Syracuse Ornamental Co.

In the Matter of ALEx HOLSTEIN , DAVID HOLSTEIN, PHILIP HOLSTEIN, AND MOSES WINKELSTEIN , D/B/A SYRACUSE ORNAMENTAL Co. and INTERNATIONAL LADIES' HAND BAG, POCKETBOOK & NovEIIrY WORK- ERS UNION 1 A. F. OF L. ( LOCAL TO BE CHARTERED) Case No. R-1677.-Decided February 27, 1940 Moulded Wood and Novelty Manufacturing Industry-Investigation of Repre- sentatives : controversy concerning representation of employees : refusal of em- ployer: to,recognize petitioning union-Unit Appropriate for Collective Bargain, ing:' all production employees , exclusive of supervisory employees ( foremen 'and assistant foremen ), clerical and office , shipping, maintenance, stock, design, cleaning, and machine-shop employees, employees classified as "production mis- cellaneous," casual laborers, and (five ) members of the wood-carvers union; supervisory nature of work of employees , controversy as to-Representatives: eligibility to participate in choice of : current employees plus "temporary" em- ployees discharged during December 1939 who worked twenty ( 20) weeks or longer in 1939 and in addition for any period of time during the 1938 season- Election Ordered Mr. Edward D. Flaherty, for the Board. Mr. Warren Winkelstein and Mr. H. Duane Bruce, of Syracuse, N. Y., for the Company. Mr. Elias Lieberman, by Mr. Nathaniel H. Janes, of New York City, for the Union. Mr. Norman M. Neel, of counsel 'to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 2, 1939, International Ladies' Hand Bag, Pocketbook and Novelty Workers Union, A. F. of L., herein called the Union, filed with the Regional Director for the Third Region (Buffalo, New York) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Alex Holstein, David Hol- stein, Philip Holstein, and Moses Winkelstein, doing business as Syracuse Ornamental Co., Syracuse, New York, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations 20 N. L. R. B., No. 84. 877 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, 49 Stat. 449, herein called the Act. On December 22, 1939, the National Labor Relations Board, herein called the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relatons' Board Rules and Regulations=Series 2, ordered an investigation and directed the Regional Director to con- duct it- and to provide for an appropriate hearing upon, due notice. On December 28, 1939, : the Regional. Director. issued- a : notice'- of hearing, copies of which were duly served upon the Company and upon the Union. Pursuant to the notice, a hearing was held on January 4 and 5, 1940, at Syracuse, New York, before Earl S. Bell- ,man, the Trial Examiner duly designated by the Board. The Board, -the Company, and the Union were represented by counsel and 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. On January 6 and 8, 1940, the Union and the Company, respectively, requested leave to file briefs in support of their contentions. The Board, in accordance with these requests, granted the Company and the Union until January 16, 1939, to file briefs. Each party availed itself of this privilege. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY' The Company is and has been since 1921 a copartnership composed of Alex Holstein, David Holstein, Philip Holstein, and Moses Win- kelstein, doing business under the firm name and style of Syracuse Ornamental Co. Its principal office and place of business is located in Syracuse, New York, where it is engaged in the manufacture, sale, and distribution of imitation wood carvings, ornaments, radio parts and cabinets, and other moulded wood products. The raw ma- terials used by the Company are wood, metal, fillers, glues, lacquers, and other finishing materials. The value of the raw materials used by the Company at its plant in Syracuse, New York, purchased dur- ing the period from December 1, 1938, to December 1, 1939, was approximately $140,000, of which approximately 75 per cent were shipped to the Company from States other than the State of New I The findings in this section are based upon a stipulation of facts entered into by the Company, the Union, and the Board. SYRACUSE ORNAMENTAL COMPANY 879 York. The approximate value.of the finished products shipped by the Company during the same period, amounted to $600,000, of which approximately 75 per cent were sent to points outside the State of New York. H. THE ORGANIZATIONS INVOLVED International Ladies' Hand Bag, Pocketbook;&. Novelty : Workers Union; A. F. of L., is a'labor organization admitting to membership production employees of the Company. International Wood Carvers Association, A. F. of L., is a labor Organization admitting to membership employees skilled in wood- carving. III. THE QUESTION CONCERNING REPRESENTATION. The Union began its organizational efforts in the middle of Octo- ber 1939 and on November 22, 1939, notified the Company that it represented a majority of the employees of the Company and sought recognition as the exclusive bargaining representative. The Com- pany expressed doubt that the Union represented a majority of such employees and the Union refused to submit documentary evidence in support of its claim. The Company indicated its desire that an election be held. We find that a question has arisen concerning the representation of the employees of the Company. IV. THE EFFE(9r O^ THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occuring 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 petition, the Union claimed that all production employees, excluding supervisory, clerical and office, shipping, maintenance, and stock employees, should constitute a unit appropriate for the purposes of collective bargaining. At the hearing, the Union supplemented its list of desired exclusions and restated its claim as to the appro- priate