L. J. Zerbee and Co.

National Labor Relations Board - Board Decisions

May 9, 1940

23 N.L.R.B. 688 (N.L.R.B. 1940)

In the Matter of L. J . ZERBEE, DOING BUSINESS AS L. J. ZERBEE AND
COMPANY and UPHOLSTERERS' INTERNATIONAL UNION OF NORTH
AMERICA, A. F. OF L.
Case No. R-1803.-Decided May 9, 1940
, Metal Furniture Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees: request for recognition
refused by Company-Unit Appropriate for Collective Bargaining: no contro-
versy as to; all production employees, excluding plant superintendent, foremen,
and clerical employees-Representatives : eligibility ' to participate in choice
agreement as to-Election Ordered
Mr. Max W. Johnstone, for the Board.
Mr. L. J. Zerbee, of Bellefontaine , Ohio, for the Company.
Mr. Roy W. Grow, of Cincinnati, Ohio, for the Union.'
Mr. Alfred T. Murphy, of Lima, Ohio, for the American Federa-
tion of Labor.
Mr. John Green, of counsel to the Board.,
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 1, 1940, the American Federation of Labor, herein called
the A. F. of L., filed with the Regional Director for the Eighth
Region (Cleveland, Ohio) a petition, and on April 6, 1940, the A. F.
of L. and Upholsterers' International Union of North America,,-
herein called the International, affiliated with the A. F. of L., filed
an amended petition alleging that a question affecting commerce had
arisen concerning the representation of employees of L. J. Zerbee,
doing business as L. J. Zerbee and Company,2 Bellefontaine, Ohio,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Designated in the amended petition as the U. I. U. of N. A.
' Designated in the petition, amended petition , and other formal papers as L. J. Zerbee
and Company. At the hearing the Trial Examiner granted without objection a motion to
amend the caption in the notice of hearing , and all other documents in accordance with it,
to read "In the Matter of L. J. Zerbee, doing business as L. J. Zerbee and Company and
Upholsterers ' International Union of North America, A. F. of L." The ruling is affirmed.
23 N. L. R. B., No. 63.
688
L. J. ZERBEE 689
Labor Relations Act, 49 Stat. 449, herein called the Act. On April
11, 1940, 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.
On April 13, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Interna-
tional, and the A. F. of L. Pursuant to the notice, a hearing was
held on April 19, 1940, at Bellefontaine, Ohio, before Herbert
Wenzel, the Trial Examiner duly designated by the Board. The
Board was represented by counsel ; the Company, the International,
and the A. F. of L. were represented by duly authorized representa-
tives. All parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
L. J. Zerbee, doing business as L. J. Zerbee and Company, with a
plant located at Bellefontaine, Ohio, is engaged in the manufacture
and production of metal furniture. During 1939 the Company pur-
chased raw materials costing approximately $25,850, of which ap-
proximately 50 per cent were received from outside the State of
Ohio.3 During the same period the Company manufactured finished
products having a value of approximately $76,932, of which appro,:i-
mately 80 per cent were shipped outside the State of Ohio. As of
April 15, 1940, the Company employed 42 . persons.
II. THE ORGANIZATIONS INVOLVED
Local 660, Upholsterers' International Union of North America,
herein called Local'660, is a labor organization admitting to member-
ship employees of the Company. Local 660 was chartered on April
9, 1940, by Upholsterers' International Union of North America,
herein called the International, which is affiliated with the American
Federation of Labor, herein called the A. F. of L.
8 The principal raw materials used by the Company in 1939 were steel bars, steel wire,
sheet steel , tubular steel, boxes, and paint
690 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On March 29, 1940, Alfred T. Murphy, general representative of
the A. F. of L. and affiliated unions, called upon the Cbmpany,
offered to show proof of designation by a majority of the employees,
and requested recognition "of the A. F. of L. and its affiliated union."
The Company declined to grant recognition.
As-of April 15, 1940, the Company employed 38 persons in the unit
alleged in the petition for investigation and certification, agreed by
the parties, and found below to be the appropriate unit. At the
hearing there was introduced in evidence an analysis made by the
Regional Director of 31 membership application cards submitted to
him, by the International and the A. F. of L.4 The Regional Director
found that the cards were dated between March 20 and 29, 1940 (except .
for 1 which was undated), that 30 of the 31 signatures affixed appeared
to be genuine original signatures, and that 29 of the 30 signatures
which appear to be genuine are the names of persons who are listed
on the Company's pay roll as of April 15, 1940.
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
At the hearing the parties agreed that the appropriate unit shall
include all production 5 employees of the Company, excluding the
plant superintendent,, foremen, and clerical employees.,
We find that all production employees of the Company, exclusive
of the plant superintendent, foremen, and clerical employees, con-
stitute a unit appropriate for the purposes of collective bargaining,
See Section vI, infra.
Although the pay-roll list classified all these employees as "production and mainte-
nance" employees , it is obvious that "production and maintenance" employees are those
designated as "production" employees by the parties.
During the hearing a question was raised as to the exclusion of a production employee
with limited supervisory capacity . However, the Union stated that he was eligible to
membership and that it did not seek his exclusion from the unit . Accordingly, we shall
include him in the appropriate unit.
L. J. ZERBEE 691
and that such unit will insure to the said employees the full benefit
of their right to self-organization and collective bargaining and will
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation can be best
resolved by the holding of an election by secret ballot.
While according to the report of the Regional Director, admitted
in evidence, the application cards submitted to him for analysis were
nominally for membership in the A. F. of L., it is apparent from the
record that they were regarded by the Company's employees as ap-
plications for membership in the International and in such local as
the International should thereafter charter among the employees of
the Company. Inasmuch as Local 660 has now been chartered among
the employees of the Company, we shall direct that its name appear
upon the ballot.
At the hearing the parties stipulated that eligibility to vote in the
election should be determined by the pay roll as of April 15,1940.7 We
construe the stipulation to include as eligible to vote those employees
whose names do not appear on the pay roll because they were ill or
on vacation, or who have since been temporarily laid off, and to
excluded those who have since quit or have been discharged for cause.
As thus construed, we see no reason to depart from the wishes of the
parties, and we shall direct accordingly.
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 L. J. Zerbee, doing, business as L. J. Zerbee
and Company, Bellefontaine, Ohio, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations Act.
2. All production employees of the Company exclusive of the plant
superintendent, foremen, and clerical employees, constitute 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, Section 8, of
'Board Exhibit No. 2.
692 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
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 purpose of collective bargaining
with L. J. Zerbee, doing business as L. J. Zerbee and Company,
Bellefontaine, 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, under the direction and supervision of the
Regional Director of the Eighth 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 all production
employees whose names appear upon the pay roll of the Company
as of April 15, 1940, including employees whose names do not appear
on said pay roll because they were ill or on vacation, or who have
since been temporarily laid off, but excluding the plant superin-
tendent, foremen, and clerical employees, and those employees who
have since quit or been discharged for cause, to determine whether
or not they desire to be represented by Upholsterers' International
Union of North America, Local 660, for the purpose of collective
bargaining.