Silvray Lighting Inc.

In the Matter of SILVRAY LIGHTING INC. and INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS LOCAL UNION No. 3 Case No. R-1552.-Decided December 26, 1939 Electro-Plating and Lighting Equipment Industries-Investigation of Repre- sentatives : controversy concerning representation of employees : rival organiza- tions-Closed-Shop Contract : executed with rival union after petition filed ; Company had notice of petitioning union's claims : no bar to investigation of rep- resentatives-Unit Appropriate for Collective Bargaining : production and main- tenance employees engaged in processing of lamps and packing and shipping of electrical lighting fixtures, excluding employees in wiring, fitting, and assembly department, managers, foremen, and office employees-Representatives : eligi- bility to participate in choice : permanent employees currently on pay roll ; temporary employees who were employed both at some time during 4-month period immediately preceding May 1, 1939, and also during pay-roll period immediately preceding date of Direction of Election ; two permanent employees discharged by Company pursuant to terms of closed-shop contract entered into between Company and rival union after filing of petition-Election Ordered Mr. Arthur C. O'Connor and Mr. Martin Rose, for the Board. Mr. Max Levin, of New York' City, for the Company. Mr. Louis Waldman, by Mr. David I. Ashe and Mr. Samuel Duker, of New York City, for the I. B. E. W. Mr. Frank Scheirter, of New York City, for the U. E. R. M. W. Mr. Herbert B. Galton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 12,1939, International Brotherhood of Electrical Workers, Local Union No. 3, herein called the I. B. E. W., filed with the Re- gional Director for the Second Region (New York City) a petition alleging that a question affecting' commerce had arisen concerning the representation of employees of Silvray Lighting, Inc., Long Island City, New York, 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 June 28, 1939, the National Labor Relations Board, 18 N. L. R. B., No. 85. 719 720 DECISIONS OF 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 July 18, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the I. B. E. W. and upon United Electrical, Radio and Machine Workers of America,' herein called the U. E. R. M. W., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice duly served upon all the parties, a hearing was held on September 25, 26, and 27, 1939, at New York City, before E. G. Smith, the Trial Examiner duly designated by ' the Board. The Board, the Company, the I. B. E. W., and the U. E. R. M. W. 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. Counsel for the U. E. R. M. W. moved to dismiss the petition on the ground that the "procedure" used by the Board was improper because there was a contract in existence between the Company and the U. E. R. M. W. The Trial Examiner reserved ruling on this motion, which we hereby deny. 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. On October 10, 1939, pursuant to leave granted by the Board to all parties to the proceeding, the I. B. E. W. filed a brief with the Board. On November 21, 1939,.pursuant to request therefor by the U. E. R. M. W. and notice to all parties, a hearing was had before the Board in Washington, D. C., for the purpose of oral argument. The I. B. E. W. and the U. E. - R. M. W. were represented by counsel and participated therein. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY . Silvray Lighting, Inc., is a corporation organized under the laws of the State of New York. Its offices and factory are located at Long Island City, New York. It is engaged in the business of assembling 1It is clear from the record that it is Local No. 1227 of the United Electrical, Radio and Machine Workers of America which is involved herein. S.ILVRAY LIGHTING INCORPORATED 721 and selling lighting fixtures and in the silver processing of incan- descent lamps. The principal materials used by the Company consist of silver nitrate, sockets, plastic goods, 'fabricated lighting fixture parts, wire, brass turnings, and glass. Approximately 85 per cent of these mate- rials are secured by the Company from points outside the State of New York. During the first 6 months of 1939, the Company spent about $100,000.00 for the purchase of such materials. Approximately 90 per cent of its products are shipped by the Company to points out- side the State of New York. During the first 6 months of 1939, the Company's sales amounted to about $215,000.00 The Company has two production departments : the lamp-process- ing department, which includes the fixture shipping and examining divisions; and the wiring, fitting, and assembly department, herein called the wiring department. H. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, Local Union No. 3, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company "en- gaged in the manufacture or installation of electrical products or materials, including lamps and lamp processing," excluding clerical and supervisory employees. United Electrical, Radio and Machine Workers of America, Local No. 1227, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company engaged in the "production of electrical manufactured articles including lamps and lamp processing," excluding clerical and supervisory employees. III. THE QUESTION CONCERNING REPRESENTATION For many years prior to the events hereinafter recited, the Com- pany had an oral agreement with the I. B. E. W. concerning the wages, hours, and working conditions of the employees in the wiring department. On June 8, 1937, the Company entered into a closed- shop contract for a term of about 6 months with the United Electrical and Radio Workers of America Local #1232, which covered all employees in the factory, including lamp processing and wiring departments, except foremen and clerical employees. On January 28, 1938, the Company entered into a closed-shop con- tract with the United Electrical and Radio Workers of America, Machine and Instrument Local 1227, herein called the U. E. R. W., 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the predecessor of the U. E. R. M. W., which covered employees in the lamp-processing department, exclusive of supervisory and clerical employees, and expired on April 30, 1939. In January 1939, the Company entered into a closed-shop contract with the I. B. E. W., which covered only the employees