Fogel Refrigerator Co.

In the Matter of WILLIAM FOGEL, ISRAEL FOGEL, AND DAVID FOGEL, INDIVIDUALLY AND AS CO-PARTNERS, D/Bj A FOGEL REFRIGERATOR CiO1%7- PANY and FURNITURE, CASKET AND GENERAL WOODWORKERS, LOCAL 37, AFFILIATED WITH UNITED FURNITURE WORKERS OF AMERICA, C.I.O. Case No. 41-R-16418-Decided April 23, 1945 Messrs. Herman Toll, W. H. Morrison , and William Fogel, of Phila- delphia, Pa., for the Company. Mr. George Bucher, of Philadelphia , Pa., for, the Union. Hr. Stanley B. Korengold , of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TILE CASE Upon a petition duly filed by Furniture, Casket and General Wood- workers, Local 37, affiliated with the United Furniture Workers of America, C. I. 0.,' herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of William Fogel, Israel Fogel, and David Fogel, individually and as co-partners, doing business as Fogel Refrigerator Company, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Eugene M. Purver, Trial Examiner. Said hearing was held at Philadelphia, Pennsylvania, on March 6, 1945. The Company and the Union ap- peared and participated. All parties were afforded full opportunity to be heard, to examine and cross examine witnesses, and to introduce evidence bearing 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 TIIE COMPANY William Fogel, Israel Fogel, and David Fogel, individually and as co-partners, doing business as Fogel Refrigerator Company, a part- ' By motion made and granted at the hearing, petitioner Union amended its name to read as herein set forth. 61 N. L. R. B., No. 109. 092 FOGEL REFRIGERATOR COMPANY 693 nership under the laws of the Commonwealth of Pennsylvania with its main office and-plant located in Philadelphia, Pennsylvania, is en- gaged in the manufacture, sale, and distribution of commercial ref rig- erators. During the year 1944 the Company purchased raw materials consisting of sheet metal, rubber, glass, and insulating material amounting to over $100,000, of which approximately 75 percent was shipped into Pennsylvania from points outside the Commonwealth. The total sales for that period amounted to over $200,000, of which approximately 50 percent represented sales involving shipment of products to points outside the Commonwealth of Pennsylvania. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED Furniture, Casket and General Woodworkers, Local 37, affiliated with United Furniture Workers of America, C.I.O., is a labor organi- zation admitting to membership employees of the Company. . III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of the Company's em- ployees until the Union has been certified by the Board in an appropri- ate unit. A statement of the Field Examiner, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Connpany, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union seeks to represent a unit consisting of all production and maintenance employees, including leaders and shipping and receiving employees, but excluding engineers, firemen, watchmen, clerical em- ployees, foremen, and other supervisors with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. The Company contends that maintenance employees, leaders, and shipping and re- ceiving employees should also be excluded from the bargaining unit. 2 The Field Examiner reported that on January 29, 1945 , the date the petition was filed, of 40 employees in the unit contended for, the Union submitted 21 application -for-member- ship cards On February 14, 1945, this unit comprised only 14 employees . 11 of whom hid signed the union application cards 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the close relationship between the work of the production employees and that of the maintenance employees, and their necessary integration, and since no cogent reason appears for their separation, we shall follow our usual policy of including the maintenance em- ployees with the production employees in one bargaining unit.3 The shipping and receiving employees inspect the finished goods, remove them, prepare them for shipment, and finally load them for delivery. Their work is an integral part of the production process, and we shall theref ore include them in the unit.4 The record discloses that the leaders, whom the Company would exclude, work along with the men and are often paid the same wage rate. Furthermore, at the time of the hearing there were but 14 em- ployees in the unit, over whom a superintendent and 2 foremen exer- cised supervisory powers. Some leaders were the sole employees in their department, having no one under their direction. Leaders have no authority to hire, discharge, or discipline employees. While they occasionally recommend a transfer of employees whom they direct, we are of the opinion that they do not possess supervisory authority within the Board's definition thereof; we shall therefore include them in the unit. We find that all production and maintenance employees including leaders and shipping and receiving employees, but excluding engi- neers, firemen, watchmen, clerical employees, foremen, and those super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, 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 The record discloses that the Company employs "refrigerator me- chanic trainees" who undergo a short training period in all depart- ments of the factory prior to becoming full-fledged refrigerator mechanics. The Company contends these trainees should be ineligible to vote in the election, whereas the Union urges their eligibility. Since they have a reasonable expectancy of permanent employment with the Company, and therefore have a substantial interest in the working conditions in the Company's plant, we find that the refrigerator me- chanic trainees are eligible to vote in the election hereinafter directed., 8 Matter of Faries Manufacturing Company, 38 N. L. R. B 399; Matter of Southern Prison, 53 N. L. R. B. 604. The Company has but one maintenance employee. He does the carpentry , plumbing, and electrical repair work; he keeps the production machines and motors in proper working order. 'Matter of Bee Machine, 60 N L It. B 77 5 Matter of United States Gypsum Company, 55 N. L It. B. 586; Matter of Douglas Air- craft Company, Inc, 60 N. L R B 876. FOGEL REFRIGERATOR COMPANY 695 The Union requests that the Board depart from its normal practice and declare eligible to vote those employees on the pay roll at the time the petition was filed, January 29, 1945. It urges that employees laid off since that date because of a slack in work should be considered as part of the regular pay roll. These employees are not retained on any preferential hiring list by the Company; at the time of their lay-off they were given releases to enable them to secure other employment ; and, moreover, there is no probability of their reemployment by the Company in the near future. Under the regulations of the War Man- power Commission these employees will be required to procure certifi- cates of availability before they can be reemployed by the Company. Accordingly, it is clear that they are no longer employees of the Com- pany, and we find, therefore, that they are ineligible to vote s 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 Election 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain represent- atives for the purposes of collective bargaining with William Fogel, Israel Fogel, and David Fogel, individually and as co-partners, doing business as Fogel Refrigerator Company, 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 supervision of the Regional Director for the Fourth 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 preceding the date of this Direction, including refrig- erator mechanic trainees and employees who did riot 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 9 Matter of E. I. Du Pont de Nemours and Company, 52 N. L. R. B. 1335 ; Matter of Mieh.le Printing Press and Manufacturing Company, 58 N. L. R B , 1134, Matter of Seattle Drum Company, 60 N. L. R. B. 440. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 by Furniture, Casket and General Woodworkers, Local 37, affiliated with United Furniture Workers of America, C . I. 0., for the purposes of collective bargaining.