National Silver Co.

In the Matter of NATIONAL SILVER COMPANY, EMPLOYER and METAL POLISHERS, BUFFERS , PLATERS & HELPERS INTERNATIONAL UNION, A. F. L., PETITIONER In the Matter' of NATIONAL SILVER COMPANY, EMPLOYER and NATIONAL LABOR BARGAINING AGENCY , PETITIONER In the Matter of NATIONAL SILVER COMPANY , EMPLOYER and NATIONAL LABOR BARGAINING AGENCY and METAL POLISHERS, BUFFERS, PLATERS AND HELPERS INTERNATIONAL UNION , LOCAL 8, A. F. L. and METAL PRODUCTION & NOVELTY WORKERS UNION, LOCAL 28-A, A. F. L., PETITIONERS Cases Nos.2-R-6652,2-R-6718, and 2-RE-88, respectively.Decided November 5, 1946 Mr. L. L. Balleisen, of New York City, and Mr. Stanley Lipman, of Brooklyn, N. Y., for the Employer. Mr. Jerome Y. Sturm, of, New York City, for the Metal Polishers. Mr. Angelo Perruccio, of Brooklyn, N. Y., for the Agency. Messrs. Harold Stern and John K. Lapham, both of New York City, for the IBEW. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon petitions duly filed and consolidated, the National Labor Relations Board on June 28, 1946, conducted a prehearing election pursuant to Section 203.49 of the Board's Rules and Regulations, Series 4, among employees of the Employer in the alleged appro- priate unit, to determine whether they desired to be represented by the Metal Polishers, or by the Agency, for the purposes of collective bargaining, or by neither.' At the close of the election, a Tally of Ballots was furnished the parties. The Tally shows that there were approximately 320 eligible voters, of whom 137 voted for the Metal Polishers, 113 voted for the I The IBEW did not indicate its interest in the election until June 27, 1946, one day prior to the election, and therefore did not appear on the ballot. 71 N. L. R. B., No. 87. 594 NATIONAL SILVER COMPANY 595 Agency, 4 voted against both organizations, and 20 voted under challenge. Thereafter, pursuant to Section 203.55 of the Rules and Regula- tions, a hearing was held at New York City on July 25 and 26, 1946, before Vincent M. Rotolo, hearing officer. The hearing officer's rul- ings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : • FINDINGS of FACT I. THE BUSINESS OF THE EMPLOYER National Silver Company is a New York corporation having its principal office in New York City. It operates factories in Brook- lyn, New York, and Taunton, Massachusetts, where it manufactures cutlery, giftware, and silver plate. Only the Brooklyn factory is involved in this proceeding. During the period from June 1, 1945, to June 1, 1946, the Employer purchased for its Brooklyn factory raw materials valued in excess of $250,000, approximately 75 percent of which was shipped to this factory from points outside the State of New York. During the same period, it sold finished products valued in excess of $500,000, approximately 75 percent of which was shipped to points outside the State. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Metal Polishers, Buffers, Platers & Helpers International Union, herein called the Metal Polishers, is a labor organization affiliated with the American Federation of Labor, claiming to represent em- ployees of the Employer. National Labor Bargaining Agency, herein called the Agency, is an unaffiliated labor organization, claiming to represent employees of the Employer. International Brotherhood of Electrical Workers, Local Union No. 3, herein called the IBEW, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize either the Metal Polishers or the IBEW as the exclusive bargaining representative of employees 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Employer until either or both of them have been certified by the Board in an appropriate unit or units. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES A. The challenged ballots (1) The electricians Prior to the election, the Employer, the Agency and the Metal Polishers agreed that a unit of production and maintenance em- ployees, excluding timekeepers, inspectors, office and clerical em- ployees, salesmen, foremen and supervisors was appropriate. On June 27, 1946, the day before the election, the IBEW sent a telegram to the Board asserting that it represented the electricians employed by the Employer and objecting to their inclusion in the production and maintenance unit. Three electricians voted in the election, but their votes were challenged by the Board's agent, in view of the IBEW's telegram. At the post-election hearing, the IBEW intervened to request that the electricians be established as a separate unit apart from the production and maintenance employees. Neither the Metal Polishers nor the Agency opposes the creation of such a unit if the electricians desire it. The Employer, however, contends that the electricians should be included in the production and maintenance unit. The Employer employs three electricians who perform customary skilled electrical maintenance work upon machinery, under the super- vision of the maintenance department foreman. We have many times held that electricians similar to those involved in this proceeding comprise a distinct craft group and may be represented in either a craft unit or in a production and maintenance unit, depending upon their desires as expressed in an election.2 The