Radionic Transformer Co.

In the Matter of NATHAN BROMBERG AND ESTHER BROMBERG, D/B/A RADIONIC TRANSFORMER COMPANY, NOT INC., EMPLOYER and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, C. I. 0., PETITIONER Case No. 13-R-3660.-Decided September 5, 1946 Fyffe and Clarke, by Mr. Jolla Harrington, of Chicago, Ill., for the Employer. Messrs. Alfred McPherson and Pat Amato, of Chicago, Ill., for the Petitioner. Mr. Melvin J. Welles, of counsel to the Board. DECISION AND DIRECTION Upon a petition duly filed, the National Labor Relations Board on June 17,1946, conducted a prehearing election among employees of the Employer in the alleged appropriate unit, to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally shows that there are approximately 53 eligible voters and that 44 of these eligible voters cast ballots, of which 20 were for the Petitioner, 14 were against the Petitioner, and 10 were challenged. Thereafter, a hearing was held at Chicago, Illinois, on June 28, 1946, before Leon A. Rosell, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: - FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer-is an unincorporated copartnership between Nathan and Esther Bromberg, in Chicago, Illinois, engaged in the manufac- 70 N. L. R. B., No. 103. 1186 G RADIONIC TRANSFORMER COMPANY 1187 ture of transformers. During 1945 the Employer purchased raw materials valued in excess of $50,000, of which 50 percent was trans- ported to its plant from points outside the State of Illinois . During the sane period , the value of the Employer 's sales was in excess of $100,000, of which more than 20 percent was shipped to points outside the State of Illinois. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. ' II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. 111. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 1V. THE APPROPRIATE UNIT The Petitioner and the Employer agree that a -unit of all production and maintenance employees of the Employer , excluding clerical and supervisory employees , is appropriate. They disagree, however, with respect to the supervisory status of two employees. Joseph Guaillen : The Employer contends that this employee should be excluded from the unit as a supervisory employee, the Petitioner opposing this contention . Evidence adduced at the hearing reveals that he exercised supervisory functions prior to his induction into the Army, but that since his return to the Employer in about February 1946 he has merely performed the manual work involved in testing and repairing. Further evidence reveals that in March 1946 he recommended the discharge of two employees for breach of employer rules, and that such recommendation was followed without an inde- pendent investigation . However, no evidence was presented to in- dictate that he was the foreman or supervisor of these employees of that he acted in a supervisory capacity in making his recommenda- tion. Furthermore, after his return to work he informed an em ployee that he was no longer a foreman . Under all the circumstances, we are of the opinion that he is not a supervisory employee within the 712344-4 7-vol 70-76 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of our usual definition. We shall, therefore, include this employee in the unit hereinafter found appropriate. Jack Sh;i nokusu: The Petitioner would exclude this employee from the unit as a supervisory employee, the Employer taking a contrary view. Although he is hourly paid, like the other, production and maintenance employees, he receives a higher rate than the other em-_ ployee's, and is entitled to a vacation each year, while the remaining production and maintenance employees are not. In addition, he di- rects a group of production and maintenance employees in their duties. On the other hand, such directions are merely transmittals of the foreman's orders, and he spends much of his time at manual labor. Furthermore, the other production and maintenance employees re- ceive a bonus, which he does not, and which on occasion adds enough to their pay to surpass his. In addition, he does not have the author- ity to recommend the hiring, discharging, or promotion of employees. We are of the opinion, therefore, that he is not a supervisory employee. Accordingly, we shall include this employee in the unit hereinafter found appropriate. We find that all production and maintenance employees of the Employer,1 excluding clerical 'employees and all supervisory em- ployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend 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 Background The prehearing election was held among the Employer's employees on June 17, 1946, May 25 having been the eligibility date.2 - Issues were raised at the hearing relating to the eligibility of the 10 persons whose votes were challenged. The challenged ballots As indicated in Section IV, supra, we have found that Joseph Guillen and Jack Shimokusu, whose