Ottenheimer Bros. Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1954

109 N.L.R.B. 183 (N.L.R.B. 1954)

OTTENHEIMER BROS. MFG. CO ., INC. 183
entries on them when employees fail to punch in or out, enters time
on job tickets , and tabulates not only in hours, but also in dollars
and cents , the time spent on the job. These records he turns over to
the cost clerk; payroll records are turned over to the clerk handling
the factory payroll . He has never been considered within the scope
of the bargaining unit , and is a salaried employee paid on a monthly
basis. The Employer considers him a confidential employee as the
information he compiles determines productive and nonproductive
jobs.
In addition to the above duties, the timekeeper has the authority and
responsibility of disposing of scrap material , and seeing that all rub-
bish and scrap is collected throughout the plant and put in its proper
place. He negotiates for the sale of the scrap material , prices it,
weighs it , and sees that it is properly loaded on trucks. His super-
vision is divided : for his scrap material activities , he is under the
plant manager; he is under the auditor for his handling of the time-
cards and job ticket computations.
The Petitioner and the Employer urge the exclusion of this job
from the unit ; the Intervenor , its inclusion . However, all parties
stipulated that the present employee now filling this job should be
excluded from the bargaining unit. We find this employee 's inter-
ests are different from those of other employees in the unit . We shall
therefore , exclude the timekeeper from the unit.
We find that all production and maintenance employees at the
Employer's operation located at 1774 East 21st Street, Los Angeles,
California , including all plant clericals , the shipping and receiving
clerks, truckdrivers , and janitors , but excluding office clerical em-
ployees, working foremen , the timekeeper , salesmen , professional em-
ployees, guards , and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
5. As indicated above, a strike was in progress at the time of the
hearing. We shall permit all strikers to vote subject to challenge as
the record is incomplete as to their eligibility to vote.
[Text of Direction of Election omitted from publication.]
OTTENHEIMER BROS. MFG. CO., INC. and INTERNATIONAL LADIES' GAR-
MENT WORKERS' UNION AND LOCAL 386, ILGWU, AFL, PETITIONER.
Case No. 32-RC-352. July 16,1954
Second Supplemental Decision , Order, and Direction of Third
Election
On May 27, 1953, the Board issued a Supplemental Decision, Order,
and Direction of Second Election in the above-entitled proceeding,
109 NLRB No. 29.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setting aside the election conducted on November 21, 1951, and direct-
ing a second election among employees in the appropriate unit. Pur-
suant to the Board's direction of second election, an election by secret
ballot was conducted on December 4, 1953, among.these employees
under the direction and supervision of the Regional Director for the
Fifteenth Region. The tally of ballots show that, of approximately
421 eligible voters, 398 cast ballots, of which 1 ballot was void and 156
ballots were cast for, and 242 against, the Petitioner; and that no bal-
lots were challenged.
On December 11, 1953, the Petitioner filed timely objections to the
election. On March 17, 1954, the Regional Director issued and served
on the parties his report on objections, finding, inter alia, that a pre-
election speech, delivered by the Employer to employees on company
time and property within 24 hours of the election, constituted inter-
ference with the conduct of the election, and recommending that the
election be set aside and that a new election be directed. Thereafter,
the Employer filed exceptions to the report and a brief in support
thereof.
The Board has reviewed the Petitioner's objections to the election,
the Regional Director's report, and the Employer's exceptions there-
to. Upon the entire record in the case, the Board makes the follow-
ing findings :
The pertinent facts are not in dispute. In a letter dated December
2, 1953, addressed to all its employees, a copy of which was attached
to the Regional Director's report, the Employer set forth its position
concerning the coming election, then scheduled to be conducted on
Friday, December 4, 1953. The Regional Director found that the con-
tents of this letter did not exceed the boundaries of permissible pre-
election propaganda on the part of the Employer, and concluded that
the Petitioner's objection based on this letter was without merit. No
exceptions were taken to his findings on this matter, and we adopt
them.
On Thursday, December 3, 1953, beginning at 9 a. in. and conclud-
ing shortly after the noon hour, the Employer assembled groups of
approximately 50 employees in a conference room on company
property, where each group was addressed on company time by the
Employer's president from a prepared statement, a copy of which was
attached to the Regional Director's report. Called to attend these
meetings were approximately 80 percent of the Employer's machine
operators, and some 8 additional employees, totaling 284 employees
eligible to vote in the election. Approximately 189 other eligible em-
ployees, including approximately 20 percent of the machine operators,
were not called in and addressed at this time. The election was held as
scheduled at the plant on Friday, December 4, 1953, between 8 a. in.
and 11 a. in.
