H. Margolin & Co., Inc.

Iii the Matter of H. MARGOLIN & CO., INC. and INT'L LADIES HANDBAG, POCKETBOOK & NOVELTY WORKERS' UNION Case No. R-488.-Decided November 14, 1938 Women's Handbag and Pocketbook Manufacturing Industry-Investigation bf Representatives : controversy concerning representation of employees- Contract : no bar to investigation, where period to terminate by giving notice is almost at hand-Unit Appropriate for Collective Bargaining : production em- ployees, exclusive of those engaged only in janitor or clerical work, and those in supervisory capacities ; no controversy as to-Election Ordered Mr. Edward S. Schneider, and Mr. Norman F. Edmonds, for the Board. ' 'Mr_ Samuel M. Salny, of Fitchburg, Mass. , for the Company. Roewer & Reel, by Mr. George E. Roewer and Mr. A. Frank Reel, of- Boston, Mass., for the Union. Mr. Ervin E. Erb, of Fitchburg, Mass.. for, the Associated. 'Mr. George Turitz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 8, 1937, International Ladies' Handbag, Pocketbook & Novelty Workers' Union, herein called the Union. filed with the Regional Director for the First Region (Boston, Massachusetts) a petition alleging that a question affecting commerce had arisen ,concerning the representation of employees of H. Margolin . & Co., Inc., Fitchburg; Massachusetts, herein called The Company, and,-re- questing an investigation and certification of representatives pursu- ant-to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,, herein called the Act., On October 2, 1937, the National Labor Relations Board, herein called the Board, acting pursuant. to Sec- tion 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, or- dered- an, investigation-. and authorized the Regional Director to conduct it and to provide for an appropriate hearing., upon- -due notice. - - 9 N. L. R. B., No. 78. 852 DECISIONS AND ORDERS 853 On November 4, 1937, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Union, and Associated Handbag Workers of Fitchburg, herein called the Associated, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on November 12, 13, 29, and 30,-1937, at Fitchburg, Massachusetts, before Eugene Lacy, the Trial Examiner duly_ desig- nated by the Board. The Board, the Company, the Union, and the Associated were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evideisce'bearingon the issues-was afforded all parties. On motion made at the hearing by counsel for the Com- pany, the Trial Examiner ruled that the validity of a certain con- tract made by the Company and the Associated on July 27, 1937, was not an issue in the proceeding. By order dated March 8; 1938, the Board reversed that ruling and, in order to afford the parties full opportunity to present evidence relative to the issue, directed 'that the hearing be reopened, and that the Regional Director conduct a further investigation' and provide for an appropriate hearing. Pursuant to the said order, the Regional Director, on May 31, 1938, issued -a notice of hearing, copies of which were duly served upon the respective attorneys for the Company, the Associated, and the Union. Pursuant to the notice, a hearing was held on June 4, 1938, at Fitchburg, Massachusetts, before Harlow Hurley, the Trial Examiner duly designated by the Board. The Board, the Coin- _pany, the Union, and the Associated were represented by counsel and participated in the hearing. Full opportunity 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 hearings, the Trial Examiners made several rulings on motions and on objections to the admission of evidence, in addition to the one above mentioned. The Board has reviewed such rulings of the Trial Examiners and finds that -no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the second hearing, the Company's counsel filed with -the Trial Examiner, for the attention of the Board, requests for certain rulings-with reference- to thepetitivn and the evidence, a motion to strike out certain evidence, and a motion to dismiss they petition. For reasons which appear below, the requests and the motions are hereby denied, save as consistent with the findings, conclusions, and direction hereinafter set forth. On July 21, 1938, pursuant to notice duly served upon the respective attorneys for the parties, a hearing was held before the Board ill 'Washington, D. C., for the purpose of oral argument. The Company 854 NATIONAL LABOR IIELATIONS BOARD -and the 'Union were represented by counsel and participated in the oral argument. They have also filed briefs with the Board., Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT, 1. THE BUSINESS OF THE COMPANY H. Margolin & Co., Inc., is a New York corporation, ,engaged in the business of manufacturing women's handbags and pocketbooks. .It has a plant in Fitchburg, Massachusetts,' and a salesroom in New -York City. The raw materials used by the Company in its business consist of leather,-fabrics and metal. Approximately 65 per cent of those materials are shipped to it from States other than Massachusetts. Its sales amount to more than $900,000 a year, of which approximately 80 per cent are shipped by it to customers outside the State of Massa- chusetts. 11. THE ORGANIZATIONS INVOLVED -International Ladies' Handbag, Pocketbook & Novelty Workers' Union is a labor organization affiliated with the American Federation ,of Labor, admitting to its membership all employees of the Company directly connected with the production, receiving, and shipping of 'goods, excluding those engaged in 'supervisory capacities and those ,doing janitor work or office work exclusively. ' i Associated Handbag Workers of Fitchburg is a labor organization not affiliated with any other -labor organization. It is not clear what qualifications are required for membership in it, but the record indi- cates that it admits all employees of the Company in the Fitchburg plant engaged in the performance of operations connected with the production and shipping of the Company's products, with- the pos- sible exception of those engaged in supervisory capacities. -III. THE ,QUESTION CONCERNING REPRESENTATION In July 1937 the Union and an organization known as the Works 'Council 2 each requested the Company to enter into collective bargain- ing negotiations with it, claiming to have been designated representa- tive for that 'purpose by a 'majority of the employees. The Union refused to submit 'to the Company proof of such designation, or to agree to a consent election between it and the Works Council',' which, it contended, was company-dominated. Witnesses for the Associated 'and the Company testified that on July 13, 1937, Emile Dussalilt,'head 'The record , indicates that the Company has another plant, located 'at Biattleboro, Ver- mont . This proceeding is concerned only with the plant in Fitchburg. 