Maiden Form Brassiere Co., Inc.

1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while permitting changes made necessary by fluctuating economic conditions, have carefully preserved the right of employees to change their bargaining representative at predictable intervals. We think that right is as worthy of preservation now as it was at the time those decisions were rendered. We therefore find no merit in the contention of the Employer that the substantial benefits accruing to employees under their supplemental agreement which were obtained for them by bargaining with respect to a longer contract period outweigh in im- portance the immediate exercise of their right to select a new bargain- ing representative.' Accordingly, as the petition herein was timely filed with respect to the termination date of the June 16, 1950, contract, we find that that contract, as extended, does not bar a present determination of repre- sentatives.' 4. The parties agree and we find that all production and mainte- nance employees, including janitors, truck drivers, and welders, at the Employer's plant in Kimballton, Virginia, excluding laboratory, office and clerical employees, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] " Consolidated Western Steel, Inc., 93 NLRB 1199. 6 A Siegel & Sons, Inc., 94 NLRB 471. MAIDEN FORM BRASSIERE Co., INC. and LOCAL 20, OFFICE EMPLOYEES INTERNATIONAL UNION, AFL, PETITIONER . Case No. 2-RC-3669. October 9, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before George Turitz, hearing ,officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 96 NLRB No. 105. MAIDEN FORM BRASSIERE CO., INC. 679 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. The Intervenor urges as a bar to this proceeding a contract with the Employer dated January 19, 1950, for a term expiring March 31, 1952. The Petitioner contends that this contract is not a bar because it contains an illegal union-security clause and there is no sufficient deferral clause. The pertinent provisions of the contract are as follows : THIRD : (a) UNION SHOP. The Employer agrees that it will employ none but members of the Union in good standing in its office and shipping department in the Bayonne plant. (b) All provisions of this agreement including the union shop provisions in subdivision (a) of this Article are subject to the applicable provisions, restrictions and conditions of the Labor- Management Relations Act, 1947. No election under Section 9 (e) of the Act has been held to author- ize the provision contained in subdivision (a). Moreover, this pro- vision for a closed shop is unlawful, without regard to whether a union-authorization election has been conducted, because it exceeds the limited form of union security permitted by Section 8 (a) (3) of the Act. However, the Intervenor contends that the provision in sub- division (a) is rendered ineffective by virtue of the provision in sub- division (b). We do not agree with the position taken by the Inter- venor. In all cases where the Board had found that a contract with an unauthorized union-security provision constituted a bar, the con- tract had a qualifying clause which clearly postponed the effectiveness of the union-security provision until it should be authorized as pro- vided in the Act.2 In our opinion the provision in subdivision (b) does not clearly and expressly defer application of the unauthorized closed-shop provision of subdivision (a).3 Accordingly, we find that the agreement dated January 19, 1950, is not a bar to a current de- -termination of representatives.4 We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sectiorr9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All parties agree that the appropriate unit in this case should be confined to the two buildings of the Employer's Bayonne plant. District 65, Distributive, Processing and Office Workers of America , herein called the Intervenor , appeared at the hearing and was permitted to intervene because of its claim of a current contractual interest. 2 Schaefer Body, Inc, 85 NLRB 195; Wyckoff Steel Company, 86 NLRB 1318 ; Barium Steel and Forge, Inc., 88 NLRB 564. See Reading Hardware Corporation , 85 NLRB 610; Wheelco Instrument Co., 90 NLRB 138; O . F. Shearer & Sons, 93 NLRB 1228. Cf. Allen U. Smith, Inc , 96 NLRB 230. In view of this conclusion . we need not deal with any other arguments advanced by the Petitioner regarding the effectiveness of the contract as a bar. 680 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD The Petitioner and the Employer contend that the unit should con- sist of all office employees and shipping department employees, includ- ing expediters and' group leaders, but excluding the five confidential secretaries of the general manager, assistant general manager, the chief industrial engineer of production, the production manager, and the manager of the Employer's Third Street Building, respectively. The record discloses that this has been the bargaining unit in the Em- ployer's plant for over 15 years. The Intervenor asserts that there should be two units in the plant, namely, (1) office personnel, excluding the five confidential secre- taries, and (2) all shipping department employees. The Intervenor further contends that the shipping department unit (or the present unit if found appropriate) should include certain heavy shipping em- ployees who have been bargained for in the past as part of the produc- tion and maintenance unit. The Intervenor would also include in its proposed shipping unit three expediters. The Intervenor submits to the Board the question as to whether the group leaders are super- visors, although it does not take any position on this matter. The office and shipping department employees: As previously indi- cated, there has been a considerable bargaining history of representa- tion of these employees in the same unit. Moreover, the record dis- closes that their interests, duties, and' working conditions are very similar. Office employees work on every floor of both buildings of the Bayonne plant, including those floors on which the shipping de- partment employees are