The Wadsworth Watch Case Co.

In the Matter of THE WADSWORTH WATCH CASE COMPANY and INTERNATIONAL ASSN. OF MACHINISTS, DISTRICT #34 Case No. R-1695.-Decided March 11, 1940 Watch Case Industry-Investigation of Representatives : controversy concern- ing representation of employees: rival organizations : company refused to grant recognition to petitioning union on ground of existing contract with rival union ; contract, shortly to expire, and certification , over 2 years previously, no bar to determination of representatives-Unit Appropi late for Collective Bargaining: determined in previous proceeding ; no controversy as to ; all employees , exclu- sive of officers of the company , persons having the right to employ or discharge employees, those having purely supervisory positions, those engaged in the Time Study Department, those engaged in the Cost Department , those engaged in the general offices of the Company ( except those engaged in clerical work in pro- duction departments of the Company ) and all employees engaged in metal polishing, buffing, plating , and the processes related thereto, constitute-Rep?c- sentatives : eligibility to participate in choice : employees laid off during slack period who obtained employment elsewhere and refused company's offer of reemployment held ineligible-Election Ordered Mr. Oscar Grossman, for the Board. Peck, Shaffer, Williams, and Gorman, by Mr. Andrew J. Conroy, Jr., of Cincinnati, Ohio, for the Company. Thorndyke and Becker, by Mr. Ralph Becker, of Cincinnati, Ohio, for the I. A. M. Barbour and Bassman, by Mr. Fred B. Bassman, of Newport, Ky., for the Alliance. Mr. John Green , of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 24, 1939, International Association of Machinists; District #34, herein called the I. A. M., filed with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting commerce had arisen concerning representa- tion of employees of The Wadsworth Watch Case Company, Dayton, Kentucky, herein called the Company, and requesting an investigation and certification of representatives, pursuant to Section 9 (c) of the 21 N. L. R. B., No. 43. 476 THE WADSWORTH WATCH CASE COMPANY 477 National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 19, 1940, 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 Regula- tions-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 22, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the I. A. M., and The Wadsworth Watch Case Company Workers Alliance, herein called the Alliance, a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to notice, a hearing was held on January 29, 1940, at Cincinnati. Ohio, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, the I. A. M., and the Alliance 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 af- forded all parties. At the beginning of the hearing, the Alliance was permitted to file a document styled an answer,' praying that the petition be dismissed. The Trial Examiner made no ruling with respect to the prayer. For the reasons stated below, it is denied. During the course of the hearing, the Trial Examiner made several rulings on motions and 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 af- firmed. Thereafter all of the parties stipulated to certain corrections in the transcript of the hearing, and on February 26, 1940, the Board ordered that said stipulation be made a part of the record. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Wadsworth Watch Case Company, a Kentucky corporation, has its office and principal place of business in Dayton , Kentucky, where it is engaged in the manufacture and sale of watch cases, belt buckles, tie clasps, compacts, and cigarette cases. The Company purchases all of its raw materials, including gold, silver, brass , and nickel, outside the State of Kentucky ; and during 1 Therein the Alliance denied the allegations of the petition concerning the alleged desig- nation of the I. A M . as representative for the purposes of collective bargaining, and affirmatively averred its own certification by the Board on December 10, 1937, its con- tinuance thereafter as bargaining agent of employees . the execution of a contract with the Company following said certification , and the renewal until April 1, 1940, of said contract. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1939 sold and transported approximately 95 per cent of its total production, the value of which was in excess of $500,000, to cus- tomers located outside the State of Kentucky. The Company main- tains a staff of six commission salesmen, who work out of the Dayton office and operate throughout the entire United States. In addition, the Company has sales offices in New York City, Chicago, Illinois, and San Francisco, California, and maintains a selling company; known as Henriett, Inc., organized under the laws of Kentucky and operating throughout the entire United States. The Company employs approximately 414 production employees and 43 clerical and supervisory employees. II. THE ORGANIZATIONS INVOLVED International Association of Machinists, District #34, is a labor organization affiliated with the American Federation of Labor and admits to membership employees of the Company, except those persons holding purely supervisory positions. The Wadsworth Watch Case Company Workers Alliance is an unaffiliated labor organization. Its membership is composed )exclu- sively of Company employees and it admits to membership all em- ployees of the Company except: "(1) an officer of the Company; (2) any person having the right to employ or discharge employees; (3) those holding purely supervisory positions; (4) those engaged in the Time Study Department; (5) those engaged in the Cost De- partment; (6) those engaged in the clerical work in the general offices of the Company. This does not exclude those engaged in clerical work in production departments of the Company." 