H. Freeman & Son, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1942

45 N.L.R.B. 716 (N.L.R.B. 1942)

In the Matter of H. FREEMAN & SON, INCORPORATED and INTERNA-
TIONAL BROTHERHOOD OF FIREMEN, OILERS, POWER HOUSE OPERATORS,
ICE PLANT EMPLOYEES, AND MAINTENANCE MEN
Case No. R-442.-Decided November 21, 19/2
Jurisdiction : clothing manufacturing industry
Investigation and Certification of Representatives : existence of question . re-
fusal to recognize or bargain with petitioner; contract with intervenor cover-
ing all production and maintenance employees of the_Conrriny but operating
to the exclusion of employees involved, held no bar ; election necessary
Unit Appropriate for Collective Bargaining : four engine room employees of the
Company permitted to determine Nrhether they should constitute a separate
appropriate unit or be included in a previously certified unit of production
and maintenance employees.
Mesirov d Leonard, by Mr. Leon I. Mesirov, of Philadelphia, Pa.,
for the Company.
Mr. Louis H. l'Vilderman, of Philadelphia, Pa., for the International.
Mr. Gilbert J. Kraus and Mr. Charles Weinstein, of Philadelphia,
Pa., for the Amalgamated.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Brotherhood of Firemen,
Oilers, Power House Operators, Ice Plant Employees, and Main-
tenance Men, herein called the International, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of H. Freeman & Son, Incorporated, Philadelphia, Pennsyl-
vania, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Geof-
frey J. C'unniff, Trial Examiner. Said hearing was held at Phil-
adelphia, Pennsylvania, on October 21, 1942. The Company, the
International, and they Amalgamated Clothing Workers of America,
herein called the Amalgamated, appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, . and, to introduce evidence bearing on the issues. The
45 N. L. R B., No 106. .
716
H. FREEMAN & SON, INCORPORATED 717'
Trial Examiner's rulings made at. the hearing ' are free from preju-
dicial error and are' hereby affirmed. On October 29,' 1942, the
Amalgamated filed a petition, in which the Company joined, for leave
to reopen the record' to adduce additional evidence. The Board has
considered the petition and, for the reasons. appearing below, it, is
hereby denied. The Amalgamated filed a brief which the Board
has considered.
Upon the entire record in the, case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
H. Freeman & Son, Incorporated, is a Delaware corporation,
engaged at Philadelphia, Pennsylvania, in the manufacture of men's
clothing. During the first 6 .months of 1942, the Company purchased
$1,500,000 worth of raw materials, consisting chiefly of woolen piece
goods, approximately 90 percent of which was purchased and trans-
ported to the Company from points outside the State of Pennsylvania.
During the same period, the Company sold finished products valued
at approximately $3,000,000, 80 percent of which was shipped to
points outside the State of Pennsylvania. The Company admits that
it is engaged in interstate commerce within the meaning of the Na-
tional Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen, Oilers, Power House Opera-
tors, Ice Plant Employees, and Maintenance Men is a labor organiza-
tion affiliated with the American Federation of Labor. It admits to
membership employees of the Company.
Amalgamated Clothing Workers of America is a labor organiza-
tion affiliated with the Congress of Industrial Organizations. It
odmits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about July 1, 1942, the International requested the Company
to recognize it as bargaining agent for the Company's engine room
employees, consisting of two firemen, an engineer, and a maintenance
man. The Company refused to recognize the International, asserting
that a collective bargaining contract between it and the Amalgamated
covered all its employees, including the four employees claimed by the
International. ' -
7.18 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
The Amalgamated has had collective bargaining contracts with the
Company since 1929. The present contract, which was introduced in
evidence at the_ hearing, was executed May 15, 1942, and.expires - 3
years thereafter. According to its terms, the Amalgamated is recog-
nized •"as the sole collective bargaining agency for all employees."
The contract also contains a clauseaproviding that the Company will
not "employ or retain in its employ . . . in the manufacturing or
shipping departments . . . during 'the term of this 'agreement, any
employees who 'are not members in good standing" of the Amalga-
mated. The Amalgamated therefore argues that the contract is a
closed-shop agreement with respect to the manufacturing and ship-
ping departments of the Company, and an exclusive bargaining con-
tract for all other categories of employees. Thus it contends that the
four disputed employees, while not within the closed-shop provision
of the contract, are within the sole bargaining clause and that there-
fore the contract is a bar to this proceeding.
