Kittinger Co., Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1946

65 N.L.R.B. 1215 (N.L.R.B. 1946)

In the Matter of KITTINGER COMPANY, INC. and UNITED FURNITURE-
WORKERS OF AMERICA, C. I. O.
Case No. 3-R-1098.-Decided February 19, 1946
Messrs. Edward J. Flaherty and Fred J. Batson, of Buffalo, N. Y.,
for the Company.
Mr. Joseph J. Lovas, of Buffalo, N. Y., for the Union.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by United Furniture Workers of Amer-
ica, C. I. 0., herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Kittinger Company, Inc., Buffalo, New York, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Cyril W. O'Gorman, Trial
Examiner. The hearing was held at Buffalo, New York, on Decem:
ber 6, 1945. The Company and the Union appeared and participated.
All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues.' The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were-
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kittinger Company, Inc., a New York corporation, operates a
plant in Buffalo, New York, where it is presently engaged in the
manufacture of furniture, its peacetime function. During most of
1945 the Company was in the process of reconverting from its war-
time manufacture of aluminum airplane parts. During a normal
peacetime year the Company purchases raw materials valued in ex-
6. N L. R B, No. 207. 1215
679100--46--col 65--78
1216 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
cess of $250,000, of which 75 percent is procured from sources outside
the State of New York. During a similar period, the Company manu-
factures finished products valued in excess of $850,000, of which
approximately 75 percent represents shipments to points outside the
State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATION INVOLVED
United Furniture Workers of America, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its production and maintenance
employees, including employees of the upholstering department, until
the Union has been certified by the Board in an appropriate unit .l.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.2
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.
1 On July 10 , 1945, the Company entered into the last of a group of successive collective
bargaining contracts with the Independent Furniture Workers' Union , an unaffiliated labor
organization , covering its production and maintenance employees , excluding employees of
the upholstering department . This contract is apparently one for members only and
provides that it is to be effective for 1 year . Thereafter , on October 23, 1945, the Inde-
pendent Furniture Workers ' Union by vote of its membership was dissolved.
With respect to the employees in the upholstering department , it appears that they were
last covered by a contract between the Company and the Upholsterers Protective and
Social Club , an unaffiliated labor organization, in 1941. That agreement - was for an
initial period ending June 6, 1942, and was automatically renewable from year to year
thereafter in the absence of notice by either party. Although no such notice has ever
been given , it is clear that , when the Company ' s change over from normal peacetime oper-
ations to war production in 1942 caused the elimination of the upholstering department
and the transfer of employees in this department to other assignments throughout the
plant, the Upholsterers Protective and Social Club either became dormant or ceased to
exist.
The Company does not urge these contracts as a bar. In any event , however, because
the Independent Furniture Workers' Union and the Upholsterers Protective and Social
Club ale no longer in existence as functioning representatives of the employees covered by
the respective contracts , the contracts do not constitute a bar. See Matter of Misston
Manufacturing Company, 64 N L R. B. 1289 ; and Matter of The Black -Clawson Com-
pany, 63 N. L . R. B. 773. Moreover, with particular reference to the contract of the
Independent Furniture Workers' Union, it cannot constitute a bar for the additional
reason that it is for members only. See Matter of Reo Motors, Inc., 61 N. L. R . B. 1579,
and cases therein cited.
2 The Field Examiner reported that the Union submitted 95 membership designation
cards, 78 of which bore the names of employees listed on the Company ' s then current pay
roll, and that there are approximately 151 employees in the unit sought.
KITTINGER COMPANY, INC. 1217
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Union seeks a unit covering all production and maintenance
employees of the Company, including the employees of the upholster-
ing department. The Company contends that two separate bargain-
ing units are appropriate, consisting of (1) all production and
maintenance employees, exclusive of the workers in the upholstering
department, and (2) all employees in the upholstering department.
