Gaylord Bros., Inc.

National Labor Relations Board - Board Decisions

Dec 11, 1945

64 N.L.R.B. 1350 (N.L.R.B. 1945)

In the Matter of GAYLORD BROS., INC. and CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. 3-R-1068.-Decided December 11, 1945
Fraser Brothers, by Mr. Henry S. Fraser, of Syracuse, N. Y., for the
Company.
Mr. John J. Maurillo, of Syracuse, N. Y., for the Union.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the Congress of Industrial Organiza-
tions, herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Gay-
lord Bros., Inc., Syracuse, New York, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Eugene Von Wellsheim, Trial Examiner. The
hearing was held at Syracuse, New York, on August 31 and September
1, 1945. The Company and the Union appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence bearing on the issues,
and to file briefs with the Board. The Trial Examiner reserved for
the Board a motion by the Company to dismiss the present proceeding's
The motion is denied for reasons hereinafter stated. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. Subsequent to the hearing, the Company filed
a motion to correct the transcript of testimony in certain particulars.
The Union thereafter filed objections thereto. Inasmuch as the cor-
rections sought are not substantial and would have no effect upon the
decision in the instant proceeding, the Company's motion is hereby
granted.
1 The Company 's motion to dismiss is predicated on the following grounds : ( 1) that the
Company has been denied due process of law under the Fifth Amendment to the Consti-
tution of the United States; ( 2) that the Board is without jurisdiction because no question
concerning representation has arisen under the National Labor Relations Act.
64 N. L . R. B., No. 224.
1350
GAYLORD BROS., INC. 1351
Upon the entire record in the case, the Board snakes the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Gaylord Bros., Inc., a New York corporation, conducts manufac-
turing operations at Syracuse, New York, where it is engaged in the
manufacture of library furniture and supplies. During the calendar
year 1944, the Company used in its Syracuse operations raw materials
valued in excess of $150,000, of which more than 50 percent was
obtained from points outside the State of New York. During the
same period, the Company manufactured finished products valued in
excess of $200,000, of which more than 50 percent represents shipments
to points outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Congress of Industrial Organizations is a labor organization admit-
ting to membership employees of the Company.'
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of certain of its employees
until the Union has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing over the objection of the Company, indicates that the Union repre-
sents a substantial number of employees in the unit hereinafter found,
appropriate.3
2 The Company 's contention that the Union is not a labor organization within the meaning
of the Act is without merit. See Matter of Lone Star Cement Corporation, 60 N. L. R. B.
1135
3 The Board agent reported that the Union had submitted 25 authorization cards dated
August 1945 from among a total of approximately 35 employees in the claimed appropriate
unit.
Upon the grounds that the report of the Board agent was hearsay and that no oppor-
tunity had been afforded it to cross -examine the Board agent with respect to the authori-
zation cards aforesaid , the Company objected to the admission in evidence of the Board
agent's report and also moved to dismiss the Union ' s petition. In support of its objection
and motion to dismiss , the Company contends that the admission into evidence of the
Board agent's report on authorizations without affording the Company an opportunity to.
inspect the authorization cards or cross-examine the Board agent with respect thereto, is a
denial of due process of law as guaranteed by the Fifth Amendment to the Constitution.
We find no merit in this contention . As we have frequently stated, the report of a Board
agent with respect to a claim of authorization for the purposes of representation is taken
not as proof of the precise number of employees who desire to be represented by a labor
organization , but rather to protect the Company and the Board from unfounded claims by
such organizations and to give reasonable assurance that a substantial number of em-
ployees desire to be represented . See Matter of Syracuse Chilled Plow Co , Inc, 61
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company, in moving to dismiss the present proceeding, also
contends that no question concerning representation exists upon the
ground that no prima facie showing has been made that a majority
of the employees concerned, in fact, have authorized the Union to
represent them in collective bargaining with the Company, a condition
allegedly precedent to exercise of jurisdiction by the Board. The con-
tention is without merit. While the Board has, for administrative
purposes and to protect the Board's procedure from abuse by the filing
of unfounded representation proceedings, generally insisted upon a
showing of substantial representation as indicated by an informal
check of employee authorizations,4 there is nothing in the Act which
requires action by a majority of the employees concerned as a con-
dition precedent to the Board's exercise of power to investigate and
direct an election for the determination of representatives.' As we
