Shelburne Shirt Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1949

86 N.L.R.B. 1308 (N.L.R.B. 1949)

In the Matter of SHE LBURNE SHIRT Co., INC., EMPLOYER and AMAL-
GAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER
Case No. 1-RC-1195.Decided November 7, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Thomas H.
Ramsey, 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 [Members Reynolds , Murdock, and
Gray].
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 organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and ( 7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of production and maintenance em-
ployees. The Employer objects to the inclusion of maintenance em-
ployees, contending that their bargaining interests are different from
those of the production employees.
The Employer is engaged in the manufacture of men's shirts. At
its Fall River, Massachusetts , plant, it employees about 748 persons.
There are approximately 689 employees in the unit sought. The
Petitioner would include, and the Employer would exclude, 4 main-
tenance employees who are classified as machinists and head ma-
chinists. The machinists repair mechanical equipment throughout
the plant. They work in the same building and under the same con-
ditions of employment as the production employees. They have the
same supervision and receive the same vacations , bonuses, and health
insurance as the production workers. The Employer contends that
they should be excluded because they are skilled craftsmen , and be-
86 N. L . R. B., No. 148.
1308
SHELBURNE SHIRT CO., INC. 1309
cause their work is different from that performed by the production
employees. We have frequently included craftsmen in a production
and maintenance unit where , as here, no one seeks to represent them
on a craft or departmental basis. Moreover , we perceive no cogent
reason for departing from our usual policy of including maintenance
employees within the same unit as production employees . Accord-
ingly, we find that a plant-wide unit of production and maintenance
employees is appropriate.'
There remains for consideration certain categories of employees.
Probationary employees : The Petitioner would include , and the Em-
ployer would exclude , 75 probationary employees . It is the Em-
ployer 's practice to hire inexperienced persons as sewing machine
operators and to keep them in a probationary status for a period of
3 months, after which time they either become regular employees or
are discharged . The Employer 's records disclose that an average of
40 percent of its probationary workers eventually attain the status of
permanent employees . The Board has permitted probationary em-
.p.loyees to vote where an average of 50 to 75 percent of them eventually
become permanent employees.2 On the other hand, the Board has re-
fused to allow them to vote where only 40 to 50 percent attain the
status of permanent employees.3 In the instant case, since less than 50
.percent of the employees in question will eventually acquire the status
of permanent employees , we find that as a group they do not have suf-
ficient interest in the selection of a bargaining representative to entitle
them to vote. Accordingly, we shall exclude probationary employees
from the voting group.
Probationary supervisors: The Petitioner would exclude, and the
Employer would include, four employees who are classified as proba-
tionary supervisors. It is the Employer's practice to choose super-
visors from among its production workers. The ones chosen are placed
on probation for a period of 6 months, during which time they inspect
the work of other employees and see that such work is properly per-
formed. As probationary supervisors have the authority responsibly
to direct the work of other employees, we shall exclude them from the
unit.
Employees on leave: The Employer would include, and the Peti-
tioner would exclude, 34 employees who are currently on sick leave
because of illness or pregnancy. These employees are receiving pay-
ments -under the Employer's health insurance plan. The Employer's
records disclose that about 80 percent of the employees on leave gen-
erally return to work within a. period of 8 months. Their jobs remain
I Goodall Company , 80 N. L . R. B. 562.
2 Ganeva , Forge, Inc., 76 N . L. R. B. 497.
3 The Crossley Corporation, 56 N. L . R. B. 1722.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
open and available. As the employees in question have a reasonable
expectancy of reemployment, we shall permit them to vote in the
election directed hereinafter.'
Head machinist: The Petitioner would include, and the Employer
would exclude the head machinist, who at the time of the hearing
had only been employed for .4 days. While the exact duties of this
employee have not yet been determined, it clearly appears that he has
the authority responsibily to direct the work of the other machinists.
We shall, therefore, exclude him from the unit.
Watchmen: The record discloses that there are four employees who
are classified as watchmen, but who also perform janitorial duties.
Although the parties stipulated that these employees should be ex-
cluded from the unit, the record does not show what percentage of
their worktime is spent in the performance of their watchmen duties.
.If they spend more than 50 percent of their working time in the per-
formance of watchmen duties they shall be excluded from the unit;
otherwise, we shall include them.5
We find that all production and maintenance employees at the Em-
ployer's Fall River, Massachusetts, plant, excluding executives, office
and clerical employees, factory clericals, guards, professional em-
ployees, and supervisors as defined in the Act, constitute a unit
appropriate for 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
purposes 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 supervision 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 pay-roll period immediately preceding the
date of this Direction of Election, including employees who did not
work during said pay-roll 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
reinstated prior to the date of the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented, for purposes of collective
bargaining , by Amalgamated Clothing Workers of America, CIO.
* Clippard Instrument Laboratory, Inc., 86 N . L. R. B. 538, and cases cited therein.
5 Matheny Creek Lumber Company, 85 N. L. R. B. 515.