New York Merchandise Co.

In the Matter of NEW YORK MERCHANDISE COMPANY, INC., EMPLOYER and RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, CIO, PETITIONER Case No. 16-R-3060.-Decided February 13, 1947 Messrs. Malone, Lipscomb, Seay d Shuford, by Messrs. Ralph Malone and Harry A. Shuford, of Dallas, Tex., and Messrs. L. H. Selby and A. Dominus, of Dallas, Tex., for the Employer. Mr. Fred H. Schmidt, of Dallas, Tex., for the Petitioner. Mr. Abraham Frank, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Dallas, Texas, on December 30, 1946, before Lewis Moore, 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 New York Merchandise Company, Inc., is a Texas corporation main- taining a place of business in Dallas, Texas, where it is engaged in the wholesaling of notions and small wares. During the first 6 months of 1946, it purchased goods in excess of $200,000, of which approxi- mately 80 percent originated from sources outside the State of Texas. During the same period it sold- goods in excess of $250,000, of which approximately 50 percent was shipped to points outside the State of Texas. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. 72 N. L. R. B., No. 114. 587 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner 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 Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. Iv. THE APPROPRIATE UNIT The parties agree generally that the appropriate -unit should consist, of all merchandising and stockroom employees, including order fillers, packers, billers, shipping clerks, switchboard operators, comptometer operators, but excluding outside salesmen, cashier, manager, assistant manager, credit manager, and all supervisory employees.' They are in dispute as to five employees hereinafter discussed. Joseph Lockman, Charles Fletcher and Drew Cross: The Petitioner would exclude the foregoing on the ground that they have supervisory authority. Lockman is attached to the stock department; his main duties consist of handling stock and filling orders. He also directs similar activities of other employees in the same department. Fletcher is attached to the sample department. Questions relating to the sub- stitution of merchandise on in-coming orders that would not otherwise be filled are referred to him. He is also a part-time salesman on the floor. Cross, in the shipping department, is responsible for the rout- ing and filling of orders to and from various departments. Other employees work with him under his direction. On the basis of the record, it is clear that none of the above-named employees has super- visory authority within the Board's customary definition thereof. Accordingly, we shall include them in the unit. Regarding Fletcher, discussed above, the Petitioner further contends that if the Board finds him to be non-supervisory, nevertheless he should be excluded as an "inside salesman." It also contends that Norvell and House, likewise should be excluded from the unit as "inside salesmen." At the hearing it appeared that none of the foregoing employees is engaged primarily in selling. Norvell and House 2 are both attached to the stock department where their work consists of cleaning stock, filling orders, display work, and part-time selling. Their duties and interests would not appear to be sufficiently dissimilar from those of other employees to warrant their exclusion from the unit. We shall therefore include them. I There are approximately 43 employees in the unit. 2 There is uncontradicted testimony that House is engaged in stock work 95 percent of the time. NEW YORK MERCHANDISE COMPANY, INC. 589, We find that all merchandising and stockroom employees of the Employer at its Dallas, Texas, plant,' including order fillers, packers,. billers, shipping clerks, stenographers, switchboard operators, comp- tometer operators, but excluding outside salesmen, cashier, manager, assistant manager, credit manager, and all or any other supervisory employees with authority to hire; promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend 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 New York Merchandise Com- pany, Inc., Dallas, Texas, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) clays from the date of this Direction, under the direction and supervision of the Regional Director foi.the Sixteenth 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 Regula- tions-Series 4, among the 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 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 or not they desire to be represented by Retail, Wholesale and Department Store Union, CIO,. for the purposes of collective bargaining. 3lncluding Lockman, Fletchei Cio^s Norvell, and House