Fernwood Mfg. Co.

FERNWOOD MFG. Co. 575 service field, either in actual repair, or in assisting and instructing appliance servicemen, we believe that he is appropriately included in a unit of servicemen, even though he does not work in the metro- politan Baltimore area. We therefore adopt the recommendation of the Regional Director that Storm's ballot be opened and counted. The Petitioner contends that Cohen is the shop foreman in charge of the television and appliance repair shop, with authority to assign work and to make effective recommendations for discharging shop employees. There are four repairmen in the shop, including Cohen. He is the senior man in point of service and experience. He helps the other men on difficult repair problems, and does most of the paper- work such as making up work tickets and keeping inventory records. His rate of pay is the same as that of the other three challenged voters, and it is more than that of any other shop repairman. He shows the men how to do their work properly, and instructs newly hired shop- men. Moylan informed Cohen about 6 months before the election that he was'to be the shop leader, and Cohen stated during the course of the Regional Director's investigation that he felt that he was re- sponsible for seeing to it that the work in the shop got done. Al- though lie has no authority to take disciplinary action against employees, we are nevertheless satisfied that he is a supervisor because he assigns work to the shop repairmen, and is responsible for their doing the work properly. We therefore overrule the Regional Di- rector's recommendation as to Cohen, and sustain the challenge to his ballot. [The Board directed that the Regional Director for the Fifth Re- gion shall, within ten (10) days from the date of this Direction, open and count the ballots of John J. Asendorf, James W. Crowson, and Robert E. Storm and serve upon the parties a revised tally of ballots.] Max Leventhal d/b/a Fernwood Mfg. Co.' and Furniture Work- ers, Upholsterers and Wood Workers Union, Local 123, Peti- tioner. Case No. 931-RC-4849. November 22, 1957 DECISION AND DIRECTION OF ELECTION Upo a petition duly filed under Section 9 (c) of the National Labor Relatic is Act, a hearing was held before Belle Karlinsky, hearing 1 During the hearing, the parties stipulated that the name of the Employer was "Max Leventhal doing business as Fernwood Manufacturing Company." It appears, however, from the entire record, that the name used by the Employer is abbreviated as it appears in the caption. 119 NLRB No. 77. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Leedom and Members Murdock and Rodgers]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9, (c) (1) and Section 2 (6) and (7) of the Act.' 4. (a) The scope of the unit: The Petitioner seeks a unit confined to employees of the Employer, whereas the Intervenor maintains that the history of bargaining establishes that only an industrywide unit is appropriate. The Employer takes no position on the unit issue. Before the Employer began operations, Max Leventhal was presi- dent and owned 50 percent of the stock of Fernwood Manufacturing Corporation, herein referred to as the Corporation, and David Fine- good owned the remaining 50 percent. The Corporation, which em- ployed about 60 employees, was engaged in the manufacture of various kinds of furniture and did contract work on organ parts. Its equip- ment was rented from Belvidere Manufacturing Company under a lease effective until 1958. The Corporation had been a member since about 1948 of the Indus- trial Relations Council of Furniture Manufacturers in Southern Cali- fornia, herein referred to as the Council, which bargains collectively on behalf of its members with the Intervenor. In 1955, Finegood,. for the Corporation, was one of the signatories to the Council-Inter- venor contract which was executed on August 1, 1955, and provided that it would be effective until July 1, 1957, and automatically renew- able thereafter absent 60 days' notice in writing of a desire to termi- nnate, modify, or amend. In April 1956, the Corporation ceased operations, and on May 4,. 1956, made an assignment for the benefit of its creditors. The Corpor- ation's employees were paid off by the plant superintendent.' On October 31, 1956, the Intervenor filed suit against the Corporation and. ' The Intervenor, Furniture Workers Union, Local 3161, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, was properly permitted over Petitioner's objection to intervene at the hearing upon the basis of a contract interest. See F. H. ',SoldivedeT. Company, 113 NLRB 225. 