Employer argues that the electricians have been bargained for as part of the production and maintenance unit for many years and should not now be sep- arated in a distinct unit. However, this bargaining history between the Employer and the Agency has been on an informal basis; it was never embodied in a written contract. This kind of informal history is not sufficient to preclude the establishment of a craft unit at this 2 Matter of United States Potash Company (N. S. L.), 63 N. L. R. B. 1379 ; Matter of American Cyanamid & Chemical Corporation, 62 N. L. R. B. 925; Matter of Remington Rand, Inc., Propeller Division, 62 N. L. R. B. 1419; Matter of Illinois Division, Bendier Aviation Corporation, 61 N. L. R. B. 993; Matter of American Can Company, 61 N. L R. B. 1631 ; Matter of Guaberson Corporation, 59 N. L. R B. 1091; Matter of Richfield Oil Corporation, 59 N. L. R. B. 1554. NATIONAL SILVER COMPANY 597 time.3 Moreover, there is a serious question as to whether the elec- tricians were ever actually represented by the Agency' Accordingly, we find no obstacle to a present self-determination election among the electricians. We hereby sustain the challenges to the ballots of the electricians, inasmuch as the IBEW did not appear on the ballot in the election and it is not possible, therefore, to determine whether the electricians desire to be represented in a separate unit or as a part of the production and maintenance unit. We shall direct a new elec- tion among the electricians to ascertain their desires in this respect. (2) Timekeepers and inspectors The ballots of 10 timekeepers and inspectors were challenged by the Board's agent on the ground that they were specifically excluded from the stipulated unit.5 All interested parties have agreed that the challenges to the ballots of the timekeepers and inspectors should be sustained. In accordance with the position of the parties, we hereby sustain the challenges to these ballots. (3) Miscellaneous challenges C. Mar'gzinski and Dominick Ciangi were challenged by the Board's agent because they are classified as assistant foremen. However, all the parties agreed that they have no supervisory authority and are included in the unit. In accordance with the position of the parties, we hereby overrule the challenges to the ballots of these two employees. Pasquale Codispoti was challenged by the Employer on the ground that he had resigned his employment before the eligibility date agreed upon for the election. Hudson Ben Suden was challenged by the Metal Polishers as not being within the unit, inasmuch as he spends the major part of his time as chauffeur for the Employer's executives. Salvatore Greco was challenged as a supervisory employee. All parties agree that these three challenges were well taken and that they should be sustained. In accordance with the position of the parties, we hereby sustain the challenges to the ballots of Pasquale Codispoti, Hudson Ben Suden, and Salvatore Greco. Eugene Kiernan was challenged by the Employer on the ground that he was not an employee at the time of the election. The parties agree, however, that he was an employee and should be permitted to vote. We hereby overrule the challenge to his ballot. 3 See Matter of E. I. Du Pont de Nemours Company, Spruance Works, Rayon Division, 64 N. L R B. 639 ; Matter of Corn Products Refining Company, 52 N. L. R. B. 1324. 4 The Agency 's chairman stated at the hearing : "I do not know whether I represented them or not. I was under the understanding that they were in their own Union, that they had their own Union." & A separate petition has been filed covering timekeepers and inspectors Pursuant to that petition , we have found that these employees constitute a separate appropriate unit, and have directed that an election be held among them. Matter of National Silver Company, 71 N. L. R. B. 303. 598 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ethel Nichols was challenged by the Board's agent, inasmuch as her name did not appear on the eligibility list furnished by the Employer. The Employer alleges that she terminated her employment before the election. The evidence indicates that Mrs. Nichols had worked for the Employer for 2 months before May 11, 1946. On that date her husband, who was also an employee of the Employer, was injured in the course of his employment. Mrs. Nichols thereupon left her work in order to care for her husband. She returned to work for a day and a half in the early part of July, after the election, but then had to leave again because of her husband's condition. While'there was some evidence that she had secured a temporary leave of absence, the records of the Employer indicate that she was not given a leave of absence, but had resigned her employment on May 11, 1946. We are satisfied that Mrs. Nichols had resigned her employment before the election. Accordingly we hereby sustain the challenge to her ballot. Inasmuch as we have sustained the challenges to 17 of the 20 chal- lenged ballots, the remaining 3 impounded ballots, the challenges to which we have overruled, cannot affect the outcome of the election. Accordingly, we shall not direct that these 3 ballots be opened and counted. B. The voting groups As