Union Manufacturing Co.

In the Matter Of UNION MANUFACTURING COMPANY and AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. O. Case No. 21-R-3249.-Decided July 18,1946 Mr. George A. Elstein, of Los Angeles, Calif., for the Company. Katz, Gallagher ct Margolis, by Mr. Milton S. Tyre, of Los Angeles, Calif., for the Amalgamated. Messrs. Joseph Lewis and Fred Lindsay, of Los Angeles, Calif., for the Independent. Margaret H. Patterson, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by Amalgamated Clothing Workers of America, C. I. 0., herein called the Amalgamated, alleging that a question affecting commerce had arisen concerning the representation of employees of Union Manufacturing Company, Los Angeles, Cali- fornia, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William T. Whitsett, Trial Examiner. The hearing was held at Los Angeles, California, on April 15, 22, 25, 30 and May 6, 1946. The Company, the Amalgamated, and Independent Union of Clothing Workers, Inc., herein called the Independent, appeared and participated. All par- ties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the hearing The Independent moved to dismiss the petition on the ground that its contract with the Company was a bar to the proceeding. The Trial Examiner referred this motion to the Board. For reasons stated hereinafter, the motion is hereby denied.' The Trial Ex- aminer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: 1 The Independent also moved that the hearing be postponed until such time as its charge in Case No. 21-C-2734 filed with the Board on April 11, 1946, had been disposed of. The Trial Examiner denied the motion. On May 22, 1946, the Regional Director issued letters dismissing the charge. The Board upheld the action of the Regional Director. 69 N. L. R. B., No. 79. 640 UNION MANUFACTURING COMPANY FINDINGS or FACT 1. THE BUSINESS OF THE COMPANY 641 The Company operates two plants, one at El Paso, Texas, and one at Los Angeles, California. This proceeding is concerned with em- ployees of the Company in the Los Angeles plant at 110 West 11th Street, where the Company is engaged in the manufacture of men's work clothes. During the year 1945 the Company purchased raw materials and supplies in excess of $100,000, of which 95 percent was shipped to the Company from points outside the State of California. During the same period the Company's sales exceeded $1,000,000 in value, of which 40 percent was shipped to points outside the State of California. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Amalgamated Clothing Workers of America is a labor organiza- tion, affiliated with the Congress of Industrial Organizations, ad- mitting to membership employees of the Company. Independent Union of Clothing Workers, Inc., is a labor organiza- tion, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Amalgamated as the exclusive bargaining representative of the Company's em- ployees. The Company has been bargaining with the Independent in a series of closed-shop contracts since 1937. On February 25, 1946, the Company received the Amalgamated's written request for recog- nition.2 On February 26, 1946, the members of the Independent met and authorized acceptance of a 5-percent pay increase and the ex- tension of their contract. Thereafter, on the same day, the Amal- gamated filed its petition with the Board. On the following day, February 27, the Company and the Independent signed the previously authorized agreement extending their then current contract from March 15, 1946, to November 15, 1946. The Company and the Independent contend that the contract signed the day after the petition was filed is a bar for the reason that it ac- tually became effective before the petition was filed, without the for- At the time the Company and the Independent were operating under an agreement entered into January 10, 1946, extending the existing closed -shop contract from January 15, 1946, to March 15, 1946. 701592-47--vol. 69--42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mality of signing, by virtue of the action. of the Independent's members in accepting and authorizing the contract. We find this contention without merit. The action of the Independent prior to the filing of the petition cannot alter our conclusion, based on long established policy, that an unsigned contract is no bar to a determi- nation of representatives.' 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. TIIE APPROPRIATE UNIT; THE DETERMINATION OF REPTtESENTATIVES The Amalgamated seeks a unit composed of all production and maintenance employees except for office, shipping, machinists, and supervisory employees. The parties are in agreement with respect to the composition of the unit except for the following categories : Shipping department employees and order pickers The Amalgamated would exclude, while the Company and the Independent would include, shipping department employees and order pickers. The Amalgamated contends that the shipping department employees and order pickers do no production work and therefore should be excluded from the production and maintenance unit. These employees are located on the second floor of the Company's building and their supervision is the same as that of the office force. The order pickers work out of the stock room; they receive orders for shipment, go to the stock room to select the merchandise and place it on the shipping table where it is packed. Shipping department em- ployees check the orders and pack the merchandise for shipment. Both categories are paid on an hourly basis and their work appears to be largely manual. For more than 5 years these employees have been covered by collective bargaining agreements between the Independent and the Company in a plant-wide unit of production and maintenance employees. Inasmuch as these employees have been traditionally bar- gained for in the production and maintenance- unit and the record does not reveal any substantial divergence of interest between them and other production and maintenance employees, we shall follow our usual policy and include them in the unit hereinafter found appropriate.' 3 Matter of Eicor, Inc., 46 N. L. R. B . 1035 ; Matter of Beatty Logging Co ., 62 N. L. R. B. 266. -Moreover, in the circumstances of this case, the Amalgamated's request for recogni tion on February 25 suffices to preclude the contract from operating as a bar. See Matter of General Electric X-Ray Corporation, 67 N. L. R. B. 997. 4 Matter of Petersen and Lytle, 60 N. L . R. B. 1070 . See also Matter of Martin Food Products, Inc., 48 N . L. R. B. 19 ; Matter of Burrus Feed Mills, Dallas Plant, 59 N . L. R. B. 425 ; Matter of The Flintkate Company, 63 N. L. R. B. 914 ; Matter of Fogel Refrigerator Company, 61 N. L. R. B. 692. UNION MANUFACTURING COMPANY 643 Head cutter and head presser The Amalgamated seeks to include and the Independent and the Company would exclude the head cutter and the head presser. The Independent and the Company contend that these employees are super- visors, who, as such, have been excluded from the production and maintenance contract unit ever since they were respectively placed in their present positions. These employees are in charge of their particular departments which are composed of about three workers in each. The work of both men is largely manual. It is undisputed that they were dropped from membership in the Independent upon their assignment to their present positions on the theory that those positions were supervisory. It is equally clear from the record, however, that neither man is vested with the power to hire or discharge employees and the factory manager testified that he would not follow their recommendations with respect to discharges. • Under all the circumstances, it does not appear that either mail is a supervisor within the meaning of our usual definition and, consequently they could be included in the unit if they so desire. However, inas- much as these employees were not included in the unit established under prior contracts, we shall conduct a separate election among them to determine their desires with respect to the matters We shall also conduct an election among other production and maintenance employees in categories previously covered by the contracts between the Company and the Independent. Accordingly, we shall make no final unit determination at this time but will be guided by the desires of the employees involved as expressed in the elections hereinafter directed. We shall direct that separate elections be held among employees in the voting groups described below who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. 1. All production and maintenance employees of the Company at its Los Angeles plant, including shipping department employees and order pickers, but excluding the head cutter and head presser, the machinists, office employees, and all or any other supervisory em- ployees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recom- mend such action. 2. The head cutter and head presser. 5 Matter of Petersen and Lytle, supra. 9 Matter of Pittsburgh Equitable Meter Comipany, 61 N. L. R. R. 880. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inasmuch as the Independent does not desire to represent the head cutter and head presser in any unit, we shall not place its name on the ballot in Group 2. DIRECTION OF ELECTIONS 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 Union Manufac- turing Company, Los Angeles , California, separate elections 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 Twenty-first 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 employees in the voting groups described in Sec- tion IV, above, who were employed during the pay-roll period im- mediately preceding 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 per- son 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 the employees in Group 1 desire to be represented by Amalgamated Clothing Workers of America, C. I. 0., or by Independent Union of Clothing Workers, Inc., for the purposes of collective bargaining , or by neither, and whether or not the employees in Group 2 desire to be represented by Amalgamated Clothing Workers of America, C. I. 0., for the purposes of collective bargaining.