3 At the hearing, all the parties, including the Intervenor, stipulated to the existence- of a question concerning representation. ' l i,enthal tostified that he did not know- what the superintendent told the employees. when he paid them off. FERNWOOD AIFG. Co. 577 Leventhal alleging a breach of the union-security provisions of the contract, and seeking an injunction and damages.' About the middle of May 1956, Leventhal began operation of Fern- wood Manufacturing Company, which is wholly owned by him. This Company, the Employer herein, manufactures organ parts under con- tract at the location formerly occupied by the Corporation. It leases the same equipment from the same company, but at a different rental and on a month-to-month basis. Leventhal testified that he immedi- ately hired 8 or 10 6 of the former employees of the Corporation,' and that the Employer now has about 40 employees, about 10 of whom formerly were employed by the Corporation. In about May 1957, the Employer issued a bulletin to its employees setting forth its policies as to vacations, holidays, and seniority, and announcing that an insurance plan was under study.' In June, the Employer issued another bulletin describing an insurance plan which was to become effective on June 11, 1957, and which differed in some particulars from the provisions on this subject in the Council- Intervenor contract. Also in June, the Employer posted on the bul- letin board a vacation schedule providing for 1957 vacations prorated according to length of service, those employees who began working for the Company before July 1956 being given the longest vacation. Leventhal testified that the Employer does not belong to any asso- ciation that negotiates with labor organizations, and does not deal jointly for any purpose with other manufacturers. He also testified that he had talked several times with the Council attorney, but they had not discussed whether he would continue his Council membership, or whether the Employer would become a member. Leventhal had received no written communications from the Council since April 1956, but stated that "all my communications with them have been verbal."' He did not remember when Council dues were last paid, nor 5 It is not clear just when Leventhal discontinued compliance with the checkoff and other provisions of the contract. The record establishes only that it was prior to October 31, 1956. when the lawsuit was instituted. 6 The Employer's payrolls which are in evidence for the weeks of May 29 , June 5, and June 12, 1956 , however , show only 4 employees, and that for the week of June 19. only 7 employees. 7 Leventhal testified with regard to these employees that- I told them that I would abide by the contract that I always had with them and that they would receive their paid vacations, paid holidays and rates similar to what I had paid them before ... . I told them that they were entitled to their vacation as though they had continued working for me. that they would continue working for me under the same conditions that they had before, that they didn't or wouldn't lose any of the benefits because of the changes . . . I also told them that I felt that . . . we could work together in the spirit we had worked when we had the Union contract. I did mention at the time I didn't know if I could continue the insurance policies that they had had but as soon as the firm was on its feet and I could see my way clear that I would see that they got'the result of the benefits. a'Some provisions in this bulletin were taken verbatim from the Council-Intervenor con- tract. 476321--58-vol. 119-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he last attended a Council meeting, which he had previously attended "at least a minimum of two or three times a year." Because of the pending lawsuit instituted by the Intervenor, Leventhal refused to testify whether he was at present a member of the Council or whether he would deal through the Council in the future. He did testify, however, that he had not participated in the negotiations be- tween the Council and the Intervenor with regard to renewal of the contract which was in effect until July 1957. It is clear that Leventhal established the Company about a month after the Corporation had ceased operations, paid off its employees, and executed the assignment of its assets. It is also evident that the Company is wholly owned by him, operates under its own lease, makes only part of the products made by the Corporation, and employs fewer employees than the Corporation, most of whom had not been employed by the Corporation, and with whom he has been bargaining directly rather than through a union. As Leventhal thereby created a new business entity, distinct from the Corporation, it follows that this new Employer cannot, without more, be bound, as the Intervenor contends it is, by the industrywide pattern of bargaining.' Accord- ingly, in the absence of any multiemployer pattern of bargaining applicable to this Employer, we find that a unit limited to the Em- ployer's employees is appropriate. (b) The composition of the unit: The Petitioner seeks a unit of all the Employer's production and maintenance employees, excluding office clerical employees, salesmen, guards, professional employees, and all supervisors as defined in the Act. The Intervenor contended that the petition described an inappropriate unit, but did not indicate what categories it would include or exclude, and the Employer took no position on the unit question. As a plant unit is presumptively appropriate,10 and as no evidence was presented to establish that the proposed unit is inappropriate, we find that the unit sought by the Petitioner is appropriate. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees employed at the Em- ployer's Los Angeles, California, plant, excluding office clerical employees, salesmen, guards, professional employees, and all super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] 9 Although it is not clear that a contract-bar contention has been raised herein, as the contract is not applicable to the Employer, it could not in any event constitute a bar to this proceeding. '° Beaumont Forging Company, 110 NLRB 2200.