Riggs Optical Co., Consolidated

National Labor Relations Board - Board Decisions

Apr 22, 1946

67 N.L.R.B. 565 (N.L.R.B. 1946)

In the Matter of RIGGS OPTICAL COMPANY, CONSOLIDATED and UNITED
OFFICE AND PROFESSIONAL WORKERS OF AMERICA, LOCAL 14, C. I. O.
Case 1N'o.17-R-1284.-Decided April 22,194'
Messes. Robe' t G. Bosworth and Samuel S. Sherman, Jr., of Denver,
Colo., and Mr. R. A.McCluskey, of Chicago, Ill., for the Company.
Mrs. E1nice Dolan and Mr. J. C. Kennedy, of Denver, Colo., for the
C..I.O.
Mllessrs. S. W. Johnson and Rudolph Cook, of Denver, Colo., for the
A. F. of L.
Mr. Phil E. Thompson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the United Office and Professional
Workers of America, Local 14, C. I. 0., herein called the C. I. O.,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Riggs Optical Company, Consolidated,
Denver, Colorado, herein called the Company,' the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Harry L. Browne, Trial Examiner. The hearing was held
at Denver, Colorado, on February 20, 1946. At the commencement of
the hearing, the Trial Examiner granted a motion to intervene filed
by Optical Workers Local 22833, A. F. L., herein called the A. F. L.
The Company, the C. 1. 0., and the A. F. L. 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 af-
forded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Riggs Optical Company, Consolidated, is a Delaware corpora-
tion with its principal office and place of business in Chicago , Illinois.
1 The petition and other formal papers were amended at the hearing to show the core Pct
name of the Company
67 N. L. R. B, No. 74.
565
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is engaged in the wholesale optical business and in the manufacture
of optical products at its Denver, Colorado, branch. The principal
materials purchased by the Company for its Denver branch during the
year 1945 consisted of lenses, optical frames, and optical instruments
valued in excess of $100,000, of which more than 75 percent was re-
ceived from sources outside the State of Colorado. The Company's
sales at its Denver branch during the same period amounted to over
$200,000, of which approximately 15 percent was sold and shipped to
destinations outside the State of Colorado.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Office and Professional Workers of America, Local 14, affil-
iated with the Congress of Industrial Organizations, is a labor organi-
zation admitting to membership employees of the Company.
Optical Workers Local 22833, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 25, 1941, pursuant to an agreement for a cross-check,
the A. F. L. was designated as the exclusive representative for certain
of the Company's employees at its Denver, Colorado, branch. Sub-
sequent negotiations between the Company and the A. F. L. culminated
in a bargaining contract dated December 16, 1941. This contract was
automatically renewable unless written notice was "given by either
party wishing to terminate or modify" the agreement 30 days prior
to December 1 of any given year. By letter, dated October 25, 1945,
the C. I. O. notified the Company that it represented a majority of
the Company's Denver employees, and requested recognition as their
exclusive bargaining representative. On November 1, 1945, the A. F.
L. gave written notice to the Company of its intention to modify the
existing agreement. On November 16, 1945, the Company, by letter,
refused to recognize the C. 1. 0. as the exclusive bargaining representa-
tive of any of its employees, stating that its contract with the A. F. L.
precluded such recognition.
The A. F. L. contends that its contract is a bar to a determination of
representatives at this time. Its position is without merit in view of
the fact that the C. I. O. gave timely notice to the Company of its claim
to represent a majority of the Company's employees at its Denver
branch more than 30 days prior to the termination date of the contract,'
2 Matter of A. C Lawrence Leather Co , 64 N L R B 714, and cases cited therein.
RIGGS OPTICAL COMPANY, CONSOLIDATED 567
and of the further fact that the A. F. L. gave appropriate notice to the
Company of its intention to modify its contract with the Company,
thereby staying the operation of the automatic renewal clause 3 We
find that the aforesaid contract is not a bar to this proceeding.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the C. I. 0. represents a substantial number of
the employees in the units hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of the employees of the Company at its Denver,
Colorado, branch within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
The C. I. 0. seeks a unit comprised of "all employees engaged in
the manufacture of optical lenses, including those employees who take
orders and prescriptions, clerks and janitors."
The A. F. L. limits organization to the skilled workers in the surface
and finish shops, for whom it has bargained since 1941. It seeks
