Anderson Jergens Co.

National Labor Relations Board - Board Decisions

Nov 28, 1945

64 N.L.R.B. 989 (N.L.R.B. 1945)

In the Matter of ANDREW JERGENS COMPANY and GENERAL WARE-
HOUSEMEN 'S -UNION , LOCAL 598 ; OF THE TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN ADD HELPERS, AFL
Case No. 21-R=,975.-Decided November 18, 1945
Messrs. Gibson , Dunn ci Ci •utcher , by Mr. J. Stuart Neary, of Los
Angeles, Calif ., and Mlle. Frank Mergenthaler, of Los Angeles , Calif.,
for the Company.
Mr. Johan C. Stevenson , of Los Angeles, Calif ., for the Teamsters.
Mr. David V . Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by General Warehousemen's Union,
Local 598, of the Teamsters, Chauffeurs, Warehousemen and Helpers,
AFL, herein called the 't'eamsters, alleging that a question affecting
commerce had arisen concerning the repiesentation of employees of
Andrew Jergens Company, Burbank, California, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon clue notice before Maurice J. Nicoson, Trial
Examiner. The hearing was held at Los Angeles, California, on
August 20, 1945. The Company and the Teamsters appeared 1 and
participated. All parties were affoided 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
1. THE BUSINESS OF THE COMPANY
Andrew Jergelts Company, an Ohio corporation with its principal
place of business located at Cincinnati, Ohio, is engaged in the manu-
I Although notice of hearing was duly served upon Soap & Cosmetic Workers Union, Local
#21361, AFL, herein called the Cosmetic workers, that organization made no appealanco
on ri, ovra behoIt at the heauag Its former ueasurer. hooeor, testified on behalf of the
Teamsters.
64 N L R 11, No. 167. 989
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facture and sale of toilet articles, cosmetics, and related products.
For this purpose, it operates a plant at Burbank, California, with
which we are concerned herein. During 1944, the Company made
purchases of raw materials for use at its Burbank, California, plant,
valued at approximately $1,500,000, of which approximately 50 per-
cent represents the value of purchases originating outside the State
of California. During the same period, the sales of the Burbank
plant approximated $4,000,000, of which about $1,400,000 represents
the value of sales made to customers located outside the State of
Californi a.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
General Warehousemen's Union, Local 598, of the Teamsters,
Chauffeurs, Warehousemen and Helpers, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Teamsters as
the exclusive bargaining representative of certain of its employees
until the Teamsters has been certified by the Board in an appropriate
unit:
On December 23, 1941, after an election held pursuant to a consent
election agreement, the Cosmetic Workers was designated by the Re-
gional Director as the collective bargaining representative of all pro-
duction and maintenance workers at the Burbank plant, excluding
clerical employees, watchmen, truck drivers, janitors, and supervisory
employees.2 Thereafter, negotiations between these parties com-
menced, and subsequently, on November 6, 1942, they agreed upon all
terms of a contract. However, on January 2, 1943, the Company took
the position that, inasmuch as a year had elapsed since the Cosmetic
Workers' designation, a new test of its majority status must be had
before it would execute the contract. Because of this development,
the matter was certified to the National War Labor Board on January
1511943 .3 On May 29, the Regional Board issued a directive, ordering
the Company to execute an agreement with the Cosmetic Workers
embodying certain wage, union security, and recognition provisions.4
The Company subsequently appealed from this directive, and on Sep-
Case No. 21-R-1508.
Case No. 111-150-C (10-D-13).
4 20 W. L. R. 583.
ANDREW JERGENS COMPANY 991
tember 25, 1944, the appeal was denied .-5 However, the Company con-
tinued to refuse to execute any agreement with the Cosmetic Work-
ers, reiterating that it had serious doubts as to that organization's
majority status,6 and in December 1944, its production and main-
tenance workers went on strike for 2 or 3 weeks.
On June 22, 1945, a membership meeting of the Cosmetic Workers
was held, at which time it was unanimously determined to hold a
special meeting on July 1 for the purpose of "considering and acting
upon" affiliation "as a body" with the Teamsters. On July 1, the
members of the Cosmetic Workers then present unanimously voted to
"affiliate as a body and become part of" the Teamsters. On July 12,
the Teamsters notified the Company of the affiliation and requested
that the Company bargain with it. On the same day, the Teamsters
filed the petition herein.
The record indicates that the Cosmetic Workers has not conducted
any meetings or carried on the functions of a labor organization since
the meeting of July 1, 1945, and that 1 here are no longer any active
officers or dues-paying members.
The Company contends, in effect, that no question concerning rep-
resentation exists, since, "in view of the long period involved in nego-
tiations and before the War Labor Board, the Teamsters' petition is
not proper until such time as [the Cosmetic Workers], as a newly
