The New York Association of Wholesalers of Ladies' & Children's Hats, Inc. et al.

In the Matter of THE NEW YORK ASSOCIATION OF WHOLESALERS OF LADIES' & CHILDREN'S HATS, INC., ET AL. and WHOLESALE & WARE- HOUSE WORKERS UNION, LOCAL 65, CIO In the Matter Of ISIDORE WECHSLER AND FRED WECHSLER, D/B/A I. WECHSLER & SON and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter Of PAIGE HAT CO., INC and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter Of MINROSE HAT CO., INC. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of SAMUEL Lipp, MEYER Lipp, AND IRVING KORN, D/B/A LIPP BROS. & KORN and WHOLESALE & WAREHOUSE WORKERS UNION LOCAL 65, CIO In the Matter of PHIPPS HATS WORKS, INC. and WHOLESALE & WARE- HOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of SCHUMAN & STEIN, INC. and WHOLESALE & WARE- HOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of HENRY SCHWARTZ , ROBERT SCHWARTZ , JULIUS SCHWARTZ , AND WILLIAM BIENSTACK, D/B/A HENRY SCHWARTZ & SONS and WHOLESALE &,WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of SPANBOCK & SCHAEFER, INC. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of BI-RITE HAT Co., INC. and WHOLESALE & WARE- HOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of CREINER & BRUMBERG, INC. and WHOLESALE & WARE- HOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of ROBERT EISENBERG AND ADOLPH EISENBERG, D/B/A A. EISENBERG & BROS. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of JACK GREEN, D/B/A JACK GREEN Co. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter Of MAX GREENBERG AND SOL GREENBERG , D/B/A GREEN- BERG BROS. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO 53 N. L. R. B., No. 9. 38 NEW YORK ASS'N OF WHOLESALERS OF LADIES' & CHILDREN'S HATS 39 In the Matter of DAVID GITTER AND SAMUEL GITTER, D/B/A GLORIA HAT Co. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65,'CIO In the Matter of ABRAHAM WACHTER AND MILTON JACOBS, d/b /a W. J. HAT Co. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of ABRAHAM LEVY AND JACOB LEVY, d/b/a LEVY BROS. MILL'Y and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO I In the Matter of K. & K. H AT CO., INC. and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO In the Matter of HENNY HAT Co., INC. and WHOLESALE'& WAREHOUSE WORKERS UNION, LOCAL 65, CIO Cases Nos. R-5902 (2-R-3810), R--5903 (2-R-3929) to R-59.10 (2-R- 3936), R-5911 (2-R-3938) to R-5915 (2-R--3942) and R-5916 (2-R- 3944) to R,5920 (2-R-3948) respectively.Decided October 25, 1943 Mr. Frederick R. Livingston, for the Board. Liebowitz cC Shuman, by Messrs. Henry Shuman and Simon J. Liebowitz, of New York.City, for the Association. Messrs. Edward Kuntz and Irving Lebold, of New York City, for the C. I. O. Markewich, Rosenhaus d Markewieh, by Mr. Irwin Panken, of New York City, for the A. F. of L. Mrs. Augusta Spaulding, of counsel to the Board. DECISION DIRECTION OF ELECTIONS AND ORDER STATEMENT OF THE CASE Upon separate petitions duly filed by Wholesale & Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., each alleging,that a question affecting commerce had arisen concerning the representation of em- ployees of The New York Association of Ladies' and Children's Hats, Inc., New York City, herein called the Association,' and of 18 certain 1 Members of the Association are listed on Appendix A. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named employer members thereof 2 respectively, the National Labor Relations Board provided for an appropriate consolidated hearing upon ,due notice before William F. Guffey, Jr., Trial Examiner. Said hearing was held at New York City from June 28 to July 2, inclusive, from July 6 to July 12, inclusive, from July 19 to July 26, inclusive, and on August 23, 1943. The Board, the Association, the C. I. 0., and Joint Board of Millinery Workers, Locals 2, 24, 42, and 90, United Hatters, Cap & Millinery Workers International Union, affiliated with the American Federation of Labor, herein called the A. F. of L., appeared, participated, and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing, the C. I. O. moved for leave to withdraw the 18 petitions herein, each naming a certain member of the Association as employer of employees herein invoh-ed,`and to amend further its--original peti- tion, as amended, so far as it prayed in the alternative for separate units of employees limited to individual employers. The Trial Ex- aminer did not rule on this motion. For reasons which appear in Section IV, below, the motion is granted. 