determination of a unit corresponding to the unit recognized in its
past collective bargaining relations with the Company.
The Company takes a neutral position as to the determination of
the appropriate unit.
The surface and finish shops are physically separated from the dis-
pensing and clerical office. The optical workers in these shops are
specially trained and highly skilled craftsmen paid on a scale com-
mensurable with their skill. There is no interchange in duties between
shop and office employees.r, These circumstances, coupled with the
history of effective collective bargaining of the optical workers in a
separate unit, clearly establishes the fact that these employees consti-
tute a skilled, distinct, and homogeneous group, that can effectively
bargain as a separate unit.
The dispensing and clerical employees include the following cate-
gories : Dispensers, receptionist, desk and telephone clerks, order
clerks, pricing clerks, billing clerks, stock clerks, mailing clerks, and
messengers. Their duties are purely clerical. The Company also
employs one janitor. Although his cleaning duties extend to both the
shop and the office, he is under the same supervision as the office
3 Matter of Great Bear Logging Company , 59 N. L R B 701 , and cases cited therein
The Field Examiner reported that the C . 1 0 submitted 27 authorizations . The Com-
pany employs approximately 30 non -supervisory employees The A. F L. relies on its
contract for Its interest in this proceeding.
5 There is evidence in the record that office employees sometimes go into the shop to
obtain data necessai y for clerical records, and that on special occasions , optical workers
have personally checked price and stock records incident to work assigned to them. How-
ever , optical workers are never assigned clerical duties , and conversely , office employees
never perform shop duties
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and he would be denied representation if he was not
included within one of the units found appropriate herein. We there-
fore find that these employees, including the janitor,' constitute a dis-
tinct and homogeneous group under separate supervision that satisfies
the Board criteria for an appropriate bargaining unit.
The question then remains as to whether these two groups can be
joined into a single unit. In deciding this disputed issue we see no
reason to depart from our general and well defined policy of excluding
office clerical employees from production and maintenance units,'
which is based on the inherent dissimilarity of such groups as to duties,
background and training, supervision, relation to management and
other fundamental conditions of employment. Accordingly, we con-
clude that the group of employees involved herein can best be served
by their inclusion within separate units.,
We find that the following groups of employees of the Company
at its Denver, Colorado, branch constitute units appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
(1) All employees in the dispensing and clerical office of the Com-
pany's Denver, Colorado, branch, including dispensers, receptionist,
desk and telephone clerks, order clerks, billing clerks, stock clerks,
mailing clerks, messengers, and janitors, but excluding all supervi-
sory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action.
(2) All employees in the surface and finish shops including cutters,
edgers, mounters, polishers, spotters and washers, but excluding all
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate units who were employed 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.
Inasmuch as the A. F. L. has disclaimed any interest in the office
employees, we shall not accord it a place on the ballot in the election
conducted among the employees in group (1) in Section IV, above.
Matter of Wisconsin Gas & Electric Co , 57 N L R B 285.
' Matter of E. I Du Pont de Nemours & Co., Inc., 62 N. L R. B. 146.
8 Matter of Westinghouse Electric and Manufacturing Company, 62 N. L R. B. 187.
RIGGS OPTICAL COMPANY, CONSOLIDATED
DIRECTION OF ELECTION
569
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, 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 Riggs Optical
Company, Consolidated, an election by secret ballot shall be con-
ducted 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 Seventeenth 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
employees in the units found appropriate 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
during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine :
(1) Whether or not the employees designated in group (1) of
Section IV desire to be represented by United Office and Professional
Workers of America, Local 14, C. I. 0., for the purposes of collec-
tive bargaining;
(2) Whether the employees designated in group (2) of Section
IV desire to be represented by United Office and Professional Workers,
Local 14, C. I. 0., or by Optical Workers Local 22833, A. F. L., for
the purposes of collective bargaining, or by neither.