A. Sartorius & Co., Inc.

In the Matter of A. SARTORIUS & CO., INC. and UNITED MINE WORKERS OF AMERICA, DISTRICT 50, LOCAL 12090 Case No. R-995.-Decided October 4, 1938 Cosmetics 'Manufacturing Industry-Investigation of Representatives : contro- versy concerning representation of employees : controversy concerning appro- priate unit ; doubt as to the representation of a majority-Strike-Unit Appro- priate for Collective Bargaining: production and maintenance employees and shipping clerks, excluding supervisory and clerical employees-Election Ordered Mr. Will Maslow, for the Board. Mr. Samuel M. Birnbaum, of New York City, for the Company. Mr. Herman Edelsberg, of New York City, for the Union. Mr. Edwin L. Swope, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 28, 1938, United Mine Workers of America, District 50, Local 12090, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of A. Sartorius & Co., Inc., New York City, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 25, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On August 4, 1938, the Regional Director issued a notice of hearing and on August 12, 1938, issued an amended notice of hearing, copies of both of which were duly served upon the Company and the Union. Pursuant to notice a hearing was held on August 18, 1938, at New York City, before W. M. Hepburn, the Trial Examiner duly desig- nated by the Board. The Board, the Company, and the Union were 9 N. L. R. B., No. 7. 19 134068-39-vol. ix-3 20 NATIONAL LABOR RELATIONS BOARD represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the, admission of evidence. The Board has reviewed these rulings and finds that-no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY A. Sartorius & Co., Inc., was incorporated in 1915 under the laws of the State of New York and maintains its principal place of busi- ness in New York City. It is engaged in the manufacture and prepa- ration for sale of cosmetics such as nail polish and its accessories. Approximately 75 per cent of the raw materials used by the Com- pany are purchased outside of the State of New York and trans- ported to its factory in New York City. Approximately 60 per cent of the finished products manufactured by the Company are sold and shipped to points outside of the State of New York. The annual vol- ume of business which the Company does amounts to approximately $300,000. H. THE ORGANIZATION INVOLVED United Mine Workers of America, District 50, Local 12090, is a labor organization affiliated with the Committee for Industrial Organ- ization, admitting to membership all persons except supervisory and clerical employees in New York City employed in the manufacture and preparation for sale of cosmetics. III. THE QUESTION CONCERNING REPRESENTATION On June 27, 1938, and on at least two occasions thereafter confer- ences took place between the Union and the Company. On each oc- casion, the Union stated that it represented a majority of the Com- pany's employees and demanded recognition as the exclusive repre- sentative of all the Company's employees, but the Company refused to grant it such recognition. The Union and the Company finally decided that the Board should determine-if the Union represented a majority of the Company's employees. We find that a question has arisen concerning. the representation of employees of the Company. DECISIONS AND ORDERS 21 IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union contends that the appropriate bargaining unit should include all production and maintenance employees and shipping clerks of the Company, excluding clerical and supervisory employees. The Company contends that the appropriate bargaining unit should also include the clerical employees, but at the hearing it introduced no evidence in support of this contention. None of the clerical em- ployees are members of the Union or eligible for membership therein. It has been our usual practice not to include clerical employees in a unit composed of production and maintenance employees in the ab- sence of a convincing showing as to the propriety of such a unit. Accordingly, we will exclude the clerical employees from the unit. The Union contends that the appropriate unit should consist of all the production and maintenance employees and shipping clerks of the Company. On the Company's pay roll for June 24, 1938, there were listed 30 such employees. The Company contends that certain em- ployees whose names appeared on that pay roll had only been employed by it for a short period of time and therefore should be considered to be temporary employees and not -included in the unit or counted by the Board in determining whether an exclusive representative has been designated by the employees in the unit. The only difference between permanent and temporary employees is that those who have worked for the Company over a long period of time are considered to be permanent while those who have worked only a short period of time are considered to be temporary employees. Most of the employees of the Company work irregularly and inter- mittently. When work is slack due to lack of orders, employees are laid off without regard to seniority, and when orders increase, they are returned to their jobs. We are of the opinion that temporary employees should not be excluded from the unit merely because they have been with the Company for a shorter period of time than the other employees, as there is nothing in the record to show that they do not have the same interest in working conditions in the Company's plant as the other employees. 