Wolfsheim & Sachs, Inc.

In the Matter Of WOLFSHEIM & SACHS, INC and AMERICAN FEDERA- TION OF LABOR Case No R-3859 -Decided July 9, 1942 Jurisdiction : jeweliy box and display manufacturing industry Investigation and Certification of Representatives : existence of question con- flicting claims of rival representatives, closed-shop contract entered into after filing of petition held no bai , date when strike called by rival organization be- gan, used to determine eligibility, whee closed-shop contract entered into with rival organization subsequent to settlement of stu ke and while proceeding was pending before the Board became effective as of the day when plant reopened, election necessary Unit Appropriate for Collective Bargaining : all production and maintenance em- ployees at Company's two plants in Buffalo, New Yoik, including employees in the shipping depaitment, but excluding office, clerical, and supervisory em- ployees, agreement as to Mr. Adrian Block and Mr Isador Setel, of Buffalo, N Y , for the Company Mr Joseph A Pad'way by Mr. Herbert S Thatcher, of Washington, D C, and Mr Neal J Cunningham., of Buffalo, N Y, for the A F. of L Rothbard, Greens tone cC Harris by Mr Samuel L Rothbard, of Newark, N J ; and Mr Hugh Thompson and Mr Frank Grasso, of Buffalo, N Y, for the C I 0 Mrs Augusta Spaulding, of counsel to the Boai d DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by the American Federation of Labor, herein called the A F of L , alleging that a question affecting com- merce had arisen, conceiving the iepresentation of employees of Wolfsheim & Sachs, Inc, Buffalo, New York, heiein called the Com- pany, 'the National Labor Relations Boaid provided for an appropri- ate hearing upon due notice before Peter J. Crotty, Tllal Exam- iner Said hearing was held at Buffalo, New York, on May 18, 1942. The Company, the A F of L, and United Paper, Novelty & Toy Workeis, International Union, affiliated pith the Congiess of Indus- 42 N L R B, No 52 232 WOLFSHEIM & S)ACHS, INC 233 tiial Oiganizations, herein called the C I O , appeared, partici- pSted, and were afforded full opportunity to be heaid, to examine, and cross-examine witnesses, and to introduce evidence bearing on the iss aes. The Tnal Examiner's rulings made at the hearing aie free from prejudicial error and are heiby affiimed On June 8, 1942, the C I 0 filed a biief which the Board has considered - Upon the entice iecord in the case, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Wolfsheim & Sachs, Inc, is engaged in the manufacture of jewelry boxes and displays at two plants in Buffalo, New York. During the year 1941, the Company used in its manufacture iaw materials val- ued in excess of $100,000, of which approximately 75 percent repre- sented shipments made to the Company's plants from points outside New York During the same peiiod, the Company manufactured finished pioducts valued in excess of $350,000, of which approxi- mately 85 percent was shipped from the plants to points outside New York The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II THE ORGANIZATIONS INVOLVED The American Federation of Labor is a labor organization , admit- ting to membership employees of the Company. United Paper, Novelty & Toy Workers, Inteinational Union, is a labor organization affiliated with the Congress of Industrial Organ- izations , admitting to membeiship employees of the Company. HI THE QUESTION CONCERNING REPRESENTATION Jn February 1942 the C I 0 and the A F of L began organ- izing the Company's employees At that time there was an unaffili- ated labor organization in the plant On March 9, 1942, the C. I. O. notified the Company that it represented a majority of its employees and requested a baigaining conference The Company refused to` bargain with the C I 0, alleging that there was at that time an- other labor oiganization in the plant On March 30, at 4 p in, the C I 0 called a strike in oider to force the unaffiliated oiganization out of existence During the eve- ning of the same day, this organization called a meeting and voted to go into the A F of L On Maich 31, the C. 1 0 filed with the 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director a petition for investigation and certification of repi esentatives During the first week in April, representatives of the C I O , the A F of L. and the Company met in the Regional Director' s office to effect, if possible, a consent election agreement The C I. O. refused to agree to a consent election The A. F of L theieupon filed the petition in this proceeding About April 15, the C I O. made a settlement of its strike with the Company, the Company consenting to submit to a pay-roll check of C I 0 cards by a disinteiested third person On Api it 