Rils Manufacturing Corp.

In the Matter of RILS MANUFACTURING CORP.' and UNITED ELECTRI- CAL, RADIO & MACHINE WORKERS OF AMERICA (C. I. 0.) In the Matter of RILS NOVELTY MANUFACTURING CO., COLUMBIA & GREENE AVENUES, NEWARK, N. J.,' and AMERICAN FEDERATION OF LABOR Cases Nos. R-1161 and R-1162, respectively. Decided February 23, 1939 Metal Novelties Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations-Unit Appropriate for Collective Bargaining : all employees of Company , exclusive of supervisory and clerical employees ; stipulation as to-Election Ordered Mr. Albert Ornstein, for the Board. Mr. Edward Preller, of New York City, for the Company. Mr. Samuel L. Rothbard, of Newark, N. J., for the United. Mr. Charlton Ogburnn, by Mr. C. C. Johnson, of New York City, for the A. F. of L. Mr. John K. Odisho, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 15 and October 20, 1938, respectively, United Electrical, Radio and Machine Workers of America, herein called the United, and American Federation of Labor and All Affiliated Organizations, herein called the A. F. of L., filed with the Regional Director for the Second Region (New York City) separate petitions alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Rils Manufacturing Company, Newark, New Jersey, herein called the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 1, 1938, the National Labor Relations Board, 2 At the hearing motions were made and granted correcting the name of the Company to Rils Manufacturing Company and the name of second petitioning union to American Federation of Labor and All Affiliated Organizations. 11 N. L. R. B.. No. 5a 696 RILS MANUFACTURING CORP. ET AL. 697 herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations 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, and acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the cases be consolidated for all purposes. On December 9, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the United, and upon the A. F. of L. Pursuant to the notice, a hearing was held on December 19, 1938, at New York City, before Edward Grandison Smith, the Trial Examiner duly designated by the Board. The Board, the Company, the United, and the A. F. of L. 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 hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner 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 Rils Manufacturing Company is a New Jersey corporation, having its principal office and place of business in Newark, New Jersey. It is engaged in the manufacture, sale, and distribution of metal novelties. Between January 1 and December 31, 1937, the Company pur- chased materials valued at $36,800, consisting principally of steel, brass, metal parts, celluloid, and packing boxes. Of the materials so purchased, approximately 60 per cent were shipped to the Newark plant from points outside the State of New Jersey. During the same period the Company produced goods valued at $70,600, of which 95 per cent were shipped to points outside the State of New Jersey. The Company manufactures primarily for the Christmas trade, and in consequence, its work is highly seasonal, having its peak during the several months next preceding the middle of December. It em- ploys at the peak about 150, and at other times about 25 persons. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio and Machine Workers of America, is a labor organization affiliated with the Committee for ndustrial Or- 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganization, admitting to its membership all employees of the Com- pany, exclusive of supervisory and clerical employees. American Federation of Labor and All Affiliated Organizations is a labor organization, admitting to its membership all employees of the Company, exclusive of supervisory and clerical employees. III. THE QUESTION CONCERNING REPRESENTATION On October 18, 1938, a strike was called by the United among the em- ployees of the Company. On October 20, 1938, at a conference among representatives of the Company, the United, and the A. F. of L., both unions presented membership cards signed by a majority of the employees in the appropriate unit. On October 21, 1938, the Company and the United entered into a collective bargaining agree- ment, thereby terminating the strike. At the hearing the United contended that at the time of the execution of its agreement with the Company, it represented a majority of the employees within an ap- propriate unit, `and that accordingly no question concerning repre- sentation remained. However, in view of the fact that both peti- tions in this proceeding were filed prior to the execution of the contract,2 and further in view of the fact that the A. F. of L. had on October 20, 1938, offered proof of its claim to represent a majority of the Company's employees and the majority of the United at the time of execution of the contract is not clearly shown,3 the contention of the United that the contract settled the question of representation is unsupportable. We find that a question has arisen concerning representation of employees of the Company. 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. ' Matter of Tennessee Electric Power Company and International Brotherhood of Elec- trical Workers, 7 N. L. R B. 24; Matter of American France Line et at. (Shepard Steamship Company ) and International Seamen's Union of America , 7 N. L R. B. 79; Matter of Unit Cast Corporation and Steel Workers Organizing Committee, 7 N. L. R. B. 129. s Matter of Colonie Fibre Company, Ina . and Cohoes Knit Goods Workers Union No. 21514 A. F. of L, 9 N. L. R. B. 658. RILS MANUFACTURING CORP. ET AL. 699 V. THE APPROPRIATE UNIT At the hearing the parties stipulated that all employees of the Company exclusive of supervisory and clerical employees, constitute an appropriate bargaining unit. No reason appears for departing from the unit agreed upon. However, there was a dispute between the United and the A. F. of L., as to whether the two working super- visors, John Murray and Robert Lesnick, should be included in the stipulated unit. Both men are members of the United, one being a shop steward, and both were members of the negotiating committee which signed the contract on behalf of the United with the Company on October 21, 1938. Lesnick is in charge of the packing and shipping department and Murray is in charge of the plating department. Both men do the same work, receive the same pay, and work the same hours as others in their respective departments. Both are under the duty to report to their superiors the conduct of the employees in their respective departments, but neither has the authority to hire or fire. Upon consideration of all the factors involved, and in view of the fact that one of the labor organizations desires to exclude these employees, we are of the opinion that the two men should be excluded from the unit. We find that all the employees of the Company excluding super- visory and clerical employees, constitute a unit appropriate for pur- poses 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 At the hearing both the United and the A. F. of L. introduced in evidence membership cards signed by a majority of the employees in the appropriate unit. It is clear, therefore, that neither the United nor the A. F. of L. has clearly established that it represents a majority of the employees within the appropriate unit. The ques- tion which has arisen concerning the representation of employees of the Company can best be resolved by the holding of an election by secret ballot. The parties agreed at the hearing that, in the event the Board should direct an election, the eligibility of an employee to participate therein should be determined by the presence of his name upon the Company's pay roll of October 15, 1938, or its pay roll of October 22, 1938.- No reason appears for departing from the wishes of the' 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties in this respect. Accordingly, we shall direct that those em- ployees of the Company within the appropriate unit who were on the Company's pay roll either on October 15, 1938, or on October 22, 1938, shall be eligible to vote, excluding those who have since quit or have been discharged for cause. Upon 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 Rils Manufacturing Company, Newark, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company excluding supervisory and clerical employees, 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 Re- lations 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 ordered by the Board to ascertain representatives for the purposes of collective bargaining with Rils Manufacturing Company, Newark, New Jersey, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction of Election under the direction and super- vision of the Regional Director for the Second 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 the employees of the Company whose names appear on the Company's pay roll of October 15, 1938, or its pay roll of October 22, 1938, ex- cluding supervisory and clerical employees and all employees who have since quit or have been discharged for cause, to 'determine whether they desire to be represented by United Electrical, Radio and Machine Workers of America affiliated with the Committee for Industrial Organization, or by American Federation of Labor and All Affiliated Organizations, for the purpose of collective bargaining, or by neither. RILS MANUFACTURING CORP. ET AL. 701 [ SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION March 8,1939 On February 23, 1939, 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 be held within fifteen (15) days from the date of the Direction, under the direction and supervision of the Regional Direc- tor for the Second Region (New York City). At the request of the Regional Director, we shall postpone the election for the present. The Board hereby amends the Direction of Election by striking therefrom the words "within fifteen (15) days from the date of this Direction" and substituting therefor the words "at such time as the Board may in the future direct." 11 N. L. R. B.. No. 50a.