H. Freeman & Son, Inc.

In the Matter of H. FREEMAN & SON, INCORPORATED and INTERNA- TIONAL BROTHERHOOD OF FIREMEN, OILERS, POWER HOUSE OPERATORS, ICE PLANT EMPLOYEES, AND MAINTENANCE MEN Case No. R-442.-Decided November 21, 19/2 Jurisdiction: clothing manufacturing industry Investigation and Certification of Representatives : existence of question . re- fusal to recognize or bargain with petitioner; contract with intervenor cover- ing all production and maintenance employees of the_Conrriny but operating to the exclusion of employees involved, held no bar ; election necessary Unit Appropriate for Collective Bargaining : four engine room employees of the Company permitted to determine Nrhether they should constitute a separate appropriate unit or be included in a previously certified unit of production and maintenance employees. Mesirov d Leonard, by Mr. Leon I. Mesirov, of Philadelphia, Pa., for the Company. Mr. Louis H. l'Vilderman, of Philadelphia, Pa., for the International. Mr. Gilbert J. Kraus and Mr. Charles Weinstein, of Philadelphia, Pa., for the Amalgamated. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by International Brotherhood of Firemen, Oilers, Power House Operators, Ice Plant Employees, and Main- tenance Men, herein called the International, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of H. Freeman & Son, Incorporated, Philadelphia, Pennsyl- vania, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Geof- frey J. C'unniff, Trial Examiner. Said hearing was held at Phil- adelphia, Pennsylvania, on October 21, 1942. The Company, the International, and they Amalgamated Clothing Workers of America, herein called the Amalgamated, appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, . and, to introduce evidence bearing on the issues. The 45 N. L. R B., No 106. . 716 H. FREEMAN & SON, INCORPORATED 717' Trial Examiner's rulings made at. the hearing ' are free from preju- dicial error and are' hereby affirmed. On October 29,' 1942, the Amalgamated filed a petition, in which the Company joined, for leave to reopen the record' to adduce additional evidence. The Board has considered the petition and, for the reasons. appearing below, it, is hereby denied. The Amalgamated filed a brief which the Board has considered. Upon the entire record in the, case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY H. Freeman & Son, Incorporated, is a Delaware corporation, engaged at Philadelphia, Pennsylvania, in the manufacture of men's clothing. During the first 6 .months of 1942, the Company purchased $1,500,000 worth of raw materials, consisting chiefly of woolen piece goods, approximately 90 percent of which was purchased and trans- ported to the Company from points outside the State of Pennsylvania. During the same period, the Company sold finished products valued at approximately $3,000,000, 80 percent of which was shipped to points outside the State of Pennsylvania. The Company admits that it is engaged in interstate commerce within the meaning of the Na- tional Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen, Oilers, Power House Opera- tors, Ice Plant Employees, and Maintenance Men is a labor organiza- tion affiliated with the American Federation of Labor. It admits to membership employees of the Company. Amalgamated Clothing Workers of America is a labor organiza- tion affiliated with the Congress of Industrial Organizations. It odmits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about July 1, 1942, the International requested the Company to recognize it as bargaining agent for the Company's engine room employees, consisting of two firemen, an engineer, and a maintenance man. The Company refused to recognize the International, asserting that a collective bargaining contract between it and the Amalgamated covered all its employees, including the four employees claimed by the International. ' - 7.18 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD The Amalgamated has had collective bargaining contracts with the Company since 1929. The present contract, which was introduced in evidence at the_ hearing, was executed May 15, 1942, and.expires - 3 years thereafter. According to its terms, the Amalgamated is recog- nized •"as the sole collective bargaining agency for all employees." The contract also contains a clauseaproviding that the Company will not "employ or retain in its employ . . . in the manufacturing or shipping departments . . . during 'the term of this 'agreement, any employees who 'are not members in good standing" of the Amalga- mated. The Amalgamated therefore argues that the contract is a closed-shop agreement with respect to the manufacturing and ship- ping departments of the Company, and an exclusive bargaining con- tract for all other categories of employees. Thus it contends that the four disputed employees, while not within the closed-shop provision of the contract, are within the sole bargaining clause and that there- fore the contract is a bar to this proceeding. All parties are agreed that four engine room employees are mem- bers in good standing of the International and that they have never belonged to the Amalgamated. An official of the Amalgamated testi- fied that his organization had not bargained on behalf of the engine room employees for the reason that until recently it had been his understanding that they were not employees of the Company, and hence did not come within the terms of the contract.' The Amal• gamated asserted at the hearing that it is willing to bargain for the employees in the future and, in its petition to reopen, claims that it has, in effect, bargained on their behalf.2 While the engine room employees are technically covered by the contract since it applies to "all employees," the facts set forth above clearly show that in practice these employees have not been repre- sented by the Amalgamated. The Amalgamated has not attempted to enroll them as members, nor has it specifically negotiated terms and conditions of employment for them. We find, accordingly, that the contract does not constitute a bar to a determination of repre- sentatives.3 . 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. ,'This same official testified that in the Philadelphia area most clothing manufacturers leased the buildings in which they operated and that the lessor, as a rule , employed the engine room employees He further stated that the Amalgamated did not organize the engine room employees of lessors of clothing manufacturers, but in cases where the manu- facturer-lessee employs such persons, that it organized them. 7 The petition to reopen states that new evidence will show that in May 1942 the Amal- gamated„as the bargaining agent for all employees, negotiated a wage increase for all produc- tion workers and that the engine room employees received the same increase as a result of this bargaining. ' See Matter of 'Philadelphia Inquirer Company and Newspaper Guild of Philadelphia and Camden, 31 N L. It B. 26 H. FREEMAN & SON, INCORPORATED 719 1V "THE APFROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES As stated above, the International contends that the two firemen, the engineer, and the maintenance man employed by the Company com- prise an appropriate unit. The Amalgamated and the Company con- tend that a unit of these employees is inappropriate and that all em- ployees of the Company, including these four men, constitute an appropriate unit. The engineer is a licensed steam engineer. He has charge of the plant boilers and in a general way of all maintenance: One fireman is •a full-time -licensed- fireman ; the other fireman is a licensed part- time fireman. Their duties are to tend the plant boilers. They also do maintenance and repair work throughout the plant. The main- tenance man checks the water in the plant boilers, acts as porter and watchman, and also assists the fireman with repair work in the plant. He is not a licensed fireman. There is no interchange of duties between the engine room employees and the production workers of the Company. Inasmuch as the four engine room employees are members of the In( ernational, and since they have never been represented by the Amal- gamated, we find that they may properly be considered as a separate unit, or may be merged in the larger production and maintenance unit which the Amalgamated now represents. We shall direct that a separate election be held only among the firemen, the engineer, and the maintenance man employed by the Company. If these employees select the International, they will constitute a separate unit; if they select the Amalgamated, they will thereby have indicated their desire to be included in a unit with the general production and maintenance group and will be a part of such unit. We shall accordingly direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the engine room em- ployees, 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 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with H. Freeman & Son, Incorporated, Philadelphia, Pennsylvania, 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 Fourth Region, acting in this 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter-as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the firemen, the engineer, and the maintenance man employed by the Company at its Philadelphia, Pennsylvania, plant, 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 represented by International Brotherhood of Firemen,' Oilers, Power House Operators, Ice Plant Employees, and Maintenance Men, or by Amalgamated Clothing Workers of America, for the purposes of collective bargaining, or by neither. - CHAIRMAN MiLLTs took no part in the consideration of the above Decision and Direction of Election.