22, the A F of L notified the Company that this proceeding was pending before the Board and uiged the Company not to discuminate against the A F of L Upon the ceitified statement of a local priest that the C I 0 had submitted to him cai ds to indicate that it represented a majority of the Company's employees, the Company on April 27 en- teied into a closed-shop contract with the C I 0 , the provisions of which weie made i etroactive to Apiil 17, 1942 The C I 0 then withdrew its petition filed with the Regional Director, noted above. The C I 0 moves that the Board dismiss this proceeding, alleging- that there is no question concerning representation now before the Board- The Company and the C I 0 urge that the C I O. demon- strated its majority (1) by closing the plant and (2) by the certifica- tion of the priest that it represented a majority of the Company's employees at the time the contract was signed. It is clear that the contract between the Company and the C I 0 was entered into after the petition was filed in this proceeding and that the claim of the A F of L to represent a substantial number of the Company's employees was known to both contracting parties at the time the con- tract was signed. Under such circumstances, we find that the con- tract is no bar to a determination of representatives at this time 1 A statement of the Regional Director introduced into evidence at the hearing discloses that the A. F. of L. and the C. I O. each repre- sents a substantial number of employees in the appropriate unit.' 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 r Cf Matter of Commander-Larabee Mellong Company and Local Industrial Union #1153, affiliated with the Congress of Industrial Organizations, 41 N L R B 957, and Matter of The Adams (C Westlake Company and United Automobile, Aircraft and Agricultural Implement Workers of America, C 1 0, 37 N L R B 829 2 The A F of L submitted to the Regional Director 138 cards , of which 124 are dated in March 1942, 11 in April 1942, and 3 are undated All such cards bear apparently genuine signatures of employees in the appropriate unit The C I 0 submitted 296 cards , of which 276 bear apparently genuine signatures of employees in the appropriate unit Of these cards, 10 are dated in February 1942, 8 in March, 231 in April , 4 In May, and 23 are undated There are about 350 employees in the appropriate unit WOLFSHEIM & S'ACHS, INC. - . 235 IV THE APPROPRIATE UNIT We find, in accordance with agreement of the parties, that all pro- duction and maintenance employees at the Company's two plants in Buffalo, New York, including employees in the shipping department, but excluding office, clerical, and supervisory employees, 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 find that the question concerning the representation of employees of the Company can best be resolved by an election by secret ballot. As noted above, on April 27, 1942, the Company and the C I 0 entered into a closed-shop contract, retroactive to April 17, 1942, when we infer the plant reopened after the strike. The contract between the Company and the C I O. requires that all employees at the plant be members of the C I.0 and provides that all future employees, after a 3-week trial period, must become members of the C I. 0 Since this closed-shop contract was entered into while this proceeding was pending before the Board, and became effective as of the day when the plant reopened, we find that eligibility to vote in the election should be determined by the pay-roll period immediately preceding March 30, 1942, the day when the strike began. Those eligible to vote in the election shall be employees within the appropriate unit who were employed during the pay-roll period im- mediately preceding March 30, 1942, subject to the limitations and additions set forth in our Direction of Election. 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 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Wolfsheim & Sachs, Inc, Buffalo, New York, 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 Third Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all employees 9 This is the unit covered in the present contract between the C 1 0 and the Company. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Company within the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding March 30, 1942, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding employees who have since quit or been discharged for cause, to determine whether they desire to be represented by the American Federation of Labor or by United Paper, Novelty & Toy Workers, International Union, affiliated with the Congress of Industrial Organizations, for the purposes of col- lective bargaining, or by neither.