Newark Rivet Works

In the Matter of NEWARK RIVET WORKS and NEWARK RIVET WORKS EMPLOYEES MUTUAL ASSOCIATION Case No. R-1597.-Decided December 21,1939 Metal Products Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : refusal by employer to recognize or bargain with petitioner because former Order of Board directs em- ployer to bargain with another labor organization ; refusal by employer to bargain with second organization because of claim by petitioner; Board Order no bar under circumstances of case-Unit Appropriate for Collective Bargaining: agree- ment by employer and petitioner ; no position taken by second labor organiza- tion, which appeared specially and did not participate in hearing ; production, shipping, and maintenance employees of the Company, including operators of all types of machines , assembly workers , shipping workers, truck drivers, carpenters, and watchmen , but excluding superintendents , foremen, sub or assistant super- intendents , sub or assistant foremen, and office clerical help ; unit found herein differs somewhat from unit found in previous Decision-Representatives: no proof-Election Ordered Mr. Richard J. Hickey, for the Board. Mr. John G. Lerch, of New York City, for the Company. Mr. Harry Silverstein, of Millburn, N. J., for the Association. Mr. Samuel L. Rothbard and Mr. Ernest Arvidson, of Newark, N. J., appearing specially for the United. Mr. William Strong, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 29, 1939, Newark Rivet Works Employees Mutual Associa- tion, herein called the Association, filed with the Regional Director for the Second Region (New York City) a petition, and on October 5, 1939, an amended petition, alleging that a question affecting commerce had arisen concerning the representation of employees of the Newark Rivet Works, Newark, New Jersey, herein called the Company, and requesting 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 September 18, 1939, the National Labor 18 N. L. R. B., No. 71. 520 i\EWARK RIVET WORILS 521 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 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 5, 19391 the Regional Director issued a notice of hearing, and on October 13, 1939, a notice of postponement of hearing, copies of which were duly served upon the Company, the Association, and United Electrical, Radio and Machine Workers of America, Local #420, C. I. 0., herein called the United, a labor organization purport- ing to represent employees directly affected by the investigation. On October 23, 1939, Madison Hill, the Trial Examiner duly designated by the Board, postponed the hearing to October 24, 1939. Pursuant to notice, the hearing was opened on October 24, 1939, at Newark, New Jersey. At the request of the United, the Trial Examiner granted a continuance until November 2, 1939, on which date the hearing was held. The Board, the Company, and the Association were represented by counsel and participated in the hearing. At the opening of the hearing, counsel for the United appeared specially for the purpose of objecting to the proceeding. Counsel for the United refused to par- ticipate in the hearing and, after making several motions directed to the holding of the hearing, left the hearing room. 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 ruled upon a number of motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudi- cial 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 Newark Rivet Works is a New Jersey corporation engaged, at Newark, New Jersey, in the manufacture and sale of umbrella frames, metal stampings, hardware, sheet-metal goods, rivets, and wire. From January 1 to September 1, 1939, 95 per cent of the raw materials used by the Company in its production, valued at more than $114,000, were purchased by it in States other than New Jersey and, during that same period, 95 per cent of the finished products of the Company, valued at more than $437,000, were sold or transported to purchasers in States other than New Jersey. The Company employs more than 420 employees. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED Newark Rivet Works Employees Mutual Association is an unaffili- ated labor organization admitting to membership production, ship- ping, and maintenance employees of the Company, including oper- ators of all types of machines, assembly workers, shipping workers, truck drivers, carpenters, and watchmen, but excluding superintend- ents, foremen, sub or assistant superintendents, sub or assistant fore- men, and office clerical help. United Electrical, Radio and Machine Workers of America, Local #420 is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On October 27, 1938, the Board issued its Decision and Order in a proceeding involving the Company, the United, and other parties.- The Board found therein that the appropriate unit consisted of pro- duction employees of the Company, excluding supervisory employees, that the United was the exclusive representative of the employees in this unit, and that the Company had refused to bargain with the United, in violation of the Act, and ordered the Company upon request to bargain with the United.2 On several occasions after the issuance of the Decision and Order, the Company communicated with the. United, stating its willingness and readiness to bargain, but the United declined to enter into bargaining negotiations in response to these communications. In April 1939, the Association requested the Company to bargain with it. The Company refused since the Board had directed it to bargain on request with the United. On June 8, 1939, the United, communicated with the Company requesting a conference for the purpose of collective bargaining but the Company refused on the ground that the Association claimed to be the exclusive representative. On June 29, 1939, the Association filed its petition with the Regional Director for the Second Region. Since the Company was willing to bargain, upon demand, with the United, pursuant to the Board's Decision and Order, and more than 7 months elapsed between the date the Company first communicated its willingness to the United and the date the United made its demand 1 Matter of Newark Rivet Works and Unity Lodge No. 420, United Electrical d Radio Workers of ,America, O. I. 0., 9 N. L. R. B. 498. 