Fitzpatrick and Weller, Inc

National Labor Relations Board - Board Decisions

Jan 18, 1943

46 N.L.R.B. 1202 (N.L.R.B. 1943)

In the Matter of FITZPATRICK AND WELLER, INC. and INTERNATIONAL
FUR AND LEATHER WORKERS UNION OF UNITED STATES AND CANADA
(C. I. 0.)
Case No. R-41625.-Decided January 15,19113
Jurisdiction : last block manufacturing industry.
Investigation and Certification of Representatives : existence of question :
refusal to accord petitioner recognition ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Company, including the knife maker and kiln attendants, but
excluding employees who may be employed exclusively in the woods, office
and clerical employees, subforemen, foremen, and other supervisory employees,
and the log buyer.
Mr. Louis A. Gerace, of Batavia, N. Y., and Mr. William F. Fitz-
patrick, of Ellicottville, N. Y., for the Company.
Mr. Rudolph H. Klancer, of Gowanda, N. Y., for the Union.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF'ELECTION
STATEMENT OF TIIE CASE
Upon petition duly filed by International Fur and Leather Workers
Union of United States and Canada (C. I.O.) , herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Fitzpatrick and Weller, Inc., Ellicott-
vllle, New York, herein called the Company, the National Labor Re-
lations Board provided for api appropriate hearing upon due notice
before Francis V. Cole, Trial Examiner. Said hearing was held at
Salamanca , New York, on December 1, 1942. The'Company and the
Union appeared, participated, and were afforded 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.
Upon the entire record in the case , the Board makes the following :
46 N. L. R. B., No. 147.
1202
FITZPATRICK AND WELLER, INC. - 1203
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Fitzpatrick and Weller, Inc., a New York corporation engaged in
the manufacture of rough turned last blocks, has its principal place
of business-at Ellicottville, New York, and plants at Ellicottville and
Salamanca, New York, respectively. During the year ending No-
vember 1, 1942, the Company used at its Ellicottville and Salamanca,
New York, plants, raw materials of the approximate value of "up-
wards of $1,000, of which approximately 2 percent was shipped to
the Company's Ellicottville and Salamanca, New York, plants from
points outside the State of New York. The value of finished products
manufactured during the same period was "upwards of $10,000," of
which an unstated percentage was shipped to points outside the State
of New York.' At the present time, most of the Company's business
is with manufacturers who contract with the United States Army
and Navy. The Company admits that it is engaged in commerce
within the meaning of the National Labor Relations Act.
' H. THE ORGANIZATION INVOLVED
International Fur and Leather Workers Union of United States
and Canada, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of
the Company.
III. THE - QUESTION CONCERNING REPRESENTATION
On or about February 4, 1942, the Union requested a conference
with the Company for the purpose of bargaining collectively. The
Company declined to recognize or bargain with the Union upon the
ground that it doubted the Union's claim of majority representation
and on the further ground that the unit proposed by the Union was
inappropriate. N
A statement of the Acting Regional Director introduced in evidence
at the hearing, indicates that the Union represents a substantial num-
ber of employees in the unit hereinafter found appropriate.2
i The stipulation relating to the business of the Company contains no further facts than
recited above. In a prior proceeding involving the Company, the Board found that from
January 1 to June 30, 1942, inclusive, the Company manufactured finished products valued
in excess of $10,000, of which approximately 60 percent was shipped to points outside the
State of New York. Matter of Fitzpatrick and Weller, Inc and International Fur and
Leather Workers Union of United States and Canada, C 1 0, 46 N. L R B. 28.
2 The Acting Regional Director reported that the Union had submitted to him 32-au-
thorization cards, 27 of which bore apparently genuine original signatures of persons whose
names appear on the Company's pay roll as of November 4, 1942. According to the Com-
pany the appropriate unit has 94 employees. The Union, on the other hand, claims that
the appropriate unit has only 56 employees
1204 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 National Labor Re-
lations Act.
IV. THE APPROPRIATE UNIT
The Union claimed in its petition that the appropriate unit should
consist of the production and maintenance employees at the Com-
pany's Ellicottville and Salamanca, New York, plants, exclusive of
,office and clerical employees, subforemen, foremen, and other supervi-,
sory employees. At the hearing, the Union took the position that the
appropriate unit should consist only of those production and mainte-
nance employees who work in the,Company's 2 plants, exclusive of em-
ployees who are regularly employed in the woods as members of the
woods crew. The Union also requested the exclusion of the 2 kiln
attendants, the knife maker and the log buyer. The Company con-
tended that the appropriate unit should consist of all the Company's
employees including office and clerical employees, but excluding the
president, -secretary-treasurer, and the plant superintendent in each