2 III. THE QUESTION CONCERNING REPRESENTATION On December 10, 1937, after a hearing, the Board certified the Alliance as representative of the employees in the unit which the parties in the instant case agree is the appropriate unit for the pur- poses of collective bargaining.3 Thereafter, the Alliance and the Company entered into a collective agreement, which, without further proof of majority, was renewed on May 22, 1939, to expire April 1, 1940. About May 10, 1939, the I. A. M. commenced organizational activities and, prior to the filing of the petition herein on November 24, 1939, requested the Company to negotiate with it. The Company refused because of its existing contract with the Alliance but added that it would negotiate with whomever the Board determined to be the representative of the employees. 2 Quoted from the Articles of the Alliance. 3 Matter of Wadsworth Watch Case Company and Metal Polishers, Buffers, Platers and Helpers International Union, 4 N. L. R. B. 487. THE WADSWORTH WATCH CASE COMPANY 479 The Company's pay-roll list, as of January 26, 1940, showed that there were approximately 363 employees in the unit the parties agree is appropriate.4 At the hearing, the I. A. M. claimed to have been designated by a majority of the employees in such unit. The business representative of the I^ A. M. testified that he had in his possession 177 signed authorization cards 5 of employees in the unit; that the first card had been signed on-May 10, 1939; that none of these em- ployees had notified the I. A. M. of an intention to withdraw such authorization; and that other employees had orally expressed their desire to have the I. A. M. represent them. The secretary-treasurer of the Alliance testified that it had 302 signed membership cards of employees in the appropriate unit; that these cards had been signed over a period of two years ; that some of the cards had been signed as long ago as July 29, 1937, and that some had been signed recently; e and that it had 78 paid-up members.7 Neither the I. A. M. nor the Alliance offered any documentary proof of designation. The existing contract between the Company and the Alliance and the previous certification of the latter do not constitute a bar to these proceedings as the contract is shortly to expire on April 1, 1940,8 and more than 2 years have elapsed since the certification..9 We find that a question has arisen concerning the representation of employees of the Company. 4 The pay roll lists 11 employees (8 factory time clerks and 3 clerks ) whose duties do not sufficiently appear to permit determination as to their inclusion in the agreed unit. By the terms of the card , the undersigned stated : "I . . . hereby authorize the International Association of Machinists , affiliated with the American Federation of Labor, to represent me and, in my behalf, to negotiate and con- clude all agreements as to hours of labor, wages and other employment conditions In accordance with the provisions of the National Labor Relations Act of July 5, 1935. "The full power and authority to act for the undersigned as described herein super- sedes any power or authority heretofore given to any person or organization to represent me, and shall remain in full force and effect for one year from date and thereafter, sub- ject to thirty ( 30) days written notice of my desire to withdraw such power and authority to act for me in the matters referred to herein." 6In the previous representation proceeding, the Board found that the Alliance then had signed cards of 306 members , and 7 applicants for membership, in the appropriate unit 7 The Articles of the Alliance provide for automatic suspension of members two months in arrears in payment of dues, and for automatic expulsion when in arrears for four months. At the hearing , several employees testified that they were familiar with the above rule and that their dues were more than two months in arrears One employee testified that the Alliance representative for his department had resigned and had not been replaced , with the result that all the employees in the department went directly to the foreman whenever they had grievances. 