Ward-Stilson Co.

In the Matter of WARD-STILSON COMPANY and INTERNATIONAL LADIES GARMENT WORKERS UNION Case No. B-1927.-Decided July 29,1940 Jurisdiction : garment manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; election necessary. Unit Appropriate for Collective Bargaining : all, regular production and mainte- nance employees but excluding supervisory employees, clerical employees, temporary employees, salesmen, and saleswomen. Mr. Erwin Feldman, of New York City, and Mr. Albert Diven, of Anderson, Ind:, for the Company. Mr. Harold W. Schwartz, of Chicago, Ill., for the I. L. G. W. U. Mr. Harry 0. Neff, of Anderson, Ind., for the M. W. U. Mr. D. M. Byrd, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 4, 1940, International Ladies Garment Workers Union, herein called the I. L. G. W. U., filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana), a petition alleging that a question affecting commerce had arisen concerning the representa- tion of • employees of Ward-Stilson Company, Anderson, Indiana, herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 20, 1940, the 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 investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 21, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the I. L. G. W. U., and'upon Maisonette Workers Union, herein called the M. W. U., a labor organization claiming to represent employees di- 25 N. L. R. B., No. 109. 1075. 1076 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD rectly affected by the investigation. Pursuant to the notice, a hearing was held on June 28, 1940, at Anderson, Indiana, before Arthur R. Donovan, the Trial Examiner duly designated by the Board. The Company, the I. L. G. W. U., and the M. W. U. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues, was afforded all parties. 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. On July 1, 1940, the Company requested oral argument before the Board. Pursuant to notice duly served upon all the parties, a hear- ing for the purpose of oral argument was held before the Board on July 16,1940, at Washington, D. C. The Company was represented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the follow- ing: , FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Ward-Stilson Company is an Indiana corporation having its office and place of business in Anderson, Indiana. The Company is engaged in,the manufacture and sale of women's, misses', and juniors' dresses as well as lodge costumes, regalia, and equipment. In addition, the Company sells shirts, ties, hosiery, and garments, which are manu- factured elsewhere. During its fiscal year ending June 30, 1939, the Company's purchases of raw materials, consisting of cotton and rayon fabrics, amounted to $421,365.99, practically all of which were purchased outside the State of Indiana. During the same period, it manufactured products valued at $1,389,012.83, 92 percent of which were. shipped to destinations outside the State of Indiana. The sale of the Company's merchandise is made by direct solicitation by sales representatives, who are furnished with style books from which cus- tomers make selections. The Company admits that it is engaged, in commerce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Ladies Garment Workers Union is a labor organiza- tion admitting to membership persons employed in the women's and children's garment-making and accessory trades in the United States and Canada. WARD-STILSON COMPANY 1077 Maisonette Workers Union is an unaffiliated labor organization admitting to membership all employees of the Company at its plant except officers, executives, foremen, assistant foremen, heads of de- partments, supervisors, salesmen, and office workers. III. THE QUESTION CONCERNING REPRESENTATION During the course of the hearing, the Company, the L, L. G. W. U., and the M. W. U. stipulated and agreed that each of the unions claimed to represent a majority of the Company's employees within an appro- priate bargaining unit; that each of the unions had made demands upon the Company for the right to bargain exclusively for the em- ployees within such appropriate unit; and that such demands had been refused. During the hearing the Trial Examiner was handed 177 signed ap- plication cards for the I. L. G. W. U.; while the M. W. U. handed him 188 signed applications. Ward K. Stilson, president of the Company, testified that the Company employs 369 persons whom it considers to be within an appropriate bargaining unit. The Trial Examiner stated for the record that all of the 177 I. L. G. W. U. application cards, dated between June 1939 and June 1940, "appear to contain the genuine original signatures of the parties signing same"; and that 161 of such names are those of the persons whose names appeared on the Com- pany's June 15,19 ' 40, pay roll. Of the 188 M. W. U. application cards the Trial Examiner stated that all were of recent date, that all ap- peared to contain genuine original signatures, and that all such signa- tures appeared to be those of persons whose names appeared on the Company's pay roll. We find that the question which has arisen concerning representa- tion of employees of the Company can bcst be,resolved by the holding of an election by secret ballot. 