Western Burlap Bag Co.

National Labor Relations Board - Board Decisions

Sep 23, 1942

44 N.L.R.B. 356 (N.L.R.B. 1942)

In the Matter Of WESTERN BURLAP BAG COMPANY and TEXTILE
WORKERS UNION OF AMERICA (C. I. 0.)
Case No. R-4255.-Decided September 23, 1942
Jurisdiction : burlap and cotton bag reclaiming industry.
"Investigation and Certification of Representatives : existence 'of question : re-
fusal to accord petitioner recognition ; election necessary.
Unit Appropriate for Collective Bargaining : production and shipping-room em-
ployees regardless of probationary status, but excluding supervisory, clerical,
office, and maintenance employees.
Jacobson, Merrick, Nierman cC Silbert, by Mr. David Silbert and
Mr. Richard A. Minnecke, of Chicago, Il., for the Company.
Mr. Earl T.,McGrew, of Chicago, Ill., for the Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Textile Workers Union of America
(C. I. 0.), herein called the Union , alleging that a question affecting
commerce had arisen concerning the representation of employees of
Western Burlap Bag Company, herein called the Company, Chicago,
Illinois, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Leon R Rosell , Trial Exam-
iner. The hearing was held at Chicago, Illinois , on September 4, 1942.
The Company and the Union appeared, participated , and were
afforded full opportunity, to be heard , to examine and cross -examine
witnesses, and to introduce evidence bearing upon the issues. , The
Trial Examiner 's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the fo11 hwing :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Western Burlap Bag Company is an Illinois corporation engaged
in the reclaiming or reconditioning of second-hand burlap and cotton
bags at Chicago, Illinois. Approximately 75 percent of the Com-
pany's raw materials and 60 percent of its finished products are -trans-
44 N. L. R. B., No. 65.
356
J
WESTERN BURLAP BAG COMPANY 357
ported in interstate commerce between its Illinois plant and points
outside the State of Illinois?
The Company concedes that it is engaged in commerce, within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED,
Textile Workers Union of America is a labor organization affiliated
with the Congress of Industrial Organizations, and admits employees
of the Company to membership.
III. THE QUESTION CONCERNING REPRESENTATION
On August 17, 1942, the Company received a telegram from the
Union, advising it that a majority of the employees had designated the
Union to represent them for collective bargaining and requesting
recognition as the exclusive representative of all the employees and
the scheduling of a collective bargaining conference. The Company
refused this request, principally on the ground that the unit requested
by the Union was not appropriate for the purposes of collective bar-
gaining. On August 18, 1942, the Union filed its'petition herein.2
During the course of the hearing, -evidence was submitted that the
Union represents a substantial number of the employees in the unit
hereinafter found to be appropriate.3
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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The Union claims that the appropriate unit consists of all the pro-
duction and shipping room employees, regardless of whether they
have been in the Company's employ for a minimum of 90 days, but
excluding supervisory, clerical, office, and maintenance employees and
working foremen. The Company concedes the appropriateness of
the claimed unit, except as to employees not in the Company's employ
for a minimum of 90 days and the so-called working foremen.
As to employees who have not been in the Company's employ for
a minimum of 90 days, Superintendent Paul Havel testified that it
r The record does not show the dollar values of the Company's raw materials or finished
products
' At the hearing the Company moved to dismiss the petition for the reason that the
demand for recognition made by the Union was not for the same unit as that described in
the petition . The Trial Examiner reserved ruling on the motion for the Board . The mo-
tion is hereby denied.
8 A statement of the Regional Director dated August 29, 1942, shows that the Union had
submitted application cards bearing 26 apparently genuine original signatures correspond-
ing with the names of persons in the unit on the Company 's "current" pay roll, which
contains a total of 52 names.
358 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
was the Company's policy to consider them employed on a "tem-
porary trial basis," depending chiefly upon whether they were able
to bring up their piece-work wages to a certain hourly rate, as required
under the Fair Labor Standards Act of 1938. In further explana-
tion of this'alleged policy he stated that. all new employees were told
of this 90-day probationary period at the time of their hiring, that
a great turn-over was experienced among such employees whereas after
the 90-day period the average length of service was 8 years, and that
when new employees had almost completed their 90-clay trial period lie
regularly told them, "Well you are in here close to 90 clays now, you
are becoming a regular employee." On the other hand, according to
Havel, there is no difference in the status or privileges of an employee
after the 90-day trial period has passed, no separate list of employees
is maintained oil this basis, the time cards issued to all employees are
identical, and all the employees appear on the same pay roll. In
addition, some of the employees are not paid on a piece-work basis,
and as to them the 90-day trial period is admittedly not followed. At
one point Havel testified that a new employee was considered a regu-
lar employee when he became "experienced," which might be after
60 days or some other period of time. At another point Havel testi-
fied that, when there was a large reduction of work, not only were the
new employees with less than 90 clays service laid off but also some of