8 Cf Matter of Interstate Broadcasting Company, Inc , and Local No 913, Radio Broad- cast Technicians & Engineers Union, International Brotherhood of Electrical Workers, A F L, 18 N. L. R. B 235 ; Matter of Gross Galesburg Co. and Amalgamated Clothing Workers of America , 15 N L R B 716 ; Matter of Shipotoners ' Association of the Pa- cific Coast, et al., and International Longshoremen's and Warehousemen's Union, District #1, 7 N. L. It. B. 1002 'Cf. Matter of R. C. A. Manufacturing Company, Inc., and International Brotherhood of Electrical Workers B-957, 16 N L R . B. 883; Matter of Bendix Products Corporation and Bendix Industrial Police Association , 15 N L. R B 965 ; Matter of Todd Johnson Dry Docks, Inc, and Industrial Union of Marine and Shipbuilding Workers of Amer, Local No. 59, 10 N. L . R B. 629 480 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question which has arisen, occuring in connection with the operations of the Company set forth 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 dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT In the previous representation proceeding 10 the Board found that all employees of the Company, exclusive of officers of the Company, persons having the right to employ or discharge employees, those holding purely supervisory positions, those engaged in the Time Study Department, those engaged in the Cost Department, those en- gaged in clerical work in the general offices of the Company (except those engaged in clerical work in production departments of the Company), and all employees engaged in metal polishing, buffing, plating, and the processes related thereto, constituted a unit appropri- ate for the purposes of collective bargaining. At the hearing in the instant case the parties stipulated that such employees presently constitute an appropriate unit. We find that all the employees of the Company, exclusive of officers of the Company, persons having the right to employ or discharge employees, those holding purely supervisory positions, those engaged in the Time Study Department, those engaged in the Cost Depart- ment, those engaged in clerical work in the general offices of the Company (except those engaged in clerical work in production de- partments of the Company), and all employees engaged in metal polishing, buffing, plating, and the processes related thereto, consti- tute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. VI. THE DETERMINATION OF REPRESENTATIVES Under the circumstances set forth in Section III above, we find that the question concerning representation can be best resolved by the holding of an election by secret ballot. The I. A. M. contended at the hearing that nine diemakers whose names were not listed on the Company's pay-roll list, as of January 26, 1940, should be eligible to vote. We find the contention to be without merit. The nine diemakers had been laid off by the Company during the slack season in the spring of 1939 and, upon resumption 20 See footnote 3, supra. THE WADSWORTH WATCH CASE COMPANY ` 481 of seasonal activity in the fall of 1939, were offered reemployment. Because they were then working elsewhere and were unable to obtain a guarantee of steady employment by the Company, all of them refused the Company's offer of reemployment. Although the pay-roll list of January 26, 1940, was introduced in evidence, neither the I. A. M. nor the Alliance requested its use as the basis for determining eligibility to vote in an election. Accord- ingly, we find no reason to depart from our usual practice of using the pay roll immediately preceding the date of the Direction of Election herein. 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 The Wadsworth Watch Case Company, Dayton, Kentucky, within the meaning of Section 9 (c) and Section 2 (6) and (7) of National Labor Relations Act. 2. All of the employees of The Wadsworth Watch Case Company, exclusive of officers of the Company, persons having the right to employ or discharge employees, those holding purely supervisory positions, those engaged in the Time Study Department, those en- gaged in the Cost Department, those engaged in clerical work in the general offices of the Company (except those engaged in clerical work in production departments of the Company), and all employees engaged in metal polishing, buffing, plating, and the processes related thereto, 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 v-irtne of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, 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 authorized by the Board to ascertain representatives for the purpose of collective bargaining with The Wadsworth Watch Case Company, an election 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 Director for the Ninth Region, acting in this matter 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all em- ployees of the Company whose names appear upon the pay roll of the Company as of the period next preceding the date of this Direc- tion of Election, including employees whose names do not appear on said pay roll because they were ill or on vacation, or who have since been temporarily laid off, but excluding officers of the Company, any person having the right to employ or discharge employees, those holding purely supervisory positions, those engaged in the Time Study Department, those engaged in the Cost Department, those en- gaged in clerical work in the general offices of the Company (except those engaged in clerical work in production departments of the Company), all employees engaged in metal polishing, buffing, plating, and the processes related thereto, and those employees who have since quit or have been discharged for cause, to determine whether they desire to be represented by International Association of Machinists, District #34, affiliated with the American Federation of Labor, or by The Wadsworth Watch Case Company Workers Alliance, or by neither, for the purposes of collective bargaining.