Imperial Textile Co. of New York, Inc.

IMPERIAL TEXTILE CO. 675 Imperial Textile Company of New York, Inc. and District 65, Retail, Wholesale and Department Store Union, AFL-CIO. Case 2-RC-14527. May 16, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Joel P. Biblowitz. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 2, this case was transferred to the National Labor Relations Board for decision. A brief has been filed by the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the reasons noted below: The parties agreed that the appropriate unit would consist of "all warehouse employees, including shipping and receiving employees and stock employees," with the usual exclusions. This unit presently consists of two individuals and the Employer claims that one of these two, Roger Archer, is a supervisor and therefore the unit contains only one employee and the petition should be dismissed. The Employer is a textile converter. It purchases what are known as "grey goods," has them printed, and sells these printed goods to customers through salesmen. The operations consist of a sales department, an office department, and a warehouse department which is the subject of the instant petition. The warehouse operation consists of the placing of goods in stock, the keeping of inventory records, the preparation of goods for samplemakers, the receipt of orders from customers based on the sample books, and the filling and shipping of these orders. According to his testimony, Archer's work is equally divided between sample work (preparing the format of the sample book and sending it to the samplemaker to put together) and the receiving, grading, and placing in stock of goods. John Tucker, the other individual employed in the warehouse department, is primarily concerned with the filling and shipping of customer orders. Imperial Textile has two owners, Eli Bell and Bernard Levine. Bell has overall responsiblity for the selling operations while Levine oversees the operations of the New York office. The record indicates that Archer receives $120 per week in salary, which does not vary regardless of the number of hours he works. 2 Archer also determines his own working hours and is paid approximately the same salary as the Employer's office supervisor. Tucker receives $85 per week, is compensated at time and a half for overtime work, has fixed working hours, and receives his instructions as to when overtime work is necessary through Archer. Moreover, in contrast to Tucker, Archer has the keys to the Employer's premises and the authority to pledge independently the Employer's credit for the purchase of supplies. It is apparent that Archer plays a substantial role in the hiring of new employees for the warehouse. He interviews job applicants to determine their educational and vocational qualifications, discusses probable salary ranges, and evaluates his own ability to function compatibly with the potential employee. Archer makes effective recommendations regarding these matters to the Employer. In addition, on at least one occasion, Archer made an effective recommendation regarding a wage increase for a warehouse employee. There is conflicting testimony on Archer's role in the discharge of the warehouse employees. However, the record clearly indicates that he is consulted in regard to discharge decisions. Partner Levine is an active participant in the business and he testified that he is in and out of the warehouse department at least 50 times a day. Levine seeks information on various aspects of the business operation such as the status of inventory records, and he also checks on the progress of certain orders with which he is especially concerned. Although Archer consults Levine when a difficult decision concerning the warehouse operation must be made (such as grading the quality of a particularly ambiguous piece of goods), Archer In view of the disposition of this case, the Board does not deem it necessary to pass on the hearing officer's denial of the Employer's request before cross-examination for production of an affidavit The affidavit was taken in connection with a prior unfair labor practice case which was settled informally, involving the 164 NLRB No. 83 same parties and the same issue ' In the past, Archer had customarily received bonuses in appreciation for overtime work but he has not received one since March 1966 298-668 0-69-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directs the functioning of the warehouse operation. Tucker's testimony revealed; that he has always accepted instructions from Archer without question in regard to the necessity for working overtime, the priority of orders to be filled, the running of neces- sary errands, the personal delivery of goods within the area, and the actual physical labor involved in the receipt of goods.4 Archer is not merely a receiving clerk and Tucker a shipping clerk as the Petitioner contends. Archer's functions in regard to the priority of orders to be filled, his designation of Tucker to perform necessary errands in regard to the warehouse operation, and the fact that Tucker performs the actual physical labor involved in the receipt of goods preclude such stereotyped vocational descriptions for these two individuals. Although Archer's authority is circumscribed to some extent by the presence of partner Levine, he exercises sufficient independent judgment and responsibly directs employee John Tucker to a degree sufficient to cloak him with supervisory status. On the basis of ' Particular credence must be given the testimony of John Tucker on the subject of Archer's authority since Tucker was clearly hostile to the Employer's position on Archer's supervisory status 4 Imperial's premises are on the fifth floor and goods are the foregoing considerations and the record as a whole, we find that Roger Archer is a supervisor within the meaning of the Act. Our finding that Roger Archer is a supervisor within the meaning of the Act reduces the number of individuals which the Petitioner seeks to represent to one employee. The Board has consistently held that it will not certify a one-man unit because the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain. Therefore, the Act does not empower the Board to certify a one-man unit.5 As the stipulated unit consists at most of two individuals and we find that one of the individuals is a supervisor within the meaning of the Act, the unit requested by the Petitioner is inappropriate for the purposes of collective bargaining. Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed. delivered to the sidewalk and must be brought upstairs Tucker testified that he invariably performs this function ' See, for example, Foreign Car Center, Inc , 129 NLRB 319, Joe White IGA, 154 NLRB 1