B. F. Hirsch, Inc.

In the Matter of B. F . HIRSCH, INC. and AMALGAMATED LOCAL 259, UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORK- ERS OF AMERICA, CIO Case No. R-5637 (9-R-39616).-Decided July 4, 1944 Mr. Martin Rose, for the Board. Mr. Simon Gross, of New York City, for the Company. Mr. Alexander E. Racolin, of New York City, for the Amalgamated. Mr. N. H. Janes, of New York City, for the International. Mr. Henry L. Sperling, of New York City, for the Association. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Amalgamated Local 259,. United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, herein called the Amalgamated, alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of B. F. Hirsch, Inc.,' New York City, herein called the, Company, the National Labor Relations Board provided for an appro- priate hearing upon due notice before Robert N. Denham, Trial Examiner. Said hearing was held at New York City on July 7, 1943. The Company, the Amalgamated, and International Jewelry Workers Union, A. F. of L.; herein called the International, appeared ' On April 19, 1943, the Amalgamated filed a petition alleging that a question affecting commerce had arisen concerning the representation of employees of B. F Hirsch, Inc. On May 7, 1943, during a conference at the Regional Office of the Board, the Amalgamated was advised by a representative of B. F. Hirsch, Inc., that the employees involved in this proceeding were the employees of Milton Rosenberg, Arthur Rosenberg, Benjamin Levinson, and Florence Low, doing business as a partnership under the trade name and style of Mel- rose Manufacturing Co Thereupon, the Amalgamated filed its amended petition on June 1, 1943, setting forth the name of the employer as Melrose Manufacturing Co. The record indicates, however, that the formation of such a partnership, though contemplated, was never consummated, and that the employer has at all times been B. F Hirsch, Inc. At the hearing, counsel for B F Hirsch, Inc., filed a motion to substitute as the employer the name B F. Hirsch, Inc., for the name Melrose Manufacturing Co. The Trial Examiner reserved ruling for the Board. The motion is hereby granted. 57 N. L. R B., No. 10. , 59 0 '60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'All parties were afforded full opportunity to be and participated. 2 heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing ul1on-the issues, and to file briefs with the Board. Upon the basis of the evidence adduced at said hearing, the Board found that an alleged collective bargaining contract between the Association' and the International and the International's Local No. 1, a copy of which was introduced into evidence -NNwithout objection, constituted a bar to, a determination of representatives with respect to the Company's employees whom the Amalgamated sought to rep- z'esent; pursuant to these findings of fact, the Board, on 4iigust 13, 1943, issued a Decision and Order in this proceeding dismissing the Amalgamated's petition.3 On or about March 21, 1944, the Amal- gamated moved to reopen the' record for the purpose of submitting ,certain newly discovered evidence pertinent to the issues. Upon the allegations made by the Anialgainated in support of its motion and' the-answering ,affidavit filed by the International in opposition to the granting of said motion, the Board, on April 11, 1944, issued an order directing that the record be reopened and a hearing be held on the issues raised by the motion of the Amalgamated. Pursuant to the aforesaidorder, a further hearing upon due notice was held at New ork City on May 18, 1944, before Robert N. Denham, Trial Exam- Y The Company,, the Amalgamated, and the International appeared and participated.4 All' parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, to intro- duce evidence bearing upon the issues in the reopened hearing, and to file briefs with the Board. The Trial Examiner's rulings niacle ' at the hearings are free from prejudicial error and are hereby affirmed. After reconsidering the case in the light of the evidence adduced at both hearings, the Board hereby orders the aforesaid Decision and Order vacated, and upon the entire record in the case, makes the following : - FINDINGS OF FACT' I. 1HE BUSINESS OF TIIE COMPANY B. F. Hirsch, Inc. is a New York corporation having its principal place of business at 304 East• 45th Street, New York City, where it is engaged in the manufacture of jewelry. During November 1942, the Company leased space at 175 Varick Street, New York City, where it is engaged in the manufacture, sale, and distribution of, parts for air- 2 Jewwehy Crafts Association, herein called the Association, an association of jewelry manufactureis doing business within the New York City area, of which the Company is a member, appeared at the hearing and was afforded full opportunity to be heard ; however, it did not participate in the hearing 3 Matter of B F Hirsch, Inc., 51 N L R. B 1269 4 The Association appeared but did not participate in the reopened hearing 0 B. F. HIRSCH, INC. 61- planes. The Varick Street plant is the only plant involved in this, proceeding. From about November 1942 to July 1943, the Company purchased materials, - consisting principally of copper metals and alloys, valued in-excess of $10,000, of which approximately 75 percent was shipped to the Vanck Street plant from points outside the State of New York. During the ,same period, the Company manufactured finished products, valued in excess of $10,000, of which approximately 75 percent was shipped from that plant to points outside the State of New York. The Company admits, and we find, that it is engaged in commerce at the Varick Street plant, within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Amalgamated Local 259, United Automobile, Aircraft & Agricul- tural Implement Workers of America, is t labor organization affiliated with, the, Congress of Industrial Organizations, admitting to member- ship employees of the Company. International Jewelry Workers Union is a labor organization af- filiated with the Aniericail Federation of Labor, admitting to member- ship employees of the Company. 