Funky, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Funky, Inc.' and Local 512, Warehouse & Office Workers' Union, International Ladies' Garment Workers' Union, AFL-CIO,2 Petitioner. Case 21-RC-16157 January 14, 1981 DECISION ON REVIEW AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 26, 1979, the Acting Regional Di- rector for Region 21 issued a Decision and Direc- tion of Election in the above-entitled proceeding in which he found appropriate a unit of all production and maintenance employees including cutters, spreaders, helpers, pickers, packers, billers, examin- ers, and truckdrivers at the Employer's facility lo- cated at 1301 South Hope Street, Los Angeles, California; excluding all sales employees, office clerical employees, designers, patternmakers, sample makers, guards, and supervisors as defined in the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Acting Regional Director's decision, contending, inter alia, that a unit limited to all production and maintenance employees is inappropriate, and that the only appropriate unit should also include the designers, patternmaker, and sample makers. On January 22, 1980, the National Labor Rela- tions Board by telegraphic order granted the re- quest for review insofar as it related to the unit placement of the patternmaker and sample makers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the entire record in this case and hereby makes the following findings: The Employer is a California corporation en- gaged in the manufacture of garments at its 1301 South Hope Street, Los Angeles, California, facili- ty. The Petitioner seeks a unit of all production, maintenance, and shipping employees; excluding all sales employees, office clerical employees, design- ers, patternmakers, sample makers, guards and su- pervisors as defined in the Act. There is no history of collective bargaining in the petitioned-for unit. In finding the petitioned-for unit to be appropri- ate, the Acting Regional Director relied on the physical separation of the excluded employees from the employees in the petitioned-for unit, as well as I The name of the Employer appears as amended at the hearing. 2 The name of the Union appears as amended at the hearing. 254 NLRB No. 42 the nonintegration of functions performed by the petitioned-for employees with respect to the tasks performed by the excluded employees. In addition, the Acting Regional Director found the pattern- maker to be the highest paid hourly employee. These factors, combined with the fact that the sample makers are supervised primarily by Annie DiPasquale, who has no authority over the peti- tioned-for employees; and that the excluded em- ployees have limited contact with the petitioned- for employees, led the Acting Regional Director to find the petitioned-for unit to be appropriate. For the reasons set forth below, we agree with the find- ings and conclusions of the Acting Regional Direc- tor. The Board has long held that "[T]he manner in which a particular employer has organized his plant and utilizes the skills of his labor force has a direct bearing on the community of interest among various groups of employees in the plant and is thus an important consideration in any unit deter- mination." International Paper Company (Southern Kraft Division), 96 NLRB 295, 298, fn. 7 (1951). Al- though the Employer herein urges that the appro- priate unit include the disputed classifications, we note in this regard that the petitioned-for unit: cut- ting department and warehouse employees, is the focal point of the Employer's production process. Thus, although the Employer designs and con- structs a pattern, and makes samples of the gar- ments it hopes to sell, the only part of the mass- production process in which the Employer engages is cutting and shipping. Other than the sample makers, it employs no other sewing machine opera- tors, but rather subcontracts the garment construc- tion to contract sewers. In addition, and as noted by the Acting Regional Director, the designers, patternmaker, and sample makers do not work in the production area with the cutters, but rather in the "general offices," physically separated from the cutting floor and shipping area, where they work closely with the Employer's executives who are primarily concerned with the "pre-production" process of developing a garment that will not only "sell," but that can also be easily and efficiently produced. Thus, with respect to the sample makers, and contrary to our dissenting colleague, we note that, although the employees in that classification do operate sewing machines, the focus of their task, along with the designers and patternmaker, is to participate in the formulation of a prototype gar- ment. The sample makers must therefore be distin- guished from the general classification of sewing machine operators, who are most often engaged in the routine mass-production of garments after their 372 FUNKY, INC. design and manner of production has already been conclusively determined. Moreover, and contrary to our dissenting col- league who raises the rubric of "community of in- terest" in urging the appropriateness of a "wall-to- wall" unit, we hold, in agreement with the Acting Regional Director, that the facts herein show that the disputed classifications do not share a commu- nity of interest with the petitioned-for cutting and shipping employees. Thus, the Acting Regional Di- rector found3 that the sample makers go into the cutting area only when it appears that material has been improperly cut by the cutters. Likewise, the patternmaker has contact