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. Since the briefs of the Association and of the A. F. of L. adequately discuss the matters in issue, their separate requests for oral argument are hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER `MEMBERS OF THE ASSOCIATION The New York Association of Wholesalers of Ladies' and Chil- dren's Hats, Inc., is composed of approximately 26 individuals, part- nerships, corporations, or other legal entities, engaged directly or indirectly in selling and distributing ladies' and children's hats. The names of the employer members of the Association are listed on Appendix A. The members of the Association all have their prin- cipal offices and places of business in New York City. Each employer member of the Association purchases and sells ladies' and children's hats and millinery. During the period from January through October 1942, approximately 25 percent of all prod- ucts purchased by each member of the Association represented prod- ucts purchased and shipped from places outside the State of New York to points within the State. The value of these products 2 Menilers of the Association concerning whose employees separate petitions, were filed are listed on Appendix B NEW YORK ASS' N OF WHOLESALERS OF LADIES' & CHILDREN S HATS 41 brought into' the State by each member during this period exceeded $15,000. During the same period, each member of the Association sold and shipped to points outside the State over 50 percent of its hats and millinery,, all of which were manufactured within the State. The sales of products by each member of the Association during this period exceeded $25,000. Each member of the Association admits that it is engaged in com- merce, within,the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Wholesale & Warehouse Workers Union, Local 65, is a labor organi- zation affiliated with the Congress of Industrial. Organizations, ad- mitting to membership employees of members of the Association. Joint Board of Millinery Workers Union, Locals 2, 24, 42, and 90, United Hatters, Cap & Millinery Workers International Union, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of members of the Association. III. THE QUESTIONS CONCERNING REPRESENTATION In January 1943 the C. I. O. began organizing employees of the members of the Association. In February 1943 the C. I. O. informed the Association that it represented a majority of such employees and requested a conference for the negotiation of a bargaining agreement. The C. I. O. also requested bargaining conferences with certain indi- vidual employer members of the Association. The several members of the Association thus approached refused to meet with the C. I. O. individually, each stating that it would confer with the C. I. O. only through the Association. The Association refused to bargain with the C. 1. 0. because the A. F. of L. claimed an interest in the same employ- ees. On February 11 the C. I. O. filed the original petition in this .proceeding. On January 15, 1941, the A. F. of L. and the Association entered into a closed-shop contract, covering shippers, packers, and errand boys employed+by members of the Association. The contract pro- vided that it be in full force and effect until February 15, 1943. On February 25, 1942, the same parties entered into a supplemental con- tract, also terminating on February 15, 1943. In January 1943, repre- sentatives of the Association and of the A. F. of L. conferred concern- ing a new contract proposed by the A. F. of L. No new contract was thereafter signed. The Association and the A. F. of L., however, orally agreed to abide by the terms of their 1941 contract, until a new con- tract,should be finally, concluded between them. Before any agree- ment between the A. F. of L. and the Association was concluded and 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed, the C. I. 0. made known to the Association its claim to repre- sent the same employees. The A. F. of L. contends that the oral agreement between the A. F. of L. and the Association to abide by the terms of their prior agree- ment pending the consummation of a new contract constitutes a bar to this proceeding. We find no merit in this contention. We have fre- quently held that agreements of this character do not bar an investi- gation and determination of representatives upon petition of a rival union 3 Since no new contract was consummated, between the Asso- ciation and the A. F. of,L. prior to the claim of the C. I. 0. to represent the same employees, we find that the oral agreement between the Asso- ciation and the A. F. of L. does not constitute a bar to an investigation and determination of representatives, pursuant to the petition filed herein. Statements prepared by the Regional Director and admitted into evidence at the hearing indicate that the C. I. 0. and A. F. of L. each represents a substantial number of employees in the unit herein found' appropriate for sales and shipping employees of members of the Association and that the C. I. 0. represents ,a substantial number of employees in the unit herein found appropriate for office employees of members of the Associatiou.4 1 We find that questions affecting commerce have arisen concerning the representation of employees of members of the Association, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS - - A. The scope of the bargaining units The C. I. 0. and the Association agree that effective bargaining for employees of members of the Association requires that employees of all employer members of the Association in a given category be included in the same bargaining unit. The A. F. of L. rejects the 3 Matter of TVelin Davit and Boat Corporation, 51 N. L. R. B. 1221; Matter of Daniel Burkhartsmeir Cooperage Company, 49 N L R B 36, and cases cited therein. 