Ward-Stilson Co.

National Labor Relations Board - Board Decisions

Jul 29, 1940

25 N.L.R.B. 1075 (N.L.R.B. 1940)

In the Matter of WARD-STILSON COMPANY and INTERNATIONAL LADIES
GARMENT WORKERS UNION
Case No. B-1927.-Decided July 29,1940
Jurisdiction : garment manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; election necessary.
Unit Appropriate for Collective Bargaining : all, regular production and mainte-
nance employees but excluding supervisory employees, clerical employees,
temporary employees, salesmen, and saleswomen.
Mr. Erwin Feldman, of New York City, and Mr. Albert Diven, of
Anderson, Ind:, for the Company.
Mr. Harold W. Schwartz, of Chicago, Ill., for the I. L. G. W. U.
Mr. Harry 0. Neff, of Anderson, Ind., for the M. W. U.
Mr. D. M. Byrd, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 4, 1940, International Ladies Garment Workers Union,
herein called the I. L. G. W. U., filed with the Regional Director for
the Eleventh Region (Indianapolis, Indiana), a petition alleging that
a question affecting commerce had arisen concerning the representa-
tion of • employees of Ward-Stilson Company, Anderson, Indiana,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On June
20, 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 June 21, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the
I. L. G. W. U., and'upon Maisonette Workers Union, herein called the
M. W. U., a labor organization claiming to represent employees di-
25 N. L. R. B., No. 109.
1075.
1076 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
rectly affected by the investigation. Pursuant to the notice, a hearing
was held on June 28, 1940, at Anderson, Indiana, before Arthur R.
Donovan, the Trial Examiner duly designated by the Board. The
Company, the I. L. G. W. U., and the M. W. U. were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues, was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On July 1, 1940, the Company requested oral argument before the
Board. Pursuant to notice duly served upon all the parties, a hear-
ing for the purpose of oral argument was held before the Board on
July 16,1940, at Washington, D. C. The Company was represented by
counsel and participated in the argument.
Upon the entire record in the case, the Board makes the follow-
ing: ,
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Ward-Stilson Company is an Indiana corporation having its office
and place of business in Anderson, Indiana. The Company is engaged
in,the manufacture and sale of women's, misses', and juniors' dresses
as well as lodge costumes, regalia, and equipment. In addition, the
Company sells shirts, ties, hosiery, and garments, which are manu-
factured elsewhere. During its fiscal year ending June 30, 1939, the
Company's purchases of raw materials, consisting of cotton and
rayon fabrics, amounted to $421,365.99, practically all of which
were purchased outside the State of Indiana. During the same period,
it manufactured products valued at $1,389,012.83, 92 percent of which
were. shipped to destinations outside the State of Indiana. The sale
of the Company's merchandise is made by direct solicitation by sales
representatives, who are furnished with style books from which cus-
tomers make selections.
The Company admits that it is engaged, in commerce within the
meaning of Section 2 (6) and (7) of the National Labor Relations
Act.
II. THE ORGANIZATIONS INVOLVED
International Ladies Garment Workers Union is a labor organiza-
tion admitting to membership persons employed in the women's and
children's garment-making and accessory trades in the United States
and Canada.
WARD-STILSON COMPANY 1077
Maisonette Workers Union is an unaffiliated labor organization
admitting to membership all employees of the Company at its plant
except officers, executives, foremen, assistant foremen, heads of de-
partments, supervisors, salesmen, and office workers.
III. THE QUESTION CONCERNING REPRESENTATION
During the course of the hearing, the Company, the L, L. G. W. U.,
and the M. W. U. stipulated and agreed that each of the unions claimed
to represent a majority of the Company's employees within an appro-
priate bargaining unit; that each of the unions had made demands
upon the Company for the right to bargain exclusively for the em-
ployees within such appropriate unit; and that such demands had been
refused.
During the hearing the Trial Examiner was handed 177 signed ap-
plication cards for the I. L. G. W. U.; while the M. W. U. handed him
188 signed applications. Ward K. Stilson, president of the Company,
testified that the Company employs 369 persons whom it considers to
be within an appropriate bargaining unit. The Trial Examiner stated
for the record that all of the 177 I. L. G. W. U. application cards,
dated between June 1939 and June 1940, "appear to contain the genuine
original signatures of the parties signing same"; and that 161 of such
names are those of the persons whose names appeared on the Com-
pany's June 15,19
'
40, pay roll. Of the 188 M. W. U. application cards
the Trial Examiner stated that all were of recent date, that all ap-
peared to contain genuine original signatures, and that all such signa-
tures appeared to be those of persons whose names appeared on the
Company's pay roll.