with the cutting depart- ment only when the cutter has a problem in per- fecting the pattern. In addition, and as noted supra, the patternmaker and sample makers work in the "general offices" in proximity to the designers and the Employer's executive officers. Finally, there is no evidence of employee interchange between the disputed classifications and the employees in the petitioned-for unit. Thus, upon consideration of all the facts, we are in agreement that there is not the significant degree of functional integration between the petitioned-for unit and the disputed classifica- tions, nor is there the commonality of employee skills and functions that would dictate inclusion of 3 Our dissenting colleague does not contend that the Acting Regional Director misconstrued the facts, but rather assumes as fact what the record evidence does not reveal. Thus, Member Jenkins proceeds from an assumption that this Employer's operations are "integrated." and then concludes that, "it would not be unreasonable to believe [in the absence of relevant evidence] that the sample makers and patternmaker have more contact with the cutters than the cutters have with the shipping employees." Speculation has never been a satisfactory substitute for facts; nor will speculation overcome the Board's policy of giving great weight to a petitioner's desire as to unit scope, as well as the policy that it is not essential that the petitioned-for unit be the most appropriate unit. In addi- tion, we find that the Petitioner, on the basis of the record evidence out- lined, infra, has rebutted any presumption of a plantwide unit herein. See. generally. Marks Oxygen Company of Alabama, 147 NLRB 228 (1964). Contrary to our dissenting colleague, inclusion of the "deleted" lan- guage cited by him in fn. 6 of his dissent changes neither the result of our decision nor our analysis of our colleague's dissent. Thus, although Member Jenkins refers to certain facts which he believes establish an in- tegrated operation. he nonetheless concedes that, "In fact, the record fails to disclose the degree of employee interaction that occurs during the movement of materials through the various operations within the plant." Indeed, functional integration of an employer's operations, and inter- changeability and contact among employees, have traditionally been con- sidered as separate factors in determining whether or not a community of interest exists among an employer's employees. See. for example. Leaf- Chronicle Company, 244 NLRB 1104 (1979), wherein the Board found ap- propriate a separate unit of newsroom employees based, in part, on the Employer's organization of its operations, as well as on the minimal con- tact of newsroom employees with the editorial employees at the Employ- er's "outlying papers'; and Capitol City. Inc., 212 NLRB 418 (1974), wherein the Board found the unit sought by that petitioner to be appro- priate based on "distinct skills. lack of interchange, separate work area and immediate supervision, higher average wages, and limited contact with other employees." (212 NLRB at 419.) While our colleague may therefore present an arguable case in favor of finding a functionally inte- grated operation-an argument which we do not believe the facts sup- port-he cannot, by virtue of the record before us and by his own admis- sion, present facts which might factually support a finding of significant employee interaction. the patternmaker and sample makers in the peti- tioned-for unit. Accordingly, we find that, based on the facts herein, the patternmaker and sample makers do not share a community of interest with the petitioned- for unit and that a unit limited to the Employer's production, maintenance, and shipping employees is appropriate. 4 For the reasons stated above, we conclude that the following employees of the Employer represent a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All production and maintenance employees in- cluding cutters, spreaders, helpers, pickers, packers, billers, examiners, and truckdrivers employed by the Employer at its facility locat- ed at 1301 South Hope Street, Los Angeles, California; excluding all sales employees, office clerical employees, designers, patternmakers, sample makers, guards and supervisors as de- fined in the Act. As the election has already been conducted and all unit employees have had an opportunity to cast their ballots, we shall direct the Regional Director to open and count the ballots cast by all employees of the Employer in the appropriate bargaining unit, and to issue a tally of ballots. DIRECTION It is hereby directed that the Regional Director for Region 21 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Decision on Review and Direction, open and count the valid ballots cast in the election held on January 29, 1980, and prepare and cause to be served on the parties a tally of bal- lots in accordance with Section 102.69 of the Board's Rules and Regulations, Series 8, as amend- ed, which shall thereafter be applicable to the fur- ther processing of this matter. MEMBER JENKINS, dissenting: Unlike my colleagues, I find that the sample makers and patternmaker share a community of in- terest with other employees in the requested unit and that a unit excluding them is inappropriate. 4 There is limited precedent in this area since in most cases the peti- tioning union requested a unit of cutters only. We find the larger unit requested by Petitioner herein, which includes shipping employees. to be appropriate, since no one here argues that only a unit of cutters is appro- priate, or that the cutters employed by this Employer should be function- ally designated as a "craft" unit See, generally. Arnell of California. 