certified bargaining agent, has had an opportunity to function and
to negotiate . . . fora reasonable time." In support of its con-
tention, the Company points to the doctrine enunciated in the Allis-
Chalmers 7 case. The effect of applying the Allis-Chalmers principle
is to extend the customary 1-year period following a certification or
designation within which the representative status of the certified
or designated agent is permitted to remain undisturbed. Here, how-
ever, the Company seeks to invoke this doctrine on behalf of an organ-
ization whose majority status it has consistently challenged since
January 2, 1943, and which is no longer in a position to represent
its employees, having ceased to function as their representative since
July 1, 1945. In these circumstances, we find no merit in the Com-
pany's contention.
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the Teamsters represents a
substantial number of employees in the unit hereinafter found appro-
priate.8
6 20 W. L. R. 582.
6 Meanwhile , on October 26, 1944, the Cosmetic workers was designated as the repre-
sentative of the Company 's janitors and watchmen ( Case No. 21-R-2502 ) ; however, it
never made any attempt to bargain with the Company on their behalf.
Matter of Allis-Chalmers Manufacturing Company, 50 N L. R B. 306.'
s The Field Examiner reported that the Teamsters submitted 53 designations , and that
there are approximately 104 employees in the appropriate unit.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
0
The Teamsters seeks a unit comprised of all production and main-
tenance employees of the Company at its Burbank, California, plant,
including truck drivers, watchmen, and janitors, but excluding office
and supervisory employees. The Company contends that its produc-
tion and maintenance employees should comprise a unit separate from
the watchmen and janitors, asserting that the latter are confidential
employees; it takes no position with respect to the truck drivers.
The Teamsters seeks a single unit comprised of the two groups of
employees for which the Cosmetic workers had been designated, with
the addition of the truck drivers, whorl it traditionally represents.
The Cosmetic Workers has been unable to execute a contract with the
Company covering any of the employees in these groups, and, indeed
failed to make any attempt after its designation to represent the
Company's jan itors a nd watchmen. Moreover, the groups were formed
pursuant to consent of the parties, and not through any formal deter-
mination by the Board. In addition, the employees sought by the
Teamsters are either production or maintenance workers, are hourly
paid, and are corder the supervision of the Company's superintendent.
Although the janitors peiform their duties in and about the Com-
pany's offices, and the ii-alchmen have access to all parts of the plant.
neither have occasion to obtain confidential information pertaining
to the Company's labor relations in the regular exercise of their func-
tions. In view of these circumstances, we shall include all employees
sought by the Teamsters within a single unit.
The record indicates that the shipping clerk, maintenance foremen,
and production stipcrvisors have supervisory authority within the
meaning of our usual definition, whereas maintenance leadmen and
production assistant supervisors do not. We shall include the main-
tenance leadinen and production assistant supervisors within the unit,
but shall exclude the shipping clerk, maintenance foremen, and pro-
(Inction supervisors.
We find that all production and maintenance employees of the
Company at its Burbank, California, plant, including watchmen and
janitors, truck drivers, nr:untenamice leadmen, and production assis-
tant supervisors, but excluding Office employees, shipping clerk, main-
tenance foremen, production supervisors, and all other supervisory
employees N itlr authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, constitute a unit appropriate for the purposes
ANDREW JERGENS COMPANY 993
of collective bargaining within the meaning of Sect ion 9 ( b) of the
Act.
V. THE DETERDIINAT1ON OF REPRESENT\T1VES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit 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.
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 Regulat ions-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 Andrew Jergeiis
Company, Burbank, California, all election by secret ballot shall be
conducted as early as possible, but not later than sixty (60) days front
the date of this Direction, under the direction and supervision of the
Regional Director for the Twenty-first Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article 111, Sect ions 10 and 11, of said Rules and Regulations, among
employees in time unit foetid ;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 of on vacation or tempo-
rarlly laid off, and including eniployees 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 whether or not they desire to be repre-
sented by General Warehousemen's Union, Local 598, of the Team-
sters, Chauffeurs, Warehousemen and Helpers, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining.
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