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 Company 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 At the hearing, the parties stipulated, as hereinbefore mentioned, that the appropriate bargaining unit should include all regular pro- duction and maintenance employees, except supervisory, clerical, and 283036-42-vol. 25-69 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporary employees.' The parties differed, however, as to whether certain specific employees should be deemed to fall within the above- described unit. Swatchers.-The I. L. G. W. U. seeks to exclude this group of em- ployees from the unit on the ground that they do not do "production" work. The Company desires their inclusion. As stated above, the Company's merchandise, consisting largely of women's and children's dresses, is sold by direct solicitation of sales representatives who are furnished with a style book from which customers make selections. These style books are composed of heavy paper sheets showing the style, color, and price of the dress. Pasted on the sheet, beside the dress pictured, are certain samples of materials illustrating goods of which the particular dress is made. Stilson testified that the Com- pany makes 12 releases of the style sheets during a year, "which means there is a release every four weeks, except the December release." It appears that the Company employs 21 "swatchers" whose sole'duties consist of cutting the samples of dress materials and past- ing them onto, the style cards. Stilson testified, with contradiction, that the swatchers perform' no other work in the Company's plant, do no actual dressmaking and that if there is not sufficient swatching for them to do, they are laid off until the Company is prepared to re- lease new style sheets. Since the Company is engaged in direct, door-to-doox sales, the style cards are substituted for sample dresses such as are used by other dress manufacturers. The I.- L. G. W. U. in expressing its desire for exclusion of the swatchers, contended that they were employed in work of a clerical nature. The M. W. U. expressed no particular desire for their inclusion or exclusion; it appears, however, from a March 6, 1940, contract between the Com- pany and the M. W. U., in which the former recognizes the latter as the bargaining agent for its members only, that swatchers are not expressly excluded. It is apparent that the I. L. G. W. U. desires, generally, an.indus- trial type bargaining unit; the stipulation of the parties includes within the appropriate unit such groups of employees as work- dis- tributors and those employed in receiving, sorting, cutting, folding, pressing, and shipping departments. The Company's pay-roll rec- ords reveal that the 21 watchers have enjoyed a normal steady em- ployment during the first 6 months of 1940, and no"differences were pointed out between the hours of work, vacation rights, or rates of pay of the swatchers and- of the other employees. We find that the duties of the swatchers are such as to warrant their inclusion in the appropriate unit as production employees. 1 The, ,parties agreed, on' the iecord, that the appropriate bargaining unit thus defined should exclude all salesmen and saleswomen and 125 persons whose names were listed - -WVARD-STILSON COMPANY 1079 Temporary employees.-In reaching the stipulation as to the unit, the unions were unable to agree as to which employees should be included within the term "temporary employees ." Accordingly, testi- mony was introduced hearing on this problem . Because of the ab- sence of skilled employees in Anderson , Indiana, and the necessity for the Company to train its own employees , the Company has made it a practice to train all new employees in a single group of from 50 to 100 persons during the first part of each year. The new em- ployees are engaged during the first 2 weeks of the training period on an unspecified straight-time pay rate ; for the third week they are given a 30-per cent bonus in addition to regular earnings; and a 20-per cent bonus for the fourth week in addition to regular earnings. During the succeeding 3 weeks the bonus is gradually reduced and at the end of the seventh week the employee is placed on a straight piece-rate wage scale . The Company considers such new employees to be regular employees if they have successfully completed the 7 weeks' learner period . The Company's pay roll shows that of the 74 new employees hired during the period from January 1, 1940, to April 29, 1940, 16 quit on their own accord, 4 were dismissed, and 54 were still employed. All 54 have been employed for more than 7 weeks. It is clear that the employees in question enjoy a good prospect of continued employment , that they have received a substantial amount of overtime work since their initial employment , and that, in the evelit they are laid off, they will be recalled before other persons are hired. We find that all such employees who have been employed by the Company for 7 weeks are properly regarded as regular employees, and are to be included within the appropriate unit. Nellie Stuart; Ora Whetsel; Melvina Whipple; Irene Taylor.