OTTENHEIMER BROS. MFG. CO., INC. 185
The Regional Director found that the Employer's December 3
address constituted a violation of the Board's recent election rule
prohibiting campaign speeches on company time within 24 hours
before an election.' The Employer takes exception to his finding.
The Employer urges that its address of December 3, 1953, to groups
of machine operators should not be considered a "preelection" speech
within the Peerless Plywood rule because it alleges that its business
interests required a changeover in some production lines, resulting in
lower piece-rate earnings for employees not experienced in the changed
operations; that dissatisfaction among its machine operators resulted
in more than twice the number of employment terminations in October
and November 1953 than in the corresponding months in 1952; that,
before the receipt of the notice of election, the employer had sought
a price adjustment from its principal customer and that the Employer
had obtained the price adjustment on the afternoon of Wednesday,
December 2. The Employer further notes that the short address
regarding price adjustments was read in a small room in a quiet
atmosphere and only to employees affected by the price adjustments;
and that the address made on Thursday was merely to offset further
losses of employees over the coming weekend and that it was not de-
layed until Friday when it might disrupt the election day schedule
of December 4. Under these circumstances, the Employer urges that
the address does not come within the class of speeches prohibited under
the Peerless Plywood rule.
We find, as did the Regional Director, contrary to the Employer's
contention, that the Employer's address must fairly be characterized
as a "preelection" speech in the light of all the circumstances of its
delivery, including the earlier letter of December 2, the day before
the address, of which we note that the address of December 3 is in
part a recapitulation. The record does not disclose that the address
could not have been more effectually delivered on the afternoon of
Friday, December 4, after the close of the polls, in ample time to
have warded off any weekend terminations due to lack of information
with respect to the proposed betterment of piece rates on the new
designs. Further, it cannot reasonably be urged that the address was
either informal or nonpartisan.2
Under all of the circumstances, we find that the Employer's address
violated the Board's rule against campaign speeches made to em-
ployees on company time within 24 hours of an election. We there-
i Peerless Plywoo l Company, 107 NLRB 427, issued December 17, 1953. The Regional
Director found th it the Employer's conduct in giving the address to its employees at this
time would have been a violation of the earlier Bonwit -Teller rule in effect when this elec-
tion was held. Bonwit-Teller, Inc, 96 NLRB 608. Contrary to the Employer's contention,
and for reasons stated in a recent decision , we agree with the Regional Director 's finding.
The American Thermos Bottle Company , 107 NLRB 1570 , and cases cited therein
2 General Motors Corporation , Buick Motor Division Parts Warehouse, 108 NLRB 1207,
and cases cited therein.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore set -aside the election of December 4, 1953, and direct that a new
election be conducted.
[The Board set aside the election conducted on December 4, 1953.]
[Text of Direction of Third Election omitted from publication.]
ROYAL COTTON MILL COMPANY , INC. and TEXTILE WORKERS UNION
OF AMERICA , CIO. Case No. 11-CA-536. July 19,1954
Decision and Order
On May 29, 1953, Trial Examiner Albert P. Wheatley issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of the National Labor Relations Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set, forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the In-
termediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case and
hereby adopts the Trial Examiner's findings, conclusions, and rec-
ommendations insofar as they are consistent with the findings and
conclusions made below.
During the term of an exclusive bargaining contract with the
Union, the Respondent admittedly ceased to recognize the Union as
the statutory representative and refused to bargain with the Union
under the contract with respect to certain grievances. The Respond-
ent would justify its action on the ground that certain events estab-
lished that the Respondent was acting in good faith, and that no vio-
lation of the Act may be found. We find no merit in that defense.
The record shows that the Respondent was confronted with a rival
representation claim by the AFL 1 which represented that the em-
ployees of the Respondent voted to disaffiliate from the Union and to
affiliate with the AFL. When this claim was relied upon by the Re-
spondent in refusing to deal with the Union, the latter responded that
although some of its members were "misled" into voting to secede
at a "meeting" in May 1952, the members present at a meeting of the
Union of August 2, 1952, voted unanimously to afl'irin their loyalty
to the Union and requested it to process the grievances in question.
United Textile Workers of America, AFL, herein called AFL.
109 NLRB No. 33.