Koopman-Neumer

National Labor Relations Board - Board Decisions

Feb 9, 1950

88 N.L.R.B. 612 (N.L.R.B. 1950)

In the Matter of EARLS L. KOOPMAN , ERNEST F. KOOPMAN , ARNOLD F.
KOOPMAN , PAUL A. NEUMER D/B/A KOOPMAN-NEUMER , '' EMPLOYER
and UNITED COMMERCIAL ARTISTS AND PHOTOGRAPHERS , PETITIONER
Case No. 13-RC-956.Decided February 9, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Edward T.
Maslanka, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer, a partnership with its only offices and studios in
Chicago, Illinois, operates a commercial art and photographic studio.
The Employer makes drawings and photographs of merchandise to
be advertised in catalogs, circulars, posters, and newspapers. It also
prepares models, called "dummies" or "layouts," of proposed adver-
tisements, and designs packages and wrappers.
During the first 10 months of 1949, the Employer purchased ma-
terials valued at approximately $45,000, of which about 4 percent rep-
resented purchases from suppliers located outside the State of Illinois.
During the same period, the Employer's gross income exceeded $293,-
000, of which 1 percent represented sales to customers located outside
the State. More than two-thirds of the Employer's gross income, how-
ever, represented sales to Chicago branches of such companies as Sears,
Roebuck & Co., Curtiss Candy Co., Zenith Radio. Corporation, Armour
& Company, and Celotex Corporation.
The Employer contends that its operations do not affect commerce
within the meaning of the Act in view of the small proportion of its
business which represents interstate transactions. A large proportion
1 The Employer 's name appears as amended at the hearing.
88 NLRB No. 125.
612
ROOPMAN-NEUMER 613
,of the Employer's business, however, represents transactions with cus-
tomers which are extensively engaged in interstate commerce, and it
is clear that the Employer's services to these customers are vital to the
marketing of their merchandise. Accordingly, we find that the Em-
ployer is engaged in commerce within the meaning of the Act .2
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner requests a unit of artists, photographers, re-
vampers, photocopyists, retouchers, negative retouchers, and darkroom
employees, excluding office, clerical, and professional employees, sales-
men, guards, and supervisors.
The unit requested would comprise about 20 artists and 12 photo-
graphic employees. These employees sketch and photograph various
articles to be advertised, but the determination of the size, color, place
on the page, and angle of viewing is generally made in advance by the
customer and the salesman, who agree upon a rough sketch from which
the employees in question work. These employees are supervised by
the salesman in charge of the account as well as by an art director, and
either of them may order changes on work in process.. Occasionally
a presentation or a form of layout suggested by an employee may be
submitted by the art director or salesman to the customer, whose judg-
ment is always the determining factor. The artists and photographic
employees are hourly paid and punch a time clock.3 No specific period
of apprenticeship and no degree from an art or photography school is
required of these employees, although most of them have at least one
of these qualifications.
The Employer contends that all the artists and certain of the
photographic employees are so highly skilled and are engaged in such
varied and intellectual work that they should be excluded from the
unit as professional employees.4 The Employer further contends
that if these employees are included in the unit, then the salesmen
should also be included, on the ground that they spend approximately
half their time in the studios and do some work similar to that done
2 Vogue-Wright Studios , Inc., 76 NLRB 773 ; The Delta Oxygen Company , 83 NLRB 177.
2 Salesmen are paid a salary plus commissions and have an expense account . Two of the
three art directors are paid a salary, and the third is hourly paid.
4 The Employer claimed at the hearing that five of its six retouchers and one of its four
revampers were in the professional category . No evidence was presented distinguishing the
professional from nonprofessional employees , and all the testimony on this point appeared
to be based upon a purely subjective standard and to reflect the personal opinion of the
Employer 's witness.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the artists. We find no merit in the Employer's contentions. We
have previously found appropriate nonprofessional units of employees
engaged in the same type of work as that performed by the employee&
sought in the instant case.5 Moreover, it is clear that the employees,
in question are not employed in a professional capacity, and they
will therefore not be excluded from a nonprofessional unit even though
they possess some professional qualifications." As the salesmen appear
to have different interests and working conditions, and admittedly
exercise a. degree of supervisory power over the employees sought to be
represented, they will be excluded from the unit.
Accordingly, we find that all the artists, photographers, revampers,.
photocopyists, retouchers, negative retouchers, and darkroom em-
ployees, at the Employer's Chicago, Illinois, studios, excluding office,,
clerical, and professional employees, salesmen, guards, and supervisors,.
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30-
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was.
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were-
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work.
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees -who have since,
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees.
on strike who are not entitled to reinstatement, to determine whether-
or not they desire to be represented, for purposes of collective bargain
ing, by United Commercial Artists and Photographers.7
5 VogueWright Studios , Inc., 76 NLRB 773 ; Art Neon Co., 84 NLRB 112.
6 Charles Eneu Johnson and Company, 77 NLRB 41 ; Union Electric Power Company,_
83 NLRB 872.
7 The compliance status of United Commercial Artists and Photographers has lapsed since:
the hearing in this matter. In the event it fails to renew its compliance with Section 9 (f),
(g), and ( h) within 2 weeks from the date of this Direction , the Regional Director is to-
advise the Board to that effect. No election shall be conducted unless and until compliance-
has been renewed.