-The parties were unable to agree as to whether these four employees should be deemed to fall within the unit. Stilson testified that the four employees, although termed "temporary " at the time they were employed, are now 'considered by the Company as having been em- ployed sufficiently long enough to have acquired the status of perma- nent production employees . All four have a good prospect of enjoying continued employment and have also received overtime work during their term of employment . The Company's pay-roll records show that Nellie Stuart was employed April 22, 1940; that Ora Whetsel was employed April 29, 1940 ; that Melvina Whipple was employed April 30, 1940; and that Irene Taylor was employed May 6, 1940. - By the time of the hearing these four employees each had been employed for at least 7 weeks. We find that Nellie Stuart; Ora Whetsel , Melvina Whipple, and Irene Taylor are regular employees and are to be included within the appropriate unit. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Audria Cummins; Mary Forkner; Ella Hahn; James Robbins.- The parties were unable to agree as to whether these employees should be excluded on the ground that they are part of the Company's super- visory force. The Company considers them to be production and not supervisory employees. It appears that Audria Cummins, a work distributor, stands behind a counter and issues work to the other distributors to carry to the production employees; that Mary Forkner is engaged 2 or 3 days a month in operating a salesroom, on the Company's premises; to dispose of accumulated stock and seconds, and that she spends the remainder of her time in performing duties similar to production workers; that Ella Hahn spends a part of her time as matron of the washroom and taking care of minor injuries in the hospital, but that a majority of her time is spent in cleaning soiled garments; and that James Robbins stamps the C. 0. D. number on C. 0. D. tickets in the shipping department. Stilson testified that when the foreman of the shipping department is absent Robbins is one of several employees in the shipping department who is con- sidered for the foreman's place and that Robbins has taken the fore- man's place at "various times." 2 In the absence of any substantial evidence that these four people are supervisory employees, we find that they 'are production employees and should be included in the appropriate bargaining unit. We find that all regular production and maintenance employees s but excluding supervisory employees, clerical employees, temporary employees, salesmen, and saleswomen constitute a unit appropriate for the purposes of collective -bargaining and that said unit will insure to employees of the Company the full benefit of their right to self- organization, and to collective bargaining, and will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The parties agreed at the hearing, and we shall direct, that-an elec- tion should be held among the employees in the unit. The Company expressed a preference for the pay. roll of June 15, 1940, in determining the eligibility of employees to participate in the election on the ground that such payroll best reflected the number of regular employees. Stilson testified, however, that the Company's production schedule would be steady for at least 2 more months. No preference was expressed by either of the participating unions as to the eligibility date. 2 The Company's pay-roll records for 1940 show that both Robbins and Foreman Claude McCune have been employed 24 weeks this year. $ Including swatchers , Nellie Stuart, Ora Whetsel. Melvina Whipple , Irene Taylor, Audria Cummins, Mary Forkner, Ella Hahn, and James Robbins. -- -WARD-STILSON COMPANY __ =1081 Under these circumstances, and in accordance with our usual prac- tice, in order to secure results from the coming election which will accurately disclose the desires of the body of employees who will be represented during the period following the election, we shall direct that eligibility be determined by the pay roll immediately preceding the, date of this Direction of Election. We shall direct that employees of the Company within the appro- priate unit hereinbef ore described, who were employed by the Com- pany during the pay-roll period immediately preceding the date of this Direction of Election, including employees who, as of such period, were temporarily ill or on vacation, but excluding any such employees who have since quit or been discharged for cause, shall be eligible to vote in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Ward-Stilson Company, Anderson, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and `(7) of the National Labor Relations Act. 2. All regular production and maintenance employees but exclud- ing supervisory employees, clerical employees, temporary employees, salesmen, and saleswomen constitute a unit appropriate for the purr poses of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purpose of collective bargaining with Ward-Stilson Company, Anderson, Indiana, an election 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 Eleventh 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 all regular production and maintenance employees of the Company who were employed during the pay-roll period immediately preced- 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation but excluding supervisory, clerical, and temporary employees, salesmen, saleswomen, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Interna- tional' Ladies Garment Workers Union, or by Maisonette Workers Union, for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.