Capitol Automatic Music Co., Inc.

In the Matter Of CAPITOL AUTOMATIC MUSIC COMPANY, INC. and UNITED COIN MACHINE EMPLOYEES UNION, LOCAL 254, U. R. & W. E. OF AMERICA , C. I. O. Case No. R-1592.-Decided December 1, 1939 Coin-operated Automatic Electrical Phonograph Industry-Investigation of Representatives : controversy concerning representation of employees : employer refuses to recognize union until certified by the Board-Unit Appropriate for Collective Bargaining : repairmen, collectors, deliverymen, and helpers, exclusive of office and clerical employees, solicitors, and supervisory employees, but including working foremen ; agreement as to-Representatives : proof of choice : member- ship cards-Certification of Representatives: upon proof of majority repre- sentation. Mr. D. R. Dimick, for the Board. Mr. Ivan E. Maginn and Mr. Charles V. Talley, Jr., of New York City, for the Company. Mr. Murray Monness, of New York City, for the United. Mr. Samuel Mezansky, of New York City, for the I. B. E. W. Mr. William Logan Donnel, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On June 12, 1939, United Coin Machine Employees Union, Local 254, U. R. & W. E. of America, C. I. 0., herein called the United, filed with the Regional Director for the Second Region (New York City), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Capitol Automatic Music Company, 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 October 4, 1939, 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 Re- lations Board Rules and Regulations-Series 2, ordered an investi- gation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 18 N. L. R. B., No. 2. 283029-41-vol. 18-3 23 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 17, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the United, and upon International Brotherhood of Electrical Workers, Local 786, A. F. of L., herein called the I. B. E. W. Pursuant to the notice, a hearing was held on October 30, 1939, at New York City before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board, the Company, the United, and the I. B. E. W. were represented by counsel, and all 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 I. THE BUSINESS OF THE COMPANY Capitol Automatic Music Company, Inc., is a New York corpora- tion having its principal office and place of business in New York City. The Company leases, rents, and sells coin-operated automatic electrical phonographs to places of public resort in New York, New Jersey, and Connecticut. The Company services the phonographs leased, rented, and sold in these three States. About 150 of its 800 phonographs have been shipped to and are stationed in New Jersey, 2 in Stamford, Connecticut, and the remainder are in New York. The Company also sells phonographs to purchasers located outside the area in which servicing is practicable., It has sold and shipped phonographs to purchasers in Puerto Rico, Mexico, Hawaii, Florida, and Pennsylvania. About 2 years prior to the hearing the'Company owned about 1,000 phonographs. During the 2 years preceding the date of the hearing the Company purchased from 100 to 150 phonographs from sources in Tonawanda, New York, and in Chicago, Illinois. At the time of the hearing, the Company owned and operated on lease or rented ap- proximately 800 phonographs, having sold a considerable number of phonographs during the 2 years preceding the date of the hearing. The Company purchases phonograph records, principally from manufacturers in New York and New Jersey, but an undisclosed amount also are sent to the Company from California and from for- eign countries. After they have been used, the records are sold locally. CAPITOL AUTOMATIC MUSIC COMPANY, INC. 25 The Company's annual income averages from $150,000 to $160,000, of which amount about 12 per cent is derived from records, about 5 per cent from sales of phonographs, and about 10 per cent from fixed rentals. In New York City the Company maintains a display room and a workshop for repairing and refinishing phonographs. It employs solicitors to locate sites for the placement of its phonographs, deliv- erymen to transport them, and collectors who call weekly at all loca- tions to collect coins, change records, make minor adjustments, and report customers' requests for records and the major repairs which are necessary. Weekly, the two New Jersey collectors report at the Company's New York City headquarters for settlements. Two trucks owned by the Company make regular weekly trips to New Jersey. All phonographs are sent out and placed from the Company's headquar- ters in New York City and, when major repairs are necessary, are returned to the Company's workshop in New York City. The Company admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United' Coin Machine Employees Union, Local 254 was issued a charter on February 13, 1939, by United Retail and Wholesale Em- ployees of America, which is affiliated with the Congress of Industrial Organizations. The United admits to membership all persons em- ployed in the coin-operated electrical machine business, including employees of the Company, other than supervisory and clerical em- ployees, and solicitors. III. THE QUESTION CONCERNING REPRESENTATION In September 1938, the employees of the Company became members of a retail clerks' association , affiliated with the American Federation of Labor, herein called the A. F. of L. In December 1938 the em- ployees of the Company who were members of the retail clerks' associ- ation became members of the I . B. E. W. On December 29, 1938, the Company, at the request of the I. B. E. W ., became a member of Auto- matic Music Operators Association , Inc., an affiliate of the Interna- tional Association of Automatic Electric Phonograph Owners, with which first named Association the I. B. E. W. had entered into a col- lective bargaining agreement . The Company withdrew from said Association as of March 1, 1939. Thereafter the Company and the I. B. E. W. were unable to reach an agreement relating only to the Company's employees . About May 1, 1939, the I. B. E. W . called a strike, but the Company's employees refused to strike. The I. B. E. W. expelled them and thereafter refused to reinstate them. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About June 1, 1939, employees of the Company became members of the United. Although requested to do so by the United, the Company is unwilling to bargain collectively with the United as the representa- tive of its employees until after a determination by this Board that the United is the exclusive bargaining representative of such employees. 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 with foreign countries, 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 United alleged that the repairmen, collectors, and deliverymen employed by the Company constitute a unit appro- priate for the purposes of collective bargaining. At the hearing, the United orally amended its petition to state that an appropriate unit consisted of "repairmen, collectors, deliverymen and helpers, exclusive of office and clerical employees, solicitors and supervisory employees, but including working foremen." The Company and the I. B. E. W. agreed that such unit had been observed during the period when the employees of the Company were members of the retail clerks' associa- tion and of the I. B. E. W. The United, Company, and I. B. E. W. all agree that the unit claimed by the United is an appropriate unit. We find that all repairmen, collectors, deliverymen, and helpers, exclusive of office and clerical employees, solicitors, and supervisory employees, but including working foremen, employed by the Company 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 The Company usually employs 4 or 5 servicemen or repairmen, 2 deliverymen, and 2 helpers, and about 11 collectors. The Company's pay rolls for October 1939 state the names of a working foreman and mechanic, a refinisher and a repairman, totaling 3 repair-shop em- CAPITOL AUTOMATIC MUSIC COMPANY, INC. 27 ployees during that period; 4 deliverymen, all of whom likewise are mechanics; and 11 collectors, 1 of whom is no longer in the Company's employ. Thus there were 18 employees in the appropriate unit during October 1939. In support of its claim to represent a majority of the employees in the appropriate unit, the United introduced in evidence 17 member- ship cards. Sixteen of the signers of these cards made application for membership as of June 1, 1939, one applied as of June 5, 1939. None of the parties questioned the genuineness of the signatures on the cards. We have compared the names of the Company's employees as of the date of the hearing, which were read into the record, with the names appearing upon the United's membership cards, and find that 14 among the 18 employees in the appropriate unit signed the cards and designated the United as their collective bargaining representa- tive. The remaining three signers are no longer employed by the Company. The Company expressly stated that an election is not re- quired, that it does not desire an election, and that it will bargain with the United upon the certification of the United by the Board upon the basis of the evidence introduced into the record. The I. B. E. W. expressly stated that it understood that the United represented a majority of the Company's employees, and that the I. B. E. W. had no members among the Company's employees and had no expectation that the employees would rejoin the I. B. E. W. . We find that the United has been designated and selected by a ma- jority of the employees in the appropriate unit as their representative for the purposes of collective bargaining. It is, therefore, the ex- clusive representative of all the employees in such unit for the purposes of collective bargaining, and we will so certify. Upon the basis of the above findings of fact and upon the entire record herein, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Capitol Automatic Music Company, Inc., New York City within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The repairmen, collectors, deliverymen, and helpers, exclusive of office and clerical employees, solicitors, and supervisory employees, but including working foremen, employed by the Company constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. United Coin Machine Employees Union, Local 254, United Retail and Wholesale Employees of America, C. I. 0., is the ex- 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, .IT IS HEREBY CERTIFIED that United Coin Machine Employees Union, Local 254, United Retail and Wholesale Employees of America, C. I. 0., has been designated and selected by a majority of the repair- men, collectors, deliverymen, and helpers, exclusive of office and clerical employees, solicitors, and supervisory employees, but including working foremen, employed by Capitol Automatic Music Company, Inc., New York City, as their representative for the purposes of col- lective .bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, United Coin Machine Employees Union, Local 254, United Retail and Wholesale Employees of America, C. I. 0., is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment.