H. Fendrich, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1946

65 N.L.R.B. 1132 (N.L.R.B. 1946)

In the Matter of H. FENDRICH , INCORPORATED and FOOD , TOBACCO,
AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, CIO
Case No. 11-B-903.-Decided February 18, 1946
Kahn, Little, Dees and Kahn, by Mr. Isidor Kahn, of Evansville,
Ind., for the Company.
Ortmeyer, Bamberger, Ortmeyer & Foreman, by Mr. Edward F.
Ortmeyer, of Evansville, Ind., for the Company.
Mr. John F. Sloan, of Evansville, Ind., for the Union.
Mr. Jerome J. Dick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Food, Tobacco, Agricultural and
Allied Workers Union of America, CIO, herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of H. Fendrich, Incorporated, Evansville,
Indiana, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
William O. Murdock, Trial Examiner. The hearing was held at
Evansville, Indiana, on December 10, 1945. The Company and the
Union appeared and participated. All parties 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. All parties were afforded opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
H. Fendrich, Incorporated, is an Indiana corporation with its
principal office and factory at Evansville, Indiana, where it is engaged
in the manufacture, sale, and distribution of cigars. The principal
65 N. L . R. B., No. 198.
1132
H. FENDRICH, INCORPORATED 1133
raw material used is tobacco, the annual value of which exceeds $5,000,
of which approximately 90 percent comes from outside the State of
Indiana. The finished products annually exceed a value of $5,000, of
which approximately 66 percent is shipped to points outside the State
of Indiana.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Food, Tobacco, Agricultural and Allied Workers Union of Amer-
ica is a labor organization, affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
M. 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,' indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.2
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 to represent a unit composed of all production
and maintenance employees, excluding guards, clerical and technical
employees, cafeteria employees, and supervisory employees. The
Company does not generally oppose the foregoing unit, but would
include two clerks and the superintendent's secretary. The Union
contends that they should be excluded.
The superintendent's secretary acts as his administrative assistant.
She has one clerk as an assistant. These two employees comprise the
superintendent's clerical staff and as such would have access to con-
' In support of its objection to the admission of the Board agent's statement, the Com-
pany argued that the statement was a self -serving declaration , made without an oppor-
tunity on the part of the Company to cross -examine the witnesses , and that it was not
made pursuant to a Board rule. The Company 's contention is without merit. The agent's
statement is the result of an investigation and 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 . See Matter of
Hillyer-D eutsch -Edwards , Incorporated , 53 N. L R. B 198.
2 The Board agent reported that the Union submitted 387 cards , bearing the names of
employees listed on the Company 's pay roll of November 19, 1945. There are approxi-
mately 748 employees in the alleged appropriate unit.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fidential information relating to the Company's labor relations; we
shall, therefore, exclude them.
The second clerk whom the Company would include, hereinafter
referred to as the production clerk, keeps and transmits the clerical
records advising the various departments how many cigars each de-
partment must be prepared to handle. She checks the cigars off the
production line at her desk on the third floor of the factory. We
are of the opinion that her interests are identified with those of the
regular production and maintenance employees; we shall include her.3
We find that all production and maintenance employees, including
the production clerk, but excluding the superintendent's secretary and
the secretary's assistant, clerical and technical employees, guards,
cafeteria employees, and all 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 DETFRU INATTON OF REPRESENTATIVES
We shall direct, that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election 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 Relations,
Act, and pursuant to Article III, Section 9, of National Labor Re-
lations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with H. Fendrich,
Incorporated, Evansville, Indiana, 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 Eleventh 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
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
,'See Matte) of Goodman Manufacturing Company, 58 N L R. B 531.
H.. FENDRICH, INCORPORATED 1135
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 those employees 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 Food, Tobacco, Agricultural and Allied Workers Union of America,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
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