Worth Hardware Co., Inc.

In the Matter Of WORTH HARDWARE CO., INC., EMPLOYER and WHOLE- SALE cC WAREHOUSE WORKERS UNION, LOCAL 65, CIO, PETITIONER Case No. 2-R-6933.-Decided November 1J^, 1946 Messrs. David R. Haber and Max Dworetz, of New York City, for the Employer. Messrs. Leonard H. Wacker and Al Evanoff, of New York City, for the Petitioner. Buitenkant c0 Cohen, by Mr. Arnold Cohen, of New York City, and Mr. Herman Plotnick, of New York City, for the AFL. Mr. Robert J. Freehling, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at New York City, on September 30, 19-16, before Jerome I. Macht, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Worth Hardware Co., Inc., a New York corporation, is engaged at its place of business in New York City, in the wholesale jobbing of hardware. During the 12 months preceding the hearing, the Em- ployer purchased hardware for resale valued in excess of $250,000, of which approximately 90 percent represented shipments from sources outside the State of New York. During the same period, the Employer sold hardware valued in excess of $250,000, of which approximately 33 percent represented shipments to customers outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 71 N. L. R. B., No. 110. 684 «-ORTH HARDWARE CO., INC. II. THE ORGANIZATIONS INVOLVED 685 The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Federal Labor Union, Local 20734, herein called the AFL, is a labor organization affiliated with the American Federation of Labor, claim- ing to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer and the AFL have had collective bargaining con- tracts covering the employees involved herein since October 1937. On October 18, 1941, they entered into a closed-shop agreement which provides for an initial period of 2 years, and for its automatic renewal annually thereafter in the absence of at least 45 days' notice before the expiration of the then current term. This agreement was sub- sequently renewed in 1944 and 1945. In June 1946, the Employer advised the AFL that, in view of the considerable number of indi- vidual demands for wage increases, it desired to negotiate a new agree- ment before the expiration, on October 18, 1946, of the existing contract. The parties thereafter, on June 20, 1946, executed an agreement, effective from June 5, 1946, until October 18, 1947, em- bodying therein substantially all terms of the existing contract, to- gether with certain wage increases. Subsequently, by letter dated August 7, 1946, the Petitioner advise( l. the Employer of its designation by the employees at this operation as their bargaining representative, and sought to initiate collective bar- gaining negotiations. The Employer refused to enter into such nego- tiations, and, on August 12, 1946, the Petitioner filed its petition herein. The AFL contends that the contract effective Julie 5, 1946, consti- tutes a bar to the instant proceeding, because it was executed by the parties thereto in good faith before the Petitioner's demand for recog- nition. The Employer takes no position on this issue. We find no merit in the AFL's contention. It is clear f rom the record that the June 1946 agreement was executed before the Mill B date 1 of the contract which was to expire on October 18, 1946, and, consequently, was a premature extension of the latter contract. Ac- cordingly, inasmuch as the Petitioner's demand for recognition was made, and its subsequent petition herein filed, before the Mill B date ' The operative date of an automatic renewal clause has come to be known as the "Mill B date" of a contract. Matter of Mall B, lac, 40 N. L. R. B. 346 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the extended contract, we are of the opinion that, under well- established principles of the Board, the June 1946 agreement, irre- spective of the good faith of the contracting parties, cannot operate as a bar to a current determination of representatives.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, substantially in accord with the agreement of the parties, that all employees of the Employer, including warehouse employees 3 and office clerical employees,4 but excluding salesmen, officers, execu- tives, and all other supervisory employees s 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. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the -purposes of collective bargaining with Worth Hardware Co., 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 Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- 2 Matter of Blair Limestone Company, 70 N L R B. 689 ; Matte of Virginia-Lincoln Corporation, 63 N I, R B 590, and Matte of Wichita Union Stockryaids Company, 40 N L. R B. 369 Cf. Matter of Dryden Rubber Company, 71 N L. R B 572, and Matter of Northwestern Publishing Company (WDAN), 71 N L R B. 167 'Included in this category is the shop foreman, who has heretofore been a pact of the contract unit and who does not appear to be a supervisor within the Board's customary definition of that term 4 There are approximately 16 warehouse employees and 3 office clerical employees in the stipulated unit which is identical with the contract unit These categories together have comprised the unit covered by the collective bargaining agreements in effect since 1937 between the AFL and the Emplovei In view of this bargaining histoiv and the present agieement of the parties that such unit is appropriate, the inclusion of the office clerical employees in the unit composed predominantly of warehouse employees is here appropriate as an exception to the Board s general practice of excluding office clerical workers from a warehousemen's unit Cf Matter of A 0 Smith Corporation, 70 N L R B 1288 , Matter of K M V. Inc , 65 N L R B 1129 ; and Matter of A Baldwin it Co. Inc. 33 N L R B 934 The parties stipulated, and we find, that the head bookkeeper and assistant bookkeeper . in supeivisoiv employees within the Board's customary definition WORTH HARDWARE CO., INC. 687 ceding the date of this Direction , including employees who did not work during said pay-roll period because they were ill or on vacation or tem- porarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but ex- cluding 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 Wholesale & Warehouse Workers Union, Local 65, CIO, or by Federal Labor Union, Local 20734, AFL, for the purposes of collective bar- gaining, or by neither. 7 1 7 784-4 7-vol 71- 4 5