located. Many shipping employees, such as write-up men and order pickers and packers, do some writing; and many office employees are required to handle the same packages and cartons that shipping employees do, in addition to operating office equipment such as dupligraph machines. The operation of the office equipment at times requires work as strenuous physically as shipping work, for the largest packages handled in the shipping department weigh a maximum of 32 pounds. As indicative of the similarity of duties of the office and shipping department employees, a female office employee testified at the hearing that she spent approximately 25 percent of her time receiving, separating, repacking, and reshelving returned merchandise. Furthermore, the record shows that the pack- ing and shipping of advertising material presently handled by the shipping department employees was at one time performed by female office employees. Apparently many office employees work in overalls while many shipping employees work in business clothes, and all have the same hours of employment. There have been some transfers of employees between the office and shipping-departments. The major portion of these transfers 1 s involved promotions of checkers to office positions. MAIDEN FORM BRASSIERE CO., INC. 681 Although the record does not disclose in detail the supervisory hierarchy, it appears that when office employees work on the same floors as shipping department employees, they are supervised by the manager of the shipping department. Under the circumstances of this case, and particularly in view of the bargaining history, we find that the appropriate unit consists of both office and shipping department employees.5 The expediters: There are three expediters all of whom have been included in the office employees and shipping department employees unit in the past. The duties of these employees apparently require that they have regular contact with the office and shipping depart- ment employees. Thus, the production-control expediter makes cer- tain that the necessary trimming and accessories arrive at the appro- priate operating departments. The shipping expediter checks cus- tomers' complaints of shortages to the extent of ascertaining that the shipping department has received or does receive the merchandise in question. The traffic expediter sees to it that items are transferred quickly between the two buildings of the Bayonne plant. In view of the foregoing, we believe that the expediters have a sufficient community of interest with the office and shipping depart- ment employees to warrant their continued inclusion in the unit. The heavy shipping employees: Bulk shipments-incoming, out- going, and interplant-are handled by shipping employees who are referred to in the record as "Kubec's boys" and "Alderman's boys." 'These employees have been considered as part of the production and maintenance unit and have been represented as part of that unit since 1933 by the International Ladies' Garment Workers' Union. In .addition to their shipping duties, these employees help clean and oil production machinery. In view of the dissimilarity of their interests and duties with those of the office and shipping department employes and their long history of bargaining as part of the production and maintenance unit, we shall exclude "Kubec's boys" and "Alderman's boys" from the unit found appropriate herein. The group leaders: Group leaders teach new employees and watch them at their work, but are not expected to report to their super- visors concerning these matters. Nor are they expected to report to their supervisors the fact that any particular employee makes fre- quent mistakes. Assignment of work by the group leaders requires little discretion and although they are relied upon to see that the work is performed correctly, they are not responsible for the amount ,of work done by their groups, except insofar as they may request 3 See Unsted World Films, Inc., 94 NLRB 644; Wilkening Manufacturing Company, 93 NLRB No. 171; B. F. Goodrich Company, 92 NLRB 575. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the assignment of additional employees in case of absences or short- ages. Moreover, we note that group leaders have always been in- cluded in the historic bargaining unit. It is apparent that the duties of the group leaders are primarily of a routine nature which do not call for the exercise of independent judgment. Upon the entire record, we find that the group leaders are not, in fact, supervisors within the meaning of the Act, and we shall include them in the unit.' The confidential secretaries: According to the record, there are five private secretaries who all parties agree should be excluded from the unit as confidential employees. As previously indicated, these secretaries work for officials of the Employer who deal with wage changes, piecework rates and similar matters, or who handle griev- ances at least at the first level of the grievance procedure. In these circumstances, we shall exclude the private secretaries from the bar- gaining unit as confidential employees.? In accordance with the foregoing determinations, we find that all office employees and shipping department employees of the Employer at its Bayonne, New Jersey, plant, including expediters, group leaders, and part-time employees,' but excluding confidential secre- taries, heavy shipping employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 6 Republic Steel Corporation, Canton Plant, Central Alloy District, 91 NLRB 904; Radio Industries Inc., 91 NLRB No. 124. 7 The Texas Company, 90 NLRB No. 121. 8 According to the record, the Employer has one part-time employee who usually works 8 hours every Saturday. All parties agree, and we find, that the part-time employee should be included in the unit. HENRY L. STOLL, LYLE L. STOLL AND JOSEPH W. HAMPTON, D/B/A STOLL LUMBER COMPANY and INTERNATIONAL WOOD WORKERS OF AMERICA, CIO1 PETITIONER. Case No. 20-RC-1418. October 9,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert V. Magor, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. 96 NLRB No. 107.