All parties are agreed that four engine room employees are mem-
bers in good standing of the International and that they have never
belonged to the Amalgamated. An official of the Amalgamated testi-
fied that his organization had not bargained on behalf of the engine
room employees for the reason that until recently it had been his
understanding that they were not employees of the Company, and
hence did not come within the terms of the contract.' The Amal•
gamated asserted at the hearing that it is willing to bargain for the
employees in the future and, in its petition to reopen, claims that it
has, in effect, bargained on their behalf.2
While the engine room employees are technically covered by the
contract since it applies to "all employees," the facts set forth above
clearly show that in practice these employees have not been repre-
sented by the Amalgamated. The Amalgamated has not attempted
to enroll them as members, nor has it specifically negotiated terms
and conditions of employment for them. We find, accordingly, that
the contract does not constitute a bar to a determination of repre-
sentatives.3 .
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
,'This same official testified that in the Philadelphia area most clothing manufacturers
leased the buildings in which they operated and that the lessor, as a rule , employed the
engine room employees He further stated that the Amalgamated did not organize the
engine room employees of lessors of clothing manufacturers, but in cases where the manu-
facturer-lessee employs such persons, that it organized them.
7 The petition to reopen states that new evidence will show that in May 1942 the Amal-
gamated„as the bargaining agent for all employees, negotiated a wage increase for all produc-
tion workers and that the engine room employees received the same increase as a result of
this bargaining.
' See Matter of 'Philadelphia Inquirer Company and Newspaper Guild of Philadelphia
and Camden, 31 N L. It B. 26
H. FREEMAN & SON, INCORPORATED 719
1V "THE APFROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
As stated above, the International contends that the two firemen, the
engineer, and the maintenance man employed by the Company com-
prise an appropriate unit. The Amalgamated and the Company con-
tend that a unit of these employees is inappropriate and that all em-
ployees of the Company, including these four men, constitute an
appropriate unit.
The engineer is a licensed steam engineer. He has charge of the
plant boilers and in a general way of all maintenance: One fireman
is •a full-time -licensed- fireman ; the other fireman is a licensed part-
time fireman. Their duties are to tend the plant boilers. They also
do maintenance and repair work throughout the plant. The main-
tenance man checks the water in the plant boilers, acts as porter and
watchman, and also assists the fireman with repair work in the plant.
He is not a licensed fireman. There is no interchange of duties between
the engine room employees and the production workers of the Company.
Inasmuch as the four engine room employees are members of the
In( ernational, and since they have never been represented by the Amal-
gamated, we find that they may properly be considered as a separate
unit, or may be merged in the larger production and maintenance
unit which the Amalgamated now represents. We shall direct that a
separate election be held only among the firemen, the engineer, and
the maintenance man employed by the Company. If these employees
select the International, they will constitute a separate unit; if they
select the Amalgamated, they will thereby have indicated their desire
to be included in a unit with the general production and maintenance
group and will be a part of such unit. We shall accordingly direct
that the question concerning representation which has arisen be
resolved by an election by secret ballot among the engine room em-
ployees, subject to the limitations and additions set forth in the
Direction. _
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 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with H. Freeman & Son,
Incorporated, Philadelphia, 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 super-
vision of the Regional Director for the Fourth Region, acting in this
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter-as agent for the National Labor Relations Board, and subject
to Article III, Section 10, of said Rules and Regulations, among
the firemen, the engineer, and the maintenance man employed by the
Company at its Philadelphia, Pennsylvania, plant, during the pay-roll
period immediately preceding the date of this Direction, including
any such employees who did not work during said 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
any who have since quit or been discharged for cause, to determine
whether they desire to be represented by International Brotherhood
of Firemen,' Oilers, Power House Operators, Ice Plant Employees,
and Maintenance Men, or by Amalgamated Clothing Workers of
America, for the purposes of collective bargaining, or by neither.
- CHAIRMAN MiLLTs took no part in the consideration of the above
Decision and Direction of Election.