T. C. Esser Co.

National Labor Relations Board - Board Decisions

Jan 17, 1945

60 N.L.R.B. 105 (N.L.R.B. 1945)

In the Matter of T . C. ESSER COMPANY and GLAZIERS' LOCAL UNION
No. 1204, A. F. OF L.
Case No. 13-R-.683.-Decided January 17, 1945
Mr. E. W. Peck, of Milwaukee, Wis., for the Company.
Messrs. A. G. Goldberg and Joseph A. Buchek, of Milwaukee, Wis.,
for Local 1204. .
Mr. Donald H. Frank, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Glaziers' Local Union No. 1204,
A. F. of L., herein called Local 1204, alleging that a question affecting
commerce had arisen concerning the representation of employees of
T. C. Esser Company, Milwaukee, Wisconsin, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Benjamin B. Salvaty, Jr., Trial
Examiner. Said hearing was held at Milwaukee, Wisconsin, on De-
cember 7, 1944. The Company and Local 1204 appeared and partici-
pated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. All parties
were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a Wisconsin corporation with a ,plant in Mil-
waukee, Wisconsin, and with warehouses and stores in Milwaukee,
Oshkosh, and La Crosse, Wisconsin. In its Milwaukee plant it manu-
factures paints and varnishes, and processes glass, by polishing, bevel-
ing, silvering into mirrors, and by special lead and art glass work.
60 N. L R. B., No. 20.
105
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company purchases annually raw materials in excess of $610,000,
of which approximately 90 percent represents shipments and pur-
chases outside the 5tate of Wisconsin. Its annual sales are in excess
of $1,500,000, of which approximately 10 percent represents shipments
to points outside the State of Wisconsin.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Glaziers' Local Union No. 1204, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to Local 1204 as
the exclusive bargaining representative of certain of its employees in
the Company's Milwaukee plant, until Local 1204 has been certified
by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that Local 1204 represents a substantial number of em-
ployees in the unit hereinafter found •appropriate?
We find that a question affecting commerce -has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act. .
IV. THE APPROPRIATE UNIT
The Company and Local 1204 stipulate and agree upon the follow-
ing as the appropriate unit: all art glass workers, bevelers, polishers,
silverers, cutters, and glass handlers, employed by, the Company in
the Milwaukee plant, except for the superintendent, who is the only
supervisory employee in this group of employees. Among the Mil-
waukee plant's glass department employees are glaziers, who work
principally outside the plant, wherever the Company has received
an order for the installation of glass. Local 1204 has bargained and
had a contract with the Company covering the glaziers in the Mil-
waukee plant since 1934, and since 1941 the contract has also covered
the glaziers in Oshkosh. The hourly pay of glaziers is higher than
that of any glass workers listed in the proposed unit. The work of
the graziers is functionally dissimilar from the other glass workers.
Local 1204 does not seek in its petition to include the glaziers in the
'The Field Examiner reported that Local 1204 submitted 23 membership cards. There
are 48 employees in the appropriate unit. The cards were dated, 8 in September and 15
in October 1944
T. C. ESSER COMPANY 107
unit requested, but it suggested at the hearing that if it is certified-
as the representative of the unit here sought, it may demand that the
Company bargain with it on the basis of a single unit including both
groups., On the evidence offered in the present record, we are of
the opinion that, in view of the functional dissimilarity above noted,
and the fact that the unit of glaziers covers two plants, such amalga-
mation of the two units is not warranted if the Company objects
thereto. We shall exclude the glaziers from the unit hereinafter
found appropriate.
We find that all art glass workers, bevelers, polishers, silverers, cut-
ters, and glass handlers, employed by the Company in Its Milwaukee
plant, but excluding the glaziers and the superintendent, constitute a
unit appropriate for the purposes of-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 herein, subject to the limitations and additions set forth in the
Direction. -
Local 1204 contends that the eligibility date for the election should
be set at September 30, 1944, the date on which the petition was filed.
This contention is based on the argument that after the specified
date the Company hired and is hiring additional employees, that
these new workers are `not eligible for membership in Local 1204
because they are part-time employees, and that they are temporary
employees, hired to fill in during the rush season. The evidence shows
that in October the Company advertised for full or part-time em-
ployees to work in the mirror department. As a result, some part-
time employees were hired. At present the Company employs six
part-time workers, two of whom are high school students who work
after school and on Saturdays and holidays .2 One of the latter has
been with the Company for 2 years, and the other for 3 months. Part-
time employees work an average of 5 hours per day and receive the
same rates of pay as fulltime employees. There was undisputed evi-
dence that the Company has not had a sufficient number of employees
to enable it to fill its current orders. There is, therefore, no basis for
assuming that the recent employees are temporary. Local 1204 ad-
mits that the duties of these employees would make them eligible for
membership; the argument, therefore, that since they are part-timers
2 See Matter of Triangle Publications , Ine, 59 N. L R B. 1190, as to school boys who
are part -time employees.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are not eligible is not persuasive. We find no sufficient reason
for departing from our usual eligibility date in this election, nor any
reason for disqualifying any of the part-time employees from
participating.
The Company requests that, its employees in the armed forces' be
permitted to vote by absentee ballot. Since no persuasive reason
appears, however, for departing from our established rule, the request
is hereby denied.3
DIRECTION OF ELECTION
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 representa-
tives for the purposes of collective bargaining with the T. C. Esser
Company, Milwaukee, Wisconsin, an election by secret ballot 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 Thirteenth Region, acting 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 period immediately preced-
ing the date of this Direction, -including employees who- did not
work during 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 rehired. or reinstated prior to the date of
the election, to determine whether or not they desire to be represented
b^ the Glaziers' Local Union No. 1204, affiliated with the American
Federation of Labor, for the purposes of collective bargaining.
3 See Matter of Mine Safeti, Appliances Co , 55 N L R B 1190