4 The C . I 0 submitted 83 application cards, bearing the apparently genuine signa- tures of employees of members of the Association on the pay rolls of June 19, 1943. The C I 0 also submitted the dues books of 2 employees whose names appear on these pay rolls . Of the designations of the C. I 0 , 3 are undated and the remaining are dated between February and June 1943. -The type of work stated on the cards indicates that the C I O. represents approximately 77 employees in the unit appropriate for sales and shipping employees and approximately 8 employees in the unit appropriate for- office emloyees. The A. F. of L submitted the dues records of 37 employees , whose navies appear on the pay rolls of members of the Association of June 19 , 1943 The type of work stated on these records indicates that, the A F. of L . represents 33 employees in the unit found appropriate for salesmen and shipping clerks and 4 employees in the unit herein found appropriate for office employees. There are approximately 120 employees in the appropriate unit for sales and shipping employees and approximately 30 employees in the appropriate unit for office employees. NEW YORK ASS'N OF WHOLESALERS OF LADIES ' & CHILDREN ' S HATS 43 contention that an Association-wide unit constitutes an appropriate bargaining unit and urges that separate bargaining units are appro- priate for employees of each member of the Association. In 1934, some of the individual employers in the millinery industry whose employees are concerned in this proceeding formed the Asso- ciation to secure for themselves , inter alia, uniformity and certainty in the customs and usages of their trade and commerce. Other individual employers in the industry later joined the Association. All members of the Association are engaged in the selling of women's and children 's hats and millinery at wholesale and their offices and principal places of business are located in a very small area in New York City, extending roughly between 36th and 38th Streets and between 5th and 6th Avenues. They are small business enterprises. Some employers are individual persons; some partnerships or corpo- rations. Persons who are financially interested in each business take an active part in its management. Close relatives of such persons perform office, sales, and shipping work as employees in the several establishments. According to the June 19, 1943, pay rolls, only 10 of the 26 members of the Association employ more than 10 persons, and the 26 members of the Association in the aggregate employ only 271 persons in all listed categories of employment. Some of these pay rolls list employees who are absent on military leave or have since quit their employment. At the time of the hearing, there had been no substantial replacement of such employees . Many employer members of the Association employ only 1 to 4 employees in all work categories covered by the original petition . The duties and interests of employees of the employer members in the several work categories, respectively; do not substantially differ. Experienced employees have acquired their training to some extent as employees of competitor members of the Association. On May 1, 19,40, the Association and the, A. F. of L. executed a contract which was referred to in the record as a stabilization agree- ment. This contract did not contain provisions for wage rates, hours, or working conditions of employees of members of the Association, but was designed primarily for the regulation of the millinery manu- facturing industry through the use of customers' protection labels. The Association's members agreed to patronize only manufacturers using such labels. The contract provided that it should be binding upon members of the Association who "by stipulation duly signed and executed .shall affirm and agree to become bound by the terms and provisions of this agreement." The contract, by its terms, be- came effective from the date of its execution to February 15, 1943. ' On January 15, 1941, the Association and the A. F. of L. executed a closed-shop contract covering shippers, packers, and errand boys 44 DECISIONS OF NATIONAL LABOR RELATIONS_ BOARD employed by members of the Association . This contract , by its terms; became effective from execution until February 15, 1943. Member representatives of the Association and representatives of the A. F. of L. participated in the negotiations preliminary to its execution. This contract, however, likewise provided that each ,member of the Association should be bound by its terms upon the signing of a "stipulation to the effect that he has read this agreement and agrees to become bound by its terms , and provisions." On February 25, 1942, the Association and the A. F. of L. executed a contract supple- mental to the contract of January 15, 1941 , and effective until Feb-, ruary 15, 1943. The supplemental contract provided that all mem- bers of the Association at the time of its execution , and all subse- quent members of the Association during the life of the agreement, "shall by stipulation agree to become