Dayton, Price & Co., Ltd.

In the Matter of DAYTON, PRICE & COMPANY, LTD., AND MULLER & PHIPPS (ASIA), LTD., EMPLOYERS and UNITED OFFICE AND PRO- FESSIONAL WORKERS OF AMERICA , LOCAL 16, CIO , PETITIONER In the Matter of DAYTON , PRICE & COMPANY , LTD., AND MULLER & PHIPPS ( ASIA), LTD., E-Nrriox.Rs and INDEPENDENT EMPLOYEES ASSOCIATION or DAYTON, PRICE & COMPANY, LTD., AND MULLER & PHIPPS (ASIA), LTD., PETITIONER Cases Nos. 2-R-6921 and 3-R-6981, respectively.Decided April 3,19!7 Mr. Matthew Swerling, of New York City, for the Employers. Mr. Samuel M. Sacher, of New York City, for the CIO. Mr. Melvin M. Rein, of New York City, for the Independent. Mr. Robert J. Freehling, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed, a consolidated hearing in these cases was held at New York City, on October 2, 3, and 11, 1946, before Bertram Diamond, 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 1. THE BUSINESS OF THE EMPLOYERS Dayton, Price & Company, Ltd., and Muller &- Phipps (Asia), Ltd., herein separately called Dayton and Muller, respectively, and col- lectively called the Employers, are New York corporations, having their principal offices and places of business in New York City. Muller, a manufacturers' foreign trade sales representative, is engaged in obtaining orders for products manufactured in the United States and in other countries at its approximately 30 branch offices located outside the United States. Dayton, a wholly owned subsidiary of Muller, is engaged in exporting products of the United States and of 73 N. L. It. B, No. 25. 149 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Canada, and in serving directly as buying agent in the United States for foreign concerns. Ill the course of its business, Dayton processes the bulk of the sales made by Muller. During the 12 months pre- ceding the hearing, the Employers caused to be shipped to countries outside the United States products valued in excess of $1,000,000. The Employers admit and we find that each of them is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Office and Professional Workers of America. Local 10, herein called the CIO, is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent em- ployees of the Employers.' - Independent Employees Association of Dayton, Price & Company, Ltd., and Muller &- Phipps (Asia), Ltd., herein called the Independent, is a labor organization, claiming to represent employees of the Employers.2 III. TBE QUESTIONS CONCERNING REPRESENTATION The Employers refuse to recognize either the CIO or the Independ- ent as the exclusive bargaining representative of employees of the Employers in the absence of Board certification. We find that questions affecting commerce have arisen concerning the representation of employees of the Employers, within the mean- ing of Section 9 (c) and Section 2 (0) and (7) of the Act. IV. TI-ni APPROPRIATE UNIT The CIO and the Independent seek a single unit comprising, in general, all office and clerical employees of the Employers at their New York City offices, excluding executives and supervisory em- ployees.a The Employers contend that the office and clerical em- ployees of each corporation should constitute separate units. The parties are also in disagreement with respect to employees in the job classifications detailed below, whom the Employers and the In- ' The CIO has waived any right to object to any election which nmv be held in the. instant pioccedvigs on the basis of any of the acts alleged as violations of Section 8 (1) and (3) of the Act in Case No 2-C-6567 2 At the lieu ing, the CIO submitted a motion, and an offer of proof in connection there- with, to exclude the Independent fiom participating in these pioccednigs and from appear- ing on the ballot in any election directed herein, on the ground that the Independent is a companv-donunated union, and not a labor oiganieation within the meaning of the Act The hearing officer denied the CIO's motion and ieiected its offer of proof In the absence of special circumstances, not lurid present, the Iloard customaiily- does not receive evi- dence of nntair labor practice chaigee at representation beatings, accoidingly, the hearing officer's inlings are hereby upheld clatter of Grinnell Company of the Pacific, 71 N. L R B 1370 , of platter of Crown iVorsted Mills, Inc , 21 N L It 13 1028 3 The unit contentions of the CIO and of the Independent appear above substantially as amended at the hearing. DAYTON, PRICE & COMPANY, LTD. 151 dependent would include in, and the CIO would exclude from, any unit or units found appropriate Scope of unit There has been no prior history of collective bargaining with re- spect to the employees involved herein. As previously noted, Muller serves as a manufacturers' foreign trade sales representative, and Dayton, a wholly owned subsidiary of --Muller, processes the bulk of the sales made by the latter corporation. Muller has about 21, and Dayton has approximately 171, employees. The chairman of the board of directors, president, vice president, and treasurer of Day- ton hold Identical positions in Muller, and the Employers occupy adjoining offices located at the same address in New York City.4 Although the employees of each corporation usually handle only the work of their immediate employer, certain employees, such as swii.cliboard and dictaphoue operators, perform duties for both Em- ployers. It appears that the Employers maintain separate records and files, prepare separate pay rolls, and submit separate income tax returns. However, it further appears that the treasurer of both corporations, aided by a personnel assistant for Dayton and for Mul- ler, is in charge of personnel matters for both Employers, including the