in the wiring department. This contract is to be in effect until December 31, 1939, and from year to year thereafter. - On April 8 and 10, 1939, 24 employees in the lamp-processing de- partment, all of whom were members of the U. E. R. M. W., signed a document in which they expressed their dissatisfaction with the U. E. R. M. W., and applied for membership in the I. B. E. W. The business representative of the I. B. E. W. then informed the Company of the receipt of this document and asked the Company not to sign an agreement with any union until the Board decided "who they were to be." On April 12, 1939, the I. B. E. W. filed its petition herein. Also at about this time, 24 employees signed applica- tion cards of the I. B. E. W. On April 14, the Company received a letter from the I. B. E. W. requesting it not to sign a contract with any labor organization until the Board disposed of the petition filed herein. Nevertheless, the Company on April 17, 1939, entered into a new closed-shop contract with the U: E. R. M. W., to be in effect from May 1, 1939, to June 30, 1940, covering the employees in the lamp-processing department. It is those employees whom the I. B. E. W. now claims to represent. The U. E. R. M. W. seeks the dismissal of the petition on the ground that the Board, by entertaining the petition is in effect abrogat- ing the U. E. R. M. W.'s contract of April 17, 1939. However, this contract was entered into after the Company had notice of the I. B. E. W.'s claims and after the I. B. E. W. had filed a petition for investi- gation and certification under Section 9 (c) of the Act. We find that this contract is not a bar to the present proceeding.2 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 2 Matter of Florence Pipe Foundry & Machine Co. and Steel Workers Organizing Com- mittee, on behalf of Itself and of Lodge 2040, Amalgamated Association of Iron, Steel and Tin Workers of North America, 15 N. L. R. B. 250; Matter of Hirsch Shirt - Corporation and United Garment Workers of America ( affiliated with the A. F. of L.), 12 N. L. R. B. 553; Matter of Rils Manufacturing Corp. and United Electrical, Radio & Machine Workers of America (C. I. 0.), 11 N. L. R. B. 696; Matter of California Wool Scouring Company and Textile Workers Organizing Committee, 5 N. L. R. B. 782. SILVRAY LIGHTING INCORPORATED 723 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 and has led 3 to labor disputes burdening and obstructing commerce and the free flow of commerce. ' V. THE APPROPRIATE UNIT The I. B. E. W. and the U. E. R. M. W. agree that the production and maintenance employees of the Company engaged in the processing of lamps and packing and shipping of electrical lighting fixtures, ex- cluding employees in the wiring, fitting, and assembly department, managers, foremen, and office employees , constitute an appropriate bargaining unit. We see no reason to alter the unit agreed upon. The two unions disagree as to the status of temporary employees of the Company. We shall consider this question in Section VI, below. We find that the production and maintenance employees of the Com- pany engaged in the processing of lamps and packing and shipping of electrical lighting fixtures, excluding employees in the wiring , fitting, and assembly department, managers, foremen, and office employees, 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 We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. The I. B. E. W. and the U. E. R. M. W. disagree as to whether temporary employees of the Company should be eligible to vote in such an election, the former desiring only permanent employees to vote, the latter, temporary and permanent. The Company has taken no position as to this. At the time of the hearing, the Company was employing 28 permanent employees and 23 temporary employees. Since 1937 the Company has been hiring temporary employees at times when its permanent employees have been unable to handle the volume of its business. In the nature of things, the period of employ- ment of temporary employees is therefore indefinite. There is no difference in the nature of the work performed by the permanent and temporary employees. The Company does not keep separate records of permanent and temporary employees and does not maintain a seniority list of temporary employees. A few employees hired in the past on a temporary basis have become permanent employees. 8 A strike of the employees of the Company, which occurred in May 1939, is discussed in Section VI, below. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The I. B. E. W. contends that the temporary employees do not possess any seniority rights and that, therefore, they should be ex- cluded from voting. However, the 1937 contract between the United Electrical and Radio Workers of America Local #1232, and the Company, although it made no mention of temporary employees, pro- vided that "all employees shall work on a straight seniority basis with the employer and in event of a lay-off they shall be laid off in the reverse order in which they were hired and when the employer wishes to rehire they shall be hired in the reverse order of the lay-off" and that "no employees shall be hired until former employees have been given the opportunity by written notification to return to work." The 1938 and 1939 contracts between the U. E. R. W. and the U. E. R. M. W., respectively, and the Company contain similar provi- sions, but provide for departmental seniority. The Company has left the policing of these provisions to the U. E. R. M. W. An organizer for the U. E. R. M. W. testified that the seniority provisions apply to the temporary employees. From all the evidence, it appears that temporary employees do possess seniority rights. The question remains, however, as to whether the temporary em- ployees have a sufficiently continuous interest in the wages, hours, and working conditions of the Company as to entitle them to vote in the election. To determine this, it is necessary for us to consider the history of the Company's hiring of temporary employees. In 1937 there were about 28 regular or permanent employees in the lamp-processing department. Since that time the figure has ranged from about 28 to 31. In the latter part of 1937, the Company em- ployed about seven additional employees for temporary work in shipping and packing. These temporary employees were laid off at times between December 1937 and May 1938. In the