We find that the question which has arisen concerning representa-
tion of employees of the Company can bcst be,resolved by the holding
of an election by secret ballot.
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 stipulated, as hereinbefore mentioned,
that the appropriate bargaining unit should include all regular pro-
duction and maintenance employees, except supervisory, clerical, and
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1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporary employees.' The parties differed, however, as to whether
certain specific employees should be deemed to fall within the above-
described unit.
Swatchers.-The I. L. G. W. U. seeks to exclude this group of em-
ployees from the unit on the ground that they do not do "production"
work. The Company desires their inclusion. As stated above, the
Company's merchandise, consisting largely of women's and children's
dresses, is sold by direct solicitation of sales representatives who are
furnished with a style book from which customers make selections.
These style books are composed of heavy paper sheets showing the
style, color, and price of the dress. Pasted on the sheet, beside the
dress pictured, are certain samples of materials illustrating goods of
which the particular dress is made. Stilson testified that the Com-
pany makes 12 releases of the style sheets during a year, "which
means there is a release every four weeks, except the December
release." It appears that the Company employs 21 "swatchers" whose
sole'duties consist of cutting the samples of dress materials and past-
ing them onto, the style cards. Stilson testified, with contradiction,
that the swatchers perform' no other work in the Company's plant,
do no actual dressmaking and that if there is not sufficient swatching
for them to do, they are laid off until the Company is prepared to re-
lease new style sheets. Since the Company is engaged in direct,
door-to-doox sales, the style cards are substituted for sample dresses
such as are used by other dress manufacturers. The I.- L. G. W. U.
in expressing its desire for exclusion of the swatchers, contended that
they were employed in work of a clerical nature. The M. W. U.
expressed no particular desire for their inclusion or exclusion; it
appears, however, from a March 6, 1940, contract between the Com-
pany and the M. W. U., in which the former recognizes the latter as
the bargaining agent for its members only, that swatchers are not
expressly excluded.
It is apparent that the I. L. G. W. U. desires, generally, an.indus-
trial type bargaining unit; the stipulation of the parties includes
within the appropriate unit such groups of employees as work- dis-
tributors and those employed in receiving, sorting, cutting, folding,
pressing, and shipping departments. The Company's pay-roll rec-
ords reveal that the 21 watchers have enjoyed a normal steady em-
ployment during the first 6 months of 1940, and no"differences were
pointed out between the hours of work, vacation rights, or rates of
pay of the swatchers and- of the other employees. We find that the
duties of the swatchers are such as to warrant their inclusion in the
appropriate unit as production employees.
1 The, ,parties agreed, on' the iecord, that the appropriate bargaining unit thus defined
should exclude all salesmen and saleswomen and 125 persons whose names were listed
- -WVARD-STILSON COMPANY 1079
Temporary employees.-In reaching the stipulation as to the unit,
the unions were unable to agree as to which employees should be
included within the term "temporary employees ." Accordingly , testi-
mony was introduced hearing on this problem . Because of the ab-
sence of skilled employees in Anderson , Indiana, and the necessity
for the Company to train its own employees , the Company has made
it a practice to train all new employees in a single group of from
50 to 100 persons during the first part of each year. The new em-
ployees are engaged during the first 2 weeks of the training period
on an unspecified straight-time pay rate ; for the third week they are
given a 30 -per cent bonus in addition to regular earnings; and a
20-per cent bonus for the fourth week in addition to regular earnings.
During the succeeding 3 weeks the bonus is gradually reduced and
at the end of the seventh week the employee is placed on a straight
piece-rate wage scale . The Company considers such new employees
to be regular employees if they have successfully completed the 7
weeks' learner period . The Company 's pay roll shows that of the 74
new employees hired during the period from January 1, 1940, to
April 29, 1940, 16 quit on their own accord, 4 were dismissed, and
54 were still employed. All 54 have been employed for more than
7 weeks.
It is clear that the employees in question enjoy a good prospect of
continued employment , that they have received a substantial amount
of overtime work since their initial employment , and that, in the
evelit they are laid off, they will be recalled before other persons are
hired. We find that all such employees who have been employed by
the Company for 7 weeks are properly regarded as regular employees,
and are to be included within the appropriate unit.
