Heinsheimer Bros. Inc.

In the Matter of HEINSHEIMER BROS. INC. and INDEPENDENT EMPLOYEES COMMITTEE OF HEINSHEIMER BROS. INC. Case No. 2-R-6361.Decided July 2, 1946 Mr. Irving Rosenfeld, of New York City, for the Company. Mr. Emanuel Tacker, of New York City, for the Independent. Mr. Abe Turner, of New York City, for the CIO. Mr. Benj. E. Cook, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Independent Employees Committee of Heinsheimer Bros. Inc., herein called the Independent, alleging that a question affecting commerce had arisen concerning the representation of employees of Heinsheimer Bros. Inc., New York City, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Robert Silagi, Trial Examiner. The hearing was held at New York City, on May 16, 1946. The Company, the Independent, and Local 65, Wholesale and Warehouse Workers Union, CIO, herein called the CIO, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Heinshelmer Bros. Inc. is a New York corporation and maintains its principal office and warehouse in New York City. The Company is engaged in the wholesale distribution of millinery supplies. During the year ending April 30, 1946, the Company made purchases exceeding $100,000 in value, of which approximately 80 percent was shipped to 69 N. L. R. B., No. 28. 253 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its warehouse from points outside the State of New York. During the same period, the Company sold and distributed millinery supplies valued in excess of $100,000, over 50 percent of which was shipped to points outside the State of New York. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Independent Employees Committee of Heinsheimer Bros. Inc. is an unaffiliated labor organization, admitting to membership employees of the Company.' Local 65, Wholesale and Warehouse Workers Union, is a labor or- ganization, affiliated with the Congress of Industrial Organizations admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On March 12, 1946, the Independent requested recognition as ex- clusive bargaining agent for certain of the Company's employees. On March 14, 1946, the Company refused to recognize the Independent on the ground that the CIO also claimed to represent these employees. Since October 1940, the CIO has represented the unit now sought by the Independent, under successive collective bargaining contracts. On February 1, 1943, the parties executed a contract for a period of 2 years, with a further provision that on February 1, 1945, and on February 1st of each succeeding year, the contract would automatically renew itself for a 1-year period, provided the expiration date occurred during the "duration." 2 On February 20, 1946, the CIO addressed a letter to the Company in which it stated : We are hereby notifying you that we desire to change and modify our mutual Agreement which expired February 1, 1946. On March 6, 1946, the Company and the CIO held a conference to discuss the CIO's request for (a) broadening the coverage of the con- tract so as to include clerical employees and department heads who had previously been excluded from the unit; (b) an increase in the minimum wage rates; (c) a 30 percent general wage increase; (d) group insurance coverage; and (e) the establishment of extra holidays. ' Contrary to the contention of the CIO, we find that the Independent is a labor oiganiza- zation within the meaning of the Act. 2 The pertinent clause of the contract reads as follows This agreement . . . shall continue in force and effect for a period of 2 years from the date hereof . . . If this agreement expires during the period of the duration, then this agreement shall be deemed automatically extended for a period of 1 vear and successive periods of 1 year each thereafter if any such expiration date occurs during the duration , provided , however , that at the end of any such yearly expiration date the employei and the Union shall meet to determine what, if any, wage adjustment there shall be for the ensuing year . . . HEINSHEIMER BROS. INC. 255 The Company requested further time within which to consider the modifications requested by the CIO. On March 12, 1946, the Inde- pendent made its demand for recognition, whereupon negotiations be- tween the Company and the CIO ceased. The CIO argues that the word "duration," as used in the 1943 con- tract, was intended to cover the period from the commencement of the War to such time as the War was officially terminated by Congress or the President; that consequently, by its terms, the 1943 contract was automatically renewed on February 1, 1946, for another 1-year period (inasmuch as the expiration date occurred "during the dura- tion") ; and that the contract, as thus automatically renewed, consti- tutes a bar to the instant proceedings. If, as the CIO contends, the contract was intended to be automat- ically renewable from year to year as long as the yearly expiration date occurred before the President or Congress declared the War to be at an end, the contract nevertheless would not be a bar. The con- tract makes no provision for its termination by either party at any time during the "duration," but merely provides for automatic re- newal at yearly intervals until the War is ended. Inasmuch as the contract is not terminable until after the "duration," it clearly is one having an indefinite term and, as such, cannot operate to bar a pres- ent determination of representatives.3 Furthermore, assuming that the contract was renewed on February 1, 1946, for a definite 1-year period, the parties subsequently entered into negotiations for broad modifications for which there was no provision in the contract. The contract merely provided for a "yearly wage adjustment"; the modi- fications under consideration included not only a wage increase but group insurance, extra holidays, and the coverage of clerical em- ployees and department heads. The Board has held that where the parties during the term of the contract attempt to effect modifica- tions which are beyond the scope of the modification clause con- tained in the contract, the contract will be deemed opened, and a rival representation claim otherwise prematurely presented in ad- vance of the normal expiration date of the contract will be consid- ered timely 4 Accordingly, we find that the 1943 contract does not bar the instant proceeding. See Matter of The Globe Shipbuilding Company, 57 N L R B. 1104 There is some evidence, moreover, that the parties intended the contract to terminate upon the cessa- tion of hostilities, as distinguished from the official declaration by the President or Con- gress that the War was terminated Counsel for the Company, who assisted in drafting the contract, testified that although there was no discussion of the meaning of the word "duration " at the time the contract was executed , it was his intention in drafting the agreement to have it cover merely the period during which the United States was actually engaged in hostilities 4 Matter of Otsn Industries, Inc (Western Cartridge Company Division, East Alton, Illi- fuoas), 67 N. L R B 1043 Cf. United States Vanadium Corporation , Pine Creek Unit, 68 N. L R. B. 389. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, substantially in accord with an agreement of the parties, that all stock clerks, order pickers, packers, errand or delivery clerks, biller and porter employed by the Company, but excluding depart- ment heads, sales , bookkeeping, credit and office employees, 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, constitute 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 shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions 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 Rela- tions 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 Heinsheimer Bros. Inc., New York City, an election by secret ballot shall be con- ducted 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 em- ployees 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 HEINSHEIMER BROS. INC. 257 those employees 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 they desire to be represented by Independent Employees Committee of Heinsheimer Bros. Inc., or by Local 65, Wholesale and Warehouse Workers Union, CIO, for the purposes of collective bargaining, or by neither. 7 015^2-47--vol 69- IQ