Gutmann and Co.

National Labor Relations Board - Board Decisions

Nov 3, 1942

45 N.L.R.B. 344 (N.L.R.B. 1942)

In the Matter of GUTMANN AND COMPANY and INTERNATIONAL FUR &
LEATHER WORKERS UNION, CIO, LOCAL 43
Case No. R-4323.Decided November 3,194,0
Jurisdiction : leather manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; contract, terms of which were extremely
vague and indefinite, held no bar; election necessary
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, exclusive of foremen, supervisory, office, and clerical employees, out-
side truck drivers, and powerhouse employees ; agreement as to.
Mr. David Silvert and Mr. Richard A. Munneeke, of Chid go, Ill.,
for the Company.
Mr. Samuel J. Berland and Mr. Maury Colow, of Chicago, Ill., for
the Union.
Mr. Henry M. Tufo, of Chicago, Ill., for the ITU.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
J
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Fur & Leather Work-
ers Union, CIO, Local 43, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Gutmann and Company, Chicago, Illinois, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Robert T. Drake,
Trial Examiner. Said hearing was held in Chicago, Illinois, from
September 24 to 30, 1942. The Company, the Union, and Independ-
ent Tanners Union, herein called the ITU, appeared and partici-
pated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings are free from preju-
dicial errors and are hereby affirmed.
45 N. L. R. B., No. 55.
344
' GUTMANN AND COMPANY - 345,
Upon the entire record in the case, the Board makes the following:,
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Gutmann and Company is an Illinois corporation having its.prin-
cipal office and place of business in Chicago, Illinois, where it is en-
gaged in the production of leather. The principal raw material used
by the Company is cattle hides. During the period from January 1,
1942 to June 30, 1942, the Company purchased more than 200,000
hides, 10 percent of which were shipped from outside the State of
Illinois directly to the Company's plant in Chicago. During the
same period, the Company sold more than $1,000,000 worth of finished
products, of which more than 80 percent in value was shipped to
points outside the State of Illinois. The Company employs -approxi-
mately 450 employees. It concedes that it is engaged in commerce
within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
International Fur & Leather Workers Union, CIO, Local 43, is a
labor organization affiliated with the Congress of Industrial Organ-
izations , admitting to membership employees of the Company.
Independent Tanners Union is an unaffiliated labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 24, 1942, the Union sent a letter to the' Company stating
that it had enrolled a majority of the Company's production em-
ployees and requesting the Company to set a time when its repre-
sentatives would meet with those of the Union to negotiate an agree-
ment. The Company did not reply to the letter. At the hearing the
Company asserted that no request for recognition had been made
upon it sufficient to raise a question concerning representation; and
that a determination of representatives was barred in any event by
the existence of an oral contract between the Company and the ITU.
The Company asserted that such a contract had been entered into in
July 1937 and had been automatically renewed from year to year ever
since, the last renewal having taken place in March 1942.
The ITU was organized as a non-profit corporation in May 1937.1
In June 1937 it served upon the Company a letter containing certain
' On December 1, 1939, the Board issued a Decision and Order in which it found that
the,Company had dominated the ITU, and ordered the Company to disestablish the ITU.
Matter, of Gutmann and Company and National Leather Workers Association, Local 43, 18
N. L. R. B 64. On June 12, 1941 , the United States Court of Appeals-, for,thevSev^enth-
Circuit denied the Board 's petition for enforcement of this Order.
346 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
demands concerning wages, hours, vacations and other working con-
ditions. Subsequently, meetings were held between representatives
of the Company and the ITU. Leo H. Elkan, the Company's vice-
president, and Henry M. Tufo, counsel for the, ITU, testified at the
hearing that in the course of these meetings and after the ITU
had presented proof to the Company that it represented a majority
of the employees, an oral agreement was reached between the Com-
pany and the ITU covering all the subjects mentioned.
According to Elkan and Tufo 2 the contract was to last from July
1937 to March 1938, renewing itself automatically thereafter from
year to year in the absence of notices from either party 30 . days
prior to March 1 of any year. No such notice appears ever to have
been given by either party. The testimony of Elkan and Tufo and
that of recent officers of-the ITU was to the effect that the agreement
provided for recognition of the ITU as exclusive bargaining agent
for the employees, for a 40-hour week, check-off of ITU dues, a
week's vacation with pay for employees with a year's service, a
grievance and arbitration procedure, and a wage scale. It seems
clear, that the Company' agreed' and has continued to recognize the
ITU as the exclusive bargaining agent for. all its employees; that
a 40-hour week 'is now in effect in the plant; and that the Company
has continued to check off ITU dues. Vacations have been granted
after negotiations each year since 1938. The testimony of , these
witnesses, however, shows that their understanding as to many of
the terms of the agreement varies to a substantial degree and in some
cases the same witness gave varying accounts of the same pro-
visions. The history of bargaining between the Company and the
ITU from '1937 to the present shows that not only have changes
been made in the wage scale and many other working conditions
but that these questions have been dealt with by the parties whenever
the occasion arose, without regard to the alleged term of the 'contract.
In February 1942, members of the ITU bargaining committee met
with representatives of the Company and requested a 10-cent wage
increase. At a subsequent meeting on April 20, 1942, the Company
agred to grant a 5-cent wage increase and this action was reported
to the ITU membership at a special meeting soon after. At the lat-
ter meeting, a proposal that the ITU enter into a written contract
with the Company was rejected by the members present. Other
2 Tufo professed to be uncertain as to the exact terms of some of the provisions agreed
