Sherman Weir, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 823 (N.L.R.B. 1948)

In the Matter of SHERMAN WEIR, INC., EMPLOYER and DISPLAY
FIXTURE WORKERS UNION5 LOCAL 21625, AFL, PETITIONER
Case No. 2-RC-237.-Decided July 30,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a * hearing was held before a hearing
officer of the National Labor Relations Board. 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-man panel consisting of the undersigned Board
Members.*
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 named below claims to represent 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 seeks a unit composed of all the production and
maintenance employees of the Employer, including decorators and
artists. The Employer opposes the establishment of a single unit for
the production and maintenance employees on the ground that they
have a history of bargaining on a two-unit basis.
The Employer is engaged in the manufacture of window displays
in New York City. Its operations are carried on in several depart-
ments, all of which except one are located on one floor in a building at
222 E. 92nd Street. The other department, which is a production de-
partment, is located at 209 E. 26th Street. The Employer employs an
average of 45 employees, all of whom work under the supervision of
.Chairman Herzog and Members Reynolds and Murdock.
78 N. L. R. B., No. 103.
823
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a general plant supervisor . All the employees are carried on a single
pay roll. The Petitioner would include all the production and main-
tenance employees at the two addresses of the Employer.
In April 1947, the Petitioner and Display Union Local 144, CIO,
herein called the CIO,' entered into separate "members-only" agree-
ments with the Employer, each of which contracts covered both pro-
duction and maintenance employees and cut across department lines.
These two contracts-expired in April 1948. Under such circumstances,
we find no conclusive history of collective bargaining to support the
Employer's contention as to the appropriateness of two separate units
for its employees 2 We find, rather, that a single unit is appropriate.
As the result of evidence elicited by the hearing officer, a question
arises as to whether certain employees, variously referred to in the
record as keymen and assistant supervisors, are supervisors within the
meaning of the Act as amended. These employees, in addition to per-
forming routine production tasks in the various production depart-
ments of the plant, relay the orders of the plant supervisor with respect
to work assignments to the employees in their respective departments.
They do not have the power to hire or discharge employees or effectively
to recommend such action. Occasionally they may be requested to
report to the plant supervisor concerning the efficiency of the employees
in their respective departments; however, it does not appear that they
are authorized effectively to recommend any disciplinary or other
action in connection with these reports. In these circumstances and in
the absence of any specific issue raised by the parties at the hearing with
respect to these employees, we find that the keymen or assistant super-
visors are not supervisors within the meaning of the Act as amended
and we shall include them in the appropriate unit .s
We find that all the production and maintenance employees of the
Employer at 222 E. 92nd Street and 209 E. 26th Street, New York City,
including decorators, artists, and assistant supervisors (keymen), but
excluding all supervisors, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
1 Although a notice of hearing was sent to the CIO , it neither appeared nor participated
in this proceeding.
s Matter of Liggett Drug Company, Inc. 73 N. L. R. B . 312; Matter of Kansas Power h
Light Company, 64 N. L. R. B. 915.
Matter of Fred H. Cole d /b/a Cole Instrument Company, 75 N. L . R. B. 348 . Matter
of General Motors Corporation, Buick Motor Division, 78 N. L . R. B. 72.
SHERMAN WEIR, INC.
DIRECTION OF ELECTION
825
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 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-Series 5, 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 tem-
porarily 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 employees on strike who
are not entitled to reinstatement, to determine whether or not they
desire to be represented, for purposes of collective bargaining, by
Display Fixture Workers Union, Local 21625, AFL.