bound by the terms and pro- visions of this agreement." The record contains several documents signed by members of the Association which were identified by wit- nesses as the "stipulation" referred to in the supplemental contract executed on February 25, 1942. In January 1943, the A. F. of L. submitted to the Association a' proposed contract, covering employees in certain named categories employed by all members of the Association. Representatives of the A. F. of L. and of, the Association's members held some confer- ences concerning this proposed contract . Before any final action was taken thereon, the C. I. O. had made its demand for recognition as bargaining representatives of the same employees and had filed the original petition in the instant proceeding . Subsequent to the demand of the C. I .• O. for recognition, salesmen employed by mein- hers of the Association refused to work on Saturdays . On April 15, 1943, the C. I. O. and the Association executed an agreement, pro- viding for the uninterrupted operation of business by the Associa- tion's members, pending the Board's determination of the issues concerned therein. From 1934 to the time of the hearing employer members of the Association thus functioned as a group -fdr their mutual interests and protection. From May 1940 to April 15, 1943, bargaining for and on behalf of employees of members of the Association was upon an Association-wide basis. From January 15, 1941, to February 15, 1943, the A . F. of L. had a closed-shop contract covering employees in an Association-wide unit. Since February 1943, both labor or- ganizations herein concerned sought recognition in an Association- wide unit. Prior to March 1943 , the Association had only informal authority to i'epresent its members with respect to labor matters. A group of representatives of members of the Association functioned as a labor committee to report back to the Association conferences with representatives of labor. As noted above, the Association en- NEW YORK ASS"N OF WHOLESALERS OF LADIES' & CHILDREN'S HATS 45 tered into three successive contracts with the A. F. of L., providing that individual employer members should become bound thereby through individual ratifications.' On March 29, 1943, the several em- ployer members of the Association formally and individually author- ized the Association as a representative body to act for them in negotiating all agreements affecting wages and other conditions of employment with respect to their employees when labor organizations should make claim to represent such employees 5 Under these cir- cumstances, and for further reasons which appear below, we conclude that collective bargaining for employees of employer members of the Association can be best effected on an Association-wide basis, and we find that bargaining units on an Association-wide basis are appropriate for the employees of members of the Association herein concerned.6 B. Categories of employees to be included in the bargaining units Employer members of the Association generally classify employees listed on• their pay rolls as buyers, salesmen, shipping employees, and office employees. In most instances the proprietor of each establishment personally buys the millinery for resale to its customers. In a few instances larger firms employ buyers. In a few firms a salesman functions as an assistant buyer of millinery. In some instances salesmen and office and shipping clerks are authorized to order supplies to be used in the functioning of their respective departments and general store use. Employees of the latter class have very limited power and their function as purchasing agents constitutes only a small part of their regular routine duties. Salesmen in this industry are roughly des- ignated as inside and outside salesmen. Inside salesmen perform their duties within their employer's store and wait upon customers who come in to select hats from a display of stock set forth for them. These salesmen receive and arrange stock, show and sell hats from samples, pick hats to fill their customers' orders, and pack and bag hats for customers who wish to take their purchases with them from the store. Outside salesmen solicit orders by sample outside the store. Some of them whose sales territory is distant from headquar- ters send in their orders by mail to be, filled and shipped to customers. They seldom report at the store to their employer or share in selling work at the store. Most of them work on commission. Some of them sell other merchandise on commission. Other outside salesmen 5 The authorization of March 29 , 1943, provided that it remain in full force for 1 year from, the date of execution and that it be renewable for 1 year thereafter,, unless termi- nated by 30 days' written, notice to. the Association of a. desire to withdraw such power and authority. 6 Cf Matter of National Dress Manufacturers Association , Inc., et al., 28 N. L. R. B. 368. 