Chic Pottery Co.

National Labor Relations Board - Board Decisions

Apr 2, 1942

40 N.L.R.B. 83 (N.L.R.B. 1942)

In the Matter of CHIC POTTERY Co. and NATIONAL BROTHERHOOD OF
OPERATIVE POTTERS (AFL)
Case No. R-3611.-Decided April 2, 1942
Jurisdiction : pottery manufacturing industry.
Investigation and Certification of Representatives : existence of question : refusal
to accord recognition to petitioner until certified by Board; election necessary.
Unit Appropriate for Collective Bargaining : all company"employees, including
regular part-time employees, but excluding supervisors, watchmen; and
• clerical employees
Definitions : individual who devotes 60 per cent of his working time at home pre-
paring articles which Company buys at price initially set by him and who
spends remainder of his working time in Company's plant as an hourly paid
employee, held to be a part-time employee despite Company's contention that
he is an independent contractor.
Mr. Richard C. Swander, for the Board.
Mr. Dana K. Harvey, of -Wellsville, Ohio, for the Company.
Mr. Joshua Chadwick, of East Liverpool, Ohio, for the Union.
Mi. Gerard J. Manack, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIE CASE
On February 5, 1942, National Brotherhood of Operative Potters
(AFL), herein called the Union, filed with the Regional Director
for the Eighth Region (Cleveland, Ohio) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of Chic Pottery Co., Wellsville, Ohio, 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 February 25, 1942, the
National Labor Relations Board, herein called the Board, acting pur-
suant 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 February 27, 1942, the Regional Director issued a notice, of
hearing, copies of which were duly served upon the Company and
40 N. L. R. B., No. 13.
83
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union . Pursuant to notice , a hearing was held on March' 10,
1942, at Wellsville, Ohio, before Earl S . Bellman, the Trial Examiner
duly designated by the Chief Trial Examiner . The Company was
represented by its representative , the Union by counsel , and both
participated ' in the hearing . Full opportunity to be heard, to ex-
amine and cross -examilie• witnesses , and to introduce evidence bearing
upon the issues was afforded all, parties . During the course of the
hearing the Trial Examiner made several rulings on motions and
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE C031PANY
Chic Pottery Co., an unincorporated business owned by Dana K.
Harvey, has its office and place of business in Wellsville, Ohio, where
it is engaged in the manufacture and distribution of novelty pottery.
It annually purchases approximately $10,000 worth of raw materials,
substantially all of which are purchased outside the State of Ohio.
More than 90 per cent of its finished products, annually amounting
to approximately $50,000, are sold 'and shipped to points outside the
State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the Act.
11. TIIE ORGANIZATION INVOLVED
National Brotherhood of Operative Potters is a labor organization
affiliated with the American Federation of Labor. It admits to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refuses to bargain with the Union as the representa-
tive of the Company's employees until the Union is certified by the
,Board as such representative. /-
A statement prepared by an attorney for the Board and introduced
into evidence at the hearing discloses that the Union represents a sub-
stantial number of employees in the appropriate unit.'
I The Board attorney's statement shows inter aha that : the Union submitted 19 appli-
cation-for-membership cards, bearing dates between November 14 and November 19, 1941,
inclusive. The cards appear to bear genuine, original signatures, all of which are the
names of persons on the Company's December 18, 1941, pay roll. The Company employs
approximately 40 persons.
i
CHIC POTTERY CO. 85
We find that a question has arisen concerning the representation of
employees of the Company.
C
1V. 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 Company and the Union agree that all employees of the Com-
pany, excluding supervisors , watchmen , and clerical employees, con-
stitute an appropriate unit.
The Company would exclude William Wilson, Inez Bennett, and
Sam Corsello as supervisors . The Union claims that they are not
supervisory employees and that they are within the scope of the stipu-
lated unit. Wilson and Bennett are casters,2 but each also supervises
the work of a department in the plant . In their respective supervisory
departments , they assign work to employees , and have authority to
select employees to be ,laid off from , or recalled to work. Corsello
performs miscellaneous duties. He may call upon other employees
to assist him in whatever he is doing . He inspects ware, and may
reject ware not properly prepared , or may specify any modifications
that should be made in the ware. Whenever he deems it necessary,
he may order "clay made up," and may issue orders regarding the
operations of the kilns . During the absence of Harvey, owner of the
Company, Corsello and another supervisor 3 appear to be equally
charged with the management of the plant . We find that Wilson,
Bennett, and Corsello should be excluded from the appropriate unit
as supervisors.
The Company would exclude Esther Clemens as a clerical em-
ployee; the Union would include her as a production employee. In
addition to performing all the clerical work of the Company; she
spends part of her working time wrapping pottery ware for ship-
