Heldman-Schild-Lasser, Inc.

In the Matter of HELDMAN-SCHILD-LASSER, INC. and CINCINNATI JOINT BOARD OF THE AMALGAMATED CLOTHING WORKERS OF AMERICA (C. I. 0.) Case No. R-1176.-Decided March 24, 1939 Men's Clothing Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : employers' refusal to grant recognition of union ; rival organizations ; closed-shop contract expiring shortly no bar to investigation-Unit Appropriate for Collective Bargaining: produc- tion employees, excluding foremen, assistant foremen, foreladies, assistant foreladies, employees having the right to hire and discharge , stock clerks, shipping clerks, employees in piece-goods department, final examiners, and cutting-room boys ; stipulation as to-Election Ordered Mr. Philip G. Phillips and Mrs. Mary T. Iliff, for the Board. Cohen, Mack cC Hurtig, by Mr. Philip A. Cohen, of Cincinnati, Ohio, for the Company. Mr. Charles P. Taft, II, and Mr. Julius Holzberg, of Cincinnati, Ohio, and Mr. John Abt, of Washington, D. C., for the Amalgamated. Mr. J. W. Brown, of Cincinnati, Ohio, and Mr. Joseph A. Padway, of Washington, D. C., for the United. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 14, 1938, Cincinnati Joint Board of the Amalgamated Clothing Workers of America, herein called the Amalgamated, filed with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition, subsequently amended, alleging that a question affecting commerce had arisen concerning the representation of employees of Heldman-Schild-Lasser, Inc.,' Cincinnati, Ohio, herein called the Com- pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, I Incorrectly designated "Heldman-Schild & Lasser, Inc " in the petition and "FIeldman- Schild & Lasser Co., Inc." in the notice of hearing. This was corrected by motion at the hearing 11 N. L. R. B., No. 119. 1289 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 49 Stat. 449, herein called the Act. On December 6, 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 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. On December 30, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Amalgamated, and upon the United Garment Workers of Amer- ica, herein called the United, a labor organization claiming to rep- resent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on January 9 and 10, 1939, at Cincin- nati, Ohio, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board, the Company, the Amal- gamated, and the United were represented by counsel, and all par- ticipated 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 objec- tions 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. Briefs were filed by the Amalgamated and the United in support of their respective contentions. Pursuant to notice duly served on all the parties, a hearing was held for the purpose of oral argument before the Board on February 21, 1939, in Washington, D. C. The Amalgamated and the United were represented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is an Ohio corporation engaged in the business of manufacturing, selling, and distributing men's clothing. Approx- imately 95 per cent of the raw materials used by it are purchased in States other than Ohio and 80 per cent of the garments manufactured are shipped to points outside the State. The Company employs salesmen who travel throughout the United States, and does an annual business in excess of $500,000. II. THE ORGANIZATIONS INVOLVED Cincinnati Joint Board, of the Amalgamated Clothing Workers of America is a labor organization affiliated with the Congress of HELDMAN-SCHILD-LASSER, INC., ET AL. 1291 Industrial Organizations. It admits to membership all production employees of the Company, excluding watchmen, foremen, and clerical and supervisory employees. United Garment Workers of America is a labor organization affil- iated with the American Federation of Labor, admitting to member- ship the same classes of employees of the Company as the Amalga- mated. III. THE QUESTION OONOERNING REPRESENTATION The Company is the successor to Heldman-Schild Clothing Com- pany. This latter corporation dissolved on November 30, 1938, and on December 1, 1938, its former stockholders with the addition of one new stockholder organized Heldman-Schild-Lasser, Inc. The Com- pany took over the plant, list of customers, employees, and sales force of the dissolved corporation. On June 1, 1938, Heldman-Schild Clothing Company and the United entered into a closed-shop contract with supplementary wage and hour provisions governing the employees of the Company. The contract is for a term of 1 year, with the further provision that it shall remain in effect from year to year thereafter unless either party thereto, by, 60 days' notice in writing prior to the expiration of any year period advises the other of a desire to change, modify, alter, amend, or terminate said contract. The record does not show whether the Company succeeded to the rights and assumed the obligations of Heldman-Schild Clothing Company under this contract. In September 1938 the Amalgamated commenced organizational activities in the plant and on November 30, 1938, claiming to repre- sent a majority of the employees, requested the Heldman-Schild Com- pany to deal with it as exclusive representative of the employees. It refused this request and stated that it would not bargain with the Amalgamated or the United unless and until one or the other was certified by the Board as the exclusive representative of its employees. The United maintains that since the contract is still in full force and effect there is no present question concerning representation. It therefore contends that the petition should be dismissed. We find no merit in this contention. The 1-year term of the contract ends on June 1, 1939. Moreover, the period within which negotiations must be commenced for the modification or termination of the contract expires on April 1, 1939. Under the circumstances it is clear that the contract does not preclude the Board from investigating or certifying a bargaining representative for the purpose of negotiating a new agreement for the period following June 1, 1939, if such is desired.2 2 Cf. Matter of Utica Knitting Company and American Federation of Labor, Local No. 21,500, 8 N. L. R. B. 783. 