Ottenheimer Bros. Mfg. Co.

National Labor Relations Board - Board Decisions

Apr 5, 1946

67 N.L.R.B. 78 (N.L.R.B. 1946)

In the, Matter of OTTENHEIMER BROS., INC., AND Gus OTTENHEIMER,
LEONARD J . OTTENHEIMER , MINNIE S. GOLDSTEIN , DOROTHY R.
SHAINBERG, MARIETTA P. SHAINBERG , SAM GRUNDFEST, TRUSTEE, AND
DAVE GRUNDFEST , TRUSTEE, D/B/A OTTENHEIMER BROS. MFG. CO.
and INTERNATIONAL LADIES ' GARMENT WORKERS ' UNION, LOCAL
No. 386, AFFILIATED WITH AMERICAN FEDERATION OF LABOR
Case No. _15-R-1568.-Decided April 5, 1946
Messrs. Lawrence B. Burell and Gus Ottenheimer, both of Little
Rock, Ark., for the Partnership and the Corporation.
Mr. Morris J. Levin, of St. Louis, Mo., and Mrs. Ollie Galleher, of
Little Rock, Ark., for the Union.
Mr. Charles B. Slaughter, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMEN OF THE CASE
Upon a petition duly filed by the International Ladies' Garment
Workers' Union, Local No. 386, affiliated with American Federation
of Labor, herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Ottenheimer Bros., Inc., Little Rock, Arkansas, hereinafter called the
Corporation, and Ottenheimer Bros. Mfg. Co., hereinafter called the
Partnership,' the National Labor Relations Board provided for proper
hearings upon due notice before Trial Examiners T. Lowry Whittaker
and Lewis Moore. The hearings were held at Little Rock, Arkansas,
on February 2 and February 9, 1946. The Corporation, the Partner-
ship, and the Union appeared and participated. All parties were
afforded an opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues. During
the hearing of February 2, 1946, it developed that the operations
involved in this proceeding are owned and operated by the Partner-
I At the hearing on February 2, 1946, the Trial Examiner on his own motion adjourned
the hearing until February 9, 1946 , in order that an amended Notice of Hearing to include
the Partnership might be served on the Corporation and the Partnership.
67 N. L. R. B., No. 6.
78
OTTENHEIMER BROS., INC. 79
ship. The Union thereupon moved to amend the petition to include
the Partnership as an employer. The Trial Examiner granted this
motion. The Corporation objected to the Union's motion and filed on
its own behalf another motion for dismissal of the petition on the
ground that it is not engaged in the manufacturing business, is not in
interstate commerce, and, therefore, the Board has no jurisdiction
over it. For the reasons set forth in Section I, below, the Corpora-
tion's motion is hereby denied. All parties were afforded an oppor-
tunity 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
Gus Ottenheimer, Leonard J. Ottenheimer, Minnie S. Goldstein,
Dorothy R. Shainberg, Marietta P. Shainberg, Sam Grundfest, Trus-
tee, and Dave Grundfest, Trustee, are members of the Partnership do-
ing business as Ottenheimer Bros., Mfg. Co. The Partnership has its
principal place of business and its plant at Little Rock, Arkansas,
where it is engaged in the manufacture of wearing apparel. In 1945
the Partnership purchased outside the State of Arkansas more than
$200,000 worth of fabrics, buttons, threads, and other supplies used
in its manufacturing operations. During the same period the Part-
nership sold to Ottenheimer Brothers, another partnership composed
of Gus and Leonard J. Ottenheimer, all its finished products valued
at more than $200,000. Over 90 percent of the manufactured articles
sold to the partnership of Ottenheimer Brothers was shipped to points
outside the State of Arkansas.