. ment. The record does not reveal how her time is divided between
the two jobs, but indicates that the clerical work has a prior claim
Casters. form the pottery in molds
s The supervisor in question is one Van Dyne, who, the Company and the Union agree,
and we find, should be excluded from the appropriate unit as a supervisor. Corsello
and Van Dyne receive substantially the same salaries
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on her time, and that if the clerical work should increase sufficiently,
she would be required to devote all her time to it. We find that she
should be excluded from the unit as a clerical employee. C
The Company would exclude Max - Garee as an independent con-
tractor; the Union would include him as a production employee.
Garee devotes approximately 60 percent of his working time, with-
out company supervision, to creating and making pottery models.
Some of this work is done in the Company's plant, but substantially
all of it is done at Garee's home. The Company buys some, but
not all, of these models, at a price initially set by Garee. The Com-
pany employs him the remainder of his working time, however, in
making molds, blocking, and casing, for which the Company pays
him by the hour. Upon the basis of his hourly paid employment,
we find that he is a regular part-time employee of the Company,
and, as such, should be included in the appropriate unit.
We find that all employees of the Company, including regular
part-time employees, but excluding supervisors, watchmen, and cleri-
cal employees, constitute a unit appropriate for the purposes of col-
lective 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 REI'RESEN'TATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. We shall
direct that the employees of the Company eligible to vote in the elec-
tion shall be those in the appropriate unit who were employed by
the Company during the pay-roll period immediately preceding the
date of the Direction of Election herein, subject to the limitations
and additions set forth in the Direction.
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
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Chic Pottery-Co., Wellsville, Ohio, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act.
2. All employees of the Company, including regular part-time em-
ployees, but excluding supervisors, watchmen, and clerical employees;
constitute a, unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
CHIC POTTERY CO.
DIRECTION OF ELECTION
87
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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with'Chic Pottery Co., Wellsville, Ohio, 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 and supervision of the Regional Director for the Eighth
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 employees of Chic Pottery Co., who were em-
ployed'by the Company during the pay-roll period immediately pre-
ceding the date of this Direction of Election, including regular,part-
time employees and employees who did not work during such pay-
roll period because they were ill or on vacation or in the active mili-
tary service or training of the United States, or temporarily laid off,
but excluding supervisors, watchmen, clerical employees, and em-
ployees who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by National Brotherhood
of Operative 'Potters ' (AFL), for the purposes of collective
bargaining..
In the Matter of CHic POTTERY Co. and NATIONAL BROTHERHOOD OF
OPERATIVE POTTERS, (A. F. L)
Case No. R-3611
CERTIFICATION OF REPRESENTATIVES
May 4, 194.
On, April 2, 1942, the National Labor Relations Board issued a
Decision and Direction of Election in the above-entitled proceedings.,
Pursuant to the Direction of Election, an election by secret ballot was
conducted on April 16, 1942, under the direction and supervision of
the Regional Director for the Eighth Region (Cleveland, Ohio).
,On April 17, 1942, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, duly issued and served upon the parties
an Election Report. No objections to the conduct of the ballot or
to the Election Report have been filed by any of the parties.
As to the balloting and the results thereof, the Regional Director
reported as follows :
Total on eligibility list-- --------------------------------- 28
Total ballots cast---------------------------------------- 26
Total ballots challenged---------------------------------- None
Total blank ballots--------------------------------------- None
Total void ballots---------------------------------------- None
Total valid votes counted--------------------------------- 26
Votes cast for National Brotherhood of Operative Potters
(A. F. L )--------------------------------------------- 19
Votes cast against National Brotherhood of Operative Potters
(A. F. L.) --------------------------------------------- 7
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
2, as amended,
IT IS HEREBY CERTIFIED that National Brotherhood of Operative
Potters (AFL) has been designated and selected by a majority of all
employees of the Chic Pottery Co., Wellsville, Ohio, including regular
140 N L. R. B. 83.
40 N. L. R. B, No. 13a.
88
CHIC POTTERY CO. 89
part-time employees, but excluding supervisors, watchmen, and cleri-
cal employees, as their representative for the purposes of collective
bargaining, and that, pursuant to the provisions of Section 9 (a) of
the National Labor Relations Act, National Brotherhood of Opera-
tive Potters (A. F. L.) 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.