The Englander Co., Inc.

In the Matter of THE ENGLANDER COMPANY, INC. and THE T EXTILE WORKERS UNION OF AMERICA, CIO i Case No. 13-B-3140.-Decided January 31, 1946 Sonnenschien, Berlcson, Lautmann, Levinson, and Morse, by Messrs. Ben Liss and James Nielson, of Chicago, Ill., for the Company. Messrs. Earl T. McGrew and Edward Todd, of Chicago, Ill., for the Union. Mr. Herbert C. Kane, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by The Textile Workers Union of America, CIO, herein called the Union, alleging that a question affecting com- merce had arisen' concerning the representation of employees of The Englander Company, Inc., Chicago, Illinois, herein called the Com- pany, the National Labor Relations Board provided for an appropriate hearing upon due notice before John R. Hill, Trial Examiner. Said hearing was held at Chicago, Illinois, on July 31 and August 6, 1945. The Company andthe Union appeared 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. At the hearing the Company moved to dismiss the petition alleging, in substance, that no question concerning representation has arisen. The Trial Examiner reserved ruling on this motion for the Board. Thereafter the Company filed a similar motion with the Board. For the reasons set forth in Section III, infi a, we deny these motions. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an oppor- tunity to file briefs with the Board. ' The petition and other formal papers were amended at the hearing to show the correct name of the Company and the Union. 65 N. L. R. B., No. 116. 672 .THE ENGLANDER COMPANY, INC. 673 Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Englander Company, Inc., a Delaware corporation, has its principal office in Chicago, Illinois. In addition to other plants, it operates a plant in Chicago, the only one involved in this proceeding, where it is engaged in the manufacture of mattresses and springs. During the year 1944, the Company purchased raw materials of a value in excess of $50,000, approximately 50 percent of which represented shipments from points outside the State of Illinois. During the same period the Company sold finished products of a value in excess of $90,000, approximately 35 percent of which represented shipments to points outside the State. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization 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 its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, 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 Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2 The Field Examiner reported that the Union submitted 73 membership cards ; that the names of 55 persons appearing on the cards were listed on the Company 's pay roll of July 15, 1945 ; that of these cards , 7 were undated, and 48 were dated between January and June 1945 ; and that there were 166 employees in the alleged appropriate unit. The Company moved to dismiss the petition contending , in effect, that no question con- cerning representation has arisen . In support of its position it urged that ( 1) the Field Examiner's report was submitted without adequate investigation ; (2) the designations submitted had not been checked with actual signatures of employees , ( 3) certain cards were undated and should not have been counted , and (4 ) the remaining designations fall short of a substantial showing of representation . We find no merit in this contention. The purpose of the preliminary showing of cards and of the Field Examiner 's statement has been frequently set forth in our decisions . See Matter of Buf alo Arms Corporation, 57 N. L. R. B. 1560 , Matter of Lalance & Gooslean Manufacturing Co, 63 N. L R. B 130 . Matter ,of H J Hill Stores, Inc., Warehouse, 39 N. L R. B. 874. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE APPROPRIATE UNIT The parties agree that a unit of all production and maintenance employees, including those employed in the categories set forth in Schedule A, but excluding office employees, clerical employees, con- fidential employees, foremen, the maintenance supervisor, the general manager, and supervisors, would be appropriate. They disagree, how- ever, as to the inclusion or exclusion from the unit of certain categories of employees. These disputed categories are hereinafter discussed. The Union seeks the inclusion and the Company the exclusion of the following : Employees in the- wire working department-The Company con- tends that the employees in this department should not be included in the unit because they do not work on textiles but work only with wire, and their interests are therefore dissimilar to those of the other pro- duction employees. The employees in question make coils from wire for use in the construction of springs and mattresses. Their working conditions are substantially the same as those of the other production employees, and they are under the same ultimate supervision as are the employees in five other departments whom the parties agree should be included in the unit. In view of the foregoing we shall include these employees in the unit. Shipping clerk-This employee works in the office of the shipping department where the group leader of this department has his desk. She, like the other employees in this department, is responsible directly to the traffic manager. She is engaged only in clerical work. Because she is under the same supervision as the other employees in this de- partment whom the parties agree to include, and has interests more closely allied to these employees than to those of the office clerical employees, we shall include her in the unit. Charwoman-This individual works an 8-hour shift commencing at 1 p. in. Her duties consist of cleaning the office and, on occasion, the washrooms. - The Company contends that she has no community of interest with the other employees who are to be included in the unit. We find her duties and interests to be similar to those of the other maintenance employees and, accordingly, we shall include the charwoman in the unit 8 Janitress-This employee works in the sewing department during the regular working day. Her principal function is to keep the work- ing area of the department clean. We find that she is a maintenance employee with duties and interests in common with the other employees who are to be included in the unit. We shall, therefore, include the janitress in the unit. 8 Matter of Ideal Roller and Manufacturing Company, Inc., 60 N L R B 1105 THE ENGLANDER COMPANY, INC. 675 Inspectors-The parties agree to include in the unit the inspectors in the sewing department who inspect mattress covers and assemble them for shipment. They are in disagreement, however, with respect to the three inspectors in the mattress department. These latter em- ployees inspect the finished mattresses, box springs, and all other material shipped from the plant, are hourly paid, and, like the other employees in this department, are under the supervision of the super- intendent. If defective work is found they either make the repairs themselves or set it aside for reassignment by the group leader for repair. Thus, although they can reject work, they are clearly not employed in a supervisory of confidential capacity. In accordance with our usual practice in such circumstances, and in view of the agree- ment of the parties to include the inspectors in the sewing department, we shall include all inspectors in the unit. The Company would include and the Union exclude the following : Group leaders-There are 6 individuals in this classification who are in dispute.4 The Union would exclude these employees as super- visors. Like other production and maintenance employees, these group leaders punch time clocks, and for the most part, work along with the