Estee Bedding Co.

National Labor Relations Board - Board Decisions

May 5, 1947

73 N.L.R.B. 825 (N.L.R.B. 1947)

In the Matter of ESTEE BEDDING COMPANY, EMPLOYER and TEXTILE
WORKERS UNION OF AMERICA , C. I. 0., PETITIONER
Case No. 1S-R-395..-Decided May 5, 1947
Mr. Harry H. Ruslein, of Chicago, Ill., for the Employer.
Mr. Earl T. McGrew, of Chicago, Ill., for the Petitioner.
Mr. Leonard J. Mandl, of counsel to the Board.
DECISION
AND
DIRECTION
Upon a petition duly filed, the National Labor Relations Board,
on November 5, 1946, conducted a prehearing election among em-
ployees of the Employer in the appropriate unit to determine whether
or not they desired to be represented by the Petitioner for the pur-
poses of collective bargaining.
At the close of the election a Tally of Ballots was furnished the
parties. The Tally shows that, of approximately 112 eligible voters,
104 cast ballots, of which 43 were for, and 36 against, the Petitioner,
and 25 were challenged. Thereafter a hearing was held at Chicago,
Illinois, on December 6, 12, 13, 14 and 17, 1946, and January 10, 1947,
before Robert T. Drake, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.'
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Estee Bedding Company, an Illinois corporation, is engaged in
the business of manufacturing mattresses, day beds and bed springs,
at its plant in Chicago, Illinois. During 1945, it purchased for use
at its plant raw materials valued at approximately $550,000, of which
' Before the hearing the Employer moved to dismiss the petition. The Regional Director
for the Thirteenth Region treated the motion as a request to discontinue the investigation
and denied the motion . We concur in the Regional Director' s ruling.
73 N. L. R. B., No. 156. 825
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 90 percent represents shipments to its plant from outside the
State of Illinois. During the same period, the Employer sold products
valued in excess of $1,000,000, of which about 65 percent represents
shipments to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with a stipulation of the parties, that all pro-
duction and maintenance employees, including watchmen, but ex-
cluding office and clerical employees, truck drivers, and all super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
V. THE CHALLENGED BALLOTS
The Petitioner challenged 10 ballots, the Employer 7, and the
Board's agent 8.
A. The Petitioner 's challenges
The Petitioner challenged the 10 voters discussed under this sec-
tion on the ground that they are supervisors . The Employer has ap-
proximately 80 employees . Supervising this working force are the
4 officers of the Employer , all of whom take an active part in the
business , and 3 foremen , Walter Pietraszek , George Adams and Fred
Zimmerman , who are conceded to be supervisors . The foremen are
salaried , receive no compensation for overtime work and do not
ESTEE BEDDING COMPANY 827
punch time clocks . All other production and maintenance employees,
including the 10 employees challenged by the Petitioner, are hourly
paid, receive pay for overtime and punch time clocks. The status of
each of these 10 challenged voters is discussed separately hereinafter.
Walter J. Pietraszek does manual work which is too difficult for the
women in his department . He completes and stretches board wire,
recurves springs, and puts bend tucks on the finished products. He
also keeps the other, employees in the section supplied with frames,
coils and rings, and instructs new employees. There are four other,
employees, all female, in his department. There is a conflict of testi-
mony as to Pietraszek's authority with respect to the other employees
in his department. We are satisfied that Pietraszek does not have
the power to change or effectively recommend a change in the status
of the other employees in his department. Accordingly, we find that
he is not a supervisor within the Board's customary definition.
George Netzel is a cutter in the sewing department. He cuts mate-
rials by machine and by hand. There is one other cutter in the depart-
ment. Netzel does not have the power to change or effectively
recommend a change in the status of this other cutter. Accordingly,
we find that he is not a supervisor within the Board's customary
definition.
Vincent Greski works with a helper in the paint shop, The Peti-
tioner contended that he is a supervisor because lie has a key to the
paint shop. We are of the opinion and we find that this fact does not
establish that he is a supervisor within the Board's customary
definition.
Charles Raeder is a set-up man in the garnet room. He leas four or
five other employees working with him. He oversees the work of
these other employees and distributes their weekly pay checks. He
does not have the power to change or effectively recommend a change
in the status of any of these employees. We find that he is not a,
supervisor within the Board's customary definition.
Guste Ratke is the oldest employee in the machine shop. He and
three or four other machine operators are under the supervision of
Fred Zimmerman , the machine shop supervisor . Although Ratke
informs the employees in the machine shop of the time to report to
work, and hands out the pay checks in his department, he does not
have the power to change or effectively recommend a change in the
status of any of these machine shop employees. We find that he is
not a supervisor within the Board's customary definition.
