D. Blumberg & Son

In the Matter of JOSEPH N. BLUMBERG, doing business as, D.,BLUMBERG & SON and PACKINGHOUSE' WORKERS ORGANIZING COMMITTEE, C.I.O. 1 Case No. R--042.Decided May 18,1943 Mr. Jack Davis, for the Board. Mr. Nathan Sweedler, of New York City, for the Company. Mr. Meyer Stern, of New York City; for the C. 1. 0. Ashe ct Rifkin, by Mr. David I. Ashe, and Messrs. Charles Gold- smith and Anthony T. Lester, all of New York City, for Local 5. 'Mr. William R. Cameron, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by the Packinghouse Workers Organizing Committee, C. 1. 0., herein called the C. I. O., alleging that a _question affecting commerce had arisen concerning the representation of employees of Joseph N. Blumberg, -doing business as D.. Blumberg & Son,, New York City, herein called the Company, the National Labor Relations Board provided for an appropriate hearing'upon due notice before William P. Webb, Trial Examiner. Said hearing was held at New York City on April 22 and 23; 1943. The C. I. O. and Local 5, Packing- House Workers Union of the Amalgamated Meat Cutters & Butcher Workmen of North America, A. F. of L., herein called Local 5, appeared, participated, and were afforded' full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Company appeared, but elected not to participate in the introduction of evidence or exami- nation of witnesses. The Trial Examine'r's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Local 5 has filed a brief, which the Board has considered. Upon the entire record in the case, the'Board makes the following: 49 N. L. R. B., No. 120. ' 856 D. BLL'MBERG & SON FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 857 Joseph N. Blumberg is an individual doing business under the trade name'and style of D. Blumberg & Son. The Company has its principal place of business in New York City, where it is engaged in the purchase and slaughtering of calves and lambs, and in the sale and distribution of the meat products. During the year 1942 the Company purchased 'livestock of the approximate total value of $2,000,000, all of which, -was shipped to the Company from points outside the State of New York. During the year 1942 the Company slaughtered, sold, and distributed meats Of the approximate total value of $2,500,000, of which approximately 10 percent was shipped by it to places outside of the State' of New York. The Company concedes that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, is a labor organization ad- mitting to membership employees of the Company. Local 5, Packing House Workers Union of the Amalgamated Meat 'Cutters & Butcher Workmen of North America, affiliated with the American Federation of-Labor, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION For a number of years Local 5 has represented the employees of the Company, in the unit hereinafter found appropriate, in the making of collective bargaining agreements with the Company. The agreement now in existence is a written contract, providing for a closed shop, dated April 20, 1942, for the term of J year and with provision for automatic renewal' for yearly periods, except that in case the Company deems it advisable to discontinue operation or sells or transfers the business then upon 1 week's written notice the agreement shall termi- nate. Further, the contract provides that it may be reopened upon 30 days' written notice to the Company that-the contracting union wishes to confer regarding readjustment of wages, hours,'and working condi- tions, if war or economic conditions warrant it. A petition for investigation and certification of representatives was filed by the C. I. O. in April of 1942, and an amended petition on July 7, 1942. Sometime after the filing of the original or amended petition, the C. L O., in an informal conference relating to its claim of represen- 858 DECISIONS OP NATIONAL-LABOR RELATIONS BOARD tation, had been informed that the Company's position was that in view of its contract with Local 5 it could -not recognize the C:''I. O. unless the C. 1. O. was certified as bargaiiuing,represeiitative by the Board. By letter dated March 8,1943, the C. I. O. requested a bargain- ing conference with the Company. No reply to _ this letter was received. No notice has been given by either of the parties to the contract of intention to terminate. it., Local 5 contends that this contract has been automatically renewed for another year and therefore is a bar to a,pro- ceeding to determine representatives at,this time. The Company, at the hearing, made no statement of its, position in that 1 egard. We find no merit in-the contention of Local 5. We have held that the existence of a contract similar to the one now in force between the Company and Local 5 is a bar to a determination of representatives, where no notice of termination--was given by the contracting parties prior to its renewal date and where notice of the petitioning union's claim to representation had not been given until after the renewal clause in the contract-had taken effect.' In the case now before the Board, however, a petition by the C. I. O. for investigation and determination-of representatives has for some time been pending before the Board, and notice by the C. I.. O. to the' Company on March 8, 1943, preceded by more than 30 days the con- tract's prescribed expiration date, and therefore was given before the contract could have-been automatically renewed for another yearly period. We have repeatedly held that contracts renewed subsequent to institution of preceedings for investigation and certification of rep- resentatives, and after conflicting -claims of representation have been presented, do not preclude investigation to determine representatives.2 We find, therefore, that the contract between the Company and Local 5 does not-constitute a bar to a determination of-representati-vq^s this time. 