Baby Line Furniture Co.

In the Matter of BABY LINE FURNITURE COMPANY, AND THE AUTO- MATIC TENSION SCREEN COMPANY and FURNITURE WORKERS UNION, LOCAL 1561, AFFILIATED WITH CARPENTERS AND JOINERS UNION, A. F. L., AND UNITED FURNITURE WORKERS OF AMERICA, LOCAL 576, AFFILIATED WITH C. I. O. Case No. RE-14.-Decided July 24, 1940 Jurisdiction : furniture and screen manufacturing industry. Investigation and Certification of Representatives : existence of question : con- flicting claims of rival representatives ; elections necessary. Unit Appropriate for Collective Bargaining When the factors are equally balanced as to whether production em- ployees of two companies with common ownership should be included in a single unit or in two separate units and the rival labor organizations disagree, the desires of the employees themselves will be determinative. Chapman di Woollacott, by Mr. James S. Woollaeott, of Los An- geles, Calif., for the Companies. Mr. Arthur Garrett, of Los Angeles, Calif., for the Carpenters. Gallagher, Wirin c6 Johnson, by Mr. William Samuels, of Los Angeles, Calif., and Mr. Ernest Marsh, of Los Angeles, Calif., for Local 576. Mr. William B. Elconin, of Los Angeles, Calif., for the United. Mr. H. L. Dougan, of Los Angeles, Calif., for Local 389. Mr. N. Barr Miller, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On May 1, 1940, Baby Line Furniture Company, herein called Baby Line, and The Automatic Tension Screen Company, herein' called Automatic, both of Los Angeles, California, herein collectively referred to as the Companies, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of the employees of the Companies and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 22, 1940, the National Labor Relations Board, 25 N. L. R. B., No. 91. 809 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-' Series 2, as amended, ordered an investiga- tion upon the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 29, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Companies, upon District Council of United Brotherhood of Carpenters and Joiners of Amer- ica, affiliated with the A. F. of L., herein called the Carpenters, upon Furniture Workers Union, Local 1561, affiliated with United Brotherhood of Carpenters and Joiners of America, A. F. of L., herein called Local 1561, upon United Furniture Workers of America,, Local 576, C. I. 0., herein called Local 576, upon Central Labor Council, Los Angeles Industrial Union Council, United Electrical, Radio and Machine Workers of America, Local 1421, C. I. 0., herein called the United, and Cabinet Makers and Mill Men, Local 721, A. F. L., herein called Local 721, labor organizations claiming to represent employees directly affected by the investigation. Pursuant to notice a hearing was held on June 6 to 11, 1940, in Los Angeles, California, before William R. Walsh, the Trial Examiner duly designated by the Board. The Companies, the Carpenters, Local 576, and United, appeared and were represented by counsel or other representatives and participated in the hearing. Near, the out- set of the hearing a representative of Van, Storage & Furniture Trans- fer Packers and Helpers, Local 389, a labor organization affiliated with the International Brotherhood of Teamsters, Chauffeurs, Stable- men and Helpers of America, appeared and moved to intervene but before the motion was ruled upon by the Trial Examiner it was with- drawn and that organization did riot further participate in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing Local 576 moved that the Companies' petition be dismissed on the ground that the' evidence submitted did not establish the allegation of the petition that rival labor organiza- tions had claimed to represent a majority of the employees in a single unit consisting of the employees of both Companies. The Trial Examiner reserved the ruling for consideration of the Board. For reasons hereinafter stated the motion is hereby denied. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Local 576 and the United have filed a joint brief which has been duly considered by the Board. Upon the entire record in the case, the Board makes the following : BABY LINE FURNITURE COMPANY 811 FINDINGS OF FACT 1. TIIE BUSINESS OF THE COMPANIES Baby Line Furniture Company is a partnership, consisting of S. B. Jacobs and Max Siegel, engaged in manufacturing infants' and children's furniture at Los Angeles, California. Of approxi- mately $88,000 worth of raw materials-lumber, paint, and hard- ware-used in the course of the business during the year ending about May 9, 1940, $15,000 worth were purchased outside the State of California. Approximately $73,000 worth of raw materials were pur- chased in California, but a large proportion of such materials origi- nated outside of California. During the same period approximately $100,000 worth of finished products were sold and shipped to points in California. Although there is no showing of the amount of sales out- side of California, the Company states it employs salesmen in all. Pacific Slope States and lists among its principal customers Mont- gomery Ward & Co., Chicago, Illinois, and Sears, Roebuck & Co.,. Chicago, Illinois. On May 9, 1940, there were 65 persons on the pay roll, including sales and clerical