S. E. & M. Vernon Inc.

In the Matter of S. E. & M. VERNON INCORPORATED and LOCAL 21512, A.F.OFL. Case No. R-1825.Decided June 15,1940 Blank Book Manufacturing Industry-Investigation of Representatives: con- troversy concerning representation of employees ; strike called off upon statement of Regional Office that Board would promptly dispose of question concerning representation-Unit Appropriate for Collective Bargaining: all non-supervisory production and maintenance factory employees except those in shipping depart- ment, who were excluded because, covered by closed-shop contract made August 9, 1939, and running for 26 months, no present question exists concerning their representation ; (Smith, dissenting in part) shipping-department employees should be included because allied in interest and function and because contracting union did not request their exclusion ; contract no bar, since approximately a year will have passed between making of contract and final disposition of proceeding- Election Ordered Mr. Daniel Baker, for the Board. Phillips, Mahoney cC Fielding, by Mr. William E. Goldman and Mr. Richard L. Deeley, of New York City, for the Company. Mr. Harold A. Felix, of New York City, and Mr. Frank Sheridan, of Hoboken, N. J., for the A. F. of L. Mr. Samuel L. Rothbard and Mr. E. L. Howard, of Newark, N. J., for the C. I. O. Mr. Hilton E. Harris, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 7, 1940, Local 21512, Motor R Bus Terminal Checkers, Platform & Office `Yorkers Union, A. F. of L., herein called the A. F. of L., filed a petition with the Regional Director for the Second Region (New York City), alleging that a question affecting commerce had arisen concerning the representation of employees of S. E. & M. Vernon, Incorporated, New York City and Elizabeth, New Jersey, herein called the Company, and requesting an investigation and cer- tification of'representatives, pursuant to Section 9 (c) of the National 24 N. L. R. B., No. 75. 283035-42-vol. 24--48 741 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Act, 49 Stat. 449, herein called the Act.' On April 24, 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 Regulations-Series 2, as amended, ordered an investigation- and authorized the, Regional Director to conduct it and to provide for an appropriate 'hearing upon due notice. On April 26, 1940, the Regional Director issued a notice of hearing, which, together with a copy of the petition, was duly served on the 'Company, on the A. F. of L., and on the Congress of Industrial Organi- zations, herein called the C. I. O: Pursuant to notice, a hearing was held on May 3 and 7, 1940, in New York City, before Edward Grandi- son Smith, the Trial Examiner duly designated by the Board. The Board, the Company, the A. F. of L., and the C. I. O. were represented by counsel and participated in the hearing. All parties.were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing, the Trial Examiner made rulings on motions and on ob- jections 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. Pursuant to leave granted to all parties, the Company, .on May 21, 1940, filed a'brief, which the Board has considered. On May 28, 1940, pursuant to notice to all parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., and the Company and the C. I. O. 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 2 S. E. & M.- Vernon Incorporated is a corporation duly organized and existing under the laws of the State of New York, with.its main office in New York City and a factory in Elizabeth, New Jersey. It is engaged in'the business of manufacturing and distributing blank books, loose-leaf notebooks, and school goods. The principal raw materials used by the Company in its manufac- turing operations consist of paper, pulp, metals, imitation leather, and ' The designations of the Company and of the A. F. of L. show minor variations In the formal papers in this case. ' z The findings in this section are based on a written stipulation entered into at the hearing by the attorneys for the Board and the respondent. S.. E. & M. VERNON INCORPORATED. 743 leather. The Company annually purchases approximately 90 per cent of these raw materials amounting to approximately $900,000,- outside the State of, New Jersey, and causes such-raw materials to be shipped from and through States other than the State of New Jersey to its New Jersey factory. The Company annually sells and distributes approximately 90 per cent of its finished products, amounting to ap- proximately $1,600,000, outside the State of New Jersey, and causes such products to be delivered from its New Jersey factory in interstate commerce through States other than the State of New Jersey. The Company conceded both in the written stipulation and orally at the hearing that it was engaged in interstate, commerce, within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVED Local 21512, Motor and Bus Terminal Checkers, Platform & Office Workers Union, A. F. of L., and Congress of Industrial Organizations are labor organizations, within the meaning of Section 2 (5) of the Act, and admit to membership employees of the Company at its New Jersey factory. III. THE QUESTION CONCERNING REPRESENTATION All parties stipulated at the hearing and we find that on March 27, 1940, a strike took place at the Company's New Jersey factory, but was called off on the statement by the Regional Office of the Board that the question concerning representation would be promptly disposed of by the Board-,,and that a question had arisen concerning the representation of the Company's employees at its New Jersey factory, within the meaning of Section 9 (c) of the Act. TV. THE EFFECT OF THFI 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 :and has led to labor disputes burdening alid obstructing commerce and the free flow of commerce: V. THE APPROPRIATE UNIT On August 9, 1939, the Company and the A. F. of L. entered into a closed-'shop contract, covering the Company's shipping-department 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees:3 The contract made provisions for the wages, hours, and. working conditions of the employees in the shipping department of the factory, and stated that there should be no strikes or other forms. of industrial disturbance during the existence of the contract. The contract by its terms was to continue in full force and effect up to and. including October 15, 1941, and was to be considered renewed from year to year thereafter unless either party thereto gave written notice to- the other party of its desire to modify or cancel the contract at least 30 days prior to the expiration date. At the hearing the parties were in agreement that, because of the similarity of the hours and working conditions of all