May Knitting Company, Inc.

In the Matter of MAY KNITTING COMPANY, INC. and UNITED WHOLE- SALE AND WAREHOUSE EMPLOYEES OF NEW YORK, LOCAL No. 65, C. C.I.O. Case No. R-1054 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES February 27, 1939 On November 17, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled case.' The Direction of Election directed that an election by secret ballot be conducted among all inside employees of the May Knitting Company (New York City), herein called the Company, at its Broadway plant, who were employed by the Com- pany during the pay-roll period of September 30, 1938, excluding supervisory employees and those employees who quit or were dis- charged for cause between such date and the date of election, to determine whether they desire to be represented by United Wholesale and Warehouse Employees of New York, Local No. 65, affiliated with the Committee for Industrial Organization, herein called the Union, for the purposes of collective bargaining. Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted on November 29, 1938, under the direction and supervision of the Regional Director for the Second Region (New York City). On November 30, 1938, the said Regional Di- rector, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties an Intermediate Report on the Election. As to the election and its results, the Regional Director reported as follows : Total number eligible to vote________________________________ 37 Total number of ballots cast______ ___________________________ 36 Total number of ballots counted ___________________________ 33 19 N. L. R. B. 938. 11 N. L. R. B., No. 57. 772 MAY KNITTING COMPANY ET AL . 773 Total number of votes in favor of United Wholesale and Ware- house Employees of New York, Local No. 65, C. I. O______ 19 Total number of votes against afore -mentioned union--------- 14 Total number of blank votes_________________________________ 0 Total number of void ballots________________________________ 0 Total number of challenged votes_ _________________________ 3 The Company filed objections to the Decision and Direction of Election issued by the Board on November 17, 1938, and to the Inter- mediate Report on the Election, and requested oral argument before the Board. The Board granted the Company's request for oral argument, which was had on January 31, 1939, before the Board in Washington, D. C. The Company was represented by counsel and participated in the argument. Thereafter the Company and the Union filed briefs with the Board, which have been considered. Upon the entire record in the case, the Board makes the following : CONCLUSIONS AS TO ISSUES RAISED AT ORAL ARGUMENT In our earlier decision we found the appropriate unit for the purpose of collective bargaining to consist of all inside employees of the Company at its Broadway plant, exclusive of supervisory em- ployees. Pincus, the office manager, Laiden, the order clerk, Parme- giani, the shipping clerk, and Holdner, director of the home workers, were expressly excluded from such unit as supervisory employees. At the argument the Company maintained that the Board erred in excluding Holdner, Laiden, and Parmegiani from the bargaining unit as supervisory employees. As to Holdner, the Company re- newed its contention that her position in 'the plant differs in no re- spect from that of the clerical employees who are eligible for mem- bership in the Union. No considerations were raised in the oral argument, however, which were not fully considered and discussed in our earlier decision, in which we found that Holdner's duties and relation to other employees in the plant warranted her exclusion from the appropriate unit as a supervisory employee. We therefore affirur our finding in that respect. As to Laiden and Parmegiani, the Company urges that their inter- ests are identical with those of other employees within the appro- priate unit inasmuch as the two men work right along with the others in their departments and lack the power to hire or discharge. The Company insists that their supervisory functions and higher sal- aries result from their greater experience and seniority, as a result of which they are shown special favor. A similar contention was advanced in Matter of National Motor Bearing Company and Inter- national Union, United Automobile Workers of America, Local No. 164275-39-vol xz-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 76,2 where we found that certain "older" employees, who spent from 80 to 95 per cent of their time in manual work and who lacked the power to hire and discharge other employees, possessed duties of such a supervisory nature that their exclusion from the bargaining unit was warranted. Again, in Matter of Fleischer Studios, Inc. and Commercial Artists and Designers Union-American Federation of Labor ,3 we excluded 13 production workers from the appropriate unit because some of their duties, including assignment of work to fellow employees and checking on such work, were of a supervisory nature.4 In support of the contention that Laiden and Parmegiani should have been included within the bargaining unit, counsel for the Com- pany cited a number of our decisions assertedly relating to analogous situations. Such decisions on their facts are distinguishable from the instant case. In Matter of North Star Specialty Company and In- ternational Association of Machinists,' a certain skilled and experi- enced employee whose duties consisted of instructing other employees as he worked with them was included within the unit for the reason, among others, that the union considered him eligible for membership. Similarly, in Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers of America,6 in Matter of Southerl Chemical Cotton Company and Textile Workers Organizing Comvmit- tee,' and in Matter of Lidz Brothers, Incorporated and United Whole- sale Employees (Local No. 65) 8 a determinative factor in the inclusion within the unit of employees with duties somewhat analogous to those of the employees here involved was their participation or eligi- bility for participation in the affairs of the union. Thus it appears that in the cases cited by counsel for the Company to support the inclusion within the unit of employees whose duties approximate those of Laiden and Parmegiani, the union involved considered such employees eligible for membership, a factor' which is absent in the instant case. In determining the appropriateness of a bargaining unit, it has been our position that the rules of eligibility to member- ship in the union which the employees themselves organize and join constitute a highly relevant consideration. In Matter of Yates-Amer- ican Machine Company and International Association of Machinists, Local 1139 (A. F. of L.),9 a case involving a claim that some 15 s 5 N. L R . B. 409. 8 3 N. L. R. B. 207. See also Matter of Armour d Co. and The Committee for Industrial Organization, etc., 4 N. L. R. B. 951 ; Matter of Sandusky Metal Products , Inc. and Amerecan Federation of Labor, 8 N. L. R. B. 12; Matter of Ingram-Richardson Mfg. Co. of Indiana, Inc. and Amal- gamated Association of Iron, Steel and Tin Workers, Local 1774, 9 N. L. R. B. 200. 5 5 N. L. R. B. 763. 85 N. L. R. B. 206. 73 N. L. B. B. 869. 8 5 N. L. R. B. 757. 9 10 N. L. R. B. 786. MAY KNITTING COMPANY ET AL. 775 persons should have been included within the bargaining unit be- cause they did not occupy clerical or supervisory positions, we stated : It appears from the record that 14 of the 15 persons in ques- tion spend a considerable portion of their time in production work, but that each also distributes work to one or more em- ployees and that each -exercises some measure of supervision. Under such circumstances, we feel that such persons should be excluded from the unit if a labor organization party to the pro- ceeding desires such exclusion. We see no inconsistency in the fact that in our earlier decision we included one Schlossberg in the appropriate unit and excluded Laiden and Parmegiani. The contention of the Company that Schlossberg occupies relatively the same position in the receiving department that Laiden and Parmegiani occupy in the order and shipping depart- ments, respectively, is not sustained by the record, nor did the Com- pany advance additional considerations in oral argument or in its brief to support such contention. It is clear from the record that Schlossberg's interests are identified with those of the employees within the unit we have found to be appropriate; further, the Union considers him eligible for membership. Under all the evidence, we affirm our finding that Laiden and Parmegiani are supervisory employees. The Company contended at the argument that the three ballots challenged at the election should have been counted. We do not find it necessary to rule upon the challenged ballots since they could not alter the result of the election. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT Is HEREBY CERTIFIED that United Wholesale and Warehouse Em- ployees of New York, Local No. 65, affiliated with the Committee for Industrial Organization, has been selected by a majority of the inside employees of the May Knitting Company, Inc., at its Broadway plant, excluding supervisory employees, as their representative for the pur- poses of collective bargaining, and that, pursuant to Section 9 (c) of the Act, United Wholesale and Warehouse Employees of New York, Local No. 65, affiliated with the Committee for Industrial Or- ganization, is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.