latter part of 1938, the Company requested the U. E. R. M. W. to send it three temporary employees. Of the three thus hired, one had previously worked for the Company. These three, hired as temporary em- ployees, later became permanent employees and are now regularly employed by the Company in the lamp-processing department. About March 27, 1939, the Company employed 15 temporary em- ployees in the lamp-processing department. None of them had been previously employed by the Company. The Company subsequently hired 3 additional temporary employees in April and 14 in May. All those hired since March 27 were either laid off on May 26, 1939, or had resigned prior to that date. The Company rehired 3 of these temporary employees on June 9, 1939, and 19 on July 17. Since that time, 29 different employees have been hired and have worked for periods ranging from 2 days to 8 weeks. As stated above, at the time of the hearing, the Company was employing 28 permanent em- ,SILVRAY LIGHTING INCORPORATED 725 ployees and 23 temporary employees. The president of the Company testified that the Company had work for the temporary employees for about 4 weeks following the hearing; and that if the Company did not receive additional orders, these employees would then have to be "let go." However, if the Company received additional orders, it would retain these temporary employees. From a consideration of all the evidence we believe that the policies of the Act will best be effectuated if we provide that those eligible to vote in the election shall be, in addition to the permanent employees whose names appear upon the Company's pay roll immediately pre- ceding the date of this Decision and Direction of Election, such tem- porary employees as were employed by the Company both at some time during the 4-month period immediately preceding May 1, 1939, and also during the pay-roll period immediately preceding the date of this Decision and Direction of Election. Such a standard renders eligible to vote those whose employment, though temporary in nature, is such as to make their interest in the wages, hours, and working conditions of the Company a continuous one. The U. E. R. M. W. asks that the election be held immediately prior to June 30, 1940, the expiration date of its contract with the Company, and that eligibility should be determined as of that time. We have disposed of this contention in Section III, above, in finding that, for the reasons there stated, the contract is not a bar to the present proceeding. One question concerning the eligibility of employees to vote remains. Two permanent employees, Peter Anderson and Edward Menghini, were suspended from membership by the U. E. R. M. W., because they led a movement among the employees to withhold dues therefrom and became active on behalf of the I. B. E. W. The consequent discharge of these two employees on May 1, 1939, by the Company, under the terms of the closed-shop contract, resulted in a strike on May 3, 1939, by from about 20 to 26 of the employees in the lamp-processing depart- ment. On May 20,1939, the Company entered into an agreement with the U. E. R. M. W. and the business representative of the I. B. E. W. in settlement of the strike, by the terms of which the striking em- ployees were to return to work immediately. Anderson and Men- ghini, however, were not to return as employees "until the decision of the Labor Board, and as said Labor Board may decide" in these proceedings. They were, however, to receive their weekly wages from the Company so long as the U. E. R. M. W. and the business repre- sentative of the I. B. E. W. were not able to secure them other em- ployment. The Company considers Anderson and Menghini satis- factory employees and would employ them if the U. E. R. M. W. would permit it. The I. B. E. W. claims that Anderson and Menghini 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be permitted to vote in the election. The U. E. R. M. W. would not so permit them. To disenfranchise Anderson and Menghini as permanent employees because they were discharged pursuant to the terms of the 1939 closed- shop contract would be to permit some of the parties to this proceed- ing to affect the result thereof by a private contract entered into after the proceeding was pending. Since that contract is not a bar to this proceeding, action taken thereunder cannot render Anderson and Menghini ineligible to vote. We note in this connection that under the strike-settlement agreement the Company has continued to carry Anderson and Menghini on its pay roll. 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 Silvray Lighting, Inc., Long Island City, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The production and maintenance employees of the Company en- gaged in the processing of lamps and packing and shipping of elec- trical lighting fixtures, excluding employees in the wiring, fitting, and assembly department, managers, foremen, and office employees, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DmECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Silvray Lighting, Inc., Long Island City, 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 of Election, under the direc- tion and supervision 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 the production and maintenance employees of the Company engaged in the processing of lamps and packing and shipping of elec- trical lighting fixtures, including the permanent employees whose names appear upon the Company's pay roll for the pay-roll period ,SILVRAY LIGHTING INCORPORATED 727 immediately preceding the date of this Direction of Election, includ- ing those who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, and including such temporary employees as were employed by the Company both at some time during the 4-month period immediately preceding May 1, 1939, and also during the pay-roll period immediately preceding the date of this Direction of Election, and including Peter Anderson and Edward Menghini, but excluding employees in the wiring, fitting, and assembly department, managers, foremen, office employees, and those who have since quit or been dis- charged for cause, to determine whether they desire to be represented by International Brotherhood of Electrical Workers, Local Union No. 3, or United Electrical, Radio and Machine Workers of America, Local No. 1227, for the purposes of collective bargaining, or by neither. 283029-41-vol. 18-47