111. THE QUESTION CONCERNING REPRESENTATION The Amalgamated has requested the Company to bargain with it as the exclusive. representative of certain employees in the Company's Varick Street plant, the only plant,at which the Company is engaged in war work. The Company has refused on the ground that the present contract between the International and the Association, of which the Company is a member, constitutes a bar at this time to a determination of representatives. The Association was organized in,1933, and admits to membership persons, firms, or corporations engaged in the jewelry manufacturing business within the limits of the New York City metropolitan district. From 1933 to the present date, collective bargaining on an Association- wide basis has taken, place between the Association and the Interna- tional.' In 1933 the Association, on behalf of its members, and the International and its Local 1, executed the first collective bargaining contract. Six successive agreements have been executed. The parties to the contracts have always been the Association on the one hand, and the International and its Local 1 on the other.5 The last contract, which is still operative, is dated February 19, 1943, and, by its terms, is to remain in effect until February 1, 1945, and from year to year -thereafter in the absence of written notice'by either party to the other- As a member of the Association the Company has ratified all agreements. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of intention to terminate or amend given at least 30 days prior to February 1, 1945, or any subsequent anniversary date-.11 At the time the current contract was negotiated, some of the inem- bers of the Association, including the Company, had converted all or a part of their manufacturing operations from the production of jewelry to ^var production 7 and, 'as a result, provisions concerning "war workers" as distinguished from "jewelry workers" were embodied in the contract, under Section 31 thereof. The contract contains a union-shop provision which, however, is applicable only to employees engaged in the manufacture of jewelry. , Paragraph (g) of Section 31 states, It is distinctly understood that 'members of the Association may, without restrictions, hire and retain in their employ workers engaged exclusively for war work, whether such workers have Union affiliations or not." This section also provides that "All the workers who are at present members of the International Jewelry Workers Union, Local No. 1, who should be transferred to perform war work, shall remain members in good standing of the International Jewelry Workers Union, Local No. 1." s The record discloses that Local 1 was in the process of negotiating a contract with Associate Jewelers, Inc., at the same time it was nego- tiating its present agreement with the Association. As noted in foot- note 6, supra, these two contracts, as finally executed, were- identical except for the omission from the agreement with the Association of paragraph J of Section 31 of the contract with the Associate Jewelers, Inc. - According to the credible testimony of Andrew Leredu, presi- dent of Local 1, a participant in the negotiations leading up to the execution of the contract with the Association, Local 1 urged the inclusion of a similar provision in this contract, but the Association refused, taking the position that in the performance of war work the member companies might have to employ persons who were members O The parties stipulated that the document intr-duced into evidence at the original hearing was not a true and correct copy of the last contract between the Association and the International, but that the above -described contract is the only bargaining contract pertinent to the issues in this proceeding It appears that the printed document introduced into evidence at the original hearing is a consolidation of two separate agreements exe- cuted jointly by Local 1 and the International as one party , one with Associate Jewelers, Inc., an association of the smaller downtown New York City jewelry manufacturing firms, and the other with the Association . The Company is a member of the Association only. It - also appeals that Local 1rprinted a consolidation of the two agieenients in booklet form for the use of its members . The provisions of the two agreements are identical except that paragraph J under Section 31, which Section is entitled "war workers," in the contract with Associate Jewelers , Inc. reading , "The Union shall be and is hereby recognized as the sole and exclusi%e bargaining agent for all employees of the employer firm except of non- producing employees ," does not appear in the contiact with the Association ° In the case of the Company, as noted above , the Varick Street plant is utilized for all its war work. 8 Fiom the record , it appears th4t of the 350 employees at the Varick Street plant, ap- proximately 20 weie transferred from the Company's 45th Street plant . Section 31 of the contract expressly provides that such employees shall not be deprived of-their employment status and shall be reinstated to their former positions at the end of the "emergency" or when there "should be a lack of war work for them to do " B. F. HIRSCH, INC. - 63 of or affiliated with unions other than Local 1 or the International and such persons might not choose to be represented by the contracting union. As Leredu further testified, this resulted in the agreement being drafted and executed without the provision giving the contract- ing union exclusive representation of the war workers employed by the members of the Association. It appears that when the Association refused to incorporate the over-all exclusive representation provision in the contract , Local .1 abandoned its attempt to obtain such exclusive representation over war workers employed by the members of the Association and, de- termined to proceed by the usual organizational methods. Local 1 thereafter obtained signed authorization cards for approximately 50 percent of the employees then engaged in the Varick Street plant and negotiated with the Company for the establishment of a wage scale at this plant. While these negotiation's were progressing, employment in the,plant increased considerably and, by the time a tentative agree- ment had been reached with the Company, employment at the plant had almost doubled. Local 1 thereafter submitted a tentative wage scale agreement to the employees at the Varick Street plant, but this, agreement was rejected by then. Further negotiations between Local 1 and the Company continued until the latter part of March 1943, at which time a final proposed scale of wages was submitted by Local 1 to the Varick Street plant employees . At this meeting not only was the wage scale proposed by Local 1 rejected , but the employees also voted to repudiate all representation by Local 1 and to seek collective bargaining representation by some other union which represented crafts more nearly identified with their work. Following this action, Local 1 wrote the Company on March 29, 1943, advising that it had no further interest in the Varick Street plant and claimed no bargain- ing rights with reference to that plant's employees other than those who by virtue of the contractual obligations set forth in the contract of February 19, 1943, were required to continue their membership in Local 1. This action was taken by Local 1 without conferring with and without approval of the International, and thereafter Local 1, although it continued to represent the employees of the Company's .45th Street plant, never discussed with the Company the affairs of the employees at the Varick Street plant. The International contends that , the contract of February 19, 1943, is a bar to ' a determination of representatives since its initial 2-year term has not expired. The Amalgamated argues, however, that inas- much as Local 1 has waived jurisdiction over employees in the Varick Street plant, the contract does not constitute a bar: The Interna- tional, in answer to the Amalgamated's argument , contends that Local 1 is prohibited from waiving jurisdiction over those employees by the '64 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD International's constitution which provides that "No local union shall sign a contract or working agreement covering wages, hours, or gen- eral working conditions unless such agreement is in accordance with this International's laws as determined by a General Officer who shall be a party and signer of the agreement or contract * *." There- fore, as stated in the Decision and Order issued herein on August 13, 1943, we conclude that there'are internal differences between Local 1 and the International which cannot abrogate, whatever /rights the In- ternational, as a party to the contract, may have. In view of all the foregoing facts, however, particularly the ,refusal of the Association to incorporate in the 1943 contract a provision for recognition of the International and Local 1 as the exclusive repre- sentative of all war workers, and the fact that the contract expressly excludes war workers from the union-shop provision, we are of the opinion that, as applicable to the employees of the Varlck Street plant wherein the Company's war work is performed, the contract, which provides that members of Local 1 who are transferred to war Nvork shall remain members in good standing, is in the nature of an agree- ment according recognition to a labor organization as the representa- tive of its members only. This type of bargaining agreement- we invariably find to be no bar to a determination of -representatives.' Accordingly, we find that the contract of February 19, 1943, does not preclude an immediate determination of representatives with respect to the employees in the Company's Varick Street plant. A statement of the Board's, Regional Director, introduced into evi- dence at the original hearing, indicates that the Amalgamated repre- sents a substantial number of employees within the unit hereinafter found to be appropriate.10 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 parties agree that the appropriate unit should include produc- tion employees, machinists, tool workers, mold makers , casters, sand blasters, finishers, pattern makers, 'matron , and assistant foremen or 'Hatter of The I77ectrie Auto-Late Company. 