the older employees might be laid off in addition.
We have previously had occasion to determine whether such proba-
tiondiry employees who filled permanent positions should be excluded
from the unit,4 and have held that they should not be excluded, even
where their status is such that they would expect dismissal if their
work proves unsatisfactory. Accordingly, we reject the Company's
contention that employees who have not been in the Company's em-
ploy for a minimum of 90 days should be excluded from the unit.
As to the so-called working foremen, Havel testified that there were
no foremen whatsoever besides himself. The Union contends, how-
ever, that there is an employee' in charge of the shipping room who
is a working foreman and should be excluded from the unit. Havel
testified with regard to this employee that he had no authority over
the other shipping clerks, and that his duties consisted of shipping and
receiving bags and "passing on" Havel's instructions to the other
shipping clerks. The Union offered no credible evidence as to the
duties of this employee. There is no evidence in the record that would
identify this employee as more closely allied with the management
'Matter of Tresteaa Union Tclegtaph Company and Comaneacial Telegraphers' Union,
etc, 38 N L R B 4S3 See also Matter of r°aneteea Kindred Coapoaatiou and United
Ilectrical, Radio R Machine ll'ot b ea s of Ames aca, C 1 0,32 N L R B 327
1 Referred to in the record as Lawrence
WESTERN BURLAP BAG COMPANY 359
than with the other employees in the unit, and it is thus clear that
he is at most a working leader and primarily a shipping room em-
ployee. Accordingly, we find that the employee in charge of the
shipping room is not a supervisory employee and that he should be
included within the unit.', We turthc r find on the basis of the record
that the Company employs no working foremen.
We find that all the Company's production and shipping room
employees, regardless of whether they have been in the Company's
employ for a minimum of 90 days, but excluding supervisory, clerical,
office, and niaintenance employees, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
V. THE DFITI'HIN \TION 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 Election
herein, subject to the limitations and additions set forth in the
Direction.
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 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective, bargaining.
with Western Burlap Bag Company, Chicago, Illinois, an election
by secret ballot shall be conducted as early as possible, but ilot later
than thirty (30) days from the date of this Direction, under the direc-
tion 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, Section 9, of said Rules and Regula-
tions, among the employees of the Company in the unit found to be
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing any such employees who did not work during said pay-roll period
6Matter of Curtiss-Wright Cot pit) ati.on (Propeller Division), Clifton, N J, and An craft
Lodge 703, I. A. of Al., A P. of L., etc, 33 N. L. it. B 490. Cf. 3fatter of Rice & Adams
Corporation and Independent Union of The Race & Adams Corporation, Independent, 38
N L R B 1003
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing any who have since quit or been discharged for cause, to deter-
mine whether or not they desire to be represented by Textile Workers
Union of America (C. I. 0.) for The purposes of collective bargaining.
MR. WM. M. LEIsERSON took no part in the consideration of the
above Decision and Direction of Election.
i
In the Matter Of WESTERN BURLAP BAG COMPANY and TEXTILE WORKERS.
UNION OF AMERICA (C. I. 0.)
Case No. R-4255
CERTIFICATION OF REPRESENTATIVES
October 20,1944°
On September 23, 1942, the National Labor Relations Board issued
at Decision and Direction of Election in the above-entitled proceeding 1
Pursuant to the Direction of Election, an election by secret ballot was
conducted on October 7, 1942, under the direction and supervision of
the Acting Regional Director for the Thirteenth Region (Chicago,
Illinois). On October 8, 1942, the Acting Regional Director, acting
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, issued and duly served
upon the parties an Election Report. No objections to the conduct
of the ballot or the Election Report have been filed by any of the parties.
As to the balloting and its results, the Acting Regional Director
reported as follows :
Approximate number of eligible voters________________________ 76
Total ballots cast___________________________________________ 73
Total ballots challenged_____________________________________ 3
Total blank ballots__________________________________________ 0
Total void ballots______________________'_____________________ 0
Total valid votes counted____________________________________ 70
Votes cast for Textile Workers Union of America (C. I. 0.)____ 60
Votes cast against Textile Workers Union of America (C.-I. 0.) - 10
Since the number of challenged ballots cannot affect the results of
the election, we find it unnecessary to make any determination with
respect to them.
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, Sections 8 and 9, of National Labor Rela-
I ions Board Rules and Regulations-Series 2, as amended,
IT IS HEREBY CERTIFIED that Textile Workers Union of America
(C. I. 0.) has been designated and selected by a majority of all
production and shipping room employees of the Western Burlap Bag
144 N. L. R. B 356.
44 N ' L. R. B., No 65a.
361
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Chicago, Illinois, regardless of whether they have been in
the Company's employ for a minimum of 90 days, but excluding super-
visory, clerical, office, and maintenance employees, as their representa-
tive for the purposes of collective bargaining, and that, pursuant to
Section 9 (a) of the Act, Textile Workers Union of America (C. I. 0.)
is the exclusive representative of all such employees for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.