unit as follows : all production employees, excluding super- visory employees (which includes foremen and assistant foremen), clerical and office, shipping, --maintenance, stock, design, cleaning, and machine-shop employees, employees classified as "production miscel- 880 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD laneous," casual laborers, and the (five)- members of the International Wood Carvers Association (A. F. of L:), herein called the Association. - The Company agrees to the proposed exclusion of office and clerical employees, casual laborers, the members of the Association,2 Howard Roy, supervisory foreman, and Joseph I. Raleigh, assistant superin- tendent. We shall therefore exclude them. The Company contends, however, that all its remaining employees should be included in the appropriate bargaining unit. We shall consider the groups in dispute. The shipping employees are concerned merely with the handling of incoming and outgoing :shipments ; .the;amuintenance employees con- sist of master mechanic, firemen, elevator man, plumbers, electricians, and miscellaneous workers, who as a group spend little more than 3 per cent of their time in production work; the stockroom employee, Morris Freeman, is engaged in releasing materials upon requisition; the employees in the designing department have duties similar to those of draftsmen, are paid weekly salaries, and do no work on the fin- nished product; the cleaning-department employee, Lena Pullen, scrubs and cleans. The machine-shop employees consist of a master machinist and two helpers. They are engaged in repair work, chiefly on moulds, and also in the manufacture of small metal parts for some. of the Com- pany's pany's products. The employees classified under "production miscellaneous" are for the most part persons with academic degrees utilizing a somewhat technical training in their work on production problems, techniques, and lay-outs. ' They are paid' weekly salaries without exception. The work and incidents of employment of the groups and indi- viduals hereinabove discussed differ in some degree from those of the regular production employees, and since the only union involved does not admit them to membership and desires their exclusion, we shall exclude them in accord with past practice 3 There are 25 employees whom the Union claims to be foremen and subforemen and hence not properly within the unit. We pass to a consideration of those individuals. William Wood, Forrest G. Merriam, and Joseph Ott are excluded as machine shop, maintenance, and shipping employees, respectively. Angelo Manzi, E. J. Kessler, Louis Myrick, Hubert Langenmayr, George A. Moberg, John K. Fritz, W. Carl West, and Clarence Sper- 2 The Association has been dealing with the Company for these employees for a substan- tial period of time. See Matter of May Knitting Company, Inc. and United Wholesale and Warehouse Employees of New York, Local No. 65, 0. I, 0., 11 N. L. R. B. 772, and` decisions therein cited. SYRACUSE ORNAMENTAL COMPANY 881 ling are paid, weekly salaries,,,44mittedly are foremen, and are desig- nated as such on the Company's "Current Employee". list as of January 2, 1940. Dominic De Angelloa and Fred K. Davis who work in the sanding department were identified at the hearing as foremen by Foreman Howard Roy.4 Severin Bischof was admitted to be foreman of the woodite finishing section of the knob depart- ment, by Moses Winkelstein, one of -the partners. Since the only labor organization involved desires the exclusion of the 11 last named supervisory employees,5 we shall exclude them from the unit. We find that the following hourly paid employees do not exercise sufficient supervision, either- by. way of apportioning or criticising work, and are not sufficiently identified with the management to warrant their exclusion from the unit : Harry Brim, who carries moulds from' the racks to the benches; Andrew Levandowski, kiln man, who pushes trucks in and out of the kilns, and unloads them; Mary Wallace, bench worker in the sanding department, who smooths the backs of articles with a plastic material; Jessie Niepling, who stains and fills knobs; Angie Baratta, miscellaneous worker and utility girl ; Angie Cantalupe, antiquer at the white antiquing table; Marian L. Essig, concerning whom there is no testimony; Jack Glinsky, an employee,, in the- gift-packing department, who is tem- porarily on a .weekly pay basis because of illness in order- that, he may avoid loss of pay through such disability ; John Pollicino, a filer in the sanding department; Florence Boyea, antiquer in the fin- ishing department; Elizabeth Arena, decorator in the finishing department. We find that all -production employees, exclusive of supervisory employees (which includes.-foremen and assistant foremen),, clerical and office, shipping, maintenance, stock, design, cleaning, and ma- chine-shop employees, employees - classified as "production miscel- laneous," casual laborers, and the (five) members of the Association, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to the 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 the Company denied the Union's'claim to represent a majority of the Company's employees within the appropriate unit. 4 Roy stated on cross-examination that he did not know the positions of these two employees by "personal knowledge," but in view of Roy's status, we are of the opinion that he was in a position to testify accurately concerning the Company's supervisory employees. 5 See supra, footnote 3. 