forces. The Automatic Tension Screen Company, Inc., is a California cor- poration engaged in the manufacture of roller screens, metal screens, frameless screens, and wood screens at Los Angeles, California. Officers and owners of the corporation are S. B. Jacobs, president, and Max Siegel, secretary-treasurer. During the year ending about May 9, 1940, raw materials consisting of screen-wire cloth, lumber, steel, and hardware and valued at approximately $55,000 were used by the corporation. Of these materials approximately $15,000 worth were purchased outside the State of California. The balance of such pur- chases were made in California but a large proportion of the materials so purchased originated outside of California. During the same pe- riod approximately $95,000 worth of finished products were sold and shipped to points, within California, and approximately $10,000 worth to points in States outside California. I Employees, including salesmen and clerical force, numbered 37 on May 9, 1940. II. THE LABOR ORGANIZATIONS INVOLVED United Brotherhood of Carpenters and Joiners of America is a labor organization affiliated with the American Federation of Labor. It maintains various locals, the respective jurisdictions of which are, limited to employees in some one branch of the woodworking industry. Furniture Workers Union, Local 1561, affiliated with the United Brotherhood of Carpenters and Joiners of America, is a labor organi- `S12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation admitting to membership furniture workers engaged in production. Cabinet Makers and Mill Men, Local 721, affiliated with the United Brotherhood of Carpenters and Joiners of America, is a labor or- ganization which includes within its jurisdiction the production- .employees of The Automatic Tension Screen Company, Inc. United Furniture Workers of America, Local 576, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership all production employees of Baby Line Furniture Company, exclusive of clerical and supervisory employees and teamsters. United Electrical, Radio and Machine Workers of America, Local 1421, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership all production employees in the electrical, radio, and machine industry, exclusive of non-working -foremen. III. THE QUESTION CONCERNING REPRESENTATION On May 1, 1940, Max Siegel, a partner in the operation of Baby -Line and secretary-treasurer of Automatic, filed on behalf of the 'Companies a petition for investigation and certification of representa- tives, alleging that a unit appropriate for the purposes of collective bargaining consisted of all production employees of the two Com- panies, exclusive of clerical and supervisory employees and teamsters, :and further alleging that Local 1561 and Local 576 had each asserted to the Companies that it represented a majority of the employees in -such unit and had each requested the Companies to bargain with it. The testimony at the hearing disclosed that sometime in March 1940, Aubrey, a representative of Local 1561 of the Carpenters, had :asserted to the proper agent of the employer that Local 1561 had an interest in the employees of Baby Line and that between March and May 1940, Thomas, a representative of Local 721 of the Carpenters, had asserted that Local 721 claimed to represent a majority of the employees of Automatic. We find that both of the Carpenters' locals made representations to the Companies that they represented a ma- jority of the employees of the Companies.' The record is not clear as to whether these two locals sought to bargain jointly for the employees of both Companies. Neither local was asked for or submitted to the 'Companies any proof of its authorization to represent the employees. The record also revealed that prior to May 1, 1940, Local 576, affiliated with the C. I. 0., had requested Siegel to bargain with its 1 Although the record does not show that the representatives of Locals 1561 and 721 of the Carpenters stated in precise terms that their locals represented a majority of the -employees of the two Companies , we are of the opinion that their statements amount to -such a claim. BABY LINE FURNITURE COMPANY 813. representatives on behalf of Baby Line employees and had submitted to him authorization cards signed by a substantial number of those- employees. At the hearing the,United, a C. I. 0. affiliate, presented evidence in support of its claim that since May 7, 1940, it had been designated as, bargaining agent by a majority of Automatic employees engaged in production. However, at no time had the United advanced any claims or made any overtures to the Companies on behalf of any of the, employees. Local 576 filed its motion for dismissal of the Companies' petition. on the ground that the evidence does not substantiate the allegation of the petition that rival labor organizations claim to represent a-ma- jority of the employees of the two Companies in a single bargaining unit, since (1) Local 576 has never claimed to represent any except Baby Line employees, and (2) the record does not show that Local 1561 made any claim to the Companies that it represented a majority of the employees of Baby Line. We have denied the motion since- the record discloses a dispute between the employer and several labor organizations as to majority representation in an appropriate unit. or units.2 We find that a question has arisen concerning the representation of' employees of the Companies. