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 :
69 N. L. R. B., No. 102.
848 1
WILSON & ROGERS, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
849
Wilson & Rogers, Inc., a wholly-owned subsidiary of Libby, Mc-
Neill & Libby, Inc., is a New Jersey corporation with its principal
office in Chicago, Illinois, warehouses in the States of New York and
New Jersey, and a branch office in New York City. The New York
City branch office is solely involved in this proceeding. The Com-
pany is principally engaged in the sale of food products, and its sales
staff which operates out of the New York City branch office solicits
orders in New York and New Jersey. During the 1-year period im-
mediately preceding March 5, 1946, the value of the food products
received by the Company at its New York warehouse amounted to
approximately $1,500,000, of which approximately 90 percent was
shipped from points outside the State of New York; and the value of
the food products shipped by the Company from its New York ware-
house amounted to $2,000,000, of which approximately 10 percent was
shipped to points outside the State of New York. Also during this
period, the value of the food products received by the Company at
its New Jersey warehouse amounted to approximately $500,000, all of
which was shipped from points outside the State of New Jersey; and
the value of the food products shipped by the Company from its New
Jersey warehouse amounted to approximately $500,000, of which ap-
proximately 5 percent was shipped to points outside the State of New
Jersey.
The Company does not deny, and we find, that it is engaged in com-
Inerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Retail, Wholesale, & Chain Store Food Employees Union, Local
338, chartered by United Retail, Wholesale and Department Store
Employees of America, affiliated with the Congress of Industrial
Organizations, is a labor organization, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees umtil
the Union has been certified by the Board in an appropriate unit.
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.
701592-47-vol. . 6 9-- 5 5
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Union seeks a unit of all office and clerical employees at the
Company's New York City branch office,' excluding salesmen , and all
supervisory employees .2 Although the Company is in substantial
agreement with the Union, contrary to the Union's position it contends
that the following job classifications should be excluded from the unit:
(1) secretary to director and the assistant cashier, on the ground that
they are confidential employees; (2) traffic manager, supervisor in
charge of stock, and supervisor in charge of bookkeeping department,
on the ground that they are supervisory employees; and (3) cashier
and price supervisor, on the ground that they are confidential and
supervisory employees.
The Company's clerical staff of 19 employees, including those in dis-
pute, is located in 1 large office. All of these workers receive a weekly
salary. In addition to these employees, there are admittedly as many
as 8 supervisors who also work in the clerical office. The vice presi-
dent and manager is head of the entire branch office, and next in au-
thority is the office manager. Neither has the power to hire, discharge,
promote, or discipline any employee; each may only recommend such
action to the main Chicago office. The Company's executives in the
Chicago office formulate all company policy, including its policy per-
taining to labor relations. The Company's office manager testified at
the hearing that the employees involved in this proceeding in both the
disputed and undisputed categories function as a unit and are treated
as a unit for the purposes of administration.
Employees alleged by the Company to be confidential
Secretary to Director; This employee is a stenographer assigned to
take dictation from a director, who is actually the assistant to the
manager, and from the production department manager. She receives
the same salary paid to other stenographers, despite her title and the
fact that she works in a portion of the office reserved for executive em-
ployees. Although she has access to the Company's records, including
personnel files, this is merely for the purpose of obtaining such matter
upon their direction. It is clear that her superiors do not formulate
any policy, and thus do not exercise managerial functions in the field
' The parties agree that the following job classifications should be included in the unit:
bookkeeping machine operator, junior stenographer and ediphone operator, order desk
clerk, telephone operator and file clerk, stock department clerk, comptometer operator,
telephone operator and typist, typist and biller, and stenographer.
2 The parties agree that the following job classifications should be excluded from the
unit: vice president and manager, office manager, assistant to manager, product depart
meet manager, product department sales manager and assistant, order department head,
credit manager, and confidential secretary to the vice president.
WILSON & ROGERS, INC. 851
of labor relations. At noted above. the vice president and manager,
and the office manager are in charge of the branch office and they would
logically be the persons to act for the Company in dealing with a col-
lective bargaining representative of the employees involved herein.
All parties have agreed to exclude the confidential secretary to the vice
president and manager.3 We find that the secretary to director is not
a confidential employee within the meaning of the Board's definition
of that term. Accordingly, we shall include her in the unit.
Assistant Cashier: This employee has access to personnel records
only for the purpose of preparing the Company's pay roll which is one
of her duties. She also computes "cost-to-sell" data, which the Com-
pany considers to be confidential from a business viewpoint, and which
is incidentally used as a factor in determining the earnings of the Com-
pany's salesmen . It is clear that the assistant cashier has access to the
records discussed above solely for the purpose of preparing the pay roll
and mechanically determining the salesmen's earnings. We find,
therefore, that she is not a confidential employee,4 and we shall include
her in the unit.
