Holgate Brothers Co.

In the Matter of HOLGATE BROTHERS COMPANY and UNITED RETAIL AND WHOLESALE EMPLOYEES OF AMERICA, C. I. O. Case No. R-2409.-Decided April 30, 1941 ' Jurisdiction : brush products manufacturing industry. Investigation and Certification of Representatives : existence of question: Com- pany denied rival unions' requests for recognition until such time as one or the other is certified by the Board as such representative ; laid-off employees held eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, excluding foremen and supervisory and clerical employees ; foremen and clerical employees' excluded over the objection of one of the unions desiring their inclusion. Mr. F. J. Woods, of Kane, Pa., for the Company. Mr. Victor Hirsh/ield, of Ridgeway, Pa.,_ Mr. Elmer A. Badger, of Spangler, Pa.,' and Mr. James Mark, Jr., of Johnstown, Pa., for the United. Mr. Thomas J. Mullaney, of Philadelphia, Pa., for Local 1614. Mr.-Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 24, 1941, United Retail and Wholesale Employees of America, herein called the United, filed with the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Holgate Brothers Company, Kane, Penn- sylvania, herein called the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat 449, herein called the Act. On March 5, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Arti- cle III, Section 3, of National Labor Relations Board Rules and Regu ' lations-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. 31 N L R. B, No 76. I i 485 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i On March 14, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the United and United Brotherhood of Carpenters and Joiners of America, Local 1614, herein called Local 1614, a labor organization claiming to rep- resent employees directly affected by the investigation. Pursuant to notice, a hearing was held on March 20, 1941, at Smethport, Penn- sylvania, before Robert H. Kleeb, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Company, the United, and Local 1614 were represented by 'counsel and participated in the hearing. Full opportunity to bd heard, to examine and cross-ex- amine witnesses, and to introduce evidence 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 com- mitted. The rulings are hereby affirmed. - Pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was scheduled before the Board on April 17, 1941, in Washington, D. C. The United and Local 1614 appeared at the hearing. Local 1614 submitted a brief in lieu of its oral argument which the Board has considered. The United stated that it did not wish to argue before the Board and did not wish to avail itself of the opportunity to file a reply brief. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Holgate Brothers Company, a Pennsylvania corporation, is en- gaged in the manufacture. of brush products, brush handles, wooden curry combs, and various wood novelties at Kane, Pennsylvania. During its fiscal year ending May 31, 1940, the Company purchased raw materials valued in excess of $350,000, approximately 50 per cent of which were purchased by it outside the State of Pennsylvania. During the same period, the Company's sales were in excess of $1,000,000, approximately 90 per cent of which represented sales of goods shipped by it to points outside the State of Pennsylvania. H. THE ORGANIZATIONS INVOLVED United Retail and Wholesale Employees of America is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. United Brotherhood of Carpenters and Joiners of America, Local 1614, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. HOLGATE BROTHERS COMPANY 487 III. THE QUESTION CONCERNING REPRESENTATION The United and Local 1614, each claiming to represent a majority of the employees of the Company, have requested the Company for exclusive recognition. The Company has denied these requests until such time as one or the other is certified by-the Board as such repre- sentative. A statement of the Regional Director introduced in evi- dence shows that the United and Local 1614 each represent a sub- stantial number of employees in the unit alleged by each to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The United urges that all production and maintenance employees of the Company, excluding foremen and supervisory and clerical employees, constitute an appropriate bargaining unit. The only dis- pute concerns the foremen and clerical employees. The United urges their exclusion from the unit and Local 1614 and the Company their inclusion. The Company employs approximately 19 foremen.. The United urges the exclusion of these persons from the unit on the ground that they are supervisory, employees. The president of the Com- pany testified that the foremen are held responsible for the quantity and quality of work, have complete charge of the employees, and have the authority to discharge or lay off employees. The foremen do not have the authority to hire. Although it appears that some of the foremen do some manual work, none of them spend more than 25 per cent of their time in actual production work. We find that the foremen should be excluded from the-unit. The Regional Director's statement shows that 341 employees whose names appear on the Company's pay roll of March 5 , 1941, have signed membership application cards in the United . The Regional Director further reported that 115 employees whose names appear on the Company 's pay roll of March 5 , 1941, have authorized Local 1614 to bargain for them. The petition states that there are approximately 425 employees in the alleged appropriate unit. Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD . The Company employs approximately 31 clerical employees. The United desires that these employees be excluded from the unit on the ground that they are confidential employees. All these employees work in the Company's offices and several of them are private secre- taries to officials of the Company. They are paid on a monthly basis in -contrast to an hourly rate for the production and mainte- nance employees. We, shall exclude the clerical employees from the unit., We find that all production and maintenance employees of the Company, excluding foremen and supervisory and clerical employ- ees, constitute a unit appropriate for the purposes of collective bar-, gaining, 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 otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. On February 6; 1941, the Company discontinued its night shift and laid off 94 employees. Not all the night shift employees were laid off, some of them being transferred to the day shift, and the less effi- cient day shift employees laid off in their stead. The United stated that it desired that a pay roll of the Company prior to February 6, 1941, be-used to determine eligibility to vote so that these laid off employees would participate in the election. Local 1614 stated that it' desired that temporarily laid off employees vote but that the 94 employees in question be declared ineligible. The Company's busi- ness is, seasonal and the president of the Company testified that the Company considers these laid-off people as employees and that it is its practice to rehire such employees when business warrants. We find that the laid off employees should be eligible to vote in the election to be directed hereinafter. In accordance with our usual practice • we shall direct that the employees eligible to vote shall be those employees in the appro- priate unit who were employed during the pay-roll period immedi- ately preceding the date of the Direction of Election herein, subject to such limitations and additions as are set forth in the Direction hereinafter. The United stated that it desires to appear on the ballot as "United Retail and Wholesale Employees of America, Local 309, affiliated a Local 1614 stated that in the event the Board found that the clerical workers should be excluded from the appropriate unit, it then desired that a separate election should be held among the clerical workers to determine whether they wished to constitute a separate appropriate unit or whether they desired to be included in the industrial unit. Inasmuch as there Is no showing in the record as to the extent , if any, of Local 1614's membership among the clerical employees , we shall deny its request for a separate election for these employees. HOLGATE BROTHERS COMPANY 489 with the C. I. O." Local 1614 stated that it desires, to appear on the ballot as "United Brotherhood of Carpenters and Joiners of America, Local Number 1614, affiliated with the A. F. of L." The - requests are hereby granted. 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 Holgate Brothers Company, Kane, Penn- sylvania, within the meaning of Section 9 '(c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company, excluding foremen and supervisory and clerical employees, consti- tute a unit appropriate for the purposes 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sectioh 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DltECrm that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Holgate Brothers Company, Kane, Pennsylvania, 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 Sixth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules ,and Regulations, among all production and maintenance employees of the Company who were employed during the, pay-roll period imme- diately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding foremen, super- visory and clerical employees, and employees who have since' quit or been -discharged for cause, to determine whether they desire to be represented by United Retail and Wholesale Employees of America, Local 309, affiliated with the C. I. O. or by United Brother- hood of Carpenters and Joiners of America, Local Number 1614, affiliated with the A. F. of L., for the purposes of collective bar- gaining, or by neither.