Economy Shade Co.

National Labor Relations Board - Board Decisions

Nov 8, 1950

91 N.L.R.B. 1552 (N.L.R.B. 1950)

In the Matter of LELAND J. PASCHICH AND GEORGE H. CHERRY, A PART-
NERSHIP, D/B/A EcoNo-1NIY SHADE COMPANY, EMPLOYER and CUSTO3L
UPHOLSTERERS, DRAPERY & SHADE UNION, LOCAL No. 3, UPHOLSTERERS,
INTERNATIONAL UNION, AFL, PETITIONER
Case No. 20-RC-1032.-Decided November 8, 1950
DECISION AND DIRECTION OF ELECTION
Upon a' petition duly filed under Section 9 (c) of the National'
Labor Relations Act, a hearing was held before Harry Bamford, hear--
ing officer. The hearing officer's rulings made at the hearing are free-
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions- of Section 3 (b) of the Act, the Board.
has delegated its powers in connection with this case to a. three-
member panel [Chairman Herzog and Members Murdock and Styles]..
Upon the entire record in the case, the Board finds:
1. The Employer is a partnership engaged in the manufacture and
sale of window shades, bamboo drapery, screens, and other woven wood
products at its plant in San Francisco, California. Purchases by the
Employer of window shade cloth, rollers, bamboo and reed shades,,
and drapery and venetian blind materials in the past year totaled in
excess of $150,000, of which approximately $75,000 came from sources
outside the State of California. During the same period, the Em-
ployer's sales of finished products were in excess of $220,000, of which
approximately $55,000 was for goods shipped to purchasers located
outside the State of California. Although the Intervenor contends,
that the operations of the Employer are essentially local, we find that •.
the Employer is engaged in commerce within the meaning of the Act.
The Intervenor , in its brief, asserts that the conduct of the hearing officer at the hearing
was prejudicial. to its interests . We have carefully examined the record herein including-
the transcript of testimony at the hearing and can find no merit in the Intervenor 's conten-
tion. The record shows that the Intervenor was in no manner improperly limited or'
restricted in the presentation of evidence or in the examination of the pertinent issues.
We find that the hearing was conducted in conformity with the provisions of Section 9
of the Act and the Rules and Regulations of the Board. We specifically affirm the hearing
officer's rejection of the Intervenor ' s offer of proof concerning alleged coercion on the
part of the Employer to compel employees to transfer affiliation from the Intervenor to
the Petitioner. See RKO Radio Pictures , Inc., 90 NLRB No. 58. -
91 NLRB No. 235.
1552
ECONOMY SHADE COMPANY 1553
and that it would effectuate the purposes of the Act to assert juris-
diction herein.'
2. Custom Upholsterers, Drapery & Shade Union, Local No. 3,
affiliated with Upholsterers International Union, AFL, herein termed
the Petitioner, and Venetian Blind Workers Union, Local No. 2565,,
affiliated with Bay Counties District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, AFL, herein
termed the Intervenor, are labor organizations claiming to represent
certain employees of the Employer.
3. On November 16, 1948, the Intervenor and the Venetian Blind.
Manufacturers' Association, of which the Employer was a member,
entered into a contract terminating May 31, 1949, with provision for
automatic renewal for yearly terms thereafter in the absence of 60
clays' prior notice of intent to terminate or modify.3 Timely notice
of intent to modify forestalled the renewal of the contract in May
1949. The parties were unable to reach agreement on proposed
changes thereafter, and negotiations continued until May 1950. Dur-
ing this period the terms of the contract were apparently, observed
by the parties and formal notice of intent to modify was again given
early in 1950. On April 28, 1950, the Employer discontinued the
manufacture of venetian blinds and withdrew from the Association.
On or about May 29, 1950, the Association and the Intervenor signed
an "addendum" to the previous contract incorporating certain changes
but retaining the major portion of the agreement. The instant peti-
tion was filed on July 13, 1950. The Intervenor urges that these con-
tractual relationships be held to bar a, determination of representatives
at this time. We do not agree. It is clear that the Employer with-
drew from the Association at an appropriate time before the present,
agreement was signed. As a result the Employer's employees are no
longer appropriately a part of the multiemployer unit covered by the
contract.' Accordingly, we find that a question affecting commerce
2 See Stanislaus Implement and Hardware Company , Limited, 91 NLRB 618.
a The contract contains a provision that (hiring the time negotiations are under way
covering proposed changes and amendments to the agreement , the contract "shall remain
in full force and effect until all issues are settled and the new amended contract is in
effect ." We do not pass upon the effect of this provision following the contract opening
in 1949 , in view of our finding that the Employer is not a party to the subsequent
agreement signed in 1950.
4 The Intervenor , by inference , assumes that the Employer is still bound by the Associa-
tion's contractual relationships with the Intervenor despite the fact that the Employer
withdrew from the Association . In Associated Shoe Industries of Southeastern mass.,
Inc., 81 NLRB 224, 229 , we reiterated the principle that specific delegation of bargaining
authority to a central representative or participation in joint negotiations by an employer
is necessary to establish a multiemployer unit. It is therefore clear that rescission of that
authority and withdrawal of participation by an individual employer , at an appropriate
time , operates to disestablish the multiple -employer unit so far as that employer is con-
cerned . See Pacific Metals Co., 91 NLRB 696.
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.exists concerning the representation of employees of the Employer
within the meaning of Section 9 ( c) (1) and Section 2 (6) and (7) of
the Act.
4. The Petitioner requests a unit of all employees employed on cus-
tom upholstery and in the measuring , estimating, cutting, fabrication,
