Lilly Dache, Inc.

In the Matter of LILLY DACHE, INC. and JOINT BOARD OF MILLINERY WORKERS, LOCALS 24, 42, AND 90 . Case No. R-2597.=Decided , July 3, 1941 Jurisdiction : millinery manufacturing industry. Investigation and Certification of Representatives : existence of question : stip- ulation_ as . to ; seasonal • employees on strike permitted to vote in election ; election necessary. Unit Appropriate for Collective Bargaining : all copyists, head copyists„ milli- ners, improvers, table runners, feather trimmers , blockers, blockmakers, stitchers, and employees in the shipping department; excluding executives and supervisory employees , sales and showroom employees , office, clerical and maintenance employees, designers, workroom feeders, shoppers , stockroom employees, and employees in the bag department. Mr. Robert Abelow and Mr. Lewis G. Bernstein, of New York City, for the Company. Markenbich and Null, by Mr. Samvuel Null, of New York City, for the' Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION, STATEMENT OF THE CASE On April 23, 1941, Joint Board of Millinery Workers, Locals 24, 42, and 90, herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of Lilly Dache, Inc., New York City, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 19, 1941, 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. 33 N. L. R. B., No. 26. t 121 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 19, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on May 28, 1941, at New York City, before Christopher W. Hoey, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented by counsel and both participated in the hearing. Full opportunity to'be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded both 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 May 29, 1941, the Company filed a request for oral argument before the Board at Washington, D. C., and permission to file a brief. On June 2, 1941, the Board denied.the request for oral argument and granted permission to both.parties to file briefs with the Board in support of their respective contentions. On June 14, 1941, and on June 17, 1941, respectively, the Union and the Company filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE COMPANY Lilly Dache, Inc., is engaged in the manufacture of costume milli- nery and accessories at its plant in New York City. The value of finished materials used in the, fabrication of millinery at the Com- pany's plant, all of which are purchased by the Company within the State of New York, amounts annually to between $80,000 and $140,-. 000. During the year 1940, the value of the millinery, bags, and accessories manufactured by the Company was between $400,000 and $600,000. Fifty per cent of such manufactured products were shipped and sold to points outside the State of New York. II. THE ORGANIZATION INVOLVED Joint Board of Millinery Workers, Locals 24, 42, and 90, is a labor organization affiliated with United Hatters, Cap and Millinery Workers International Union and with the American Federation of Labor. Local 24 has jurisdiction of millinery hand workers, milli- ners, stitchers, and operators. Local 42 has jurisdiction over blockers and block makers. Local 90 has jurisdiction over shipping employees. These local unions admit to membership employees of the Company. LILLY DACBJEj . INC. 1 123 III. THE QUESTION CONCERNING REPRESENTATION On January 30, 1941, the Union asked the Company to recognize the Union as exclusive bargaining agent for, its employees. To the. date of the hearing the Company had not accorded the Union such recog- nition. At the hearing the Company and the Union stipulated that ' a'question had arisen concerning the representation of employees of the Company. A statement prepared by the Regional Director and introduced in evidence discloses that the Union represents a substantial number of employees in the alleged appropriate unit., 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union and the Company agree that copyists, milliners, im- provers, table runners, feather trimmers, blockers, block makers, stitchers, and employees in the shipping department should be in- cluded in the appropriate unit. They further agree that executives and supervisory employees, sales and showroom employees, and office, clerical, and maintenance employees should be excluded from the appropriate unit. The Union and the Company disagree in respect to the inclusion of designers, workroom feeders, stockroom employees, shoppers, and employees in the bag department.2 The Union would exclude and the Company would include such workers. The Com- i In support of its claim to represent a majority of employees in the alleged appropriate unit, the Union submitted to the Regional Director 5 undated applications for membership which bear apparently genuine signatures of employees whose names appear on the Com- pany's pay roll of March 1, 1941. The Union further submitted an undated petition bearing 133 names, 57 of which appear to be genuine signatures of employees on the Company's pay roll of March 1, 1941. The petition recites that the signers designate the Union as bargaining agent for them. There are about 121 employees in the unit proposed by the Union. 8 The Union also desires to exclude crochet workers and employees in the glove department from the unit. The Company discontinued its glove department in 1940. The Company assigned a milliner to do some crocheting for certain models. When this work was com- pleted;-the employee was returned to her work as-milliner . The Company does not ordi- narily employ crochet workers. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany and the Union further.disagree in respect to the' classification of certain. individual employees. Designers create millinery styles and make "models to be copied. They make hats for special customers, for the theater, and for fash- ion shows. They work on regular production in off seasons. About 25 per cent of the Company's production represents, hats actually made by designers. Designers are highly paid salaried employees. The Union considers designers to.be creative workers rather than craft employees; they are not, eligible to membership in the Union. We shall exclude designers from the bargaining unit. Workroom feeders, following the directions of the manager and head forelady,-cut.and assemble in a bag the necessary materials for the construction of a hat. While they do not hire or discharge other employees, the testimony of witnesses indicates that they are regarded by hourly paid workroom employees as persons of supervisory au- thority. Workroom. feeders are on a salary basis and are not paid for overtime work. We shall exclude workroom feeders from the appropriate unit. The Company employs one shopper, who is assisted by employees in the stockroom., She spends most of her time outside the shop, making purchases to supplement the stockroom supplies. The shopper does no work in the making of hats. The shopper is a salaried employee and the Company does not keep any record of the number of hours she works. We shall exclude the shopper. from the appropriate unit. Stockroom employees, or stockroom feeders as they are listed on the pay roll, are not engaged in the active production of hats. They assist. the shopper when needed. The Union contends that stock= room employees have no permanent place in craft organization be- cause their jobs are transitory. Stockroom employees are not in= eluded in contracts of production workers between the Union and competitors of the Company in the metropolitan area of New York City. We shall exclude stockroom employees from the appropriate unit. The Company operates a bag department where bags are made to order to match millinery. One employee in the department is desig- nated as the bagmaker and is in charge of all the work of the de- .partment. Stitchers and table runners assist him. The Company transfers them to other departments when they are not needed in the bag department. Bag making is considered a separate craft, and such employees are ineligible to membership in the Union. We shall exclude all employees in the bag department from the appropriate unit. - LTLLY DACI E;',INC;. 