plant. The Company further contended that it had no woods crew
distinct from the mill workers; that all its employees were inter-
changeably employed in the plants and in the woods as business needs
required; and that all the 94 production employees included on its
pay roll of November 4, 1942, were employees of this type.
The record does not clearly show that the Company regularly main-
tains a crew of employees assigned exclusively to work in the woods.
According to the Union, there areotwo distinct groups of employees;
the witness for the Union states that there were approximately 56
employees regularly retained for mill purposes as opposed to woods
operations. As of the date of the hearing, however, the Company
stated that more than two-thirds of all its employees, then totaling
102 in number, were working in the woods; all had worked in or
around the mills and were interchanged between the woods and the
mills at least once every year. It appears that weather conditions
and the amount of logs on hand determine to a considerable extent
whether mill employees are assigned to work in the woods. The
Union has attempted to confine its organization to employees work-
ing in the mills, although the record indicates that employees in
the woods have received union literature. The Company has no
present collective bargaining agreements and has no history of col-
lective bargaining. Under the circumstances, we shall exclude from
the,unit any employees who may be employed exclusively in the woods.
There remains for consideration the question of certain disputed
categories. Of these, the first is a group of office and clerical em-
FITZPATRICK AND WELLER, INC. 1205
ployees, whom the Company would include and Union exclude from
the appropriate unit. Since there is nothing to indicate that the
office and .clerical employees have interests in common with the pro-
duction and maintenance group, they will be excluded in accordance
with our usual custom from-an appropriate unit composed of pro-
duction and maintenance employees. The other exclusions, requested
by the Union comprise two kiln attendants, one knife maker and one
log buyer.
The two kiln attendants have charge of dry kilns for drying the
blocks after they are manufactured in the Company's mills Their
duties consist of.taking the temperature of the kilns every morning,
keeping a chart of the readings, and adjusting the steam pressure to
maintain the proper drying temperature in the kilns. In addition
to ,these duties, each of the kiln attendants performs certain mainte-
nance work. They are paid on an hourly basis; neither has supervi-
sory duties. We shall include them within the appropriate unit.
• The knife maker spends about 90 per cent of his- time working for
the Company, and the balance of his time in business for himself
making knives which he sells to another concern. All of his work
is done'on Company property and with the use of Company machinery.'
His work for the Company is performed during regular working
hours, while that on his own account is done either after working hours
or on Sundays. In addition to making knives, this individual is a
general repairman and makes parts for the Company's machines when-
ever they break down. He is paid on an hourly basis. We shall
include him within the appropriate unit.
The log buyer or, scout, as he is• termed by the Company, investi-
gates offers to sell logs or timber to the Company and is provided by
the Company with an automobile for the purpose of traveling to and
from the various sections of woodland in question. Subsequent to his
investigation, he and an officer of the Company go out together and
close the deal for the purchase of logs which appear suited to the
Company's requirements. We find, in view of his confidential rela-
tionship and close association with the management of the Company,
that his interests- are foreign to those of the production and mainte-
nance employees. We shall, therefore, exclude him from the appro-
priate ,unit.
We find that all production and maintenance employees of the Com-
pany, including the knife maker and kiln attendants, but excluding
employees who may be employed exclusively in the woods, office, and,'
clerical employees, subforemen, foremen and other supervisory'em-
ployees, and the log buyer, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act. ,
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representatives 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 our 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 Rela-
tions Act and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it 'is
hereby • '
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Fitzpatrick and
Weller, Inc., Ellicottville, New York, 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, tinder the direction and supervision
of the Regional Director for the Third Region; acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Section 10, 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 such payroll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding employees who have since quit or been discharged for cause,
to determine whether or not they desire to be represented by Inter-
national Fur and Leather Workers Union of United States and
Canada, affiliated with the Congress of Industrial Organizations, for
the purposes of collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.