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has. arisen, occurring in connection with the operations of the Companies, described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and. tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT OR UNITS The Companies in their petition and at the hearing claimed as ap- propriate for the purposes of collective bargaining a unit composed of all production employees of both Companies, exclusive of clerical and supervisory employees and teamsters. The Carpenters take essentially the same position as the Companies. Local 576 and the United, both affiliated with the C. I. 0., contend- that separate units consisting of the production employees of each, of the two Companies, with certain exclusions, are appropriate. 2 The Companies' petition in this case set forth the fact that rival labor organizations-' claimed to represent a majority of the employees , but did not disclose that there was a. dispute between the parties as to the appropriate bargaining unit or units: 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The two Companies, as previously pointed out, manufacture dif- ferent and unrelated products, except that Automatic's products in- clude screens for baby cribs, one of the products manufactured by Baby Line. The record discloses that the two Companies have identical own- -ership, that their manufacturing operations are directed by a single superintendent, and that they occupy the same plant and utilize the .same floor space. The pay rolls of each of the Companies introduced in evidence show that some employees perform work for both Com- panies. All of the machine work on wood for Automatic is per- formed by operators of woodworking machines whose names appear -only on the pay roll of Baby Line. In all, approximately one-third ,of those listed as Baby Line employees perform some work for Auto- matic and approximately one-fifth of those listed as Automatic em- ployees perform some duties for Baby Line. No record is kept by -the Companies of the time spent by employees of one of the Companies in the service of the other, the employees being paid entirely by the Company on the pay roll on which their names appear. In 1937 the employees of the two Companies joined in a strike, which was settled in March 1937 by a written agreement covering em- ployees. of both Baby Line and Automatic. The agreement was ne- gotiated by representatives of Locals 1561 and 12913 of the Carpen- ters. None of the parties was able,to produce a copy of this agree- ment, but parol evidence at the hearing establishes that it made dif- ferent provisions for Baby Line and Automatic employees. The .agreement provided that negotiations for wage adjustments might be undertaken at 60-day intervals on behalf of Baby Line employees, but that no further negotiations would be undertaken on behalf of Automatic employees until other competing Companies had been or- -ganized by the Carpenters. The representative of Local 1561 in ne- gotiating the strike settlement, Ernest Marsh,4 testified that pur- suant to this agreement Local 1561 negotiated a contract in September 1937 covering the production employees of Baby Line, exclusive of clerical and supervisory employees and teamsters. Marsh also stated that to the best of his knowledge Automatic entered into a contract at .about the same time with Local 1291 of the Carpenters applicable to Automatic employees. Max Siegel, one of the owners and the general -superintendent of the two Companies, testified at the hearing that he had no recollection of the existence of any other contract than the March 1937 strike-settlement agreement which covered both Baby Line and Automatic employees, but he did not affirmatively deny that s Local 1291 has since been succeeded by Local 721 of the Carpenters a Marsh continued to be business agent of the Carpenters , Local 1561, until February "1938 when he became associated with Local 576 of the C. I. 0 BABY LINE FURNITURE COMPANY 8155 such contracts had been negotiated. The Carpenters offered no direct testimony regarding any of these contracts. From the foregoing facts it appears that the production employees of the two Companies might appropriately constitute a single bar- gaining unit or two separate units. Under such circumstances we will be guided by the desires of the employees themselves. When the United intervened at the hearing it submitted to the Trial Examiner for inspection authorizations disclosing that a substantial number 5 of the Automatic employees had, since May 1, 1940, when the Com- panies filed the petition initiating these proceedings, authorized United to appear at the hearing and to state on their behalf that they do not desire to be included in a unit with Baby Line employees but rather desire an opportunity to work out their own plan of organization not only in the Companies' plant but in the entire industry. Local 576 submitted to the Trial Examiner at the hearing for inspection 30 authorization cards bearing the names of employees on the Baby Line pay roll for April 30, 1940. On the Baby Line pay roll of that date ,are listed 54 employees. The Carpenters put in no evidence of their -membership or authorizations, but as previously pointed out had made representations to the Companies that they represented both -Baby Line and Automatic employees. 