Union Underwear Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1945

63 N.L.R.B. 92 (N.L.R.B. 1945)

In the Matter of UNION UNDERWEAR COMPANY, INC., and UNITED
GARMENT WORKERS OF AMERICA, A. F. L.
Case No. 9-R-1761 .-Decided July 31,1945
Messrs. Samuel M. Rosenstein and Jacob A. Goldfarb , of Frankfort,
Ky., for the Company.
Mr. Frank J. Stockmester , of Frankfort , Ky., and Mr. Charles M.
Elder, of Louisville , Ky., for the Union.
Miss Virginia A. Miller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Garment Workers
of America, A. F. L., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of United Underwear Company, Inc., herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Herbert J. Nester, Trial Ex-
aminer. Said hearing was held at Frankfort, Kentucky, on May 9,
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. Over the Company's objection, the Trial Examiner accepted
the Report of Investigation of Interest into evidence. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity 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
Union Underwear Company, Inc., an Indiana corporation, with
its executive offices located in New York City, maintains and op-
erates a factory at Frankfort, Kentucky, where it is engaged in the
63 N. L. R B., No. 9.
92
UNION UNDERWEAR COMPANY, INC. 93
manufacture of men's and boys' athletic underwear. Annually the
Company purchases raw materialq valued in excess of $1,000,000,
90 percent of which is shipped to the plant from points outside the
State of Kentucky. The Company annually sells products valued in
excess of $2,000,000, 75 percent of which is shipped, to points outside
the State of Kentucky.
The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Garment Workers of America, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about March 8, 1945, the Union orally notified the Company
of its claim to represent a majority of the Frankfort factory's produc-
tion employees and requested recognition as their exclusive bargaining
representative. At that time, the Company advised the Union that it
would not accord such recognition in the absence of certification by
the Board.
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'
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.
IV. THE APPROPRIATE UNIT
The Union seeks a unit composed of production employees engaged
at the Frankfort factory, exclusive of certain employee classifications.
The parties are in substantial accord as to the composition of the unit.
They are in dispute, however, as to whether the employees discussed
below should be included or excluded, the Union urging the exclusion
of these employees on the ground that their work is unrelated to that
of the production employees, whereas the Company contends that- such
employees should be included.
Clerical employees; The factory maintains a clerical staff of 10
employees whose duties involve the making of pay-roll sheets, invoices,
I The Field Examiner reported that the Union submitted 210 authorization cards ; that
the names of 200 persons appearing on the cards were listed on the Company 's pay roll of
April 6, 1945 , which contained the names of 448 employees in the appropriate unit ; and
that the cards were undated.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bills of lading, and miscellaneous production records. Although they
work similar hours and are compensated on an hourly basis, they are
segregated from production areas and their duties are performed
under supervision separate and distinct from that of the production
employees. Under these circumstances, we shall, in accord with our
established policy, exclude clerical employees from the unit herein-
after found appropriate.'
Nurse; One factory employee is classified as a nurse. She is in
charge of the first-aid room, where her duties involve treatment of
minor injuries of employees. We shall exclude the nurse from the
production unit.3
Maintenance employees: The Company employs three janitor-watch-
men, four machinists, a carpenter, and a porter, all of whose duties are
those common to their respective job classifications. Since their duties
and interests are substantially different from those of the production
employees, we shall exclude these employees from the unit established
herein 4
Instructors: In each production department, there is one employee
classified as an instructor. The Union seeks to exclude such employees
urging that they are supervisory employees. The Company contends
that instructors should be included. The instructors teach and assist
machine operators, supply the operators with materials, and, in general,
keep production lines moving. The supervision in the factory is
headed by the plant manager, his assistant, and the superintendents;
there is no intermediate supervision between these individuals and the
production employees, approximately 450 in number, other than the
instructors. It is our opinion that instructors are supervisory em-
ployees within the Board's customary definition.5 Accordingly, we
shall exclude instructors from the unit.
We find that all production employees of the Company's Frank-
fort, Kentucky, factory, but excluding clerical and office employees,
the nurse, machinists, janitor-watchmen, the carpenter, the porter and
instructors, and all other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action,° constitute a
unit appropriate for the purposes'of collective bargaining within the
meaning of Section 9 (b) of the Act.
2 See Matter of Charles H Besly and Company, 48 N. L. R. B. 1020, and cases cited
therein.
2 See Matter of Brown Paper Mill Company, Inc., 45 N. L. R. B. 1227; Matter of Cannon
Manufacturing Corporation, 46 N. L. R. B. 592
* See Matter of Norris, Incorporated, 60 N. L. R. B. 297.
G See Matter of Tubize Rayon Corporation, 59 N. L. R. B. 82.
6 The parties agree and we find that the assistant secretary and manager, assistant
manager, assistant office manager, cutting room foreman, superintendent, production man-
ager, industrial engineer, shipping foremen, and head machinist are supervisory employees
within the meaning of the Board's usual definition.
UNION UNDERWEAR COMPANY, INC. 95
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 unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein , 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 Relations
Board Rules and Regulations-Series 3, as amended it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Union Under-
wear Company , Inc., Frankfort , Kentucky, 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 Ninth 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 unit 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
the 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
election , to determine whether or not they desire to be represented by
United Garment Workers of America, affiliated with the A. F. L.,
for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.