Paul Finkelstein Sons, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1939

13 N.L.R.B. 727 (N.L.R.B. 1939)

In the Matter Of PAUL FINKELSTEIN SONS, INC. and UNITED WHOLE-
SALE & WAREHOUSE EMPLOYEES OF NEW YORK , LOCAL 65, U. R.
W. E. A., C. I. O.
Case No. R-1387.-Decided July 19, 1939
Dry Goods and Piece Goods Jobbing and Auctionee7sng Industry-Invest-iga-
tion of Representatives: controversy concerning representation of employees :
employer's refusal to recognize petitioning union as exclusive bargaining agent-
Unit Appropriate for Collective Bargalainq: lotters, helpers, and bookkeeper
employed on casual per diem basis; stipulation as to-Representatives: eligi-
bility to participate in choice : individuals first employed during strike-Election
Ordered
Mrs. Hilda Shea, for the Board.
Mr. Frederick L. Weisler, of New York City, for the Company.
Mr. Harry Sacher, by Mr. Samuel M. Sacker, of New York City.
for the Union.
Mr. David Findling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 9, 1939, United Wholesale & Warehouse Employees of
New York, Local 65, U. R. W. E. A., C. I. 0., herein called the Union,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Paul Finkel-
stein Sons, Inc.,' New York City, herein called the Company, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On March 22, 1939, the National Labor
Relations Board, herein called the Board, acting pursuant to Sec-
tion 9 (c) of the Act and Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, or-
dered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
1 The name of the Company is erroneously set forth in the petition as "Paul Finkelstein
Sons."
13 N. L R B., No 81.
727
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 21, 1939, the Regional Director issued a notice of hear-
ing, on April 28, 1939, a notice of change of time of hearing, and
on May 11, 1939, a notice of change of place of hearing, copies of all
of which were duly served upon the Company and upon the Union.
Pursuant to the notices, a hearing was held at New York City on May
15, 16, and 17, 1939, before William Seagle, the Trial Examiner
duly designated by the Board. The Board, the Company, and the
Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and to cross-examine wit-
nesses , and to introduce evidence bearing on the issues was afforded
all parties . During the course of the hearing the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rul-
ings are hereby affirmed. After the hearing the Company filed a
brief with the Board which has also been considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Paul Finkelstein Sons, Inc. is a New York corporation, maintain-
ing its office and place of business in a store and basement at 448
Broadway, New York City. The Company's business is that of
jobber and wholesale auctioneer of dry goods, piece goods, trimmings,
and similar merchandise."'erchandise. " ' Approximately one-third of its sales are
made as auctioneer for the account of other persons and corporations;
approximately two-thirds of its sales are made for its own account
and are conducted principally by public auction.2
In 1938, which was a representative year, the gross value of the
Company's sales on its premises was $136,720.54, of which approxi-
mately 29 per cent was shipped to points outside of New York State.
In the same year, the gross value of the Company's sales conducted
off its premises, totaled $61,526.01 of which approximately 16 per
cent was shipped to points outside of New York State. The gross
value of Company purchases in 1938 totaled $106,181.54 of which
at least $6,018 was purchased and shipped from sources outside of
New York State.
II. THE ORGANIZATION INVOLVED
United Wholesale & Warehouse Employees of New York, Local 65,
is a labor organization affiliated with the United Retail & Wholesale
2 Only from 15 to 25 per cent of total sales are private sales.
PAUL FINKELSTEIN SONS, INCORPORATED 729
Employees of America, which is in turn affiliated with the Congress
of Industrial Organizations. Local 65 maintains a separate division
for employees of wholesale auctioneers, and admits to its membership
all persons who are employed "in and about any wholesale, ware-
house or any other central distributive establishment." 3
III. THE QUESTION CONCERNING REPRESENTATION
Prior to the filing of its petition, the Union requested the Com-
pany to recognize it as the exclusive representative for collective
bargaining of all of the casual per diem lotters, helpers, and book-
keepers employed by the Company and to enter into a written agree-
ment with the Union covering the hours, wages, and conditions of
employment of such employees. The Company refused on the ground
that these employees did not by themselves constitute a unit appro-
priate for collective bargaining.