40 N L It B 1345), Jfattet of Birmingham Tank Company, Disivion of the Ingalls Iron Works Company'. Inc, 25 N I. R B 1306 '° The Regional Director ieported that the Amalgamated submitted 112 authorization cards bearing the apparently genuine original signatures of persons Mhose names-appear on the Company's pay toll of April 28, 1943, which contains the names of 130 employees in the unit which the Amalgamated alleges to be appropriate At the time of the second heating the Company employed approximately 350.persnis at its Varick Street, plant The original evidence of representation submitted by the Amal- gamated, however, remains substantial even in the face of the expansion of the unit The International relies on its contract with the Association to substantiate its claim of representation - B. F. HIRSCH, INC! 65 leachnen employed at the Company's Varick Street plant, but exclude office employees, chemists, engineers, inspectors, foremen, and man- agerial and executive employees. The lnarties are in dispute with respect to the inclusion or exclusion of a certain maiintenance employee, porter-Inessengers, and shipping, receiving, and stockroom employees. Maintenance employees At the time of the original hearing the Company employed one maintenance employee at its Varick Street plant whose duty it was to service equipment throughout the plant. The Amalgamated and the International desire his inclusion, whereas the Company contends that' he should be excluded. Since this employee appears to perform gen- eral maintenance duties in the plant, we perceive no reason for exclud- ing him from the appropriate unit. The record does not reveal whether the Company has employed any additional n1aintenaiice em- ployees since the original hearing; however, if it has and their duties are similar in nature to those of the above-described employee, they, together with the aforesaid maintenance employee, shall be included in the appropriate unit. Porter-messengers These employees are hourly paid workers earning from 65 to 75. cents an hour. Their duties consist of keeping the plant clean, run- ning errands, and -picking up and delivering ,materials and mail.' They do not engage in production work. The Amalgamated seeks their inclusion. The Company and the International would exclude them. Since they have some connection with the operational func- tions of the plant, it would appear that their interests in matters .of collective bargaining are closely aligned with those of the production employees. We shall, therefore, include the porter-Inessengers in the appropriate unit. Shipping, receiving, and stockroom employees The persons occupying these positions are hourly paid employees working in the plant's stockroom which is housed in a separate room in the plant. They receive all merchandise coming into the plant, store it, maintain records, prepare shipping memoranda which they check against invoices, check all shipments, and prepare metals and materials for use by other departments. They have access to blueprints, price data, and all information concerning orders. The Amalgamated desires their inclusion. The Company desires their G0I248-45-N of 57--G 0 i 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusion because of the alleged confidential nature of their work. The, International agrees with the Company. Since the functions of these employees are primarily connected with production operations-and the information to which they have, access is unrelated to matters per- • taming to the Company's labor relations, we shall include the shipping, receiving, and stockroom employees in the appropriate unit.h1 We find that all production employees employed at the Varick Street plant of the,Company, including machinists, tool'workers,,mold mak- ers, casters, sand blasters, finishers, pattern makers, matron, mainte- nance employees engaged in general maintenance work in the plant, porter messengers, shipping, receiving, and stockroom employees. and assistant foremen or leadmen'12 but excluding office employees, chem- ists, engineers, inspectors, foremen, managerial and executive em- ployees, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing 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 means'of 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 Rela- tions Act, and'pursuant to Article III, Section 9, of National Labor 'Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to ascertain repre- sentatives for the purposes of collective bargaining with B. F. Hirsch, Inc., 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 Re- gional Director for the Second 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-em- ployees in the unit found appropriate in Section IV, above, who 11 Matter of Creamery Package Manufacturing Company, 34 N. L. R. B. 108. 13 It is ,clear from the record that assistant foremen or, leadmen are not supervisory em- ployees within the meaning of our customary definition. a B. F. HIRSCH, INC. 67 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 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 they desire to be represented by Amalgamated Local 259, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, or by International Jewelry Workers Unioii, A. F. of L., for the purposes of collective bargaining, or by neither. 1