other production and maintenance employees in their re- spective departments. At other times they instruct and assign work to from 4 to 19 employees. In those departments where piece-work rates prevail, they are paid at the same rate as production employees while working along with these employees; however, when they in- struct employees and assign work to them, they are paid on an hourly basis. In those departments where the employees are hourly paid, group leaders receive about 50 percent more per hour. These group leaders do not have the power effectively to recommend the hire, dis- charge, or change in status of their subordinates. The record also discloses that they are not permitted to attend foremen meetings. While the Union contends that group leaders, by virtue of their author- ity to assign work, have power to affect the earnings of piece-work employees under their direction, the record shows that, in normal cir- cumstances, employees' earnings are not affected by such assignments, since all piece workers of comparable skill ultimately earn the same amount. Under all the circumstances , we find that these group leaders are not supervisory employees within our usual definition. We shall, therefore, include them in the unit. Watchmen-There are three persons employed in this category. Their principal assignment is to guard the premises. Two of them 4 The parties are not in dispute , however, with respect to one , Piccinini, whose classifi- cation as a group leader appears to be a misnomer . The record shows that the sole reason for his classification as a group leader is the fact that, like the group leaders, he does some manual labor. Piccinini is assigned to the Wire Working Department . Unlike the group leaders hereinafter discussed , he has effective power to recommend changes in the status of his subordinates We shall, therefore , exclude him from the unit, in accordance with the agreement of the parties. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make the rounds at night when the plant is not in operation, and the third, who works during the day, is stationed in the watchmen's shack. They are neither militarized nor deputized, and they do not appear to have monitorial duties in relation to other employees. We shall include them in the unit. Laborers-There are nine employees in this work classification; three of them are paid daily; the others are paid weekly. The Union would include the laborers paid weekly, but would exclude those paid daily, while the Company would include all laborers irrespective of mode of payment. The disputed employees do not differ in any other respect from the other employees in this category . The former have been employed by the Company from 3 to 6 months, and are regular full-time employees . We have frequently held that in determining the appropriateness of a unit we will not distinguish , between employ- ees solely on the ground of differences in mode of payment, but will look to their general interests, duties, and nature of work. Accord- ingly, because the other employees who are concededly doing the same work are to be included by, agreement of the parties , we shall in- clude all. laborers in the unit. TVarehouseman-This employee is listed on the pay roll of the shipping and receiving department and is under the supervision of the traffic manager, as are the other employees in this department whom the parties agree to include . He is stationed at a warehouse some blocks from the plant. ' His duties, which consist of unloading, storing, weighing, and keeping records of certain merchandise, are similar to the duties of the other employees in the department. The only objection to the inclusion of this employee in the unit is that he is not stationed in the plant proper. We find that his duties and in- terests are closely allied with those of employees in the shipping and receiving department. We shall, therefore, include the warehouse- man in the unit. -Repairman-The Union would exclude this employee on the ground that he is a group leader and, therefore, a supervisory employee. He is the only employee in the studio couch department of the Company. He was formerly the group leader of this department but no longer exercises any group leader functions . He works exclusively on repair- ing studio couches which have been returned by customers . Inasmuch as he spends all his time doing production work and because he has no supervisory power within the meaning of our customary definition, we shall include the repairman in the unit. We find that all production and maintenance employees of the Com- pany, including those employed in the categories set forth in Schedule "A", group leaders (except the group leader in the Wire Working Department), watchman, shipping .clerk, inspectors, the charwoman, the janitress, employees in the Wire Working Department , the ware- THE ENGLANDER COMPANY, INC. 677 houseman, laborers, and the repairman in the studio couch depart- ment, but excluding office employees, clerical employees, confidential employees, foremen, the maintenance supervisor, the general manager, supervisors, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. TIIE DETERMINATION OF REPRESENTATIVES 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. The Company, on July 30, 1945, laid off about 15 employees due to a shortage of material. At the same time it furnished each laid-off employee with a release. At the hearing, the Company contended that these employees had been discharged and were, therefore, ineligible to vote in any representation election. The Union contended that the employees were merely temporarily laid off and urged that they be permitted to participate in the election. On November 5, 1945, subse- quent to the hearing, the Board and the Company agreed to a settle- ment of charges filed by the Union which alleged an unfair labor prac- tice with respect to the severance of these employees. The settlement provides, inter alia, that the severed employees shall be placed on a preferential hiring list. Under these circumstances, we find that these employees have a substantial interest in the results of the election and are, therefore, eligible to vote in the election hereinafter directed. 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 representa- tives for the purposes of collective bargaining with The Englander Company, Inc., Chicago, Illinois, an election by secret ballot shall be conducted as early as possible, but not later than (30) thirty' days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth 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, and 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our determination in Section V, above, 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 employees in the armed forces of the United States who present themselves in person 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 deter- mine whether or not they desire to be represented by The Textile Workers Union of America, CIO, for the purposes of collective bargaining. SCHEDULE "A" Box Spring Department Frame Assembler Stapler Hand Tier Coverer Headboards Maker Garnett Department Batt Head Tender Feeder Hustler Maintenance Department Engineer Assistant Fireman Carpenter Porter Elevator Operator Outside Repairs Machine Operators Mattress Department Fillers-Table Fillers-Machine End Sewer Tape Edge Operator Machine Tufter Mattress Department-Con. Roll Edge Operator Mattress Beater Hand Finisher Repairs Miscellaneous Paper Baler Packing Department Balers Sewing Department Cutter Assistant Cutter Border Cutter Border Machine Operator Stockroom Sewing Machine Operator Shipping-Receiving Checkers Hustler Wire Working Department Coiler Unit Assembler Hustler Board Maker