we have indicated previously, the electricians may either be in- cluded in the production and maintenance unit or may be established in a separate unit, depending upon their desires as expressed in the elec- tion directed hereinafter. The outcome of the prehearing election shows that the Metal Polishers has been selected as bargaining agent for the following group : All production and maintenance employees of the Employer at its Brooklyn plant, excluding timekeepers, inspectors, electricians, office and clerical employees, chauffeurs, foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recom- mend such action. We shall direct an election among all electricians employed by the Employer at its Brooklyn plant, excluding all supervisors with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. We shall make no unit determination pending the outcome of the election among the electricians. If they select the Metal Polishers, they will have indicated their desire to be included in the production and maintenance unit; if they select either of the other unions, they will have indicated their desire to be established as a separate unit. NATIONAL SILVER COMPANY 599 C. The employer's objection to the election The Employer has filed detailed Objections to the Conduct of the Election. The Employer asserts that the election was invalid because it was held during a strike. The record reveals that approximately one-half the Employer's employees went out on strike on or about June 6, 1946,6 and were still on strike at the time of the election. We deem the Employer's contention to be without merit. We do not be- lieve that this election should be set aside because it was conducted while a work stoppage was in progress. I note that Member Reynolds expresses a doubt as to the propriety of conducting an election in cases in which a strike has been undertaken by one contesting labor organization to secure recognition from an em- ployer. The wisdom, or lack of it, displayed by the striking labor organization is not for this Board to weigh. Section 13 of the Act guarantees that nothing in the Statute shall diminish the right to strike-and this includes a strike for recognition as well as for other purposes.7 Our concern therefore lies with giving positive effectua- tion to the Congressional intent to minimize the effects of such a strike. The statutory method of doing so, the one Congress indicated that this Board should use, lies in extending the use of our election facilities. Withholding our processes constitutes a negation of the Congressional policy. Chairman Herzog, in his concurring opinion, indicates some hesi- tancy with regard to the applicability here of our reasoning in the Columbia Pictures case, but the situation there approximates the factual context in the present case so closely that any attempted distinction can result only in the abandonment of whatever value as precedent our decisions may carry. The Employer further contests the validity of the election on the ground that it challenged the ballots of 147 striking employees and that these challenged ballots were commingled with other ballots and counted as valid. On June 6, 1946, the Employer sent to all absent employees a letter urging them to return to work and stating that if they failed to report for work on June 10, 1946, it would con- The cause of the strike was the Employer's refusal to recognize the Metal Polishers as the exclusive bargaining representative of the emplk ces. See Matter of Columbia Pictures Corporation, 64 N. L. R. B. 490, at page 514, in which a majority of the Board ( Chairman Herzog and Member Houston ) pointed out , in passing on the eligibility to vote of strikers who had engaged in a work stoppage to compel recognition during the pendency of a representation proceeding- We find nothing in the Act, its legislative history, or in the court decisions there- under, which points to the conclusion that the strikers ' conduct herein removes them from the ambit of the Act. On the contrary, the language of the Act and the deci- sions of the Board and the courts make plain that a strike of this character-to obtain recognition and collective bargaining-is within the "concerted activities" contemplated therein and cannot render strikers vulnerable to loss of their status as "employees" because this is their purpose. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cider their employment terminated. This letter was followed on June 10 by another letter, somewhat similar in tenor. On June 28, before the election, the Employer submitted to the Board's agent a list of 147 striking workers whose ballots it desired to challenge on the ground that they were no longer employees. Despite the Em- ployer's request, the ballots of those striking employees who voted were commingled with the ballots of non-striking employees, and were coutited as valid ballots. It is beyond question that the 147 employees listed by the Em- ployer were employees whose work had ceased as a consequence of, or in connection with, a then current labor dispute. The balloting took place within 3 weeks of the time the strike was called and while the strike was still in progress; it was unquestionably "current." Thus, the