T. C. Esser Co.

In the Matter of T . C. ESSER COMPANY and GLAZIERS' LOCAL UNION No. 1204, A. F. OF L. Case No. 13-R-.683.-Decided January 17, 1945 Mr. E. W. Peck, of Milwaukee, Wis., for the Company. Messrs. A. G. Goldberg and Joseph A. Buchek, of Milwaukee, Wis., for Local 1204. . Mr. Donald H. Frank, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Glaziers' Local Union No. 1204, A. F. of L., herein called Local 1204, alleging that a question affecting commerce had arisen concerning the representation of employees of T. C. Esser Company, Milwaukee, Wisconsin, herein called the Com- pany, the National Labor Relations Board provided for an appro- priate hearing upon due notice before Benjamin B. Salvaty, Jr., Trial Examiner. Said hearing was held at Milwaukee, Wisconsin, on De- cember 7, 1944. The Company and Local 1204 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 made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company is a Wisconsin corporation with a ,plant in Mil- waukee, Wisconsin, and with warehouses and stores in Milwaukee, Oshkosh, and La Crosse, Wisconsin. In its Milwaukee plant it manu- factures paints and varnishes, and processes glass, by polishing, bevel- ing, silvering into mirrors, and by special lead and art glass work. 60 N. L R. B., No. 20. 105 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company purchases annually raw materials in excess of $610,000, of which approximately 90 percent represents shipments and pur- chases outside the 5tate of Wisconsin. Its annual sales are in excess of $1,500,000, of which approximately 10 percent represents shipments to points outside the State of Wisconsin. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Glaziers' Local Union No. 1204, affiliated with the American Federa- tion of Labor, is a labor organization admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to Local 1204 as the exclusive bargaining representative of certain of its employees in the Company's Milwaukee plant, until Local 1204 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 Local 1204 represents a substantial number of em- ployees 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. . IV. THE APPROPRIATE UNIT The Company and Local 1204 stipulate and agree upon the follow- ing as the appropriate unit: all art glass workers, bevelers, polishers, silverers, cutters, and glass handlers, employed by, the Company in the Milwaukee plant, except for the superintendent, who is the only supervisory employee in this group of employees. Among the Mil- waukee plant's glass department employees are glaziers, who work principally outside the plant, wherever the Company has received an order for the installation of glass. Local 1204 has bargained and had a contract with the Company covering the glaziers in the Mil- waukee plant since 1934, and since 1941 the contract has also covered the glaziers in Oshkosh. The hourly pay of glaziers is higher than that of any glass workers listed in the proposed unit. The work of the graziers is functionally dissimilar from the other glass workers. Local 1204 does not seek in its petition to include the glaziers in the 'The Field Examiner reported that Local 1204 submitted 23 membership cards. There are 48 employees in the appropriate unit. The cards were dated, 8 in September and 15 in October 1944 T. C. ESSER COMPANY 107 unit requested, but it suggested at the hearing that if it is certified- as the representative of the unit here sought, it may demand that the Company bargain with it on the basis of a single unit including both groups., On the evidence offered in the present record, we are of the opinion that, in view of the functional dissimilarity above noted, and the fact that the unit of glaziers covers two plants, such amalga- mation of the two units is not warranted if the Company objects thereto. We shall exclude the glaziers from the unit hereinafter found appropriate. We find that all art glass workers, bevelers, polishers, silverers, cut- ters, and glass handlers, employed by the Company in Its Milwaukee plant, but excluding the glaziers and the superintendent, constitute a unit appropriate for the purposes of-collective bargaining within the meaning of Section 9 (b) of the Act. V. THE 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 pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. - Local 1204 contends that the eligibility date for the election should be set at September 30, 1944, the date on which the petition was filed. This contention is based on the argument that after the specified date the Company hired and is hiring additional employees, that these new workers are `not eligible for membership in Local 1204 because they are part-time employees, and that they are temporary employees, hired to fill in during the rush season. The evidence shows that in October the Company advertised for full or part-time em- ployees to work in the mirror department. As a result, some part- time employees were hired. At present the Company employs six part-time workers, two of whom are high school students who work after school and on Saturdays and holidays .2 One of the latter has been with the Company for 2 years, and the other for 3 months. Part- time employees work an average of 5 hours per day and receive the same rates of pay as fulltime employees. There was undisputed evi- dence that the Company has not had a sufficient number of employees to enable it to fill its current orders. There is, therefore, no basis for assuming that the recent employees are temporary. Local 1204 ad- mits that the duties of these employees would make them eligible for membership; the argument, therefore, that since they are part-timers 2 See Matter of Triangle Publications, Ine, 59 N. L R B. 1190, as to school boys who are part-time employees. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they are not eligible is not persuasive. We find no sufficient reason for departing from our usual eligibility date in this election, nor any reason for disqualifying any of the part-time employees from participating. The Company requests that, its employees in the armed forces' be permitted to vote by absentee ballot. Since no persuasive reason appears, however, for departing from our established rule, the request is hereby denied.3 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 3, 'as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with the T. C. Esser Company, Milwaukee, Wisconsin, 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, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preced- ing 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 b^ the Glaziers' Local Union No. 1204, affiliated with the American Federation of Labor, for the purposes of collective bargaining. 3 See Matter of Mine Safeti, Appliances Co , 55 N L R B 1190