Wilson & Rogers, Inc.

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.