Elizabeth Arden, Inc.

National Labor Relations Board - Board DecisionsFeb 13, 1946

65 N.L.R.B. 1034 (N.L.R.B. 1946)

In the Matter of ELIZABETH ARDEN, INC., AND ELIZABETH ARDEN SALES CORPORATION and COSMETIC , SOAP & PERFUMERY WORKERS UNION, LOCAL No. 20646, AFL Case No. 2-R-5762.-Decided February 13, 1946 Townley, Updike and Carter , by Mr. Weymouth Symnnes; and Andrews, McCarthy and Muss, by Mr. David Muss; all of New York City, for the Company. Buitenkant and Cohen , by Messrs . Jacques Buitenkant and Arnold Cohen, and Mr. Samuel Sandermcsn , all of New York City, for the Union. Mr. Oscar Geltman , of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF/ THE CASE Upon a petition duly filed by Cosmetic , Soap and Perfumery Workers Union, Local No. 20646, AFL, herein called the Union, alleg- ing that a question affecting commerce had arisen concerning the repre- sentation of employees of Elizabeth Arden, Inc., and Elizabeth Arden Sales Corporation, both of New York City, herein called the Com- panies, the National Labor Relations Board provided for an appro- priate hearing upon due notice before Robert A. Levett, Trial Examiner. The hearing was held at New York City, on August 30, 1945, and September 7,1945. The Companies and the Union appeared and participated . All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evi- dence bearing on the issues . The Trial Examiner 's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES Elizabeth Arden, Inc., a New York Corporation maintaining its principal office in New York City, is engaged at a plant in Long 65 N. L R. B, No 185 1034 ELIZABETH ARDEN, INC. 1035 Island City, in the borough of Queens, New York City, in the manu- facturing of powders, colognes, cosmetics, and other toilet goods articles. This Company maintains a warehouse in the building in which its plant is located, and 3 additional warehouses within a radius of 1 mile of the plant. During the year 1944, this Company used raw materials , consisting chiefly of alcohols, oils, pigments and packaging supplies, valued in excess of $1,000,000, of which approximately 25 percent was shipped to it from points outside the State of New York. During the same period this Company produced finished products valued in excess of $1,000,000, of which approximately 50 percent was shipped to points outside the State of New York. Elizabeth Arden, Inc., admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. Elizabeth Arden Sales Corporation, a Delaware corporation main- taining its principal office in New York City, is engaged chiefly in the sale and distribution of products of Elizabeth Arden, Inc., by means of sales offices and salons located throughout the United States. This Company conducts production, distribution, and warehouse oper- ations in the same plant and warehouses in Long Island City, in the Borough of Queens, New York City, described above, where the activ- ities of Elizabeth Arden, Inc., are conducted. During the year 1944, this Company obtained products and materials consisting chiefly of toilett goods, cosmetics, and women's apparel and accessories, valued in ex, ( ss of $500,000, of which more than 50 percent was shipped to it front points outside the State of New York. During the same period this Company sold and distributed products valued in excess of $500,- 000, of which more than 50 percent was shipped to points outside the State of New York. Elizabeth Arden Sales Corporation admits, and we find, that it is engaged in commerce within the meaning of the National Labor Rela- tions Act. II. TIIE ORGANIZATION INVOLVED Cosmetic, Soap and Perfumery Workers Union, Local No. 20646, affiliated with the American Federation of Labor, is a labor organ- ization admitting to membership employees of the Companies, M. TIIE QUESTION CONCERNING REPRESENTATION The Companies have refused to grant recognition to the Union as the exclusive bargaining representative of their employees until the Union has been certified by the Board in an appropriate unit. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Companies and the Union agree that all employees at the Long Island City plant and warehouses of both Companies, including em- ployees listed on Appendix A, annexed hereto, and excluding em- ployees listed on Appendix B, annexed hereto, constitute a unit ap- propriate for the purposes of collective bargaining. They disagree only with respect to the inclusion in or exclusion from the unit, of office clerical and factory clerical employees, discussed below. The Companies seek to include all of these employees, while the Union contends that they should all be excluded. Office clericals: These consist of stenographers, pay-roll and per- sonnel clerks, stock control clerks, and order and tabulating depart- ment employees. All of these employees are, stationed and spend most of their time in office sections in the Companies' factory build- ing. They perform clerical functions only, under the immediate supervision of office supervisors. In accordance with our usual prac- tice of segregating office workers from production and maintenance workers for collective bargaining purposes, we shall exclude these employees from the unit.2 Factory clericals: These consist of shipping department clerical employees, novelty department clerks, and the returns department clerk. All of these employees are stationed in factory departments, in the Companies' factory building. The novelty department clerks devote approximately half of their time to the performance of man- ual or physical work, and the balance to clerical work. The shipping 'The Field Examiner reported that the Union submitted 208 cards ; that the names of 198 persons appearing on the cards were listed on the Companies ' pay rolls of July 1, 1945, which contained the names of 670 employees in the appropriate unit ; that 186 of the cards were dated May, June, July , and August 1945 ; and that 12 cards were not dated Counsel for the Companies moved to strike the Field Examiner ' s statement from the record, on the ground that the Companies had had no opportunity , by cross -examination of the Field Examiner and otherwise , to examine into the question as to whether the Union represented a-substantial number of the Companies ' employees in an appropriate unit ( a) on the basis of the Companies' pay rolls for July 1, 1945 , and (b ) on the basis of the Companies ' pay rolls for August 29, 1945, the day preceding the hearing. This motion was properly denied See Eighth Annual Report , page 44 ; Matter of Gaylord Bros., Inc, 64 N. L R. B. 1350 We find that the authorization cards examined by the Field Examiner , and the pay rolls for July 1, 1945, against which they were checked , are suffi- ciently current to indicate a present substantial representation by the Union among the Companies ' employees. 2 Matter of Procter and Gamble Manufacturing Company , 62 N. L . R. B 1202. See also Matter o f E B. Gunzberg , Jacob Mandell, Sidney Schetinman and .Arnold Scheinman, d/b/a Bridge Metal Products Co., 62 N. L . R. B 644 ELIZABETH ARDEN, INC. 1037 department clerical employees and the returns department clerk do clerical work only. All of these employees work in close and con- tinuous contact with the manual or physical workers in their depart- ments, and are apparently under the supervision of factory foremen or supervisors who are in charge of these production departments. It is clear that the interests of these employees are closely related to the interests of the Companies' production and maintenance workers. We shall include them in the unit.3 We find that all employees at the Companies' Long Island City, plant and warehouses, including the employees listed on Appendix A, shipping department clerical employees, novelty department clerks, and the returns department clerk, but excluding the employees listed on.Appendix B, stenographers, pay-roll and personnel clerks, stock control clerks, order and tabulating department employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees,, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. 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 9, of National Labor Rela- tions Board Rules and Regulations- Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Elizabeth Arden, Inc. and Elizabeth Arden Sales Corporation, 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 Se cond.Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of, said Rules and Regulations, among the employees in the unit found 3 Matter of Procter and Gamble Manufacturing Company, 62 N. L. R. B . 1262; Matter of Rocl ford Sci ew Products., 62 N. L. R. B. 1430 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate in Section IV, above, who were employed during the pay- roll period immediately preceding the date of this Direction, includ- ing 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 them- selves in person at the polls, but excluding any 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 Cosmetic, Soap, and Perfumery Workers Union, Local No. 20646, AFL, for the purposes of collective bargaining. APPENDIX A Assembler I. Assembler II. Assembler III. Chemical Compounder. Chemical Compounder Helper. Machine Maintenance Mechanic. Packaging Line Attendant. Packager, Labeller and Filler I. Packager, Labeller and Filler II. Packager, Labeller and Filler III. Porter, Service and Mainte- nance. Stock Handler and Warehouse Clerk I. Stock Handler and Warehouse Clerk II. Stock Handler and Warehouse Clerk III. Watchman and Guard II4 Working Foreman 1.5 Working Foreman 11.5 Order Picker. Case and Parcel Post Packer II. Packer I. Traffic Clerk. Shipping Clerk. Stock Clerk. Checker and Section Manager.5 Inspector.' Chauffeur. Messenger. Permanent Part time em- ployees. Service and maintenance em- ployees. APPENDIX B Working Foreman 111 .6 Industrial Nurse. Chemists. Coordinators and expediters. Temporary employees.7 Supervisory employees above the level of working foremen. a These employees are not militarized or deputized. These employees have no supervisory functions. 6 These employees have supervisory functions. 7 These employees consist principally of students, who work during holidays and vacation periods.