559015-44-vol. 53-5 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cover territory in and about the metropolitan area of New York' City and nearby States and spend an appreciable amount of their time at their employer's' store. While they are there, they perform the ordi- nary duties of inside salesmen. Shipping employees are divided into shipping clerks or packers, who pack millinery in tissue paper, bog it, and place the boxes in cartons for shipment to local and out-of-town customers, and errand boys' who assist the shipping clerks, do light janitor service, and run errands. Office employees include bookkeep- ers, office clerical help, and credit managers. - Members of the Association occupy stores with space suited to the display of sample hats and the storage of stock supplies. Office space is generally partitioned off from selling space. Space for shipping employees is located at the back of the store, if the employer's accommodations are limited to one floor, or in the basement. The parties agree that executives, buyers, employees of out-of-town branch office and stock houses,7 and outside salesmen who spend more than 50 percent of their time traveling for their employer and report only occasionally to the store, should be excluded from the bargaining unit of employees who perform their work generally within their employer's store s The Association would include within a single bargaining unit inside salesmen and shipping employees and would exclude office and other employees from the bargaining unit. The C. I. O. would include office employees within the unit for salesmen and shipping - employees.' The A. F. of L. would include shipping employees only within the bargaining unit and would exclude salesmen and office employees therefrom. For the past 2 years the A. F. of L. has represented the shipping employees of members of the Association in an Association-wide unit. In 1941 and in'1942, the A. F. of L. entered into closed-shop contracts covering such employees. Until 1943, organization of em- ployees of the Association's members was limited to shipping em- ployees. In January 1943 the A. F. of L. proposed a new contract to replace the 1941 contract expiring February 15, 1943. In this contract the A. F. of L. proposed to increase the unit of employees whom it desired to represent, adding to the shipping clerks, packers, 4 Members of the Association who maintain branch offices and stock houses in other States do not list such employees on the pay rolls of their New York stores So far as the record discloses, such employees have no common work interests with employees working in and out of the New York City sto'es 8 The Association would exclude from the bargaining unit all salesmen who do out- side sales work, whether or not they spend any appreciable amount of their working time within their employer's New York City store, performing the duties of inside sales- men 9 The C I 0 proposed three Association-wide units of salesmen , shipping employees, and office employees respectively, as an alternative to its preferred single Association- wide unit, including employees in, the three categories. NEW YORK ASS'N OF WHOLESALERS OF LADIES' & CHILDREN'S HATS 47. and errand boys of its former contracts, order fillers and pickers, thus indicating a desire to extend the more limited bargaining unit of its prior contracts.'0 Order pickers and order fillers employed by the members of the Association are in fact the salesmen who the C. I. O. urges should be included in the bargaining unit. It is not entirely clear how extensively the A. F. of L. organized the employees whom it desired to add to the units established in its prior contracts. Young men entering the millinery sales industry generally begin as errand boys, become shipping clerks, and work their way up by promotion to positions of salesmen. Errand boys earn substantially lower salaries than salesmen and shipping clerks. The salaries of salesmen and shipping clerks are comparable 11 Salesmen have more prestige in the establishment and a transfer from shipping to sales work is considered a promotion. Salesmen employed by the Asso- ciation's, members usually assist shipping clerks with packing during the latter part of the workday when sales work is light and shipping work heavy, and shipping employees are not infrequently called to assist customers on the sales floor.'2 Under these circumstances we shall include salesmen and shipping employees in the same bargaining unit. - Office employees of the Association's members are uniformly re- stricted in their operations to office space set apart in the several establishments from the sales and shipping departments. Office em- ployees do not assist in selling or shipping work nor do sales and shipping employees assist in office work. The Board does not, as a matter of practice, usually place office employees in the same unit with employees performing non-clerical duties. For this reason, we shall not include office employees in the same unit with salesmen 11 Neither at the hearing nor in its briefs, did the A. F. of L. otherwise explain the extended unit set forth in the proposed contract. 13 There is no clear line of demarcation between the salaries of shipping clerks and those of salesmen employed by members of the Association. In some establishments shipping clerks receive with overtime as much as $65 per week, and some salesmen as little as $25 or $30 per week. The wages of salesmen and shipping clerks employed by' the Association's members range from $25 to $65 per week. Errand boys, who are con- cededly part of the shipping department and serve as helpers to shipping clerks, receive $16/to $20 per week, appreciably less than shipping clerks with whom they have been joined for bargaining purposes in the prior contracts 12 In one or two of the largest stores maintained by members of the Association, the volume of business is sufficient to keep the sales force daily more' or less fully occupied with duties on the selling floor and the shipping department equipped to handle the normal volume of business without the assistance of salesmen interchangeability of work between employees in the shipping and selling departments is accordingly less marked in these establishments than in the remaining smaller houses which comprise generally the employer members of the Association. Even in these establishments sales- men regularly pack hats and millinery for customers to take with them The A F. of L concedes that there is interchangeability of duties between sales and shipping em- ployees, but contends that this is temporary and due to present war conditions and labor shortages while it is no doubt tine that present conditions have tended to increase rather than decrease such woi,k exchanges, the practice, seems due to the periodic work pressure in the normal working day and the traditional character of the sales and ship- ping work rather than temporary war conditions. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and shipping employees. Since the C. I. O. has generally organized the employees of the Association's members and has indicated a substantial interest among the office employees, we shall include office employees of members of the Association in a separate bargain- ing unit, excluding therefrom credit and office managers. ' We shall include within the unit for sales and shipping employees of the members of the Association all employees who are engaged in selling inside the premises of their employers, employees who are engaged in selling outside the premises of their employers but who spend less than 50 percent of their time in such work, and frequently report to the store, employees who are primarily engaged in selling but spend part of their time assisting in buying supplies and merchandise, stock clerks and order pickers, and all employees of the shipping department, including shipping clerks; packers, porters, and errand boys. We shall exclude from this unit buyers, heads and employees of out-of-town branches, outside salesmen who spend more than half- their time traveling for their employer and who report only occasion- ally to the store, all office employees, executives, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action .1-3 Julius Turoff, a salesman, combines with his regular sales duties, any general work about the store. He assists in the shipping depart- ment and sometimes orders general supplies. Office employees and shipping clerks frequently order supplies. Turoff occasionally inter- views errand boys who are applicants for work. Shipping clerks, whom errand boys assist, also frequently interview such applicants. Turoff has no discretion to act without the direction of his superiors, who are active in the store management. The Association would ex- clude Turoff from the bargaining unit; the C. I. O. would include him. Since the record does not disclose that Turoff has any duties which distinguish him from other employees of the Association's members concededly within the unit, we shall deem him included in the bargain- ing unit as a salesman. We find that all 'employees of members of the Association who are engaged in selling inside the premises of their employers, employees who are engaged in selling outside the premises but who spend less than 50 percent of their time in such work, and frequently report to the store, all employees who are engaged in selling but spend part of their time assisting in the buying of supplies and merchandise, order pickers, stock clerks, employees in the shipping department, including 33 We do not intend to exclude under this classification experienced employees who effectitely report inefficient or insubordinate assistants to their superiors for discipline or discharge. Matter or Victor Chemical Works, 52 N. L. R. B. 184.. NEW YORK ASS'N OF WHOLESALERS OF LADIES' & CHILDREN'S HATS 49 shipping clerks, packers, errand boys, and porters, but excluding buyers, heads and employees of out-of-town branch offices, outside salesmen who spend more than 50 percent of their time traveling for their employer and who report only occasionally to the store, all office employees, executives, and all supervisory employees with authority to hire,,promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. We further find that all office employees 'of all members of the Association, including stenographers, typists, office clerks, and bookkeepers, but excluding office and credit