'See Matter of Mill B. Inc, dii,ision of Irwin 2f Lyons, partners, doing business ender the ,assumed name of Irwin it Lyons and International Woodurorleis of America, Local 116, C I 0., 40 N L . R B 346; Matter of Detroit it Cleveland Navigation Company and National Organization of'Masters, Mates and Pilots of America , A F L, and Great Lakes Officers Association (C 1 0.), 29 N. L. R. B. 176. 2 See Matter of Service Wood Heel Companil, hue, doing business ender style and trade 'name of Russell Heel Compdny and United Shoe Workers of America, Wood Heel Turners Local 12A ,( C. I. 0.), 41 Nf L , R B 43 ; Matter of General Motors Corporation, Allison Di>,ision, and International Union, United Automobile, Aircraft it Agricultural Implement Woi leers of America, Local 9.33, affiliated with the C 1 0 , 40 N L R . B 1387 ; Matter of Cudahy Packing Company end -Packinghouse Workers Organizing Committee, C. L 0., 38 N. L. R B. 1009 ; Mattes of Edward Rappaport, James Rappaport, and.Myr Rappaport, Co-partners, doing business as Northwestern Aato Parts Co and United Electrical, Radio it Machine Workers of America, Local 1140 , 36 N •L. R. B. 484. 1 D.. BLLJMBERO & SOIL 859' A statement of the Regional Director, introduced in evidence at the hearing, indicates that the C. 1. O. represents a substantial number of employees in the unit hereinafter found to be appropriate., We fired that a question affecting commerce has arisen concerning the representation of--employees of the Company within the meaning of'Sectibn 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The C. I. O. seeks a unit composed of all 'production employees, excluding office, supervisory, and maintenance employees,, truck driv- ers and shochtim. This is substantially the unit specified in' the con- tract between Local 5 and the Company. At the hearing Local 5 took the position, and now contends, that the appropria^e unit should in- clude also the truck drivers and the shochtim. The truck drivers and shochtim are now represented, and have been for a number of years' respectively, by Local 640, and Local 491, of the Amalgamated, with which Local .5 is affiliated. Separate contracts are in effect covering these two groups. It is apparently the contention of Local 5, not that the contracts of these two locals with the Company should now be abrogated, but simply that the employees in these groups should vote many election to determine bargaining representatives of the unit now represented by Local 5. This contention is without merit. Inasmuch as these groups have for a number of years bargained separately and are now in separate contractual relationship with the Company, and since there is no indication that any members of these groups desire inclusion within the unit now represented`by Local 5, we see no snffl- cient reason for disturbing their present relationship with the Com- pany and shall therefore exclude them from the unit. We find that all production employees of the Company, exclusive of office, supervisory, and maintenance employees, truck drivers and The Regional Director reported that the C' I 0 had submitted 16 authouzation cards dated Match 17, 1042, 9 of which appear to bear genuine original srgnatures of Persons NNh6se`:>7a1i1es appear upon the Company's pay roll of May 1, 1942. The C. I 0. also sub- mitted'11' application cards, 1 being dated March 20, 1943, 9 dated March 22. 1943, and 1 dated March 2:3, 1943, of which 8 appeal to bear genuine original signatures of persons whose names appear upon the Company's pay roll of March 20, 194, This latter pay roll was introduced in evidence and contains 24 nama:s of employees Nsithm the unit claimed appropr late Local 5 reties upon its closed-shop contract'as sufficiently establishing its interest At the hearing Local 5 offered in evidence a statement signed by a number of em- ploNees puipotti ng to repudiate their signatures -to the authorization and application caida above mentioned The Trial Examiner rejected this pioflered evidence upon the around that at the hearing the petitioner (lid not request ceitification but onl.N an election ilis ruling is afhnued. ` See .hatter of Atlas' Powdci Company. Zapon Dwrsion and Local 12OS3, National Corn eil of Gas, Co/„e C Chemical IVwteis, 43 N. L. R. B. 757 (Footnotes 3 and 4) ; Mattes of A M.Siskiir and Caiimson Siskin doing business as P II. Siskin d Sons' and Steel 3Vailcirs Ciganizimg Committee (C 1. 0.), 41 N L It B. 187 (Footnotes 2 and 3) ; Matter of H 0 Hill Stores, Inc 1Vaieliou6e and Local 2-; International Long- choremen's and Warehousemen's Union affiliated with the C. 1 0., 39 N. L. It. B. 874 (Footnote 2). 860 ' DECZSiIONS -OF NATIONAL LABOR RELATIONS BOARD shochtim, 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. 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 Relatipns Act, :and pursuant-to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTFD that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Joseph N. Blum- berg, doing business as D. Blumberg & Son, New York City, an elec- tion 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 Board, and subject to Afticle 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 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 shave since quit or been discharged for cause, to determine whether they desire to be represented by Packing- house Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, or by Local 5, Packing House Workers Union of the Amalgamated Meat- Cutters & Butcher Workmen of North America, affiliated with the American Federation of'Labor, for the purposes of collective bargaining, or by neither.