S. H. Grossman, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1940

26 N.L.R.B. 1283 (N.L.R.B. 1940)

In the Matter of S. H. GROSSMAN, INC. and AUTOMOTIVE PARTS
HANDLERS LOCAL UNION No. 22186, AFFILIATED WITH THE AMERI-
CAN FEDERATION OF LABOR
Case No. R-1985.-Decided August 24, 1940
Jurisdiction : automotive distribution and servicing industry.
Investigation and Certification of Representatives : existence of question: refusal
to grant recognition to union; dispute as to appropriate unit; election necessary.
Unit Appropriate for Collective Bargaining : automotive parts department em-
ployees, exclusive of the manager, assistant manager, and clerical employees.
Mr. Michael N. Chanalis and Mr. Samuel L. Steiner, of Newark,
N. J., for the Company.
Mr. Thomas L. Parsonnet, of Newark, N. J., for the Union.
Miss Charlotte Anschuetz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 20, 1940, Automotive Parts Handlers Local Union No.
22186, affiliated with the American Federation of Labor,' 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
S. H. Grossman, Inc., Newark, New Jersey, 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 July 1, 1940, 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 Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
toyprovide for an appropriate hearing upon due notice.
I Designated in the order directing investigation and hearing as "Automotive Parts Handlers Local Union
No. 22186."
26 N. L. R. B., No. 118.
1283
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 17, 1940, the.Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Union,
and the American Federation of Labor. Pursuant to the notice, a
hearing was held on August 1, 1940, at Newark, New Jersey, before
Mark Lauter, the Trial Examiner duly designated by the Board.
The Company and the Union were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, 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 Examiner and finds that no prejudicial errors were commit-
ted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
S. H. Grossman, Inc., is a New Jersey corporation engaged in the
purchase, sale, and distribution of automobiles and automotive parts
and in the servicing of automobiles. The Company maintains a new
car showroom, a service department, two used-car departments, and
a parts department. From January 1 to June 30, 1940, the Company
purchased and had shipped to it from points outside New Jersey,
automobiles and automotive parts in excess of $500,000 in value,
.constituting 60 percent of total purchases of automobiles and auto-
motive parts during this period. During the same period the Com-
pany sold and shipped to points outside New Jersey automobiles and
automotive parts in excess of $100,000 in value, constituting approxi-
mately 15 percent of the Company's total sales during this period.
The Company admits that it is engaged in interstate commerce.
The present proceeding concerns the employees, numbering ap-
proximately 19, in the automotive parts department.
II. THE ORGANIZATION INVOLVED
Automotive Parts Handlers Local Union No. 22186 is a labor
organization affiliated with- the American Federation of Labor, ad-
mitting to membership automotive parts handlers.
III. THE QUESTION CONCERNING REPRESENTATION
It was stipulated between the parties that the Union requested
the Company to bargain collectively with it, and that this request was
denied because the Company believed that recognition should be
given ,only after certification by the Board and that the unit claimed
by the Union was not appropriate.
We find that a question has arisen concerning the representation of
employees of the Company.
S. H. GROSSMAN, INC. 1285
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
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The parties stipulated at the hearing that the unit appropriate
for collective bargaining shall include all the employees in the auto-
motive parts department except Thomas Patetta, the manager of the
department. They disagree with respect to the inclusion of Dominic
Giaconia, Louis Patetta, Chester Luff, Charles Seigle, Barbara Weil,
Anna Martucci, Muriel Krasner, and Lillian Margulies.
The Union contends that Giaconia, who is assistant manager,
should be included as a parts handler, whereas the Company desires
his exclusion as a supervisory employee. He is senior parts handler
with 6, years' experience in the department. When the manager is
present, Giaconia performs ordinary non-supervisory work as a
counter salesman, waiting on customers, identifying automobile
parts, quoting prices, and "picking parts." 2 In the absence of the
manager he takes the latter's place and supervises the work of the
other employees. Although Giaconia has no authority to hire or
discharge workers the records shows that he has the authority to
make recommendations with respect thereto. W e shall exclude the
assistant manager from the appropriate unit.