strikers remained employees of the Employer within the meaning of Section 2 (3) of the Act, during the period of the strike, and were entitled to vote in the election." Inasmuch as the strikers rightfully voted, no practical harm was done by the failure to segre- gate their ballots. Regardless of the fact that it could not have affected our action on the merits herein, we believe that it would have been far better practice had the Regional Office accepted challenges from the Employer. The Employer further objects to the conduct of the election on the ground that 21 employees did not receive notices of the election through the mails. It appears that the Regional Director posted notices of the election in the Employer's plant. In addition, he mailed individual notices of the election to each of the striking em- ployees. Mailing addresses for this purpose were furnished to the Regional Director by the Employer. However, some of the addresses were incorrect and, as a result, 21 of the notices mailed were returned by the post office marked "address unknown." No blame can be attached to the Regional Director for the return of these 21 notices. It is important to note, moreover, that individually mailed notices of election are not required where notices of election have been prominently displayed in the plant. We believe that the Regional Director took all reasonable steps necessary to apprise both striking and non-striking employees of the elections In this connection, it should be noted that more than 85 percent of the eligible voters appeared at the election and cast ballots. This indicates that knowl- edge of the election was widespread among both striking and non- striking employees. The final objection of the Employer involves 18 strikers among the 147 names submitted to the Regional Director for challenging. 8 See Matter of The Rudolph Wurlitzer Company, 32 N. L. R. B. 163; Matter of Columbia Pictures Corporation, 61 N L. R. B. 1030, and 64 N. L R. B 490. 9 There was some indication at the hearing that some of these 21 employees did vote. NATIONAL SILVER COMPANY 601 The Employer insists that these employees had terminated their employment prior to the election as indicated by the fact that they did not return to work after the settlement of the strike. It con- tends, therefore, that these 18 individuals were ineligible to vote. Included in this group of 18 are Ethel Nichols and Pasquale Codispoti, whose votes we have refused to count. The remaining 16 ballots are riot sufficient in number to affect the results of the elec- tion 10 We find that the failure to segregate the ballots of these 16 employees was not prejudicial. We find the Employer's Objections to the Conduct of the Election to be without merit. Accordingly, they are hereby overruled. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with National Silver Company, 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 Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regula- tions-Series 4, among all electricians employed by the Employer at its Brooklyn, New York, plant, 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 those em- ployees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, to determine whether they desire to be represented by Metal Polishers, Buffers, Platers & Helpers International Union, A. F. L., or by National Labor Bargaining Agency, or by International Brotherhood of Electrical Workers, 30 As noted above, the Tally of Ballots shows that the Metal Polishers received 137 votes ; the Agency received 113 votes ; 4 votes were cast against both organizations ; and 20 ballots were challenged . We have overruled 3 of the challenges herein and sustained 17. Thus, of 257 valid ballots , the Metal Polishers has received 137 votes . Even assuming the conditions most favorable to the Employer 's contention (that the 10 employees in question were ineligible , that despite this fact they voted , and that all their ballots were cast for the Metal Polishers), the Metal Polisheis would then have received 121 votes of a total of 241 valid ballots, which is still a majority. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 3, AFL, for the purposes of collective bargaining, or by none of them. MR. JAMES J. REYNOLDS , Jn., concurring specially : It is with considerable hesitation that I join my colleagues in over- ruling the Employer's Objections to the Conduct of the Election. I do so, however, because of a conviction that the results which we are thereby approving convincingly represent an accurate expression of the collective bargaining desires of the majority of the employees involved. A searching scrutiny of the objections, which in my opinion are not lacking in considerable merit, lead to no other conclusion. . While there were circumstances present which I believe to be in con- flict with a proper concept of orderly procedure under the Act, the fact is that a substantial number (274) of those declared eligible to vote (320) did so. While the employee status of some 147 strikers, in my opinion, was in doubt as of the date of the election , the subsequent reinstatement of 129 of this group compels the practical conclusion that at least those reinstated were in fact employees