2 The Board in its Decision found violations of Section 8 (1), (2), (3), and (5) of the Act, and ordered the Company to take appropriate action. The Company complied with the order. NEWARK RIVET WORKS' 523 upon the Company, we find that the Decision and Order of the Board, dated October 27, 1938, is not a bar to the present proceeding. 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT In its Decision and Order of October 27, 1938, the Board recited that the United and another labor organization admitted to member- ship production employees of the Company, excluding supervisory employees, that the Company did not claim that any other unit was appropriate, and found, accordingly, that all production employees of the Company, excluding supervisory employees, constituted an appro- priate unit. In the present proceeding, the Company and the Association agree that all production, shipping, and maintenance employees of the Com- pany, including operators of all types of machines, assembly workers, shipping workers, truck drivers, carpenters, and watchmen, but ex- cluding superintendents, foremen, sub or assistant superintendents, sub or assistant foremen, and office clerical help, constitute an appro- priate unit. The present record discloses that maintenance employees of the Company are actually production employees who perform some main- tenance work. While truck drivers, carpenters, watchmen, and other categories of workmen were not specifically included in the unit we held appropriate in our Decision and Order, nothing in the prior Decision or in the present record indicates that we should reject the unit which the Company and the Association have indicated as being appropriate. We find that all production, shipping, and maintenance employees of the Company, including operators of all types of machines, assembly workers, shipping workers, truck drivers, carpenters, and watchmen, but excluding superintendents, foremen, sub or assistant superintend- ents, sub or assistant foremen, and office clerical help, constitute a unit 8 The United did not take any position as to what constitutes an appropriate unit. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. TH4 DETERMINATION OF REPRESENTATIVES At the hearing the Association claimed to represent 95 per cent of the employees within the appropriate unit. It did not, however, offer proof of designation by the employees and suggested that the Board conduct an election by secret ballot. We shall, accordingly, direct that such an election by secret ballot be held. While both the Association and the Company agreed that the pay roll for the period immediately preceding the date of the filing of the amended petition be used as the basis for determining eligibility to participate in an election, we believe that the pay roll for the period immediately preceding the date of this Decision and Direction of Election is the appropriate one for use in the election. We shall, accordingly, direct that employees of the Company, within the appropriate unit, whose names appear on the pay roll for the period immediately preceding the date of this Decision and Direction of Election, including employees within the appropriate unit who did not work during such pay-roll period because they were ill or on vacation, and employees who during that pay-roll period were or have since been temporarily laid off, and excluding employees who have since quit or been discharged for cause, shall be eligible to vote in the election. Both at the opening of the hearing and, thereafter,-in a letter ad- dressed to the Board, counsel for the United stated that if the Board directs an election, the United does not desire to have its name appear on the ballot. We shall omit the name of the United from the ballot. 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 Newark Rivet Works, Newark, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production, shipping, and maintenance employees of the Company, including operators of all types of machines, assembly workers, shipping workers, truck drivers, carpenters, and watchmen, but excluding superintendents, foremen, sub or assistant superintend- ents, sub or assistant foremen, and office clerical help constitute a unit NEWARK RIVET WORKS 525 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining 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 of Election, under the direction and supervision of the Regional Director for the Second Region acting in the matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production, shipping, and main- tenance employees of the Newark Rivet Works, Newark, New Jersey, including operators of all types of machines, assembly workers, ship- ping workers, truck drivers, carpenters, and watchmen, who were employed by the Company during the period immediately preceding the date of this Direction of Election, including employees who were not employed during that pay-roll period because they were ill or on vacation, and employees who were or have since been temporarily laid off, and excluding employees who have since quit or been discharged for cause, and, further, excluding superintendents, foremen, sub or assistant superintendents, sub or assistant foremen, and office clerical help, to determine whether or not they desire to be represented by the Newark Rivet Works Employees Mutual Association, for the purposes of collective bargaining.