'Thus, the record does not clearly disclose the wishes of the em- ployees and elections are necessary to guide us in determining the appropriate unit or units. We shall direct an election among produc-, -tion employees of Baby Line to determine whether they desire to be represented by the Carpenters, by Local 576, or by neither of these labor organizations. A similar election will be conducted among Automatic employees to determine whether they desire representa- tion by the Carpenters, by the United, or by neither. If the Car- penters receive a majority of the votes cast by employees in each of these two elections, the employees of the two Companies will consti- tute a single appropriate unit. If Local 576 or the United receives a majority of the votes cast in one of the two elections, or if the Car- penters receive a majority of the votes cast in only one of the two Elections, the employees of each of the Companies will constitute sep- arate appropriate units.6 If Local 576 and the United receive a ma- jority of the votes cast in each respective election, the employees of each of the Companies will constitute separate appropriate units or, provided that the Board is so informed in writing by those organiza- 6 United submitted 11 cards, at the same time asserting there w ere only 14 production I employees on the Automatic pay roll. The pay roll for June 4, 1340, discloses a total of 29, including- screen fitters, a watchman, stockroom employee, and 4 employees desig- nated as foremen. 09, ee Matter of Allied Laboratories , Inc. and Indianapolis Specialty Unio n #465, 23 N. L R. B 184. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions within 5 days after the issuance of the Regional Director's elec- tion report, a single unit at the option of those organizations. There remains for consideration whether certain specified groups of employees should be included in the appropriate unit or units. Working Foremen.-The pay rolls prepared by the Companies and introduced at the hearing contain the names of the production em- ployees of each of the Companies exclusive of supervisory and clerical employees, according to counsel for the Companies. However, the Baby Line pay roll contains the names of four persons who are de- scribed as foremen. Similarly on the Automatic pay roll are four foremen. With regard to the four foremen on the Baby Line pay roll the record shows that one is a non-working foreman and that the other three are working foremen with authority to recommend the hiring and discharge of employees. Local 576 desires their exclusion from a unit of production employees. We shall exclude from the unit' the four persons listed as foremen on the pay rolls of Baby Line for April 30 and June 4, 1940; and the four foremen listed on the Auto- matic pay rolls for the same dates shall likewise be excluded since there is no showing that they have less authority than Baby Line foremen. Screen Fitters-Among Automatic employees are eight or nine per- sons known as screen fitters. Practically all of their work is per- formed outside the plant. They take measurements for screens at customers' homes or places of business, bring the specifications to the plant, and when the screens have been fabricated by other employees in the plant they install them at the customers' homes or places of business. The fitters normally have no duties at the plant itself, but occasionally assist with unloading raw materials. The Companies contend that they are production employees. The Carpenters appar- ently would have them included in a production unit, although the attitude of that labor organization with reference to the fitters is not entirely clear. United contends that they should be excluded. Accord- ing to testimony of a representative of United at the hearing, screen fitters are not eligible to membership in United because United does not regard them as engaged in the actual process of production. We are of the opinion that installation is an essential part of the produc- tion process of Automatic since most of its business consists of manu- facture of screens on orders which require fitting and installation by the company. We shall therefore include them in a unit with produc- tion employees who work in the plant.' 7 See Matter of La Plante-Choate Manufacturing Co, Inc. and United Farm Equipment Workers Organizing Committee, Local 116, affiliated with the C. I. 0 , 13 N. L. R. B. 1228; Matter of Wade Manufacturing Corporation and Local 294, United Furniture- Workers of America, 14 N. L. R. B . 1133, 1137, and note 3 therein. BABY LINE FURNITURE COMPANY 817 Miscellaneous.