have pointed out in numerous decisions, it is sufficient proof of the
existence of a question concerning representation that the Company
concerned has, on or before the date of the hearing, refused to recognize
the petitioning union as exclusive bargaining representative for cer-
tain of its employees in a claimed appropriate unit .6
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
The Union seeks a unit of production and maintenance employees at
the Company's furniture division, one of two factories within the
limits of the city of Syracuse, excluding therefrom office and clerical
employees, the superintendent, assistant superintendent, and foremen.
The Company, which has no history of collective bargaining, takes the
position that, due to the integration of operations and the similarity of
working conditions between its furniture and supply divisions, only
a unit comprised of both is appropriate. The Company, is, however,
otherwise in agreement with the Union with respect to the exclusions
requested by the Union.'
The two divisions are separated by a distance of 3 or 4 city blocks.
The supply division manufactures library supplies including small
N. L R. B. 717, and cases cited therein . See also Inland Empire District Council , etc. v.
Millis, et at, 65 Supreme Court 1316.
4 See footnote 3, sup? a.
5 See Matter of Petersen & Lytle, 60 N L R B 1070 See also Beebe Corp v . Millis,
et at, 58 Fed . Sup. 993 (decided January 12, 1945 ). The Board has, consistent with this
principle , held that the mere absence of specific evidence of representation does not con-
stitute grounds for objection by an employer . See Matter of Allen and Sandilands Packing
Company, 59 N. L R. B 724 ; Matter of Arena Norton Co, 60 N . L. R. B. 1166.
6 See Matter of Houston Blow Pipe and Sheet Metal Works , 53 N. L. R. B . 184; Matter of
Crown Zellerbach Corporation , Seattle Division, 54 N. L. R. B. 25 , and cases cited therein.
' The Company would also exclude from its proposed unit cafeteria employees who are
found only at the supply division.
GAYLORD BROS., INC. 1353
metal items, binders and paper products, such as cards and library
forms. The furniture division manufactures principally library fur-
niture, such as desks, bookshelves, and chairs of all types. Although
the vice president and general manager of the Company, with respect
to over-all policy, has jurisdiction over both divisions, the employees
of each are under the immediate supervision of a superintendent who
has substantial independent authority, including the right to employ
and discharge employees. The record also reveals that there is a
substantial difference between the average hourly wage rates paid to
the employees of the furniture and supply divisions, respectively;
that the employees in the several divisions work different hours and
apparently have little opportunity for social intercourse with one
another; s that grievances arising in either division are generally set-
tled in that division; that each division produces substantially a dif-
ferent and distinct product; 9 and that, notwithstanding a limited
amount of temporary interchange of employees between the two divi-
sions, the great majority of the employees of each division normally
remain at the division to which they are specifically assigned. More-
over, the Union has made no attempt to organize any but the furni-
ture division employees. In view of the physical and organizational
separation of the divisions, the absence of any substantial amount of
interchange of employees between them, and the limited extent of
organization, we are of the opinion that the employees of the furni-
ture division alone constitute an appropriate unit io
We find that all production and maintenance employees of the
Company at its Syracuse, New York, furniture division, excluding
office and clerical employees, the superintendent, assistant superin-
tendent, foremen, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERDIINAT[ON OF REPRESENTATIVES
We shall direct that the question concerning representation 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
8 The employees of the furniture division although privileged to do so, almost never
patronize the employees ' cafeteria at the supply division because of the distance between
the two factories.
9 However , in some instances , small parts are made at one division and used in the
completion of the finished product at the other division
10 See Matter of Dixie Manufacturing Company, Inc, 54 N. L. R . B 384; Matter of Han-
nifin Manufacturing Company, 61 N. L R . B. 965 , Matter of Lyon Metal Products, Incorpo-
rated, 62 N . L. R. B 1350 ; Matter of Uhlman Elevators Company of Texas, 64 N. L. R. B.
1068.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion.
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 Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Gaylord Bros.,
Inc., Syracuse, New York, an election by secret ballot shall be conducted
as early as possible but not later than sixty (60) days from the date of
this Direction, under 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, Sections
10 and 11, 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 said pay-roll
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 any 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 represented by the Congress of Industrial Organ-
izations, for the purposes of collective bargaining.
MR. JOAN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.