217 NLRB 986 (1975) With respect to the patternmaker, we note that he works closely with the designers and should therefore be excluded. Cf. Sir James. Inc.. 97 NLRB 1572 (1952), where the patternmaker there served as a cutter when not making patterns, and where the petitioning union had no objection to her inclusion in a unit of cutter,. 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that the Employer's operation starts with the designers who, working closely with the Employer's president, create a design for a garment. Thereafter the designers make a pattern, the cutters cut the material, and the sample makers make one sample. If the sample is approved for marketing, 12 duplicate samples are cut by the cut- ters and sewn either by the sample makers or con- tract sewers, depending on the sample makers' work loads. These duplicates are then supplied to sales personnel. Upon receipt of orders for a par- ticular garment, the patternmaker makes a final fin- ished pattern for use in the cutting department. Material is delivered to the cutting department in bulk where it is cut to the pattern. The parts are then shipped to the subcontractors who do the sewing. The finished product is returned to the shipping department where it is prepared for ship- ment to the customer. The Employer does no pro- duction sewing on its premises. My colleagues' effort to justify the exclusion of the sample makers and patternmaker by claiming that they perform "pre-production" work while the cutters perform "production" work is undercut by the record evidence. Assuming arguendo such a di- vision existed, it is clear that the cutters perform "pre-production" work when they cut the first sample and the 12 duplicate samples, supra. Similar- ly, it would seem clear that the patternmaker per- forms "production" work when he makes the final finished pattern for the cutters, supra. In short, the Employer's operations are not susceptible to such a division, at least not for the purpose of separating the work duties of the sample makers, pattern- makers, and cutters. Instead, the record shows that the Employer's operations are functionally integrated with the em- phasis on the design and production of sample gar- ments followed by the preparation of materials for shipment to subcontractors who sew the finished product. Indeed, under my colleagues' analysis, the sole "production" function performed by the Em- ployer's employees is the cutting of the bulk mate- rial to be sent to the subcontractors. Obviously, however, the Employer's integrated operations cannot be divided so sharply. Likewise, I note that neither the disputed employees nor the cutters ex- ercise skills which separate them on a craft basis.5 Nor is there sufficient evidence in the record before us to find that the disputed employees have a separate community of interest based on physical separation or absence of work contacts. In fact, the record fails to disclose the degree of employee in- teraction that occurs during the movement of ma- terials through the various operations within the plant. But from the nature of the integrated oper- ations described above, it would not be unreason- able to believe that the sample makers and pattern- maker have more contact with the cutters than the cutters would have with the shipping employees. 6 Finally, I note that the disputed employees work the same hours and have the same benefits and comparable rates of pay as other employees in the unit.7 In short, I find that the sample makers and patternmaker share similar terms and conditions of employment and are an integral part of the Em- ployer's production process. Hence, I dissent from the exclusions of the sample makers and pattern- maker from the unit found appropriate here. ' The record fails to show that the sample makers are other than expe- rienced sewing machine operators. Thus, I see no relevance to my col- leagues' effort to distinguish the sample makers' functions from sewing machine operators who perform routine production sewing, especially here where the Employer does not employ such sewing machine opera- tors and the sample makers and cutters both participate in the develop- ment of the sample or prototype garments. I note that my colleagues acknowledge that the sample makers go into the cutting area when it appears that material has been improperly cut by the cutters and that the patternmaker has contact with the cutting department when the cutter has a problem in perfecting the pattern. My colleagues accuse me of proceeding from an "assumption" that the Em- ployer's operations are integrated. But my conclusion that the Employ- er's operations are integrated is based on record evidence summarized in my dissent; it is not "taken for granted without any evidence." My col- leagues accuse me of engaging in speculation. But they quote only part of the alleged offending sentence-deleting the introductory clause and omitting any reference to the footnote appended to the sentence-which clearly represents an inference that follows from record evidence and in- dications summarized in my dissent. If my colleagues intended to accuse me of drawing unwarranted inferences, they should have said so and perhaps, why the inferences are unwarranted. 7 Unlike the Regional Director and my colleagues I find no signifi- cance in the fact that the patternmaker is the highest paid employee, par- ticularly here where the record fails to reveal the various pay rates. 374