F. W. Wint Co.

In the Matter of RuFUS W. G. WINT AND FRANK J. FATZINGER, D/B/A F. W. WINT Co., EMPLOYER and UPHOLSTERERS ' INTERNATIONAL UNION OF NORTH AMERICA , A. F. OF L., PETITIONER Case No. 4-R-2739.-Decided March 2,1948 Mr. Julius W. Rapoport, of Allentown, Pa., for the Employer. Mr. Haskell Golden, of Philadelphia, Pa., and Mr. Ray Pudliner, of Fullerton, Pa., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed; hearing in this case was held at Allen- town, Pennsylvania, on October 23, 1947, before John H. Garver, hearing officer. The hearing officer'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 1. THE BUSINESS OF THE EMPLOYER Rufus W. G. Wint and Frank J. Fatzinger, doing business as F. W. Wint Co., are partners engaged in the operation of a casket factory, planing mill, lumber yard, and coal business in Catasauqua, Pennsyl- vania. The Employer annually purchases more than $200,000 worth of raw materials of which more than 40 percent is obtained from points outside the State of Pennsylvania. The Employer's annual sales ex- ceed $300,000, of which more than 7 percent is shipped to out-of-State customers. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. i The Employer 's motion to dismiss the petition on the ground that the Petitioner has not complied with the filing requirements enumerated in Sections 9 (f) and (h) is hereby denied inasmuch as the Petitioner is in fact in compliance with these statutory requirements. 76 N. L. R. B., No. 71. 472 F. W. WINT Co. 473 II. THE LABOR ORGANIZATION INVOLVED The Petitioner is a labor organization, affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Peti- tioner has been certified by the Board in an appropriate unit. The Employer contends that according to the General Laws of the Petitioner, the latter cannot admit to membership some of the em- ployees herein concerned, and that, therefore, the present proceeding should be dismissed. Inasmuch as there is no showing that the Peti- tioner will not accord adequate representation to all employees in- cluded within the unit hereinafter found appropriate, we find no merit to this contention 2 We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in accordance with the agreement of the parties, that all the production and maintenance employees of the Employer, including the truck drivers but excluding the night watchmen,' the clerical em- ployees, and all supervisors, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Rufus W. G. Wint and Frank J. Fatzinger, d/b/a F. W. Wint Co., Catasauqua, Pennsylvania, an elec- tion 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, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, among the em- B Matter of Viigmla Smelt7nq Company, 60 N. L. R . B. 616 , Matter of George K. Garrett and Company, Inc, 72 N L R B 1286 a We have excluded the night watchmen from the unit although the parties agreed to their inclusion because, as we stated in our Decision in Matter of C. V. Hill and Company, 76 N. L R B. 158, Case No 4-R-2719, Section 9 (b) (3) of the Act as amended pro- hibits the Board from including in any unit any individual who has a duty to protect the property of the Employer against theft whether by employees or "other persons." The iccord here is clear that the watchmen have such a duty. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees 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 employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, 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, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by Upholsterers' International Union of North America, A. F. of L., for the purposes of collective bargaining.