Martin Babinec sets up punch presses for himself and two other
operators . He does not have the power to change or effectively rec-
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ommend a change in the status of these punch press operators. Accord-
ingly, we find that he is not a supervisor within the Board's customary
definition.
Willard Mercier is a maintenance man in the bedding department.
There is only one other employee working in this department.
Mercier does not have the power to change or effectively recommend a
change in the status of this employee. Accordingly, we find that he
is not a supervisor within the Board's customary definition.
Marinus Van Beverin works with three or four other employees
under Harold Trossman, chief shipping clerk, in the shipping room.
Van Beverin is an experienced car loader and instructs the other
employees as to proper loading procedure. He does not, however, have
the power to change or effectively recommend a change in the status
of other employees. Accordingly, we find that he is not a supervisor
within the Board's customary definition.
John Konovals/tulc is a set-up man in the spring department. He
directs the work of about five other employees. His status appears to
be that of a leadman. We find that he is not a supervisor within
the Board's customary definition.
Bernard De Sio directs the work of about 14 or 15 employees in the
assembly department. Several employees testified that he hires,
transfers, and discharges employees within his department. De Sio
attempted to explain away the incidents of supervisory authority
attributed to him. His explanation is not convincing. We are satis-
fied that De Sio is a supervisor within the Board's customary
definition.
Inasmuch as Walter J. Pietraszek, George Netzel, Vincent Greski,
Charles Raeder, Guste Ratke, Martin Babinec, Willard Mercier,
Marinus Van Beverin, and John Konovalshuk are not supervisors
within the Board's customary definition, they are included in the unit
previously found appropriate. Accordingly, we hereby overrule the
challenges to their ballots. De Sio is a supervisor, as we have found.
Accordingly, he is excluded from the unit and the challenge to his
ballot is hereby sustained.
B. The Employer's challenges
The Employer challenged the ballots of the following employees :
Alonzo Gore was discharged on October 26, 1946. The Petitioner
conceded that this challenge was well taken. We find that Gore was
not an eligible voter.
ESTEE BEDDING COMPANY 829
LeRoy Brown , German Curtis , Charles Anderson, and Sam Bylon: 2
There is an unfair labor practice charge now pending before the Board 3
with respect to the discharge of these four employees . Accordingly,
we shall not rule upon the challenges to their ballots at this time.
Lorraine Stokes operated a power machine in the sewing room. The
last day she worked was on November 1,1946,1946,4 days before the election.
She has not been reemployed since November 1. The Petitioner con-
tends that she was temporarily laid off . The Employer 's witnesses
testified that she was discharged for lateness and for loafing on the
job. We are convinced and find that she was discharged and not laid
off. We find, therefore , that Stokes was not an eligible voter on the
day of the election.
David Brown worked in the crib department until the Employer
closed that department. He was then transferred to the shipping
room. He said that he did not like that kind of work and voluntarily
left the Employer 's employ on September 27, 1946. We find that
Brown was not an eligible voter on the day of the election.
Rose Lee Kirkaid worked in the box springs department from about
July 1, 1945 , until October 26, 1946. She received a letter of discharge
at the end of a 2-week absence due to illness and has not been rehired.
We find that Knikaid was not an eligible voter on the day of the
election.
Accordingly, we sustain the challenges to the ballots of Alonzo Gore,
Lorraine Stokes, David Brown , and Rose Lee Kinkaid.
C. The Board challenges
The Board challenged the ballots of the following employees because
their names did not appear on the eligibility list :
Thomas L. lhilkes was employed by the Employer's predecessor be-
fore November 1942, when he was inducted into the United States
Army. On December 23, 1945, he was discharged from the Army. In
February 1946, lie applied for a position with the Employer and was
told that there was none available at the time, but that he would be
called when he was wanted. He then went to school until July 1946.
Late in August he was hired by the Employer. About September 18,
he went to Memphis, Tennessee , to see his sick father on what he con-
sidered to be a leave of absence . Apparently, however, he did not tell
the Employer when he would return. The Employer hired a new em-
ployee to replace Wilkes . On October 5, Wilkes returned and requested
2 The ballot of Sam Bylon was challenged by the Board
8 18 C-3026.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment . He was told that there was no work but that he would be
called when needed. Wilkes had not returned to work for the Em-
ployer up to the date of the hearing. The Employer contends that
Wilkes quit on September 18, because he said nothing at that time
about returning, and reapplied for work on October 5. Under all the
circumstances we are of the opinion that Wilkes' employment relation-
ship to the Employer was severed before the day of the election. Ac-
cordingly, we find that he was not an eligible voter.
