Gutmann and Co.

In the Matter of GUTMANN AND COMPANY and INTERNATIONAL FUR & LEATHER WORKERS UNION, CIO, LOCAL 43 Case No. R-4323.Decided November 3,194,0 Jurisdiction : leather manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; contract, terms of which were extremely vague and indefinite, held no bar; election necessary Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, exclusive of foremen, supervisory, office, and clerical employees, out- side truck drivers, and powerhouse employees ; agreement as to. Mr. David Silvert and Mr. Richard A. Munneeke, of Chid go, Ill., for the Company. Mr. Samuel J. Berland and Mr. Maury Colow, of Chicago, Ill., for the Union. Mr. Henry M. Tufo, of Chicago, Ill., for the ITU. Miss Mary E. Perkins, of counsel to the Board. DECISION J AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by International Fur & Leather Work- ers Union, CIO, Local 43, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Gutmann and Company, Chicago, Illinois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert T. Drake, Trial Examiner. Said hearing was held in Chicago, Illinois, from September 24 to 30, 1942. The Company, the Union, and Independ- ent Tanners Union, herein called the ITU, appeared and partici- pated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. The Trial Examiner's rulings are free from preju- dicial errors and are hereby affirmed. 45 N. L. R. B., No. 55. 344 ' GUTMANN AND COMPANY - 345, Upon the entire record in the case, the Board makes the following:, FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Gutmann and Company is an Illinois corporation having its.prin- cipal office and place of business in Chicago, Illinois, where it is en- gaged in the production of leather. The principal raw material used by the Company is cattle hides. During the period from January 1, 1942 to June 30, 1942, the Company purchased more than 200,000 hides, 10 percent of which were shipped from outside the State of Illinois directly to the Company's plant in Chicago. During the same period, the Company sold more than $1,000,000 worth of finished products, of which more than 80 percent in value was shipped to points outside the State of Illinois. The Company employs -approxi- mately 450 employees. It concedes that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED International Fur & Leather Workers Union, CIO, Local 43, is a labor organization affiliated with the Congress of Industrial Organ- izations, admitting to membership employees of the Company. Independent Tanners Union is an unaffiliated labor organization ad- mitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On July 24, 1942, the Union sent a letter to the' Company stating that it had enrolled a majority of the Company's production em- ployees and requesting the Company to set a time when its repre- sentatives would meet with those of the Union to negotiate an agree- ment. The Company did not reply to the letter. At the hearing the Company asserted that no request for recognition had been made upon it sufficient to raise a question concerning representation; and that a determination of representatives was barred in any event by the existence of an oral contract between the Company and the ITU. The Company asserted that such a contract had been entered into in July 1937 and had been automatically renewed from year to year ever since, the last renewal having taken place in March 1942. The ITU was organized as a non-profit corporation in May 1937.1 In June 1937 it served upon the Company a letter containing certain ' On December 1, 1939, the Board issued a Decision and Order in which it found that the,Company had dominated the ITU, and ordered the Company to disestablish the ITU. Matter, of Gutmann and Company and National Leather Workers Association, Local 43, 18 N. L. R. B 64. On June 12, 1941 , the United States Court of Appeals-, for,thevSev^enth- Circuit denied the Board 's petition for enforcement of this Order. 346 DECISION'S OF NATIONAL LABOR RELATIONS BOARD demands concerning wages, hours, vacations and other working con- ditions. Subsequently, meetings were held between representatives of the Company and the ITU. Leo H. Elkan, the Company's vice- president, and Henry M. Tufo, counsel for the, ITU, testified at the hearing that in the course of these meetings and after the ITU had presented proof to the Company that it represented a majority of the employees, an oral agreement was reached between the Com- pany and the ITU covering all the subjects mentioned. According to Elkan and Tufo 2 the contract was to last from July 1937 to March 1938, renewing itself automatically thereafter from year to year in the absence of notices from either party 30 . days prior to March 1 of any year. No such notice appears ever to have been given by either party. The testimony of Elkan and Tufo and that of recent officers of-the ITU was to the effect that the agreement provided for recognition of the ITU as exclusive bargaining agent for the employees, for a 40-hour week, check-off of ITU dues, a week's vacation with pay for employees with a year's service, a grievance and arbitration procedure, and a wage scale. It seems clear, that the Company' agreed' and has continued to recognize the ITU as the exclusive bargaining agent for. all its employees; that a 40-hour week 'is now in effect in the plant; and that the Company has continued to check off ITU dues. Vacations have been granted after negotiations each year since 1938. The testimony of , these witnesses, however, shows that their understanding as to many of the terms of the agreement varies to a substantial degree and in some cases the same witness gave varying accounts of the same pro- visions. The history of bargaining between the Company and the ITU from '1937 to the present shows that not only have changes been made in the wage scale and many other working conditions but that these questions have been dealt with by the parties whenever the occasion arose, without regard to the alleged term of the 'contract. In February 1942, members of the ITU bargaining committee met with representatives of the Company and requested a 10-cent wage increase. At a subsequent meeting on April 20, 1942, the Company agred to grant a 5-cent wage increase and this action was reported to the ITU membership at a special meeting soon after. At the lat- ter meeting, a proposal that the ITU enter into a written contract with the Company was rejected by the members present. Other 2 Tufo professed