Ottenheimer Bros., Inc., is a corporation owned by the members of
the Partnership and controlled, like the Partnership, by Gus and
Leonard J. Ottenheimer.2 The Corporation leases from Gus and
Leonard J. Ottenheimer the property known as 115 Woodlane, on
which the Partnership's manufacturing plant is situated and sub-
leases the property, in turn, to the Partnership. Between the late
1930's when it was formed, and about 1943, the Corporation operated
the manufacturing business.3 It later transferred the equipment and
good will of the enterprise to the Partnership in return for an un-
secured note for $15,000 on which interest only has been paid. At
the time of this transfer there was no interruption of manufacturing
2 Gus and Leonard J. Ottenheimer own a 60-percent controlling interest in both the
Partnership and the Corporation , the remaining 40 percent being owned by the live other
individuals listed in the caption of this case . Gus Ottenhelmer Is President of the Corpo-
ration and General Manager of the Partnership
3 Prior to the formation of the Corporation , Gus and Leonard J. Ottenbeimer , as partners,
operated the business.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cperations nor any change of personnel in the plant. In fact, the
only notice received by the employees was the change of company
designation on their pay checks.
We have denied the motion to dismiss the petition as to the Corpo-
ration, for, as the foregoing facts demonstrate, the Corporation is only
one of the several legal entities through which Gus and Leonard J.
Ottenheimer, the real employers of the employees here involved, con-
duct their single business enterprise. That manufacturing enterprise
is engaged in commerce within the meaning of the Act; and to the
extent that the Corporation is or may be utilized to control or affect
relations between the Ottenheimer brothers and their employees at
this plant, it is an employer of those employees within the meaning of
Section 2 (2) of the Act.4
II. THE ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, Local No. 386,
affiliated with American Federation of Labor, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On December 11, 1945, the Union, by letter, requested the Corpora-
tion to recognize it as collective bargaining representative of certain
of the Corporation's employees. According to the record, the Corpo-
ration received the request but the Union never received a reply.
At the hearing on February 9, 1946, on the amended petition, the
Partnership contended that the proposed unit is inappropriate, and
that the dispute should be resolved by the Board.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.5
We find that a question affecting commerce has arisen concerning
the representation of employees of the Corporation, the Partnership,
and Gus and Leonard J. Ottenheimer, 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 all production workers employed at the
Partnership's factory at Little Rock, Arkansas, excluding clerical and
"Matter of National Lumber Mills, Inc., Colonial Products Company, and Charles
Peehenik, 37 N. L R. B. 700.
6 A Field Examiner reported that the Union submitted 151 application cards and that
the cards bore the following dates : 4 cards, July 1945 ; 4 cards August 1945 ; 28 cards,
September 1945, 36 cards, October 1945; 48 cards , November 1945 , 25 cards , December
1945; 6 cards , January 1946. The petition recites that there are approximately 200 em-
ployees in the appropriate unit. The Partnership refused to submit a pay roll.
OTTENHEIMER BROS., INC. 81
office workers, shipping department employees, maintenance machin-
ists, maids, time-study engineers, foremen, foreladies, instructors, de-
partment heads, and other supervisory employees. The Partnership
agrees with the Union as to the composition of the unit,s except that
it. would include, and the Union exclude, the employees discussed
below :
Shipping department: This department is located on the first
floor of the plant," and is under the supervision of a supervisor who is
responsible to the plant superintendent. After the garments have
been fitted, sewed, inspected, pressed, folded and pinned, they are
carried by conveyor to the shipping department where they are pre-
pared for shipment. In this division there are three women. The
principal duty of one of them is to stamp with styles, sizes, and ceil-
ing prices the boxes in which the garments are placed before packing.
The other two women are stationed at the conveyor where they re-
ceive the finished products, segregate them as to sizes and designs, and
separate the "seconds" from the "firsts." Then they place the gar-
ments into bins and stocks of twelve.
There are also three men in this department who re-stack into
their proper bins the garments which have been sorted by the girls.
The men assemble the merchandise according to customers' orders
and then bundle, pack, and seal the shipping containers and otherwise
prepare them for shipment. Approximately 1 hour each day these
men are engaged in sweeping the first floor. They also receive and
unpack bales or boxes of raw materials which are received at the
plant.
Cutting department: Both the Partnership and the Union agree to
the inclusion of all employees in this department with the exception
of three material movers. These three employees assist the three men
in the shipping department in unpacking raw materials. Then they
place the bales of cloth in their proper storage bins, or deliver them
to the cutting department for processing. The material movers carry
goods in this department to the shading table and, upon completion
of that operation, carry them to the cutting table. Occasionally, they
assist the shipping department employees in preparing the finished
product for shipment. Each day they spend approximately 1 hour
sweeping the first floor of the plant.
There is no history of collective bargaining in this plant. In other
cases in the garment industry the Board has, in accordance with the
6 Employees whom the parties would include by agreement are those in the following
departments : sampling , pressing and folding ; inspection , cleaning and repairing ; sewing
With the exception of the material movers the parties agree to the inclusion of all em-
plovees in the cutting department
7 The cutting department is the only other section of the plant located on the first floor
692148-46-vol 67-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stipulation of the parties, sometimes included 8 and sometimes ex-
cluded 9 employees similar to those involved in this proceeding. In
this case we note that, although the parties disagree as to the cate-
gories discussed above, they are agreed upon a unit which is essentially
confined to production workers, excluding maintenance workers, all
clericals, time-study engineers, and maids.
The employees in dispute receive training of about 1 week, whereas
employees in production work receive a minimum of 16 weeks' train-
ing. There is no interchange between the disputed categories and
production employees. The production workers are paid, for the
most part, on a piece-rate basis. The employees in question are hourly
paid. Although the delivery of raw materials to the cutting depart-
ment for processing and the preparation for shipment of finished
products are a necessary adjunct to the production process, we do
not believe that the duties of the material mover and the shipping
department employees are such as to identify them with the well-
defined and homogeneous group of production employees whom the
Union seeks to represent. We shall, therefore, exclude the employees
of the shipping department and the material movers in the cutting
department from the unit, hereinafter found appropriate.
We find that all production workers employed by the Corporation,
the Partnership, and Gus and Leonard J. Ottenheimer, excluding of-
fice clerical workers, shipping department employees, material mov-
ers, maintenance machinists, maids, tinge-study engineers, foremen,
foreladies, instructors, department heads, 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, constitute a unit appropriate for collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE 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 pay-
roll period immediately preceding the date of the Direction of Elec-
tion 10 herein, subject to the limitations and additions set forth in
the Direction.
Matter of Sidell Sire, Leonard Sire and Jennie Schindel, d/b/a Sire-Schindel, 62
N L R B. 1189; Matter of Reliance Manufacturing Company , 52 N L. R B. 1025
8 Matter of Justin S McCarty, Jr, Nolan McGoagh and Gertrude Reed, d/b/a McCarty
Manufacturing Company, 59 N L. R B 1244; Brown Garment Manufacturing Company,
55 N L R B 420
10 At the hearing the Union requested that in the event the Board should order an elec-
tion the pay-roll period for the week ending December 22, 1945, or the week ending
December 15, 1945, should be used to determine eligibility Counsel for the Union asserted
in this condectlon that the Partnership' s business 1s seasonal and that the December pay
rolls would reflect a representative peak pelmd of employment Counsel for the Partner-
OTTENHEIMER BROS., INC.
DIRECTION OF ELECTION
83
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 Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with Ottenheimer
Bros., Inc., and Gus Ottenheimer, Leonard J. Ottenheimer, Minni@
S. Goldstein, Dorothy R. Shainberg, Marietta P. Shainberg, Sam
Grundfest, Trustee, and Dave Grundfest, Trustee, d/b/a Ottenheimer
Bros. Mfg. Co., of Little Rock, Arkansas, an election by secret bal-
lpt 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 Fifteenth Region, act-
ing 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 pe-
riod immediately preceding the date of this Direction, including em-
ployees who did not work during the 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 re-
hired or reinstated prior to the date of the election, to determine
whether or not they desire to be represented by International Ladies'
Garment Workers' Union, Local No. 386, affiliated with American
Federation of Labor, for the purposes of collective bargaining.
ship and the Corporation , however, denied that the business is seasonal and asserted that
there has been a large turnover in employment at this plant between December 1945 and
the date of the hearing No evidence waa taken on this point. In the absence thereof we
must assume that there is no occasion to depart from our usual method of determining
eligibility.