The Company manufactures furniture in two main buildings. Dur-
ing the pre-war years the Company operated, as part of its furniture
manufap,turing business, an upholstering department. In 1942 the
Company converted to war work with the result that the upholstering
department ceased to exist, and the upholsterers were given other pro-
duction assignments throughout the plant. Early .in 1945 the Com-
pany began reconverting to its peacetime operations and was actively
engaged in reinstating the upholstering department at the time of
the hearing.
The' Company bases its contentions for two separate units upon its
collective bargaining history extending back to 1937. Except for
the war years, when there was no upholstering department, that de-
pertinent always has been bargained for separately from the produc-
tion and maintenance employees. Thus, beginning in 1937, the
Upholsterers Protective and Social Club became the bargaining repre-
sentative of employees in the upholstering department. Contracts
were executed annually until July 1941. Also in 1937 two other labor
organizations, Kittinger Mill Workers Union and Kittinger Finishers
Union were formed as the representatives of the mill department and
the finishing department, respectively. The Company bargained with
these unions until 1938 when they combined to form the Kittinger
Furniture Workers Union. Thereafter the Company dealt with this
body as the representative of the employees in the mill and finishing
departments until the organization was dissolved in 1939. Since 1939
the Company has been bargaining with the Independent Furniture
Workers Union concerning all production and maintenance workers,
except employees of the upholstering department. The Company
signed its last contract, which apparently was for members only,3 with
the Independent Furniture Workers on July 10, 1945, but thereafter
on October 23, 1945, this organization was dissolved.
In our opinion, the evidence points to the equal propriety either
of a single production and maintenance unit as sought by the Union,
or of two separate units as urged by the Company.
Favoring the establishment of two separate units are the following
facts : the upholstering department is located at one end of the third
2 See footnote 1, supra.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
floor of the main building and is further separated from the rest of
the plant by a brick firewall; it is under the separate supervision of a
production manager and three foremen, and the Company maintains
separate pay rolls for this and other departments; the upholsterers
in issue are journeymen whose craft identity we have heretofore rec-
ognized; 4 their wages are higher than other employees of the Com-
pany; and the Company has for many years been bargaining for these
employees separately from the production and maintenance employees.
On the other hand, in addition to the fact that no labor organiza-
tion presently seeks to represent the employees in the upholstering
department in a separate unit, there are indicia of integration of this
department with the production and maintenance departments which
argue for the establishment of a single unit. Thus. in the manufac-
ture of upholstered furniture the wood frames are constructed in
the various other departments and passed along to the upholstering
department for completion. From there the articles of furniture go
to the inspection department and finally to the shipping department,
in an apparently continuous flow of work. Furthermore, all em-
ployees punch the same main time clocks, enjoy the .same vacation
privileges,,and have similar hours of work, and working conditions.
Under the circumstances, we shall make no final unit determination
at this time, but shall be guided by the desires of the employees in-
volved as expressed in the elections directed hereinafter. In the
event that the employees in the two voting groups, described herein-
after, voting separately, select the Union, they shall together constitute
a single appropriate unit.
We shall direct that separate elections by secret ballot be held
among the employees in the two voting groups described below who
were employed during the pay-roll period immediately preceding the
date of the Direction of Elections herein, subject to the limitations
and additions set forth in the Direction :
(1) All production and maintenance employees, excluding em-
ployees of the upholstering department, office and clerical employees,
and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of oein-
ployees, or effectively recommend such action.
('?) All employees of the upholstering department, excluding office
and clerical employees, and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action.
* See Matter of Chris - Craft Corporation, 65 N L. R . B. 1063 • and. Matter of The
Nahon Company, 42 N. L . R. B. 329.
KITTINGER COMPANY, INC.
DIRECTION OF ELECTIONS
1219
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 Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with •Kittinger Com-
pany, Ine., Buffalo, New York, separate elections 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 Third Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the voting groups described in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
elections, to determine in each of the voting groups whether or not
they desire to be represented by United Furniture Workers of America,
C. 1. 0., for the purposes of collective bargaining.