hiring and discharging of employees, and the establishing of wage policies; that employees of both Employers are subject to the same rules with respect to hours of work and other conditions of employment; and that virtually identical wage rates prevail for employees of both Employers having similar job classifications. In view of the foregoing, and on the entire record, we are of the opinion that Dayton and Muller together constitute a single employer within the meaning of Section 2 (2) of the Act, and that their employees comprise a single appropriate -unit for purposes of collective bar- gauung. Cognposition of unit We come now to a discussion of the disputed categories of em- ployees : Secretary to the president and secrettgry to the treasurer: The CIO would exclude the Employers' two secretaries, Rebecca Seidenstein and Ann Benjamin, herein called the secretary to the president and the secretary to the treasurer, respectively, on the ground that they are confidential employees. These individuals spend a portion of their time 4 Due to the present shortage of space, some employees of Dayton and of Muller are located in the sane rooms 5 Cf 3fatter of American National Bank and Ti mist Company of Ch2cago, 71 N L R B. 503, and Matter of Shepherd Tractor and Equipment Co, 65 N L R B 3S 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performing substantially all the secretarial duties required by these officers. During the balance of their time, the secretary to the president works in the cable department and the secretary to the treasurer prin- cipally handles claims problems. Inasmuch as the president and the treasurer admittedly exercise "managerial" functions in the field of labor relations, and inasmuch as they appear to rely on the individuals in issue to perform substantially all secretarial work incidental to the discharge of these functions, we are of the opinion that the latter are employed in a confidential capacity, and we shall, therefore, exclude the secretary to the president and the secretary to the treasurer from the unit." Department heads: The CIO contends that the Employers' depart- ment heads 7 should be excluded as supervisory employees. The Em- ployers' operations at their New York City offices are divided or- ganizationally into various departments, which include the purchasing sections, such as the India, Africa-Australia, Newfoundland-Iceland, Mexico, China-Asia-New Zealand, and South Africa departments, and the miscellaneous office and clerical divisions, e. g., the accounting, con- tract, licensing, quotation, export management, traffic, billing, and sales promotion departments. The heads of these departments assign work to, and are responsible for the output of, groups of approximately 3 to 35 employees, and, in addition, are charged with the instruction and orientation of new personnel. The record discloses that, although they spend a substantial portion of their time performing the same type of functions as their fellow employees, the department heads are paid wages up to 50 percent more than the average received by the next highest paid employees in their respective departments; that they fre- quently grant employees time off for short periods; that they repri- mand employees for failure to attend to assigned tasks; that they have authority to direct employees to work overtime, for which pay- ment is made by the Employers; and that they are regarded by some of their fellow workers as the representatives of management in the de- partments.8 Furthermore, the record indicates that, other than the department heads, there is no intermediate supervision between the treasurer, aided by his 2 personnel assistants, and the approximately 171 office and clerical employees of Dayton and 21 such employees of Muller. Under these circumstances, we are of the opinion that the de- partment heads are supervisory employees within the Board's usual definition of that term, and, accordingly, we shall exclude them from the unit., 8 Cf Matter of S T. Johnson Company/, 67 N. L R B 1330 , Matter of Servel, Inc, 65 N. L R B. 1067 , and Matter of Star Watch Case Company, 61 N L R B 1389 7 This term , as used herein , embraces only those clerks glade 3 and buyers grade 3 who are in charge of the Emplo3 ers' departments 8 The Employers ' treasures testified that the department heads were acting beyond the scope of their authority in granting time off and in reprimanding employees. 9 Cf. Matter of Union Underwear Company, Inc , 63 N. L . R. B. 92. DAYTON, PRICE & COMPANY, LTD. 153 We find that all office and clerical employees of the Employers at their New York City offices, excluding the secretary to the president, secretary to the treasurer, executives, department heads, and all other supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effec- tively 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 10 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Dayton, Price & Company, Ltd., and Muller & Phipps (Asia), Ltd., both of 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 employ- ees in the unit found appropriate in Section IV, above, who were em- ployed 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 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 United Office and Professional Workers of America, Local 16, CIO, or by Inde- pendent Employees Association of Dayton, Price & Company, Ltd., and Muller & Phipps (Asia), Ltd., for the purposes of collective bar- gaining, or by neither. CiIAiRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election. 10 Any participant in the election herein may, upon its prompt request to, and apps oval thereof by, the Regional Director, have its name removed from the ballot.