882 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD We find that the question concerning representation can best be re- solved by holding an election by secret ballot., It is the contention of the Union that the persons entitled to vote should be the employees within the appropriate unit who are listed on the Company's pay roll as of December 2, 1939, the date of filing the petition. The Company contends on the other hand, that this pay roll represents an abnormal period of employment and claims that its employee list of January 3, 1940, is representative of regular, permanent employment. The Company's business is seasonal 11 and each year the Company experiences increases in employment which begin in midsummer and end in the early weeks of December? In accordance with past practice, during the month of December 1939,, the Company discharged 8 in the inverse order of hiring, about 170 persons whom it considered to be temporary employees. The Com- pany contends that those employees were discharged and hence should not be eligible to participate in the election, while the Union maintains that they, were laid off, that they enjoy a reasonable ex- pectation of reemployment when the Company's seasonal operations require additions to its force, and that they therefore should be permitted to vote. We shall consider the Company's practice with respect to such seasonal reductions in force. When additions to the force become necessary, general notice is given of the availability of jobs and. persons are hired from-among the applicants who appear at the plant. The Company asserts that. those who worked during the previous season are given no individual notification,. that they are not rehired on a seniority or similar basis, and that previous employment is not a factor considered in such hiring. However, the Company's employment records establish that the seasonal employees who worked a substantial period of time during the 1939 peak season had been employed in prior seasons. Thus on the list of employees discharged during December 1939 approximately 62 worked for a period of 20 weeks or longer during 1939, and of that number approximately 72 per cent worked for some period of time during the 1938 season as well. We conclude, upon the basis of the Company's actual practice, that seasonal employees in the appropriate unit who worked 20 weeks or more in 1939 and who worked in addition for any period of time during the 1938 season, are likely to be reemployed in the next season and accord- ' The dull or normal season is from January until midsummer at which time there begins a gradual increase in employment which continues until the peak is reached imme- diately before Christmas. ' In 1939 additional employment began at an earlier date (March) because of an increase- in business due to the world's Fair. 6 Upon discharge , an employee's number is not held for him, he is listed as discharged on the Company's Social Security Report, and on Community Chest pledges. SYRAGUSE ORNAMENTAL COMPANY 883 ingly have an interest in the conditions of employment which may be agreed upon during the period when they are not working, and should be allowed to participate in the selection of representatives.e We direct that all employees in the appropriate unit whose names appear on the Company's current pay roll, and in addition those employees discharged in December 1939 who have worked for a period of 20 weeks or longer during 1939 and for any period of time during the 1938 season according to the 'Company's records, are entitled to participate in the selection of representatives. Upon the basis of the foregoing 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 Alex Holstein, David Holstein, Philip Holstein, and Moses Winkelstein, doing business as Syracuse Orna- mental Co., Syracuse, New York, ' within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees of the Company, exclusive of super- visory employees (which includes foremen and assistant foremen), clerical and office, shipping, maintenance, stock design, cleaning, and machine-shop employees, employees classified as "production mis- cellaneous," casual laborers, and the (five) members of the Interna- tioi aF.Wood Carvers Association (A. F. of L.), 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, 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 Alex Holstein, David Holstein, Philip Holstein, and Moses Winkelstein, doing business as Syracuse Ornamental Co., Syracuse, 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, under the direction and supervision of the Regional Direc- tor-for the Third Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9 See Matter of National Distillers Products Co. and United Distillery Workers of N. A., Local No. 484, affiliated with the Committee for Industrial Organization , 5 N. L. R. R. 862. 884 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD 9, of said Rules and Regulations, among the production employees of the Company exclusive of supervisory employees (which includes foremen and assistant foremen), clerical and office, shipping, main= tenance, stock, design, cleaning, and machine-shop employees, em- ployees classified as "production miscellaneous," casual laborers, and the (five) members of the International Wood Carvers Association (A. F. of L.), appearing on the Company's current pay roll, includ- ing employees who did not work during such pay-roll period because they were ill or on vacation, but excluding all persons who have quit or have been discharged for cause, and in addition, among those appearing on the Company's list of temporary employees discharged during December 1939 who have worked for a .period, of twenty. (20) weeks or longer during 1939, and in addition, worked for any period of time during the 1938 season, to determine whether or not they desire to be represented by the International Ladies' Hand Bag, Pocketbook & Novelty Workers Union, A. F. of L., for the purposes of collective bargaining.