125 Five employees listed as copyists on the pay roll are salaried em- ployees. Other copyists are hourly paid. The Union contends that these employees. are fitters. The Company characterizes- them as head copyists and more experienced workers. These head copyists have some" direct contact with customers of the . Company when they are sent.to the salesroom to adjust and alter hats for customers. They direct corresponding changes to. be made in such hats. The Company contends that these head copyists are not supervisors and that any experienced copyist may be similarly called to adjust and alter hats for customers. Since head copyists are primarily produc- tion employees, we shall include them.with hourly paid copyists in the appropriate unit. James Cole, employed as a handyman, assists the maintenance employee with the heating apparatus and also assists in the shipping room. Since a strike, hereinafter discussed, he has been working entirely in, the shipping department. The Company listed him as a shipping employee on the pay roll of March '8, which we .find in Section VI, below, to be an appropriate date for determining eligibil- ity to vote in the election which we shall direct.: We. shall include him in the unit. We find that all copyists, head copyists, milliners, improvers, table runners, feather trimmers, blockers, block, makers, stitchers, and' employees in the shipping department of Lilly Dache,. Inc., New York City, excluding executives and supervisory employees, sales and showroom employees, office, clerical, and maintenance employees, designers, workroom feeders, shoppers, stockroom employees, and employees in the bag department,. 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 otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation of employees of the Company can best be resolved by, and we shall accordingly direct, an.election by secret ballot. On March 5, 1941, some employees of the Company went on strike. The strike was in progress at the time of the hearing. The record' does not disclose the number of strikers or that employees were hired to replace them. The .Company contends that such striking employees should not vote in' the election since, as seasonal employees, they would be laid off at this time even if -there were no strike. The Company's next busy, season begins about September 15 and reaches iits peak in October., Seasonal employees have no expectancy of reemployment with the Company before that time. r 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -: The'Uliion contends that the pay-roll period ending March 8, 1941, should be taken `for the purposes of eligibility. There are 116 em- ployees in the appropriate unit on this pay roll. The Company icontends. that the pay roll nearest the date of filing the petition, which •is the pay roll for the period ending April 26, 19.41, listing 60 such ,employees, would be more appropriate. Inasmuch as employees of the Company whose names appear on the pay roll of March 8, 1941, :retain their status as employees whether they are considered as em- ployees: who ceased work in connection with a current labor dispute or' as employees laid off by virtue of the seasonal nature of their employment,' we find that they are entitled to participate in the selection of the bargaining agent. Those'eligible to vote in the election shall be employees in the appro- priate unit who were employed during the pay-roll period ending -March 8, 1941; subject to such limitations and additions as are set forth in the Direction of, Election. The Union requests that it be designated on' the ballot as-Millinery Workers Union, affiliated with the American Federation of Labor. We shall grant the request. 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 Lilly, Dache, Inc., New York City, within the meaning of Section•9 (c) and Section 2 (6) and (7) 'of the Act. . 2. All copyists, head copyists, milliners, improvers, table runners, .feather trimmers, blockers, block makers, stitchers, and employees in the shipping department of Lilly Dache, Inc., New York City, but excluding executives and supervisory employees, sales. and showroom employees, office, clerical, and maintenance employees, designers, work- room feeders, shoppers, stockroom employees, and employees in the bag department, constitute a unit appropriate for the purposes of collective bargaining'within the meaning of Section 9 (b) of the 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 Rela- tions Board Rules and Regulations-Series 2, as amended, it is-hereby DmEarnn that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of 'collective bargaining' with Lilly Dache, Inc., New York City, 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 of Election, under the direction .LILLY DACEE, INC. 127 and supervision of the'Regional.Director. for,the Second 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 copyists, head copyists, milliners, improvers, table runners, feather trimmers, blockers, block makers, stitchers, and employees in, the ship- ping department of the Company, who were. employed during the pay- roll period ending March, 8, 1941, including employees who ; did'. not work during that pay-roll period because they were ill or on vacation or in the active military service or training of the United, Statesi or temporarily laid off, but excluding executives and supervisory em- ployees, sales and showroom employees, office, clerical, and mainte- nance employees, designers, workroom feeders, shoppers, stockroom employees,, employees in the bag department, and employees who have , since quit or been discharged for cause, to determine whether or not said employees desire to be represented by Millinary Workers Union, affiliated with the American Federation of Labor, for the purposes of collective bargaining. MR. EDWIN S. SMITH, concurring : - The designers, work feeders, shoppers, stockroom employees, and employees in the bag department are all engaged in work that places them on the fringe of the functions of employees admittedly in the unit. Following the usual practice of the Board, I agree that the fore- going employees should be excluded from the unit on the ground that the only labor organization involved desires their exclusion.3 See authorities cited in my dissenting opinion in National Lead Company (Titanium Division ) and Gas, By-Product, Coke & Chemical Workers, Local No. 12212, District 50, United Mine Workers of America, 32 N. L. R. B. 697. See also Lewittes & Sons, use., also known as Silcon Furniture Company, Inc. and The Groverville Corp., and ' United Furniture Workers of America, .33 N. L. R. B. 29.