2 The parties took the positionIthat the-works Council'and the Associated were'one and the same organization The minutes of•the , Associated's first+ meeting,-however, indicate that it was an entirely new organization DECISIONS AND ORDERS 85-5 of the-'Works, Council; -submitted to the Company cards signed by a majority of., the employees designating the Works Council as their representative for collective bargaining; and- that on July 27 he' sub mitted Associated membership cards also signed by a majority of the employees. - - - On July.27, 1937, the Company entered into a contract with the Associated providing for recognition of the latter as the employees', sole .collective- bargaining representative, and for a closed shop and check-off. The contract is to run to December 20, 1938, and from- year to'year thereafter, unless terminated by either party as of December 20 of any year. The closed-shop and check-off provisions were sub- ject to termination at the option of the Company on December 20, 1937.3 The Associated and the Company now claim that the July 27 contract, having been based upon the selection of the Associated- by a majority of the employees, settles any.question concerning rep- resentation, and that the petition in this proceeding. should, therefore,, be dismissed. The Union sought to show that the designation of the Associated to represent the employees was not the result of their free choice, but of domination, coercion, interference, and restraint by the Company, and that the contract should, therefore, be invalidated. The Company and the Associated, on-the other hand, sought to prove that the Works Council and the Associated were genuine collective' bargaining bodies, freely chosen by the employees, and that the Company had not domi- nated, coerced, interfered with, or restrained the employees in their efforts at self-organization. - This issue, however, is now unnecessary to decide. Since the initial period of the contract ends on December 20, 1938, it plainly does not preclude the Board from making an investigation and determining a bargaining representative for the purpose of negotiat-- ing a new agreement for the period following-December 20, if one is, desired.4 We find that a question has arisen concerning representation of employees of the Company. - - - IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON CO;BIERCE 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 8 At the oral argument above referred to, counsel for the Company'stated that it had exercised such option , but that subsequently the provisions had been reinstated , with a' continued option of termination by the Company. *Matter of Utica Knitting Company and American Federation of Labor, Local No 21500, 8 N. L R . B 783 ; Matter of Gowanns Towing Co, Inc and Associated Marine -Wo,keis, 8 N. L. R B. 820. - 856 NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several State9,.and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT In -its petition ,the Union alleges that _all the employees of the shop, excepting clerical' employees, constitute an appropriate unit. It ap- pears from the record that the Union intended to include within that description of the unit all production workers employed in the Com- pany's Fitchburg factory, including all those whose work is directly connected with the production, receiving, or shipping of goods,, exclusive of those engaged only in janitor or clerical work and those engaged in supervisory capacities. No claim was made at the hear- ing that such unit is not appropriate. We find that all the production workers employed by the Company in its Fitchburg factory, including all those whose work is directly- connected with the production, receiving, or shipping of goods, exclusive of those,engaged only in janitor or clerical work and those engaged in supervisory capacities, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company 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 We find that an election by secret ballot is necessary to determine the proper representatives for collective bargaining and thus re- solve the question concerning representation. Those eligible to vote in the election shall be the persons employed by the Company in its Fitchburg plant during the pay-roll period next preceding the date of this Decision and Direction of Election, within the appropriate bargaining unit. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS, OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of H. Margolin & Co., Inc., Fitchburg, Mas- sachusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production workers employed by the Company in its Fitch- burg plant, including all those whose work is directly connected with the production, receiving, or shipping of goods, exclusive of those engaged only in janitor or clerical work and those engaged in super- DECISIONS AND ORDERS 857 visory capacities, constitute a unit appropriate for the purposes of collective bargaining , 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 Duu;c1D that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with H. Mar- golin & Co., Inc., Fitchburg, Massachusetts, an election by secret bal- lot shall be conducted within twenty-five (25) days from the date of this Direction under the direction and supervision _of the Regional Director for the First Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, 'Sec- tion 9, of said Rules and Regulations, among all the production em- ployees of H. Margolin & Co., Inc., employed at its Fitchburg.plant during the pay-roll period next preceding the date of this Direction, including all those -whose work is directly connected with the pro-. duction, receiving, or shipping of goods, exclusive of those engaged only in janitor or clerical work, those engaged in supervisory capac- ities, and those who since have voluntarily quit or have been dis- charged for cause, to determine whether they desire to be repre- sented by International Ladies' Handbag, Pocketbook & Novelty Workers' Union or by Associated Handbag Workers of Fitchburg, for the purposes of collective bargaining, or by neither.