Russ Togs, Inc.

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R. & M. Kaufmann, a division of Russ Togs, Inc.' and District 65, Wholesale, Retail, Office and Process- ing Union, Petitioner. Case 13-RC-11887 December 10, 1970 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Arthur B. Muchin. Briefs were filed by the Employer and by the Petitioner. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed.2 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 Petitioner, District 65, Wholesale, Retail, Office and Processing Union, herein called the Petitioner or District 65, seeks to be certified as representative of a unit of the Employer's traveling commission sales employees. The Employer contends that District 65 is not a labor organization qualified to act as representative of these employees because of its affiliation with NAWCAS,3 which the Board, in the Bambury case,4 found to be affiliated with a conflict of interest such that it is disqualified from acting as a labor organization representative of such employees.5 The record shows that in December 1967 NAW- CAS Guilds and District 65 entered into a certain contract of affiliation under which these two organi- zations might jointly engage in efforts to secure collective-bargaining representation for apparel sales- men. The group thus formed became known as NAWCAS-District 65, which in March 1969 request- ed the Employer to recognize it as collective-bargain- i The Employer's name appears as corrected at the hearing 2 Following the transfer of this proceeding to the Board the Employer filed a motion to admit into evidence two additional exhibits which allegedly came to its attention after the hearing in this case was adjourned The Petitioner filed a motion in opposition to the Employer's motion These exhibits, offered long after the hearing in this case had closed, appear to constitute hearsay evidence as to the Petitioner's position in this proceeding and, as the Petitioner objects to their admission, we reject them ' National Association of Women's and Children's Apparel Salesmen, Inc. 4 Bambury Fashions, Inc, 179 NLRB No 75 5 The Board, in Bambury, dismissed several petitions filed by NAWCAS ing agent for the Employees traveling apparel salesmen. The Employer denied this request, asserting that it doubted that NAWCAS-District 65 was a labor organization within the meaning of the Act. Subse- quently, in May 1969, NAWCAS-District 65 with- drew this recognition request and District 65 alone requested the Employer to recognize it as representa- tive of the Employer's traveling apparel salesmen. The Employer refused to grant such recognition on the ground that it deemed District 65 to be merely fronting for the affiliated organization NAWCAS- District 65. The Petitioner, District 65, then, on May 26, 1969, filed its petition in this proceeding with the Board.? In its opposition to this petition the Employer points to the attempt by NAWCAS, over a period of years, to enter the field of collective bargaining, and particularly its efforts to gain the benefits of collective bargaining through a joining of its efforts with the long-established labor organization, District 65. The Employer asserts that the affiliation of NAWCAS and District 65 through the contract executed in 1967 essentially resulted in uniting these two organizations in a manner such that District 65's petition for representation of apparel salesmen is in effect also a NAWCAS petition, by reason of which it follows that District 65 is likewise tainted with the stigma of disqualification which the Board found to attach to NAWCAS in its Bambury decision. District 65, however, points to the fact that despite its execution of the 1967 agreement with NAWCAS, it has continued to exist as a separate labor organiza- tion, having its own constitution, officers, and organizational structure, that it has continued sepa- rately to engage in the representation of employees for collective bargaining, and that here it asks for certification of itself alone as representative of the employees involved in this proceeding. We find merit in District 65's position. We have carefully reviewed the entire record and also have taken official notice of our own proceedings, which show that over a period of years District 65 has appeared and been recognized as a labor organization in proceedings before this Board, including such an appearance as recently as 1970,8 quite independently of NAWCAS. We find that Petitioner is an existing and District 65 as joint petitioners on the ground that NAWCAS' interest in representing employee salesmen conflicts substantially with its primary interest in coordinating and strengthening trade show activities for independent contractor salesmen who are engaged in the business of selling apparel in direct competition with apparel manufacturers 6 This is the name under which NAWCAS sought to constitute itself a labor organization and to engage in collective-bargaining activities r This petition was held in abeyance pending the Board's determination in the Bambury case, supra, following which the parties filed briefs relating to the effect of the Board's decision in that proceeding upon the merits of District 65's petition in the present case 8 New York Paper Cutters & Bookbinders Union No 119, 182 NLRB No 187 NLRB No. 20 R. & M. KAUFMANN 135 separate labor organization and conclude that it is Petitioner's willingness itself to function as a bargain- ing agent which is the controlling factor in these circumstances. We shall therefore direct an election upon District 65's petition. However, if Petitioner is certified and refuses to maintain an independent course in representing unit employees, or if in bargaining the Employer has grounds for believing that District 65 is acting as an agent for another organization, the Board, pursuant to its authority to police its certifications, may examine Petitioner's conduct when the Board's established procedures are appropriately invoked for such purpose. 