Sani-Aqua Shower Curtains, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1950

88 N.L.R.B. 1289 (N.L.R.B. 1950)

In the Matter Of SANI-AQUA SITOWER CURTAINS, INC., EMPLOYER and
UNITED WHOLESALE AND WAREHOUSE EMPLOYEES UNION, LOCAL 45,,
AFFILIATED WITH RETAIL, WHOLESALE AND DEPARTMENT STORE:
EMPLOYEES UNION, CIO, PETITIONER
Case,No. 2-RC-1602.Decided March 00, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a. petition duly filed, a hearing was held before Daniel J. Sul-
livan, hearing officer. The hearing officer's rulings made at the hear-
ing 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 [Members Houston, Reynolds, and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain,
employees of the Employer
3. The Intervenor has represented the employees of the Employer's.
New York City plant under contracts negotiated from 1938 to the
present. In April 1948 the Employer commenced operations at an
experimental plant located at Allentown, New Jersey. In April 1949
the Intervenor discovered the existence of the experimental plant,
which had been moved to Waldwick, New Jersey. At that time the
Intervenor made no attempt to claim representation rights as to em-
ployees at the Waldwick plant upon the Employer's assurances that
the operations were experimental and presumably temporary. On
August 16, 1949, the Intervenor and the Employer negotiated the
present contract which extends to August 15, 1951, and which is urged
as a bar to the present petition by both contracting parties. This
contract contains provisions to the effect that the Employer will recog-
nize the Intervenor as representative for all of its employees employed
i Rubberized Novelty and Plastic Fabric Workers Union , Local 98 , International Ladies.
Garment Workers Union, AFL, herein termed the Intervenor, was granted intervention at
the hearing by the hearing officer upon a claimed contractual relationship covering these-
employees and a submission of authorization cards.
88 NLRB No. 218. 1289
1290 LECISIONS OF NATIONAL LABOR RELATIONS BOARD
in connection with the manufacture of any of its products; that the
:agreement shall be binding upon and shall include any shop presently
,or hereafter owned or controlled by the Employer; and that the Em-
ployer shall in no event move its shop outside the State of New York.
During the negotiation of this contract there was no discussion be-
tween the parties as to the inclusion of employees at Waldwick in the
,bargaining unit. Following the execution of the contract, the Inter-
venor again advised employees at the Waldwick plant that, until the
permanence of the operations could be ascertained, the Intervenor
would not accept initiation fees or dues from the employees stationed
-there.
Despite the inclusive statements incorporated into the contract, it
is apparent from the record that the Intervenor and the Employer did
not consider the employees at Waldwick to be covered by the bargain-
ing contract until the advent of this petition. In view of those facts
:and inasmuch as the Waldwick plant is a new operation not previously
included in bargaining contracts and staffed by new personnel, we
-find that the August 16, 1949, contract is not a bar to a present deter-
mination of representatives.2 We find that a question affecting com-
merce exists concerning the representation of employees of the Em-
-ployer within the meaning of Section 9 (c) (1) and Section 2 (6) and
,(7) of the Act.
4. The Petitioner requests that we find appropriate a unit consisting
.of all production and maintenance employees at the Waldwick plant
excluding employees on the night shift, office and clerical employees,
professional employees, guards, executives, and all supervisors within
the meaning of the amended Act. The Intervenor and the Employer
-contend that an over-all unit of employees at both plants is the only
:appropriate grouping and that, in any event, night shift employees
should be included in the bargaining unit.
J3oth the New York City and Waldwick plants of the Employer are
engaged in the manufacture of plastic shower curtains, window cur-
tains, and tablecloths from vinyl plastic film. At the New York City
-plant, the plastic, after being printed with designs by independent
jobbers, is cut into appropriate patterns, stitched, ruffled, sorted, as-
sembled into sets, and packed for shipment. All these operations with
-the exception of the sorting and shipping, are done on machines
operated by the employees at the plant. Five percent of the Em-
ployer's total volume of sales, however, is produced in the Waldwick
plant approximately 23 miles from New York City. At the Wald-
2 See Dohrmann. Hotel Supply Company, 71 NLRB 699 , and cases cited therein . In view
of our finding on this point we deem it unnecessary to rule upon the Petitioner 's alternate
contention that the contract contained illegal union -security provisions and was, therefore,
iineffective as a bar to the instant petition.