ballots were challenged by the Employer and the Petitioner, respectively, on the ground that they are super- visory employees, are not supervisory employees and are, therefore, appropriately included in the unit. Accordingly, we shall overrule the challenges to their ballots. The ballots of Elizia Soza and Guadalupe Rome' o were challenged by the Employer on the ground that they cannot speak English or ' Including Guillen and Shimokusu 2 The election was conducted pursuant to rules identical to those laid down in the Board's usual Direction of Election. RADIONIC TRANSFORMER COMPANY 1189 understand the issues involved. The Employer also alleged that Romero was a temporary employee as an additional.ground for the challenge. Romero specifically testified at the hearing that she un- derstood the issues involved in the election, and no affirmative evidence was produced to show that either Soza or Romero was ignorant of the meaning of this proceeding. It appears, moreover, that the Board agent, through an interpreter, instructed both voters as to the proper method of voting. The allegation that Romero was a temporary employee is not supported by the evidence. She was never told she was temporary and has been treated, since her hiring in April 1946, like all other employees. Furthermore, since she was working for the Employer both on the eligibility date and the day of the election, testimony at the hearing to the effect that she was incompetent and would have been discharged earlier but for the pressure of business is of no consequence. Under these circumstances, we shall overrule the challenges to the ballots of Romero and Soza. The ballot of Jamie Mendez was challenged by the Employer on the ground that she is an intermittent worker. She was hired December 19, 1945, and was never informed that she was a temporary or part- time employee. There was no evidence adduced at the .hearing to indicate that she worked less than full-time. Accordingly, we shall overrule the challenge to her ballot. The ballot of Cordie Yates was challenged by the Board on the ground that she was not on the eligibility list furnished the Board by the Employer. The parties agree that she was not on this list, and that she left the Employer late in 1945, returning to work on June 3, 1946, subsequent to the eligibility date of May 25. 'There is nothing to indicate that her 6-month absence was in the nature of a leave, vacation, or a temporary lay-off. Accordingly, we shall sustain the challenge to her ballot. The ballots of James Barnich and George Barnich were challenged by the Petitioner on the ground that they were part-time employees as of the eligibility date and day of the election. Both were attending high school and working for the Employer after school hours and on Saturdays. The evidence adduced at the hearing indicates that each worked a maximum of from 121/2 to 15 hours per week. The evidence was conflicting,. however, as to the regularity with which they worked. At the present time we shall not rule upon the challenges to the ballots of James Barnich and George Barnich. In the event the Supple- mental Tally of Ballots hereinafter directed to be made shows that their ballots will affect the results of the election, we shall undertake to dispose of these challenges. The ballots of Susiana McCoy and Flossie Thomas were challenged by the Employer on the ground that they were not employed by the 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer on the date of the election. While it is clear that such was the case, there is presently pending before the Board an unfair labor practice charge alleging, inter alia, that they were discriminatorily discharged in violation of Section 8 (3) of the Act.3 At the present time, therefore, we shall not rule upon the challenges to the ballots of Susiana McCoy and Flossie Thomas. In the event the Supple- mental Tally of Ballots hereinafter directed to be made shows that their ballots will affect the results of the election, we shall undertake to dispose of these challenges. We shall direct that the ballots of Joseph Guillen, Jack Shimokusu, Elizia Soza, Guadalupe Romero, and Janie Mendez be opened and counted. DIRECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Sections 9 and 10, of National Labor Relations 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 Nathan Bromberg and Esther Bromberg d/b/a Radionic Transformer Company, Not Inc., the Regional Director of the Thirteenth Region shall, pursuant to said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the challenged ballots of Joseph Guillen, Jack Shimokusu, Elizia Soza, Guadalupe Romero, and Janie Mendez, and shall thereafter prepare and cause to be served upon the parties a Supplemental Tally of Ballots, including therein the count of these challenged ballots. MR. JAMES J. REYNOLDS , JR., took no part in the consideration of the above Decision and Direction. 8 Case No. 13-C-2913.