3. We find that a question affecting commerce exists concerning the representation of certain em- ployees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner contends that the appropriate unit consists of all the Employer's traveling commis- sion sales employees. The Petitioner would exclude the Employer's resident sales employees contending, in part, that some of them are managerial employees or supervisors. The Employer contends that the unit should include the resident sales employees. The Employer employs approximately 23 traveling commission salesmen, each of whom sells ladies' garments manufactured by the Employer to retailers located within a territory specified in the salesman's employment contract.9 These salesmen are compen- sated solely by commissions, are required to purchase their samples, and pay their own traveling expenses. The Employer assigns a sales quota to each traveling commission salesman and promotes competition among the salesmen to meet and exceed their quotas. There are six resident sales employees, as follows: Adrian Altschul is located at the Employer's sales office and showroom in Chicago. He is designated as a vice president of the Employer in charge of styling and is employed under a contract totally unlike those of the traveling commission salesmen, which desig- nates him as an executive and holds him responsible for performing the duties of an executive officer.10 Under the contract he is paid a salary and is eligible to participate in stock option, bonus, extra compensa- tion, and pension and group insurance plans. A part of his time, he travels to service "house accounts" and is entitled, under his contract, to a specified commis- sion on all merchandise sold by the Employer to certain departments of downtown stores in several principal cities and on certain other selected accounts. When he travels, his samples are provided without 3, issued April 17, 1970, determining a jurisdictional dispute in the printing industry 9 These employment contracts are in some respects similar, but not identical , to the standard contract set forth in the decision in Bambury, supra In particular, the language there cited as indicative of independent contractor status does not here appear And no party here contends that expense, and his traveling and entertainment expen- ses are to a considerable extent reimbursed. Joel Kaufmann is the son of the president of R & M Kaufmann, which, until it became a division of Russ Togs, was a closely held family corporation in which he was a stockholder. He is designated as a vice president in charge of styling. Like Altschul, he is employed at Chicago under a contract calling for executive duties and participation in the Employer's various stock option and other plans. He also sometimes travels to service "house accounts" and is entitled under his contract to a commission on all merchandise sold in certain departments of down- town stores in several principal cities. His samples are likewise provided and his travel expenses are reim- bursed. Ronald Kaufmann, also a son of R & M Kaufmann's president and a stockholder in the family corporation prior to its acquisition by Russ Togs, is assigned to the New York showroom. He travels occasionally to service "house accounts," and on these occasions he is provided with samples and reimbursed for his travel and entertainment expenses. But he receives no compensation other than a salary. The record shows that he is listed as a company stockholder and is classified as a management trainee. Robert Gould is located at the New York showroom, carries the title of sales manager,11 and participates in the executive pension plan. He is compensated entirely by salary, and is reimbursed for his expenses in event he travels or entertains. Constance Wojsiat is employed at the New York showroom and June Keeshin at the Chicago sales- room. Both perform clerical functions and assist to some extent in selling. They also perform the duties of receptionist. Both are paid exclusively by salary, at a rate substantially below that of the other employees herein discussed. Unlike the traveling commission salesmen, all the resident salesmen are paid in whole or in part by salary. Those who sometimes travel do so mainly to service house accounts. They work mostly during regular hours and are given regular vacations, paid holidays, and sick leave. They are not subject to assignment of sales quotas. In view of all the facts, including those set forth above with respect to the individual resident sales employees, we conclude that it is unnecessary to determine here the specific issues raised with respect to those who are alleged to possess managerial or supervisory status, since in any event we find as to all the resident sales employees that their the traveling commission salesmen are other than employees of the Employer 10 The contract does not, however, specify the precise nature of such executive duties 11 The Employer asserts that this title was adopted merely to impress the customers 136 DECISIONS OF NATIONAL LABOR RELATIONS Bf ARD conditions of employment and their interests are sufficiently divergent from those of the traveling commission salesmen that they are properly excluded from the traveling salesmen's unit. Accordingly we find that the following constitutes a unit appropriate for collective-bargaining purposes: Accordingly, we find the following unit to be appropriate: All traveling commission sales employees em- 12 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236; N LR B. v Wyman-Gordon Company, 394 U S. 759. Accordingly, it is hereby directed that an election eligibility list containing the names and addresses of all the eligible voters must be ployed by t se Employer, excluding all other employees, resident sales employees, showroom employeeF, factory employees, office employees, shipping and receiving employees, stock employ- ees, trucking employees, guards and supervisors as defined in the Act. [Direction of election 12 omitted from publication.] filed by the Employer with the Regional Director for Region 13 within 7 days of the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election No extension of time to file the list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed