Lewis Supply Co. Inc.

National Labor Relations Board - Board DecisionsApr 24, 1946

67 N.L.R.B. 712 (N.L.R.B. 1946)

In the Matter of LEwIs STTPPLY COMPANY INCORPORATED and WHOLE- SALE & WAREHOUSE WORKERS UNION, LOCAL 65, C. I. O. Case No. 2-R--6236.Decided April 24, 1946 dir. Louis Braun, of New York City, for the Company. Messrs. .11 Evanoff and Leonard 11. TVaeker, of New York City, for the Union. Mr. Harry R. Eh rli(h. of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TILE CASE Upon an amended petition duly filed by Wholesale & Warehouse Workers Union, Local 65, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concerning the repre- sentation of einployees of Lewis Supply Company Incorporated,' New York City, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon clue notice before William T. Little, Trial Examiner. The hearing was held at New York City, on March 11, 1946. The Company and the Union appeared and participated. All panties 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 opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Lewis Supply Company Incorporated is a New York corporation with its principal office and place of business in New York City, where it is engaged in the business of wholesale purchase and sale of bicycles and bicycle and baby carriage parts and accessories. During 1945 the I At the hearing the name of the Company was amended as designated above. 67NLRB,No92 712 LEWIS SUPPLY COMPANY INCORPORATED 713 Company purchased component and replacement parts for bicycles and baby carriages and other products involved in excess of $100,000, of which approximately 90 percent was shipped to it from points out- side the State of New York. During the same period, the Company's total sales amounted in excess of $2,50,000, of which approximately 50 percent was shipped by it to points outside the State of New York. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Wholesale & Warehouse Workers Union, Local 65, is a labor organ- ization, affiliated with the Congress of Industrial Organizations, ad- mitting to membership employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of employees 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. 1V. THE APPROPRIATE UNIT The Union contends that the appropriate unit should consist of all shipping and production employees of the Company, excluding office employees, salesmen, officers of the Company, executives, and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. The Union and the Company agree that office employees and outside salesmen who do not confine themselves to sell- ing the Company's product exclusively and who are paid on a com- mission basis are properly excluded from the unit. The Company contends, however, that its production employees constitute a separate unit from its shipping employees, and that certain employees whom the Union would exclude should be included in the unit. Bicycle assemblers: The Company, in addition to its wholesale buy- ing and selling, assembles imported bicycles which it purchases dis- ' The Field Examiner reported that the Union submitted three cards of the Company's employees There are approximately five employees in the appropriate unit. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mantled; it employs two assemblers at this work. The foregoing comprises its production operations. The record discloses that there is an interchange of personnel between the production and shipping departments, and that the Company has a policy of offering production employees work in the shipping department rather than lay them off when no work is available. In view of the foregoing, we find that the shipping and production employees together constitute a single appropriate unit. Gin.sbvey and Schulman: These employees devote 60 percent of their time to sales work outside the Company's salesroom. When working at the salesroom, they wait on buyers, and perform clerical work; on occasion they also perform soiree shipping work. They are paid on it commission basis on sales made away from the Company's salesroom plus a 1 percent override as compensation for time spent in the sales- room. It would appear from the foregoing that the interests of these employees are more closely related to the other salesmen whom the parties agreed to exclude. We shall exclude them from the unit. T>iGaetano and Hess: Although they perform some shipping duties, these employees spend the majority of their time in waiting on buy- ers at the Company's salesroom and in performing clerical and admin- istrative duties. They generally occupy desks in the company office, read mail, dictate letters, verify prices charged buyers on invoices, and allot quantities of scarce items to buyers. They both receive substantially higher pay than the shipping employees.3 We shall exclude them from the unit. We find that all shipping' and production employees of the Com- pany, excluding office employees, salesmen.' officers of the Company, executives, and all supervisory employees with authority to hire, pro- mote, 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 mean- ing of Section 9 (b) of the Act. V. Till; DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. ' Thev are each paid $75 per week whereas the three shipping department employees Lange from $35 a week tot an inexperienced man to $55 for the oldest employee. ' Excluding Salvatore DiGaetano and Reginald Hess 5 Including Rube Ginsburg and Simon C Schulman LEWIS SUPPLY COMPANY INCORPORATED DIRECTION OF ELECTION 715 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain represent- atives for the purposes of collective bargaining with Lewis Supply Company Incorporated, 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 super- vision 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, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- ceding 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 Wholesale & Warehouse Workers Union, Local 65, affiliated with the C. I. 0., for the purposes of collective bargaining.