and painting of upholstery , drapery, and shade fabrics and materials,
including cornices and lambrequins , but excluding employees engaged
in the manufacture of venetian blinds, warehousemen , truck drivers,
office and clerical employees , guards, supervisors , and professional
(employees . The Intervenor requests a unit of all employees engaged
in the installation of venetian blinds and in installations which require
the use of carpenter tools, employees employed in the manufacturing
of venetian blinds, special woodworkers , spraynien , paint machine
operators , other machine operators , hardware applicators , cornice
makers, and makers of lambrequins , sanders, assemblers and tapers,
stock clerks, shippers , and warehousemen.
The Employer has approximately 25 employees who are engaged
in the manufacture of cloth , bamboo, and reed window shades, and
traverse type draw draperies , the weaving of wood slats into floor
screens, and the assembly of imported items such as grass matting and
rugs, as well as the installation of these articles . Actual manufac-
turing is carried on at the Employer's main plant , while warehousing
.and the fabrication of some grass products is done at a separate loca-
tion. The Employer 's personnel is largely distributed among the four.
floors of its main plant . Spray painting , cornice fabrication, weav-
ing, separation , and woodwork for floor screens is done on the first
.floor while employees on the mezzanine cut bamboo and other mate-
rials and perform certain sewing operations . The second floor is used
for the cutting , sewing, and fabrication of cloth, bamboo , and trans-
parent window shades. Wrapping and shipping as well as the as-
sembly of shades and the manufacture of samples is performed in the
basement of the main plant. Warehousing and the cutting , sewing,
and assembly of grass rugs and mats takes place at the Employer's
second building.
Both the Petitioner and the Intervenor state their contentions as
to the appropriate unit in terms of. their respective jurisdictional
limitations , referring to occupations and processes which do not cor-
respond to this Employer's work classifications . In actuality it ap-
pears that each labor organization seeks to represent all the produc-
tion and ma.in.tenance• employees of the Employer except that the
ECONOMY SHADE COMPANY 1555
Intervenor would exclude seamstresses from the unit.' The Em-
ployer agrees with the Petitioner as to the inclusion of seamstresses,
but differs with both unions as to the supervisory status of two
employees . The seamstresses share the same supervision , working
conditions, and, on occasion , the same duties as other employees whose
inclusion in the l .init is undisputed. The record discloses , and the In-
tervenor advances , no reason for the exclusion of seamstresses from
the unit and we shall therefore include them.
The Employer 's supervisory staff consists of a plant superintendent
in charge of all operations , a foreman reporting to the superintendent,
and a "part-time supervisor ." The parties agree, and we find, that
the plant superintendent is a supervisor . The foreman , who is in
charge of 12 employees , spends most of his time in direct supervision,
is paid a monthly salary, and has authority effectively to recommend
the discharge or merit reward of employees . Upon the entire record
we find that the foreman is a supervisor as defined in the Act and we
shall exclude both the superintendent and the foreman from the unit
found appropriate . The "part-time supervisor " or layout man spends
approximately 75 percent of his time at manual labor. He also lays
out work for other employees and makes out the installers ' schedules.
He is paid by the hour , as are the other employees , but receives a
quarterly bonus. The "part-time supervisor" has no authority to
hire, discharge , or effectively recommend personnel actions and the
Employer characterizes his work as routine . The Petitioner would
include this employee in the unit while the Employer and the Inter-
venor take no position as to his status . Upon the entire record, we
find that the "part-time supervisor" is not a supervisor as defined in
the Act and we shall include him in the unit hereinafter found appro-
priate.'
E The Intervenor also appears to contend that the employees in this establishment should
be divided into two units along lines established in the past by agreement between the
Petitioner and the Intervenor . The precise division made of the employees based on each
union's jurisdictional claims is not shown clearly in the record . It is well established that
jurisdictional agreements between labor organizations do not bind the Board in the exercise
of its statutory duty to determine the appropriate unit for collective bargaining. See
Edgar F. Hurff Company, 77 NLRB 762 ; Guy F. Atkinson and J. A. Jones Construction
Company, 84 NLRB 88, 92.
Moreover , upon the discontinuance of the Employer 's venetian blind manufacturing
operations , employees formerly working full time at such work were assigned to duties
elsewhere in the plant. Employees , generally , are not assigned by the Employer to any one
floor or operation exclusively and the record shows there is consistent shifting of locations
and duties according to production demands. Despite the informal jurisdictional arrange-
ments of the past , we can find no departmental or craft separation of employees or division
of interests sufficient to warrant the establishment of two units herein.
William Murphy.
T See Amplex Manufacturing Company, 85 NLRB 523.
917572-51-vol. 91-99
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production and maintenance employees of the
Employer's shade manufacturing plant and warehouse," including
seamstresses and the part-time supervisor, but excluding office and
clerical employees, guards, professional employees, the plant superin-
tendent, the foreman, and all other supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
8 The Petitioner , in its petition , requested the exclusion of full time warehouse employees
and employees engaged in the manufacture of venetian blinds, on the ground that it did
not have jurisdiction over such personnel . The record shows that the Employer does not
employ any employees in these classifications.