to be uncertain as to the exact terms of some of the provisions agreed upon at this time ; however, although at least 3 of the officers of the ITU itself, who had participated in the July' 1937 meetings, are still employed by the Company, none was called to testify concerning the agreement claimed to have been reached at that time. Elkan first testified that minutes were taken at these meetings but stated later that he was not sure whether minutes were taken at the , time the agreement was reached. The only minutes produced at the hearing were those of meetings subsequent to March 1939 , -T r 347 C- { GUTMANN AND %COMPANY meetings -between the Company and the ITU, mainly devoted to the adjustment of individual wage rates, have been held since that date. Although the minutes, of all the meetings between the Company and -the ITU; in 1942 were introduced into evidence at the hearing, they do, not show any discussion or mention of a renewal of the alleged contract:3 A'statement by the Regional Director, which was introduced into evidence at the hearing, shows that both the Union and the ITU rep- resent a substantial number of the Company's employees.4 , - The record shows that the contract, if any, which exists between the Company and the ITU, is extremely vague and indefinite in its terms. It appears to have consisted of little more than an oral agree- merit by the Company to recognize the ITU as exclusive bargaining agent, continuing from July 1937 to the present, any substantive terms of'the agreement having been changed from time to time over that period 'as. the parties saw fit. The Regional Director's' statement makes it clear that considerable doubt now exists 'as to whether the ITU represents a majority of the employees. Under these circum- stances and in view of the showing made that the Union represents a substantial number of the Company's employees, we hold that the contract is not a bar to a detemination of representatives at, this time. 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 parties agreed at the hearing that a unit consisting of all pro- duction and maintenance employees, exclusive of foremen, super- Members of the Union who are employed at the respondent 's plant and are also members of the ITU asserted at the hearing that, although they understood the Company recognized the ITU as bargaining agent for the employees , they were not aware of any contract be- tween the Company and the ITU. Counsel for the Company admitted at the hearing'that be "may have" told Board representatives about six weeks before the hearing that he knew of no contract between the Company and the ITU. He gave us his reason for making such a statement that his information was confidential , that it was "not anybody's buss ness," and that representatives of , the Union were-,present at the time the statement, was made. 4 The Regional Director's statement shows that on August 15, 1942, the Company em- ployed 412 persons in the unit alleged to be appropriate . The names of 174 of these persons appear on cards authorizing the Union to bargain for the signers, all of which are dated since February 1, 1942 The names of 130 persons employed in the same unit on the same .date appear on undated cards authorizing the ITU to bargain for the signers . The ITU also submitted a typed membership list bearing the names of 250 persons employed in the unit on August 15, 1942 The Regional Director also stated that International Ladies' Handbag, Pocketbook & Novelty Workers Union, affiliated with the American Federation of Labor, had asserted an interest in the matter but had submitted no evidence in'support of its claim . Notice of hearing was not served on this Union and it did , not appear at the hearing. 348 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD visory,5 office, and clerical employees, outside truck drivers, and powerhouse employees, is appropriate for purposes of collective bar- gaining. No reason appears for departing, from the desires of the parties as to unit. We find that all production and maintenance employees of the Company, excluding foremen, supervisory,' office, and clerical em- ployees, outside truck drivers, and powerhouse employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. 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 pi y- 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIiuECTED.that, as',part_of;-the-investigation to ascertain representa- tives for the purposes of collective bargaining with Gutmann and Company, Chicago, Illinois, 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 Thirteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who 5 Disagreement as to the supervisory status of some 24 employees was revolved by a stipulation entered into during the hearing , by the terms of which the parties agreed that the following employees should be permitted to vote without challenge : Charles Brack, Leonard Gesinki , Leonard Glonke, John Krause , Franz Neumaier (also referred to as Franz Neuheimer ), John Redlark , Anthony Schamber , Sanders Stamper, Nick Wasily Tarion, Nick Tarion, Leonard Urban ; and that the following employees should not be Permitted to vote "and if they present themselves to vote, their right to vote shall be challenged ,and that said challenge shall be sustained by the Board without any further proceeding" : Adolph Beckman , Herman Bores , William Carlson , Christ Guichas , Mitchell Jagielko, Sidney Kritzler , Fred Loesher, Al Spong, Nathan Stern, John Teurk, Nick Voina, and Melvin Wehrmeister ( also referred to as Melvin Hartman ). The parties also agreed that Leo Stortz should be permitted to vote as a non -supervisory employee We see no reason to depart from the desires of the parties in regard to these employees and we shall include as non-supervisory those first named, including Leo Stortz ; and exclude as super- visory. those-listed last. GUTMANN AND COMPANY 349 were employed during, the pay=roll :period immediately preceding the date of this Direction, including any such employees who did not work during, said pay-roll period because they were ill or on vacation, or in the active military service or training of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether they desire to be repre- sented by International Fur & Leather Workers Union, CIO, Local 43, or by Independent Tanners Union for the purposes of collective bargaining, or by neither. Mx. GERARD D. REILLY took •no part in the consideration of the above Decision and Direction of Election.