-The parties all agree that teamsters should be excluded from the production unit and we shall, follow their desires in this matter. On the pay roll of Automatic is a watchman who serves in that capacity for both Companies. The Companies contend that he should be excluded because he is in charge of the plant and responsible for its safety when it is not in operation. United excludes watchmen from membership. Local 576 and the Carpenters admit them, but Local 576 -offered to stipulate the exclusion of watchmen from the ' unit. The Carpenters desire him included. We shall follow our established practice of excluding watchmen from a production unit where com- peting labor organizations have opposing desires in the matter.8 Also on the pay roll of Automatic is one stockroom employee who handles all incoming stock used in the manufacturing processes of both Companies. He makes out all orders for materials and is responsible for the distribution of all incoming materials in the plant. Although he was described at the hearing by a production employee of Baby Line as a purchasing' agent, we find nothing in the record to indicate that he has any supervisory duties or any authority over other em- ployees of either of the Companies. His duties are closely related to the production process. The Companies contend that he should be included in a production' unit, and the Carpenters apparently take the same view: The United desires his exclusion from the 'unit and Local 576 takes a similar position. Under the circumstances disclosed by the record we are of the opinion that the stockroom man should' be included in the unit. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing both Local 576 and United submitted to the Trial Examiner evidence that they had been designated by a substantial number of employees of Baby Line and Automatic, respectively. The Carpenters did not present any proof of the extent of their membership, relying chiefly upon the 'claims made by their representatives to the Companies during March and April 1940. Local 576 and United moved that they be certified on the basis of the authorizations submitted to the Trial Examiner for inspection 9 However, the Carpenters contended that these authorizations were obtained by means of coercion and intimidation through so-called "C. I. O. Dawn Patrols," and that they therefore do not represent the See Matter of Elliott Bay Mill Company and Plywood d Veneer Workers Union Local # 26, C. I O. affiliate, 21 N. L. R B 561, and cases cited in note 14 therein. 9 Local 570 and United also introduced in evidence a written declaration , dated June 10, 1940, and bearing 40 signatures , which stated that the signers had not during the year 1940 designated "the A. F. of L. or any of its affiliates " to represent them in collec- tive bargaining with Baby Line and Automatic. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD untrammeled will of the employees. Under all the circumstances the question concerning representation can best be resolved in elections by secret ballot. We shall accordingly direct that such elections be held. All persons in the unit or units which we have found may be appro- priate who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or shall have since been temporarily laid off, but excluding those who shall have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees of Baby Line Furniture Company and The Automatic Tension Screen Company, Inc., both of Los Angeles, Cal- ifornia, within the meaning of Section 9 (c) aiid Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain .representat,ives for the purposes of collective bargaining with Baby Line Furniture Company and The Automatic Tension Screen Company, Inc., elections by secret ballot, shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for, the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees of Baby Line Furniture Company and The Automatic Tension Screen Company, Inc., within the two groups described below who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding employees whop between such pay-roll date and the date of the elec- tion shall have, quit or been discharged for cause : BABY LINE FURNITURE COMPANY 819- (a) All production employees of Baby Line Furniture Company, excluding supervisory and clerical employees, working foremen,. teamsters, and watchmen ,' to' determine whether they desire to be, represented for the purposes of collective bargaining by United Brotherhood of Carpenters and Joiners of America , affiliated with the American Federation of Labor, by United Furniture Workers of America, Local 576; affiliated with the Congress of Industrial Organ- izations, or by neither ; (b) All production employees of The Automatic Tension Screen Company, Inc., including screen fitters and stockroom employee, but excluding supervisory and clerical employees, working foremen, teamsters, and watchmen, to determine whether they desire to be represented for the purposes of collective bargaining by United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor , by United Electrical, Radio and Machine Workers of America, Local 1421 , or by neither. MR. EDWIN S. SMITH, concurring : Although ordinarily I would consider a single unit composed of the employees of both Companies more appropriate , in the absence of any showing by the Carpenters, which is seeking such unit, of substantial membership in the single unit, coupled with the showing of substantial membership by Local 576 and United , which desire separate units, I agree with the result reached in the Board's Decision. Mr. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Elections.