Odessa Younger last worked for the Employer on October 17, 1946,
at which time she received a letter of discharge. The reason given for
her discharge was excessive absences. She has not been rehired. The
Petitioner contends that she was laid off. On the basis of the record,
we are convinced and find that Younger was discharged and not laid
off. We find, therefore, that Odessa Younger was not an eligible voter
on the day of the election.
Bessie Mae Yomtger, Lessie B. 'Williams, Gussie Lee Bowie, Mary
Lee Stevens and Catherine Miggins: The Petitioner asserts that these
challenged voters were temporarily laid-off employees on the day of
the election ; on the other hand, the Employer contends that they were
discharged 6 weeks before the day of the election. These individuals
worked in the crib department until September 20, 1946, when for
lack of materials, the Employer shut down this department. It has
i of been reopened. At the time of the shut-down, these challenged
voters had worked only a few months for the Employer and had not
yet completed their training period. Only 1 of the 12 employees
affected by the shut-down has since been rehired. We are of the
opinion that these individuals were discharged and not laid off on
September 20. They were not, therefore, eligible voters.
Accordingly, we sustain the challenges to the ballots of Thomas L.
Wilkes, Odessa Younger, Bessie Mae Younger, Lessie B. Williams,
Gussie Lee Bowie, Mary Lee Stevens, and Catherine Miggins.
VI. THE OBJECTIONS
The Employer objects to the counting of a ballot containing an
alleged identifying mark. The ballot in question is marked with what
appears to be a crude capital letter "D" in addition to the "X" in the
"Yes" box. We have examined this ballot and find that the mark is
insufficient to identify the voter. Accordingly, we overrule the objec-
tion to the counting of this ballot.
The Employer objects to the election on the ground that several
ineligible voters were present at the polling place during the balloting.
ESTEE BEDDING COMPANY 831
Some of the employees who had been discharged by the Employer prior
to the election appeared at the polls and requested ballots. No objec-
tion to their presence was made at that time, and the observers for the
Employer and the Petitioner signed the Certification on Conduct of
Election, which stated that the election was fairly conducted. There
was no evidence that any of these people engaged in electioneering
activities. We are of the opinion and find, therefore, that their pres-
ence did not prevent the employees from exercising a free choice and
did not influence the result of the election. Accordingly, we overrule
this objection to the election.,
The Employer further contends that by opening several of the
challenged ballots, the secrecy of these ballots will be violated. We
find no merit in this contention.5
The Employer finally contends that it prehearing election should
not have been held because there are substantial issues presented in
this case. Its objection is based upon footnote 3 to Section 203.49
of the Board "Rules and Regulations" which provides, inter alia, for
the conduct by the Regional Director of an election prior to hearing
and transfer of the case to the Board, "in cases which present no sub-
stantial issues." Even conceding that it substantial issue was pre-
sented, it does not follow that the Regional Director exceeded his au-
thority. In the practical administration of the rule providing for
prehearing elections, the determination of any question as to the sub-
stantiality of the issues must, in the first instance, lie within the sole
discretion of the Regional Director. Furthermore, the rule is to
be construed not as it limitation upon the Regional Director, but as
a guide to the exercise of his discretion. The conduct of it prehearing
election in cases where substantial issues are presented in nowise prej-
udices any party inasmuch as full opportunity is afforded in the sub-
sequent hearing for a complete exploration of the disputed issues.,'
Accordingly, we find no merit in this contention.
VII. THE DETERMINATION OF REPRESENTATIVES
In view of the foregoing, we shall direct that the ballots of Walter
J. Pietraszek, George Netzel, Vincent Greski, Charles Raeder, Guste
Ratke, Martin Babinec, Willard Mercier, Marinus Van Beverin, and
John Konovalshuk, be opened and counted.
4 Matter of Moulton Ladder Manufacturing Co., 27 N L R B 40 ; Matter of Interlake
Iron Corporation, 6 N L R B 780, 787
5Matter of Rival Foods, Inc, 72 N L R B 492; Matter of Quick Industries, Incorpo-
rated, 71 N L R B 949; Matter of The Abbott Labo,atoises, Inc, 69 N. L. R B 1290
Matter of The Borden Conzpany, 69 N L R B 947
739926-47-vol 73-54
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Estee Bedding Company, Chi-
cago, Illinois, the Regional Director for the Thirteenth Region shall,
pursuant to the Rules and Regulations of the Board, within ten (10)
days from the date of this Direction, open and count the challenged
ballots of Walter J. Pietraszek, George Netzel, Vincent Greski, Charles
Raeder, Guste Ratke, Martin Babinec, Willard Mercier, Marinus Van
Beverin and John Konovalshuk, and shall, thereafter, prepare and
cause to be served upon the parties a Supplemental Tally of Ballots.