immediately prior to and subsequent to the strike and are therefore entitled to a voice in the choice of a bargaining representative. No matter how one con- siders the votes of the remaining 18 non-returning strikers , if indeed they voted which is questionable, the Metal Polishers still maintains its position as majority choice of a determinative number of bona fide pre- and post-strike employees . This conclusion is not seriously chal- lenged by a consideration of the claim that because some 21 strikers did not receive notice of election they were thereby deprived of an opportunity to exercise the franchise . It seems reasonable to assume that since the strike was aimed to compel recognition of the Metal Polishers , those employees participating in the strike would not likely lack notice that an election was being conducted. It is because of these considerations that as a practical matter of administration I reluctantly join in overruling the objections of the Employer. Insofar as the instant case is concerned , I do not believe any useful purpose would be served by doing otherwise. However, with all possible vigor I desire to dispel any implication that my concurrence denotes approval of certain circumstances sur- rounding the conduct of this election. I refer particularly to the questionable propriety of conducting a collective bargaining election in the face of strike action on the part of a substantial number of em- ployees who, 3 days subsequent to the filing of a petition for the resolution of a multiple -union recognition dispute, elected to resort to economic pressure in an attempt to accomplish that recognition which they were already seeking through the orderly procedures established under the Act. By so doing, they were attempting to compel, on the part of the Employer, exclusive recognition which, if extended in the NATIONAL SILVER COMPANY 603 face of the conflicting claim of the Agency, would have constituted a violation of the Act as prescribed by the decisions of this Board." Confronted by such conduct, I believe it would have been entirely consistent with the fundamental purposes of the Act for the Board's agents to have withheld the utilization of the Board's election ma- chinery until such time as the normal work schedules were resumed. This Board has consistently protected the fundamental right of workers to engage in economic strikes, but I fail to see how it can ex- tend its protection and assistance to strikers who seek by force the commission of illegal acts on the part of employers. The Board's election machinery is available for the orderly resolution of represen- tation disputes and within the limitation of Congressional appropria- tions it should continue to guard the right of labor to organize. How- ever, in the fulfillment of that duty it has the right to expect a fair measure of self-discipline and respect for its processes from those whose interests it seeks to protect. While, as the majority opinion points out, Section 13 of the Act leaves the right to strike undiminished, I do not agree that the Act in its entirety forecloses its administration by the Board in such a manner as to discourage strikes seeking to destroy orderly compliance with the Act's requirement that an em- ployer shall bargain with the representative of its employees but with no other. PAUL M. HERZOG, CHAIRMAN, concurring : I agree with the result in this case, which is evidently acceptable to both my colleagues. With great respect to both, I see no occasion to join either in what I deem an unnecessary debate concerning the applicability or non-applicability of the doctrines enunciated in the Midwest Piping 12 and Columbia Pictures 13 cases. The theory of the former case has undergone such full development 14 in the 12 months that have elapsed since the latter case was decided that it is not im- possible that an appropriate record will reveal that Columbia Pic- tures, however sound where we must pass ex post facto on challenges, should not always impel the Board to exercise its discretion to pro- ceed to an election when, after the only petitioner has invoked this Board's jurisdiction, it turns rapidly to self-help for the sole pur- pose of compelling recognition at the very time when the employer could not (under Midwest Piping and the decisions that have fol- lowed) lawfully grant that recognition. That issue must be decided in the future on a case-to-case basis, and I therefore prefer not to 11 Matter of Midwest Piping and Supply Co., Inc., 63 N. L. It. B. 1060. u 63 N. L. It. B. 1060. 13 64 N. L It. B. 490. 14 See, for example , Matter of Bercut Richards Company, 65 N. L It. B 1052; Matter of Flotill Products, Inc., 70 N. L. R. B. 119, and Matter of G. W. Hume Company, decided Oct. 31, 1946 (71 N L It. B 533). 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD express a definitive view on this particular record, which appears -not to require it. It is clear that, for a number of reasons, the Em- ployer and the Agency here are in no position to raise the question of the Board's wisdom in running an election , one reason being that they filed cross petitions themselves between the time the strike was called and the election was conducted.