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the 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 commerc:, and the free flow of commerce. V. THE APPROPRIATE UNIT The Company, the Amalgamated, and the United agreed at the hearing, by stipulation, that the appropriate unit should consist of the production employees of the Company, excluding foremen, assist- ant foremen, foreladies, assistant foreladies, employees having the right to hire and discharge, stock clerks, shipping clerks, employees in the piece-goods department, final examiners, and cutting-room boys. We see no reason to deviate from the desires of the parties. We find that the production employees of the Company, excluding foremen, assistant foremen, foreladies, assistant foreladies, employees having the right to hire and discharge, stock clerks, shipping clerks, employees in the piece-goods department, final examiners, and cutting- room boys, constitute a unit appropriate for the purpose 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 The Company introduced in evidence the pay, roll of Heldman- Schild Clothing Company dated September 12, 1938, and its own pay roll of January 7, 1939. The former pay roll contains the names of 276 employees in the appropriate unit and the latter the names of 131 in said unit. In support of its claims to majority representation, the Amalgamated introduced in evidence 202 membership cards signed between October 4, 1938, and January 5, 1939. The genuineness of the signatures on the cards was not challenged. A comparison of the names on the cards with the afore-mentioned pay rolls tends to show that on the basis of the September 1938 pay roll, the Amalga- mated represents 193 employees in the appropriate unit and on the. basis of the January 1939 pay roll, 86 employees in the appropriate HELDMAN-SCHILD-LASSER, INC., ET AL. 1293 unit. In addition, the Amalgamated also introduced a petition cir- culated between January 1 and 8, 1939, designating the Amalgamated as the collective bargaining representative of the signers. The peti- tion shows that 75 employees in the appropriate unit in January 1939, thus designated the Amalgamated. The United, in opposition to the claims of the Amalgamated, sub- mitted in evidence a petition signed between December 14, 1938, and January 6, 1939, by( 125 employees, which recited that said employees had been coerced intoi joining the Amalgamated. The names of 59 such employees also appear on the membership cards of the Amal- gamated. In view of the vacillation of the employees, it is apparent that none of these documents, whether in the form of membership cards or petitions, can be accepted as proof that the signers have definitely selected either of the labor organizations here involved as their' repre- sentative for the purposes of collective bargaining. We find that the question concerning representation can best be resolved by means of an election by secret ballot. The Amalgamated suggested the pay roll of September 12, 1938, as a basis for the determination of representatives. The United, on the other hand, contended that if an election were ordered, any pay- roll date prior to June 1, 1939, the expiration date of the afore-men- tioned contract, would not be appropriate. There appears to be no reason, however, why the current pay roll should not be used to deter- mine the eligibility of employees to participate in the election, and since it is a representative and normal pay roll, we shall adopt it for the purposes of the election. 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 repre- sentation- of employees of Heldman-Schild-Lasser, Inc., Cincinnati, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production employees of the Company, excluding foremen, assistant foremen, foreladies, assistant foreladies, employees having the right to hire and discharge, stock clerks, shipping clerks, em- ployees in the piece-goods department, final examiners, and cutting- room boys, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the purposes of collective bargaining with Heldman-Schild-Lasser, Inc., Cincinnati, Ohio, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth 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 production employees of the Company who were employed during the pay-roll period next preceding the date of this Direction, excluding foremen, assistant foremen, foreladies, assistant foreladies, employees having the right to hire and discharge, stock clerks, shipping clerks, employees in the piece-goods department, final examiners, cutting-room boys, and em- ployees who will have since quit or been discharged for cause between this date and the date of the election, to determine whether they de- sire to be represented by Cincinnati Joint Board of the Amalgamated Clothing Workers of America, affiliated with the Congress of Indus- trial Organizations, or by United Garment Workers of America, af- filiated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.