managers, and all supervisory employees with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the questions affecting commerce which have arisen concerning the representation of'employees of the Association's mem- bers can best be resolved by separate elections by secret ballot. The A. F. of L. contends that the Board should not direct an election at a time when an appreciable number of eligible employees are absent on military leave and will be unable to vote in the elections. This circumstance alone does not constitute sufficient cause to deny to em- ployees on current pay rolls an immediate opportunity for collective bargaining if they so desire 14 Since both the C. I. 0. and the A. F. of L. have indicated a sub- stantial interest among employees in the unit for sales and shipping employees, we shall provide that both these labor organizations appear upon the ballot in this election. The evidence indicates that the C. I. 0. has a substantial membership among the employees in the unit for office employees and that the A. F. of L. has some representation among them. We shall provide that both labor organizations appear upon the ballot in this election, provided, however, that if the A. F. of L. notifies the Regional Director within 5 days from the date of issuance of the Direction of Elections that it does not desire to parti- cipate therein, it may withdraw its name from the ballot in this election. Those eligible to vote in the separate elections shall be all employees of members of the Association in the respective units found appro- priate in Section IV, above, who were employed during the pay-roll " Cf. Matter of Penokee Veneer Company, et al., 51 N. L. R. B. 907. 50 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD period immediately preceding the date of the Direction of Elections herein, subject, to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS 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 Rela- tions Board Rules and Regulations- Series 2, as amended, it is hereby DiREcTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The New York Association of Wholesalers of Ladies' and Children's Hats, Inc., New York City, separate elections 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 10 and 11, of said Rules and Regulations, among all employees of members of the Association listed on Appendix A, attached hereto,_ who fall within the respective units 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 employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections, to determine whether they desire to be represented by Wholesale & Warehouse Workers Union, Local 65, C. I. 0., or by Joint Board of Milinery Workers Union, Locals 2, 24, 42, and 90, United Hatters, Cap & Millinery Workers International Union, A. F. of L., for the purposes of collective bargaining, or by neither. ORDER It is hereby ordered that the separate petitions for investigation and certification of representatives filed herein by Wholesale & Warehouse, Workers Union, Local 65, C. I. 0., in Cases Nos. R-5903 to 5920, inclu- sive, be, and they hereby are, severed from Case No. R-5902, and that the Cases Nos. R-5903 to 5920, inclusive, be, and they hereby are, dismissed. MR. GERARID D. REmLY took no part in the consideration of the above Decision, Direction of Elections , and Order. NE W YORK ASS' N OF WHOLESALERS OF LADIES' & CHILDREN'S HATS 51 APPENDIX A George Albert ,Beltone Hats, Inc. Betty-Ann Hats, Inc. Bi-Rite Hat Co. Inc. Ben Touster, d/b/a Cinderella Hat Co. Creiner & Brumberg, Inc. Robert Eisenberg and Adolph Eisenberg, d/b/a Eisenberg & Bros. David Gitter and Samuel Gitter, d/b/a Gloria Hat Co. Jack Green, d/b/a Jack Green Co. Max Greenberg and Sol Greenberg, d,/b/a Greenberg Bros. Gul, Inc. Henny Hat Co. Inc. K & L Hat Co. Inc. Harry Levinson, d/b/a H. Levinson Abraham Levy and Jacob Levy, d/b/a Levy Bros. Mill'Y Lindell Hat Co. Inc. Samuel Lipp, Meyer Lipp, and Irving Korn, d/b/a Lipp Bros. & Korn Minrose Hat Co. Inc. Paige Hat Co. Inc. Phipps Hat Works Inc. Sable Bros. Inc. Louis Schlamm, Inc. Schuman & Stein, Inc: Henry Schwartz, Robert Schwartz, Julius Schwartz, and William Bienstack, d/b/a Henry Schwartz & Sons Spanbock & Schaefer, Inc. Abraham Wachter and Milton Jacobs, d/b/a W. J. Hat Co. Isidore Wechsler and Fred Wechsler, d/b/a Wechsler & Son APPENDIX B Bi-Rite Hat Co. Inc. Creiner & Brumberg, Inc. Robert Eisenberg and Adolph Eisenberg, d/b/a A. Eisenberg & Bros. David Gitter and Samuel Gitter, d/b/a Gloria Hat Co. - Jack Green, d/b/a Jack Green Co. Max Greenberg and Sol Greenberg, d/b/a Greenberg Bros. Henny Hat Co. Inc. K & K Hat Co. Inc. Abraham Levy and Jacob Levy, d/b/a Levy Bros. Mill'Y Samuel Lipp, Meyer Lipp, and Irving Korn, d/b/a Lipp Bros. & Korn Minrose Hat Co. Inc. Paige Hat Co. Inc. 9 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) Phipps Hat Works, Inc. Schuman & Stein, Inc. Henry Schwartz, Robert Schwartz, Julius Schwartz, and William Bienstack, d/b/a Henry Schwartz & Sons Spanbock & Schaefer, Inc. Abraham Wachter and Milton Jacobs, d/b/a W. J. Hat Co. Isidore Wechsler and Fred Wechsler, d/b/a I. Wechsler & Son 11 0 0