upon at this time ; however, although at least 3 of the officers of the ITU itself, who had
participated in the July' 1937 meetings, are still employed by the Company, none was
called to testify concerning the agreement claimed to have been reached at that time.
Elkan first testified that minutes were taken at these meetings but stated later that he
was not sure whether minutes were taken at the , time the agreement was reached. The
only minutes produced at the hearing were those of meetings subsequent to March 1939
, -T r 347C- { GUTMANN AND %COMPANY
meetings - between the Company and the ITU, mainly devoted to the
adjustment of individual wage rates, have been held since that date.
Although the minutes, of all the meetings between the Company and
-the ITU; in 1942 were introduced into evidence at the hearing, they
do, not show any discussion or mention of a renewal of the alleged
contract:3
A'statement by the Regional Director, which was introduced into
evidence at the hearing, shows that both the Union and the ITU rep-
resent a substantial number of the Company's employees.4 , -
The record shows that the contract, if any, which exists between
the Company and the ITU, is extremely vague and indefinite in its
terms. It appears to have consisted of little more than an oral agree-
merit by the Company to recognize the ITU as exclusive bargaining
agent, continuing from July 1937 to the present, any substantive terms
of'the agreement having been changed from time to time over that
period 'as. the parties saw fit. The Regional Director's' statement
makes it clear that considerable doubt now exists 'as to whether the
ITU represents a majority of the employees. Under these circum-
stances and in view of the showing made that the Union represents a
substantial number of the Company's employees, we hold that the
contract is not a bar to a detemination of representatives at, this time.
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 parties agreed at the hearing that a unit consisting of all pro-
duction and maintenance employees, exclusive of foremen, super-
Members of the Union who are employed at the respondent 's plant and are also members
of the ITU asserted at the hearing that, although they understood the Company recognized
the ITU as bargaining agent for the employees , they were not aware of any contract be-
tween the Company and the ITU. Counsel for the Company admitted at the hearing'that
be "may have" told Board representatives about six weeks before the hearing that he
knew of no contract between the Company and the ITU. He gave us his reason for making
such a statement that his information was confidential , that it was "not anybody's buss
ness," and that representatives of , the Union were-,present at the time the statement, was
made.
4 The Regional Director's statement shows that on August 15, 1942, the Company em-
ployed 412 persons in the unit alleged to be appropriate . The names of 174 of these persons
appear on cards authorizing the Union to bargain for the signers , all of which are dated
since February 1, 1942 The names of 130 persons employed in the same unit on the same
.date appear on undated cards authorizing the ITU to bargain for the signers . The ITU
also submitted a typed membership list bearing the names of 250 persons employed in the
unit on August 15, 1942
The Regional Director also stated that International Ladies' Handbag , Pocketbook &
Novelty Workers Union, affiliated with the American Federation of Labor, had asserted
an interest in the matter but had submitted no evidence in'support of its claim . Notice
of hearing was not served on this Union and it did , not appear at the hearing.
348 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
visory,5 office, and clerical employees, outside truck drivers, and
powerhouse employees, is appropriate for purposes of collective bar-
gaining. No reason appears for departing, from the desires of the
parties as to unit.
We find that all production and maintenance employees of the
Company, excluding foremen, supervisory,' office, and clerical em-
ployees, outside truck drivers, and powerhouse employees, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. DETERMINATION 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 pi y-
roll period immediately preceding the date of the 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 Re-
lations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIiuECTED.that, as',part_of;-the-investigation to ascertain representa-
tives for the purposes of collective bargaining with Gutmann and
Company, Chicago, Illinois, 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, under the direction and supervision
of the Regional Director for the Thirteenth 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
5 Disagreement as to the supervisory status of some 24 employees was revolved by a
stipulation entered into during the hearing , by the terms of which the parties agreed that
the following employees should be permitted to vote without challenge : Charles Brack,
Leonard Gesinki , Leonard Glonke , John Krause , Franz Neumaier ( also referred to as
Franz Neuheimer ), John Redlark , Anthony Schamber , Sanders Stamper , Nick Wasily
Tarion, Nick Tarion, Leonard Urban ; and that the following employees should not be
Permitted to vote "and if they present themselves to vote, their right to vote shall be
challenged ,and that said challenge shall be sustained by the Board without any further
proceeding" : Adolph Beckman , Herman Bores , William Carlson , Christ Guichas , Mitchell
Jagielko , Sidney Kritzler , Fred Loesher , Al Spong, Nathan Stern, John Teurk, Nick Voina,
and Melvin Wehrmeister ( also referred to as Melvin Hartman ). The parties also agreed
that Leo Stortz should be permitted to vote as a non -supervisory employee We see no
reason to depart from the desires of the parties in regard to these employees and we shall
include as non-supervisory those first named, including Leo Stortz ; and exclude as super-
visory. those-listed last.
GUTMANN AND COMPANY 349
were employed during, the pay=roll :period immediately preceding
the date of this Direction, including any such employees who did not
work during, said pay-roll period because they were ill or on vacation,
or in the active military service or training of the United States, or
temporarily laid off, but excluding any who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented by International Fur & Leather Workers Union, CIO, Local
43, or by Independent Tanners Union for the purposes of collective
bargaining , or by neither.
Mx. GERARD D. REILLY took •no part in the consideration of the
above Decision and Direction of Election.