Federal Scientific Instrument Corp.

In the. Matter of FEDERAL SCIENTIFIC INSTRUMENT CORP. and UNITED OPTICAL WORKERS UNION, LOCAL No. 208, C.I.O. Case No. R-5099.-Decided Mary 1, 191x3 Conrad c0 Smith, by Mr. William W. Conrad, of New York City, for the Company. Mr. Edward Homer, of New York City, for the C.I.O. Mr. William R. Cameron, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Optical Workers Union, Local No. 208, C.I.O., herein called the C.I.O., alleging that a question affecting commerce had_ arisen concerning the ' representation of em- ployees of Federal, Scientific Instrument Corp., New York City,-herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John J. Cuneo, Trial Examiner. Said hearing was held at New York City on March 31, 1943. The Company and the C.I.O. appeared, participated, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Company filed a brief, which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Federal Scientific Instrument Corp., a New York corporation, has its principal office and place of business in the City of New York. It is engaged in the manufacture of machines for grinding and polishing lenses. During a period of a little more than 2 months following incor- poration of the Company on January 14, 1943, the Company has pur- chased more than $5,000 in value of materials, of which approximately 5 percent was shipped to the Company from points 'outside the State of New York. Until March 1, 1943, the Company's purchases were made through and •with the credit assistance of Ultima Optical Cor- poration and Optical Instrument Corporation, companies whose places 49 N. L. R B., No. 45. 362 r FEDERAL SCIENTIFIC INSTRUMENT CORP. '363 of business are located in the same building as the Company with which we are here concerned. Since March 1, 1943, the Company has made its purchases directly. During the same period of a little ,over 2 months since incorporation the Company's sales of finished products have amounted to more than $6,000. The Company has sold 3 polishing machines to the United States Army Finance Officer in Jersey City, New Jersey. These machines were in turn leased by the Finance Offi- cer to the Optical Instrument Corporation, above-mentioned, and delivery was made by the Company directly to the lessee. The Com- pany expects to continue making machines which will be used in the manufacture of products for the United States Army, Navy, and Air Corps, selling sometimes directly to a Government agency and sometimes through the companies named above. It is conceded that Ultima Optical Corporation is engaged in interstate commerce. The Company employs approximately 20 employees. We find, contrary to its contention; that the Company is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED ' United Optical Workers Union, Local No. 208, is a, labor organiza_ tion affiliated with the Congress of Industrial Organizations, admit- ting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On February 18, 1943, a petition was filed by the C. I. O. alleging that a question had arisen concerning the representation of the em- ployees of the Company and requesting an investigation and certifica- tion of representatives. The organizer for the C. I. 0., on February 19, 1943, wrote to the Company requesting'a bargaining conference to be held on February 23, but received no reply. In conversation by telephone on February 23 the Company's president informed the organizer that he had not seen the letter, that his associates were out df town, and that he could not do anything about a bargaining conference till they returned. He agreed to contact the organizer again, but at the time of the hearing it appeared that he had not done so. - The Board has previously found, in cases wherein the employer had failed to reply to a.request for a bargaining conference,,and had not bargained with the petitioning union nor indicated its willingness so to'do, that a question concerning representation existed.' In this case no reply had been received by the C. 1. 0. to its request for a bargaining i See Matter of Eclipse Lawn Mower Co and United Steelworkers of America, affiliated with the 0. I. 0., 43 N. L. R B. 1178; Matter of Pittsburgh Plate Glass Company and United Automobile Workers, affiliated with the C. I. 0., 31 N. L. R. B. 468; Matter of All Steel Welded Truck Corporation and International ' Union, United Automobile Workers of A+merica, affiliated with the C. I. 0., 31 N. 'L. R. B. 191; Matter of Wilson & Co, Inc, a Delaware Corporation, trading as J Eavenson & Sons, division of Wilson & Co., Inc. and United /oap Workers Local Industrial Union No. 931, C. I. 0., 26 N. L R. B. 1353. 364 DECISIONS OF NATIONAL LABOR RELATIONiS BOARD conference, and it did not appear in evidence at the hearing that the Company had at, any time indicated willingness to negotiate with the Union. The record now before the Board thus indicates that a ques- tion concerning representation has arisen. A statement of the Regional Director, introduced in evidence at the hearing, indicates that the C. I. 0. represents a substantial number of employees in the unit hereinafter found to be appropriate.2 N 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 C. I. 0. seeks a unit composed of production and maintenance employees, excluding foremen, executives and office help . At the hear- ing question arose concerning five part-time employees . The C. I. 0. contends that these part -time employees should be excluded from the unit. The Company takes no position in that regard . These part-time employees are boys from 16 to 18 years of age, who are still regularly attending New York Metal Training School, but who work at the factory after school 5 days a week and all day on Saturdays. These students are trained by the Company , as are also certain graduates of the school in full-time employ of the Company. They do the same work and are paid on the same basis, both as to straight time and overtime, as the full-time employees under similar training. It is the purpose of the Company , if these students are not first inducted into the armed forces of the United States, to continue them after gradua- tion in full-time employment. Under these circumstances , we perceive no sufficient reason for distinguishing between these part-time em- ployees and those in full -time employ of the Company, and shall therefore direct that they be included in the unit. Question also arose at the hearing concerning one employee who appears sometimes , to have been, called ; an, assistant , foreman. It appears in evidence, however, that this employee, named Sabon, is not designated by the Company as an assistant foreman, that he has no supervisory duties other than sometimes to instruct some of the less skilled employees as to the operation of certain machines, and that he has no authority to issue orders nor to hire or discharge. The evidence indicates, in fact, that this employee is merely the most highly skilled worker employed by the Company and paid at a higher hourly rate. Aside from his greater degree of skill and consequent higher pay there 2 The Regional Director reported that the C. I. 0 had submitted 11 application and hu- thorization cards all bearing apparently, genuine original signatures of persons whose names appear on the Company's pay roll for the week beginning February 15, 1943, containing the names of 17 employees in the unit claimed appropriate Of these cards 8 were dated February 16, 1943, 1 was dated February 23, 1943, and 2 were dated February 25, 1943. FEDERAL SCIENTIFIC INSTRUMENT CORP. 365 is no distinction between him and the other production employees. Inasmuch as it appears that he is not a supervisory employee, and there appears no other sufficient reason for distinguishing between him and other production employees of the Company , we shall -direct that he.be,included in the unit. - We find that all production and maintenance employees of the ,Company , exclusive of foremen , 'executives and office employees, con- stitute 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 employees 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 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Federal Scientific Instrument Corp., New York City, 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 Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10,- 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 preceding the date of this Direction, including any such 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 any who have since quit or been discharged for cause, to determine whether they desire to be represented by United Optical Workers Union, Local 208, C. I. 0., for the purposes of collective bargaining. . '