Edward & John Burke, Ltd.

In the Matter of EDWARD & JOHN BURKE, LTD., and AMERICAN FEDERATION OF OFFICE EMPLoYEEs, LOCAL 20940 Case No. R-0963-Decided October 11, 1941 Jurisdiction : beverage importing and distributing industry. Investigation and Certification of Representatives : existence of question : stipu- lated ; election necessary. Unit Appropriate for Collective Bargaining : office employees including the assist- ant shipping and receiving clerk. White & Case, by Mr. Chester Bordeaec, of New York City, for the Company. Mr. Sidney M. Feitelbero, of New York City, for the Union. Mr. Dan. M. Byrd, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 18, 1941, American Federation of Office Employees, Local 20940, herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of Edward & John Burke, Ltd., Long Island City, New York, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 7, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On August 25, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. On September 4, 1941, pursuant •to_notice, a hearing was held at New York City, before Daniel Baker, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to 36 N. L. R. B., No. 8. 64 EDWARD & JOHN BURKE,, LTD. 65 introduce evidence bearing on the issues was afforded all parties. At the hearing, the.. Company. moved that the petition of the Union be dismissed. The Trial Examiner did not rule on the motion. The motion is hereby denied for reasons stated -hereinafter. During the course of the hearing, the Trial Examiner made various rulings on other motions and on objections to the admission of evidence.' The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 17, 1941, the Company filed a brief, which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS or FACT I. THE BUSINESS OF THE COMPANY Edward & John Burke, Ltd., a New York Corporation subsidiary of E. & J. Burke, Ltd., Dublin, Ireland, is engaged in the business of importing and distributing alcoholic liquors, malt liquors, and soft drinks. Its prise ipal place of business is at Long Island City, New York, where it maintains an office and warehouse. The Com- pany annually distributes alcoholic and non-alcoholic products amounting in excess of $1,000,000 in value, 20 per cent of which are imported from foreign countries and delivered to its warehouse at Long Island City and to other places in the State of New York and ,other States. The remaining 80 per cent of the products distributed by the Company are produced within the State of New York by other companies and delivered to warehouses of the Company and directly to customers of the Company. The Company annually distributes 41 per cent of the products sold by it to points outside the State of New York. The Company's trade-marks used in connec- tion with spirit and malt liquors are registered in the United States Patent Office. The Company concedes that it is engaged in com- merce within the meaning of the Act. 11. THE ORGANIZATION INVOLVED American Federation of Office Employees, Local 20940, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership certain employees of the Company.' ' The Company moved to dismiss the Union's petition on the ground that the Union failed to show that it is a labor organization within the meaning of the Act. It appears that the Union exists for the purpose of furthering the interests of office employees of the Company and other companies through the processes of collective bargaining, that it admits to membership such employees, that it collects dues from such employees, and that it has entered into contracts on behalf of such employees with various companies. We find the Company's contention to be without merit. The motion of the Company has been hereinabove denied 433118-42-vol. 36-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION The parties stipulated that the Union requested recognition as the exclusive representative of the Company's office employees within an alleged appropriate unit, and that the Company refused to extend such recognition until the Union has been certified by the Board. A statement by the Regional Director introduced into evidence shows that the Union represents a substantial number of employees within the unit alleged by it to be appropriate 2 We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, bnd substantial relation to trade, traffic, and commerce among the several States and foreign countries and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union contends that the appropriate unit should include all office employees of the Company at its office together with the ship- ping clerks employed by the Company in its warehouse. The Company agrees that all persons employed in its office should be. included within the appropriate unit, but opposes the inclusion of the two shipping clerks in its warehouse, Tage Johnson and John Eisele. Johnson is carried on the Company's payroll as the head shipping and receiving clerk, and Eisele is listed as assistant shipping and re- ceiving clerk. The daily duties of the two employees require them to supervise the activities of truck drivers and laborers delivering the Company's merchandise and working in its warehouse and to keep such records as are necessary. On those occasions when Johnson is absent, Eisele supplants him in authority at the Company's ware- house. Both employees are bonded, and the Company holds them entirely responsible for the efficient operation of the warehouse. They 2 The Regional Director reported that the Union submitted 10 applications for member- ship, dated between May 19 and 21, 1941, all bearing apparently genuine original signatures . The Regional Director reported further that eight signatures were names of persons on the Company 's pay roll for June 22 , 1941. This pay roll contains the names of 22 persons within the unit alleged by the Union to be appropriate. EDWARD & JOHN BURKE, LTD. 67 alone have keys to the warehouse. Prior to March 14, 1929, the Com- pany employed one Rogers as superintendent over the warehouse. Since Rogers' separation from the Company's employment, Johnson has exercised the authority and duties formerly exercised by the super- intendent. Johnson's employment record with the Company presently lists him as superintendent of the warehouse, and he has participated as a management representative in conferences with representatives of the bargaining agent for other employees in the warehouse. We are of the opinion that the duties of Johnson are of a sufficiently supervisory nature to warrant his exclusion from a unit of routine office and clerical workers. We find that Eisele should be included within the appropriate unit, since his duties are primarily of a clerical nature. We find that all office employees in the Company's office, including the assistant shipping and receiving clerk, John Eisele, constitute a unit appropriate for the purposes of collective bargaining. We find further that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTAPI4VES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. In accord- ance with our usual practice, we find that those eligible to vote in the election shall be the employees of the Company within the appropriate unit who were employed during the pay-roll period immediately pre- ceding the date of this Direction of Election, subject to such limita- tions and additions as are set forth in the Direction. Upon the basis of the above findings of fact and upon the entire rec- ord, in the case, the Board makes the folowing : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Edward & John Burke, Ltd., Long Island City, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All office employees in the Company's office, including the as- sistant shipping and receiving clerk, John Eisele, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Edward & John Burke, Ltd., Long Island City, New York, 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 Article III, Section 9, of said Rules and Regu- lations, among all office employees in the Company's office who were employed during the pay-roll period immediately preceding the, date of this Direction, including the assistant shipping and receiving clerk, John Eisele and employees who were ill or on vacation or in the active military service or training of the United States, or tem- porarily laid off, but excluding employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by American Federation of Office Employees, Local 20940, for the purposes of collective bargaining.