22 NATIONAL LABOR RELATIONS BOARD We find that all the production and maintenance employees and shipping clerks of the Company, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES There was read into the record at the hearing a list of the employees of the Company as of June 24,1938. Of the 35 employees whose names appear on this list, 30 were in the appropriate unit. It was agreed by the Union and the Company that the pay roll of June 30 is identical with that of June 24. The Union urged that the pay-roll list for either June 24 or June 30 be used as a basis for the determination of the question concerning representation. The Company did not object to using these lists for that purpose, but did object to counting as employees in the appropriate unit as of June 24 or June 30, 1938, certain employees who had been in its employ for only a short period of time prior to those dates. We have already disposed of this objec- tion in Section V above, where we found that temporary employees are included in the appropriate unit. The Union introduced in evidence 19 membership application cards. The Company does not question the genuineness of the signatures on the cards. A comparison of the cards with the Company's list of employees as of June 24, 1938, shows that the 19 employees whose names appear on the cards were employed within the appropriate unit on that date. The record also shows that on July 14, 1938, only 17 of the employees in the appropriate unit on June 24, 1938, were working, the remainder were apparently laid off due to lack of orders. On July 18, 1938, a strike of the employees of the Company was called by the Union. It was still continuing at the time of the hearing. All except five employees, including one union member, went out on strike. In the next few days after the commencement of the strike, some of the striking employees returned to work and the Company also employed six new employees, so that on July 21, 1938, there were 17 employees in the appropriate unit who were actually working. Of these 17, 11 had been working as employees in the appropriate unit on June 24, 1938. There is nothing in the record to show that the remain- ing 19 employees who were in the unit on June 24, 1938, will not be returned to work when orders increase or when the strike ends. Since the employees who were out on the strike which was current at the time of the hearing have continued to be employees of the Company within the meaning of Section 2 (3) of the Act, they must be counted as employees in the appropriate unit. On July 21, 1938, adding the DECISIONS AND ORDERS 23 six new employees hired during the strike to the 30 who were in the unit before and during the strike, there were 36 employees in the appropriate unit. One of the 19 employees who signed union member- ship cards continued to work during the strike. This may indicate that this employee has revoked his prior authorization to the Union to represent him for the purposes of collective bargaining. Excluding this card, it appears that of the 36 employees in 'the appropriate unit on July 21, 1938, 18 desired to be represented by the Union. The record also shows that some strikers returned to work during the strike, but does not show whether or not they were union members. Under these circumstances we find that the question concerning repre- sentation which has arisen can best be resolved by the holding of an election by secret ballot, and we will so direct. Those eligible to vote shall be the 30 employees who were in the appropriate unit during the pay-roll period next preceding June 24, 1938, and the employees who were in the appropriate unit during the pay-roll period next preced- ing August 18, 1938, the date of the hearing. CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of A. Sartorius & Co., Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the production and maintenance employees and shipping clerks of the Company, excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with A. Sartorius & Co., Inc., New York City, an election by secret ballot shall be conducted within ten (10) days from the date of this Direction under the supervision and direction of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the production and maintenance employees and shipping clerks who were employed by the Company during the pay-roll period next preceding June 24, 1938, and those who were 24 NATIONAL LABOR RELATIONS BOARD employed during the pay-roll period next preceding the date of the hearing, August 18, 1938, but excluding clerical and supervisory em- ployees, and those who have quit or been discharged since June 24, 1938, to determine whether or not they desire to be represented by United Mine Workers of America, District 50, Local 12090, affiliated with the Committee for Industrial Organization, for the purposes of collective bargaining. MR. DONALD WAR ELD SMITH took no part in the consideration of the above Decision and Direction of Election. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION October 13, 1938 On October 4, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Direction of Election provided that "an election by secret ballot shall be conducted within ten (10) days from the date of this Direction under the supervision and direction of the Regional Director for the Second Region." On October 8, 1938, the petitioning union, United Mine Workers of America, Dis- trict 50, Local 12090, requested the Board for a further hearing on certain issues in the proceeding. Pending the determination of this request the Board will postpone the election. The Board hereby amends its Direction of Election by striking out the words "within ten (10) days from the date of this Direction" and substituting therefor the words "at such time as the Board may in the future direct." MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Amendment to Direction of Election. 9 N. L. R. B., No. 7a.