We find that a question has arisen concerning 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, and substantial
relation to trade, traffic, and commerce among the several States, and
has led to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
The Company employs four persons who are paid on a weekly basis
and who work throughout the year. It also employs on a casual per
diem basis, for particular auctions, a special bookkeeper and a vary-
ing number of lotters and helpers, who sort and divide the goods
into lots preparatory to sale and who handle, ship, and rearrange
the goods during and after sale.
During the hearing the Company and the Union stipulated that
the appropriate unit for purposes of collective bargaining should be
composed of the foregoing class of persons employed by the Com-
pany on a casual per diem basis. We see no reason to change the
unit thus agreed upon.
We find, therefore, that the casual per diem lotters, helpers, and
bookkeeper employed by the Company constitute a unit appropriate
for, the purposes of collective bargaining and that said unit will
8 The record does not show the territorial jurisdiction of the Union.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure to employees of the Company the full benefit of their right to
self-organization and to collective bargaining and otherwise effectil-
ate the policies of the Act.
VI. THE DETERN11NATION OF REPRESENTATIVES
It was stipulated at the hearing and we find that the question con-
cerning representation in this case should be resolved by an election
by secret ballot to be conducted by the Board to determine whether
or not the majority of the employees in the appropriate unit wish
the Union to represent them.
It was also stipulated at the hearing that the persons whose names
appear in Appendix A should be eligible to vote, and that the Board
should decide whether or not the four persons whose names appear
in Appendix B should also be permitted to vote. It was further
agreed that all of the persons whose names appear in these appen-
dices have been casual per diem employees of the Company at some
time since 1937 and were qualified and available for employment.
The Union objected to the eligibility of the persons whose names
appear in Appendix B on the ground that they were first employed
by the Company in connection with auction sales held after August
10, 1938, when other casual per diem lotters and helpers of the Com-
pany were on strike as a result of the refusal of the Company to
enter into a written agreement with the Union. Of the persons
whose names appear in Appendix A, however, some were first em-
ployed by the Company in connection with sales held after August
10, 1938, and others worked at every auction sale which the Company
conducted after that date, irrespective of whether a strike was then
in progress. Under the circumstances, we see no basis for denying
the right to vote to the persons named in Appendix B. We, there-
fore, find that all persons whose names appear on Appendix A and
Appendix B are eligible to vote in the election which we shall direct.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Paul Finkelstein Sons, Inc., New York
City, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. The casual per diem lotters, helpers, and bookkeeper of the
Company constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the National
Labor Relations Act.
PAUL TINNELSTEIN SONS, INCORPORATED 731
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 Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as a part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with
Paul Finkelstein Sons, Inc., an election by secret ballot shall be
conducted within fifteen (15) 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 Regulations-Series 2, among the casual per diem lotters, help-
ers, and bookkeeper employed by the Company, whose names appear
in Appendix A and Appendix B, to determine whether or not they
desire to, be represented by the United Wholesale & Warehouse
Employees of New York, Local 65, U. R. W. E. A., C. I. 0., for the
purposes of collective bargaining.
APPENDIX A
Louis Kaplan
Julius Blaustein
Solomon Don
Abraham Gross
Harry Kutner
Sol Lazar
Arthur Mildenberg
1. Singer
E. Wolpiansky
(also known as Wolf)
Morris Peist
Chris Meyer
Harry Haas
Louis Brill
Abraham Glass
Al Godt
Karl Littman
Dominick Simonetti
Herman Schwartz
Morton Gasworth
Joe Mayerson
Elias Valencia
APPENDIX B
Fred White S. S. Bubb
Peter Prill James Doyle