The Union desires the inclusion also of Louis Patetta, telephone
operator, as parts handler. The Company takes the position that
his duties do not include the handling of parts and are analogous to
those of the clerical workers since he spends all of his time receiving
telephone orders for parts. The record shows, however, that he
performs all of the essential duties of the other parts handlers, such
as identifying parts and quoting prices, with the exception of picking
parts and putting away stock. The duties of the telephone operator
require expert knowledge of the work of the department and Patetta
was one of the most experienced parts handlers of the Company when
he was given his present position. 'We sliall include the telephone
operator in the appropriate unit.
The Company claims that the other six named employees should
be included in the unit, whereas the Union desires their exclusion.
2 This term is used in the business to designate the selection of parts from their locations in their -bins.
323429-42-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Luff and Seigle are employees who spend the major portion of their
time outside the plant, adjusting complaints or shortages, and solicit-
ing and delivering orders. When in the plant they engage in the same
work as the other employees, filling their own orders when other
workers are occupied and occasionally waiting on customers.' We
conclude, on. the basis of all the facts presented in the record, that the
interests of the salesmen are closely related to those of the other
employees within the bargaining unit, and we shall therefore include
the salesmen in the unit.4
Barbara Weil Geiselman 5 and Anna Martucci are clerical workers
whose duty it is to keep perpetual stock inventories from the cash
sales receipts. Lillian Margulies, who types bills, and Muriel Krasner,
cashier, are also clerical workers. These clerical workers do not handle
parts and we shall exclude them from the appropriate unit.
We find that all automotive parts department employees of the
Company, exclusive of the manager, assistant manager, and clerical
employees, constitute a unit appropriate for the purposes of collective
bargaining and that such 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 REPRESENTATIVES
There Was introduced in evidence at the hearing an analysis by the
Regional Director of evidence of membership submitted to him by
the Union, showing that the Union represents a substantial number of
the employees in the appropriate unit. We find that the question
which has arisen concerning representation can best be resolved by the
holding of an election by secret ballot.
We shall direct, in accordance with our usual practice, that all
employees within the appropriate unit who were employed by the
Company during the pay-roll period immediately preceding the date
of the Direction of Election, including employees who did not work
during such pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, but
excluding those who have since quit or been discharged for cause, shall
be eligible to participate in the election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
3 Although the Union claims that Luff and Seigle are road salesmen and are therefore not eligible to mem-
bership in the Union, it appears from the record that the Union agrees to include in the bargaining unit a
truck driver who spends a condiserable portion of his. time outside the department.
r Matter of Lidz Brothers , Incorporated and United Wholesale Employees (Local No. 65), 5 N. L. R. B. 757;
Matter of News Syndicate Co., Inc. and Newspaper Guild of New York, 4 N. L. R. B. 1071.
5 Referred to as Barbara Well in the stipulation between the parties.
S. H. GROSSMAN, INC. 1287
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of S. H. Grossman, Inc., Newark, New Jersey,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. All automotive parts department employees of the Company,
exclusive of the manager, assistant manager, and clerical employees
consititute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
Act.
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, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations 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 collective bargaining with
S. H. Grossman, Inc., Newark, New Jersey, 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 of Election under the direc-
tion and supervision of the Regional Director for the Second Region,
acting in the matter as agent for the National Labor Relations Board,
and subject to Article III, Section 9, of said Rules and Regulations,
among all automotive parts department employees who were employed
by the Company during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during such pay-roll period because they were ill or on vaca-
tion and employees who were then or shall since have been temporarily
laid off, but excluding the manager, assistant manager, and clerical
employees and those who have since quit or been discharged for cause,
to determine whether or not they desire to be represented by Automo-
tive Parts Handlers Local Union No. 22186, affiliated with the Ameri-
can Federation of Labor, for the purposes of collective bargaining.
MR. EDWIN S. SMITH, dissenting in part:
I would include Giaconia, the assistant manager, within the appro-
priate unit. As the majority decision shows, he normally performs
ordinary non-supervisory work as a counter salesman and acts in the
capacity of assistant manager only in the absence of the manager.
Since the only union involved desires to represent him, I would follow
Board precedents involving similar situations and include Giaconia
within the appropriate unit.6
6 See Matter of Kalamazoo Paper Company and International Brotherhood of Firemen and Oilers (A. F. of
L.), 23 N. L. R. B. 76, and cases therein cited; Matter of Kansas Milling Company and Flour, Feed, Seed,
Cereal & Elevator Workers Union , No. 20991, A. F. of L.,15 N. L. R. B. 71.