Nellie Stuart; Ora Whetsel; Melvina Whipple ; Irene Taylor.-The
parties were unable to agree as to whether these four employees
should be deemed to fall within the unit. Stilson testified that the
four employees , although termed "temporary " at the time they were
employed, are now 'considered by the Company as having been em-
ployed sufficiently long enough to have acquired the status of perma-
nent production employees . All four have a good prospect of
enjoying continued employment and have also received overtime work
during their term of employment . The Company 's pay-roll records
show that Nellie Stuart was employed April 22, 1940; that Ora
Whetsel was employed April 29, 1940 ; that Melvina Whipple was
employed April 30, 1940; and that Irene Taylor was employed May 6,
1940. -
By the time of the hearing these four employees each had been
employed for at least 7 weeks. We find that Nellie Stuart; Ora
Whetsel , Melvina Whipple, and Irene Taylor are regular employees
and are to be included within the appropriate unit.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Audria Cummins; Mary Forkner; Ella Hahn; James Robbins.-
The parties were unable to agree as to whether these employees should
be excluded on the ground that they are part of the Company's super-
visory force. The Company considers them to be production and not
supervisory employees. It appears that Audria Cummins, a work
distributor, stands behind a counter and issues work to the other
distributors to carry to the production employees; that Mary Forkner
is engaged 2 or 3 days a month in operating a salesroom, on the
Company's premises; to dispose of accumulated stock and seconds,
and that she spends the remainder of her time in performing duties
similar to production workers; that Ella Hahn spends a part of her
time as matron of the washroom and taking care of minor injuries
in the hospital, but that a majority of her time is spent in cleaning
soiled garments; and that James Robbins stamps the C. 0. D. number
on C. 0. D. tickets in the shipping department. Stilson testified
that when the foreman of the shipping department is absent Robbins
is one of several employees in the shipping department who is con-
sidered for the foreman's place and that Robbins has taken the fore-
man's place at "various times." 2 In the absence of any substantial
evidence that these four people are supervisory employees, we find
that they 'are production employees and should be included in the
appropriate bargaining unit.
We find that all regular production and maintenance employees s
but excluding supervisory employees, clerical employees, temporary
employees, salesmen, and saleswomen constitute a unit appropriate for
the purposes of collective -bargaining and that said unit will insure
to employees of the Company the full benefit of their right to self-
organization, and to collective bargaining, and will otherwise effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The parties agreed at the hearing, and we shall direct, that-an elec-
tion should be held among the employees in the unit.
The Company expressed a preference for the pay. roll of June 15,
1940, in determining the eligibility of employees to participate in the
election on the ground that such payroll best reflected the number of
regular employees. Stilson testified, however, that the Company's
production schedule would be steady for at least 2 more months. No
preference was expressed by either of the participating unions as to
the eligibility date.
2 The Company 's pay-roll records for 1940 show that both Robbins and Foreman Claude
McCune have been employed 24 weeks this year.
$ Including swatchers , Nellie Stuart , Ora Whetsel . Melvina Whipple , Irene Taylor , Audria
Cummins, Mary Forkner, Ella Hahn , and James Robbins.
-- -WARD-STILSON COMPANY __ =1081
Under these circumstances, and in accordance with our usual prac-
tice, in order to secure results from the coming election which will
accurately disclose the desires of the body of employees who will be
represented during the period following the election, we shall direct
that eligibility be determined by the pay roll immediately preceding
the, date of this Direction of Election.
We shall direct that employees of the Company within the appro-
priate unit hereinbef ore described, who were employed by the Com-
pany during the pay-roll period immediately preceding the date of
this Direction of Election, including employees who, as of such period,
were temporarily ill or on vacation, but excluding any such employees
who have since quit or been discharged for cause, shall be eligible to
vote in the election.
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 Ward-Stilson Company, Anderson, Indiana,
within the meaning of Section 9 (c) and Section 2 (6) and `(7) of the
National Labor Relations Act.
2. All regular production and maintenance employees but exclud-
ing supervisory employees, clerical employees, temporary employees,
salesmen, and saleswomen constitute a unit appropriate for the purr
poses 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 Relations Act,
and pursuant to Article III, Section 8, of 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 Ward-Stilson Company, Anderson, Indiana, 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 for the Eleventh 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 regular production and maintenance employees of the Company
who were employed during the pay-roll period immediately preced-
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the date of this Direction, including employees who did not work
during such pay-roll period because they were ill or on vacation but
excluding supervisory, clerical, and temporary employees, salesmen,
saleswomen, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Interna-
tional' Ladies Garment Workers Union, or by Maisonette Workers
Union, for the purposes of collective bargaining, or by neither.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Direction of Election.