Employees alleged by the Co?o pan y to be supervisors
Tra fc manager: This employee is responsible for having incoming
freight transferred from the steamship pier or railroad terminal to
the Company's warehouses. She files with the different carriers, any
claims for goods damaged in transit . She also arranges to have dam-
aged goods reconditioned either by making arrangements with an inde-
pendent contractor, or by having the Company's own warehousemen
do the job. She has not had any assistant since 1941. It is clear from
the above that the traffic manager does not fall within the meaning of
the Board's customary definition of supervisory employees. There-
fore, we shall include her in the unit.
Supervisor in charge of stock: This_ employee is responsible for
stock accounts, closing inventories and stock accounting records. Al-
though he has two assistants, he spends all his time working on the
records, was never informed by the Company that he had authority
effectively to recommend the hiring, discharging, or.disciplining of
his assistants, and, in fact, has never made such a recommendation..
When he was transferred to his present job from the position of book-
keeper, which is admittedly a non-supervisory post, he did not re-
11 The secretary to director occasionally acts for the confidential secretary , but only
when the latter is absent from the offic e. Apparently the office manager has no secretary.
' See Matter of Sears , Roebuck & Co., 66 N. L. R. B. 285 ; Matter of The Apex Electrical
Manufacturing Company, 65 N. L . R. B. 382.
b The record discloses that this is a routine procedure and that the claims are always.
paid in full.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceive an increase in wages. We find from the above that the super-
visor in charge of stock, despite his title, is not a supervisory employee.
Accordingly, we shall include him in the unit.
Supervisor of bookkeeping depot-tinent: He is responsible for all
of the records relating to accounts receivable, and for all account
entries in customers ' ledgers. He has two assistants who operate
bookkeeping machines. The Company never informed him that he
had the authority effectively to recommend the hiring or discharging
of employees. Although lie testified that he was told he had the
authority to discipline his assistants, the record discloses that all of
his recommendations for disciplinary action have never been fol-
lowed. It is apparent that the supervisor of the bookkeeping depart-
ment is not a supervisory employee within the meaning of the Board's
customary definition of that term. Therefore, we shall include him in
the unit.
Employees alleged by the Company to be both supervisory
and confidential
Price supervisor: He fixes prices on the Company's products by
utilizing freight rates , price formulas fixed by the Company, and
O. P. A. price regulations. The profits to be realized on the products
are fixed by the Company and the price supervisor merely computes
the prices from reference material before him. On occasion he has
prepared special reports dealing with "costs-to-sell" data, which were
to be used by the Company as a reference in determining the future
earnings of the Company 's salesmen . He has no assistant. We are
satisfied that the price supervisor is neither a supervisory nor a con-
fidential employee. Thus , we shall include him in the unit.
Cashier: This employee is in charge of the preparation of pay-roll
records, balance sheets , and profit and loss statements , and he is
also responsible for cash disbursements , and bank deposits and with-
drawals. He has one assistant mentioned above, and like her, be has
access to the personnel records only so that lie can prepare pay rolls.
It is clear , therefore , that the cashier is not a confidential employee.
Although he has one assistant, the cashier was never informed by
the Company that he had the power effectively to recommend the hire,
discharge , or discipline of any employee , and he has never attempted
to exercise such power .13 We find that the cashier is not a supervisory
employee , and we shall accordingly include him in the unit.
We find that all office and clerical employees at the Company's New
York branch office, including the bookkeeping machine operator,
6 We attach no great significance to the fact that the office manager discussed with the
cashier the relative merits of all candidates for the position of assistant cashier before it
was filled.
WILSON & ROGERS, INC. 853
junior stenographer and ediphone operator, order desk clerk, tele-
phone operator and file clerk, stock department clerk, comptometer
operator, telephone operator and typist, typist and biller, stenog-
rapher, secretary to director, assistant cashier, traffic manager, super-
visor in charge of stock, supervisor in charge of bookkeeping depart-
ment, cashier, and price supervisor, but excluding the vice president
and manager, confidential secretary to the vice president, office man-
ager, assistant to manager, product department manager, product de-
partment sales manager and assistant, order department head, credit
manager, and all other supervisory employees with authority to hire,
promote, 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
meaning of Section 9 (b) of the Act.
V. THE DETERIIIxxr1(\ OF REI'RI?SE- 'F TIVEs
We shall direct that, the question concerning representation which
has arisen be resolved by an election by secret ballot.
At the hearing the Union requested that the pay-roll period im-
mediately preceding the hearing be used to determine eligibility.
This request is denied, for Ave find nothing in the record warranting
a departure from our customary practice of selecting a current pay-
roll to govern voting eligibility.
Those eligible to vote in the election shall be employees in the ap-
propriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein, sub-
ject to the limitations and conditions set forth in the Direction.'
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 Relations 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 representa-
tives for the purposes of collective bargaining with Wilson & Rogers
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 direction and 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, Sections
7 We hereby deny the Union's request that ballots be sent by mail to all eligible em-
ployees who may be on vacation.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 preceding 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 em-
ployees 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 Retail, Wholesale, &
Chain Store Food Employees Union, Local 338, chartered by United
Retail, Wholesale and Department Store Employees of America,
C. I. 0., for the purposes of collective bargaining.
CHAIRMAN HrRZOG took no part in the consideration of the above
Decision and Direction of Election.