SAKI-AQUA SHOWER CURTAINS, INC. .129r
wick plant, the plastic is processed by electronic welding operations.
rather than being stitched by machines. The finished products are
then sent back to New York City to be assembled into sets and shipped.
The Waldwick plant has approximately 25 full-time employees under
the direct supervision of a plant manager.. General control of the.
plant, however, is retained by the New York City management. There
is no interchange of employees between the 2 plants and the processing:
methods require different skills and duties for employees at the New
York City and Waldwick operations. In view of the absence of any-
interchange of personnel, the different production methods, separate.
supervision, and the geographical separation of the 2 plants, we find,.
contrary to the contentions of the Employer and the Intervenor, that
a unit of production and maintenance employees at the Employer's.
Waldwick plant alone, is appropriate for the purpose of collective-
bargaining 3
The Petitioner requests that we exclude night shift employees from.
the unit found appropriate. The Employer and the Intervenor op-
pose this request. An indeterminate number of employees at the.
Waldwick plant work a 5-hour shift, 5 nights a week. Their duties
are supplemental to those of the regular full-time personnel and con-
sist of preparation of the work for the day shift. We can perceive-
no functional difference in the work of the night shift employees and'
that of the daytime personnel. For the purposes of collective bargain--
ing, therefore, the night shift employees will necessarily be repre-
sented by the Petitioner or the Intervenor, if either union wins the-
election hereinafter directed.4 The separate question as to the eligi-
bility of these employees to vote in the election is discussed in para-
graph numbered 5, below.
We find that all production and maintenance employees at the Em--
ployer's plastic products plant at Waldwick, New Jersey, including-
the night shift but excluding office and clerical employees, professional:
employees, guards, executives, and all supervisors as defined in the,
amended Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
5. As noted above, a variable number of employees work part time-
at night in this plant. The majority, if not all, of these employees-
are married women who report for work only of their own volition.
The operation of the night shift is not continuous and the record in-
dicates that considerable periods of time pass during which these
employees do not work. The Board generally has held that regular-
part-time employees as distinguished from casual personnel are en-
' See Waldensian Hosiery Mills , Inc., 83 NLRB 742; Reynolds Metals Company, 82-
NLRB 1414 ; Burgess Battery Company, 76 NLRB 820.
1 See Providence Public Market Company, 79 NLRB 1482 and cases cited therein.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
titled to participate in elections directed for the purpose of ascertain-
ing bargaining representatives.5 However, the record herein is not
clear as to the permanence or regularity of the employment of the
night shift workers, nor is there any evidence as to the amount of time
averaged by this personnel. Accordingly we find that only those
employees on the night shift who have worked a minimum of 60 hours
a month in each month of the 3-month period preceding the date of
this Direction of Election (or, in the case of night shift workers, if
any, who are on strike, the 3-month period preceding the beginning
of the strike referred to below) shall be considered eligible to vote.6
An economic strike has been in effect at the Employer's Waldwick
plant since October 20, 1949. We cannot now accurately determine
which of the strikers have been validly replaced. All persons hired
;since October 20, 1949, the date of the strike, and all strikers, shall
be deemed presumptively eligible to vote, subject to challenge.7
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
pose 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 and the determinations in-
corporated in paragraph numbered 5, above, 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 vaca-
tion or temporarily laid off, 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, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for purposes of collective bar-
gaining, by United Wholesale and Warehouse Employees Union, Local
45, affiliated with Retail, Wholesale and Department Store Employees
Union, CIO, or by Rubberized Novelty and Plastic Fabric Workers
Union, Local 98, International Ladies Garment Workers Union, AFL,
or by neither.
See Burrows & Sanburn, Inc., 81 NLRB 1308 and cases cited therein.
Those employees hired during this 3-month period for the night shift shall be deemed
eligible to vote if they have worked a minimum of 60 hours a month for each mouth of
their employment.
7 See The Pipe Machinery Company, 76 NLRB 247.