the non-super- visory production and maintenance employees at the New Jersey fac- tory, including those in the shipping department, all such employees would be a unit appropriate for the purposes of collective bargaining,. except for the existence of the contract. As to the employees in the shipping department, numbering 28, the A. F. of L. stated that its position was neutral and that it intended to leave the question of their inclusion orexclusion to the Board; 4 the C. I. O. stated that it was not attacking the validity of the contract, but nevertheless argued that, such employees should be included in the bargaining unit; and the' Company, while agreeing to include such employees in the unit after the expiration of the contract on October 15, 1941, argued in effect' that they should be excluded from the unit until that time and should not be permitted to vote, solely because of the existence of the contract. The parties further stipulated that the term "production employees"' should include all the employees engaged at the New Jersey factory in the manufacture of the Company's products; and that the term "main- tenance employees" should include all the employees at the New Jersey factory who were machinists, painters, repairmen, and carpenters, and also those who were engaged in the work of maintaining the plant, such as janitors, fireman, and watchmen. Upon the record there is no present question concerning the repre- sentation of the shipping-department employees who are currently 3 The contract stated that it was made by and between " S. E. & M. Vernon , Inc., of Elizabeth , New Jersey" and "Platform , Checkers and Office Workers , A. F. of L., Local #21512 of Hoboken ,. New Jersey." None of the parties , including the C. I . 0., argued that this contract was other than a valid and binding obligation between the Company and the A. F. of L. - 4 The petition stated that the approximate number of employees In the appropriate unit was "370, less 28 under separate contract." The petitioning A. F. of L. claimed to have been designated or selected by "178, exclusive of 28 ( referred to above)." At the hearing the attorney for the A. F. of L. said, with regard to the question of including the shipping department in the appropriate unit, "I intend to leave it to the Board. .. . I cannot very well suggest at this time that that contract should be abrogated." However, the A . F. of L. at no time expressed a willingness to surrender any of its rights under the contract. S. E. & M. VERNON INCORPORATED 745 represented for collective bargaining under the A. F. of L.'s closed- shop contract with the Company. Accordingly the shipping-depart- ment employees will not be included in the unit. We find that all of the Company's production and maintenance employees at its New Jersey factory, excluding those employed in the shipping department and also excluding those above the rank of assist- ant foremen, now constitute a unit appropriate for the purposes of collective bargaining, and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining. VI. THE DETERMINATION OF REPRESENTATIVES I At the hearing it was stipulated that both the A. F. of L. and the C. I. 0. represented a substantial number of the Company's employees at. the New Jersey factory.5 We find that the question concerning representation which has arisen can best be resolved by an election, and shall so direct. With respect to the eligibility of employees to vote in an election, the parties entered into the following oral stipulation, which we shall adopt : The parties are in accord as to the eligibility date before the strike to be used, and that any employees formerly in the employ of the Company who were reinstated to work after the strike should be entitled to vote, but new employees,. people who were new employees, should not, those who were employed after the strike began. 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 S. E. & M. Vernon •Incorporated, at its factory in Elizabeth, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and. (7) of the National Labor Relations Act. 5 A document signed by the Regional Director and entitled "Amended Statement of Regional Director concerning Claims of Authorizations for the Purpose of Representa- tion" was introduced into evidence for the purpose of establishing that a substantial number of the employees had designated each of the labor organizations in this case, the parties having agreed that a certification was not desired on the basis of the Statement. In the Statement the Regional Director set forth that the A. F. of L. had submitted 287 signed application cards and an application petition containing 41 signatures, that all the 52S signatures appeared to be genuine originals, and that 285 of them were names appearing on the Company's pay roll of April 26, 1940; and that the C. I. O. had sub- mitted 62 signed authorization cards, that all the signatures appeared to be genuine originals, and that 45 of them were names appearing on the Company's pay roll of April 26, 1940. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local 21512, Motor & Bus Terminal Checkers, Platform & Office Workers Union, A. F. of L., and Congress of Industrial Organizations are labor organizations, within the meaning of Section 2 (5) of the National Labor Relations Act. 3. All the production and maintenance employees employed by the Company at its factory in Elizabeth, New Jersey, excluding employees employed in the shipping department, foremen, assistant foremen, and supervisory employees above the rank of foremen, constitute a unit appropriate for the purposes of collective bargaining, within the mean- ing. 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 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 S. E. & M. Vernon Incorporated, New York City and Elizabeth, New Jersey, an election by secret ballot shall be, conducted as early as pos- sible but not later than thirty (30) days from the date of this Direction of. Election, under the direction 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 all production and maintenance employees employed by the Company at its factory in Elizabeth, New Jersey, either immediately prior to the strike of March 27, 1940, or thereafter if they had been formerly in the Company's employ, including em- ployees who did not work during such periods because they. were ill,. on vacation, or temporarily laid off, but excluding persons employed by the Company for the first time after the strike of March 27, 1940; and also excluding employees employed in the shipping department, foremen, assistant foremen, and supervisory employees above-the rank of foremen, and all employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local 21512, Motor & Bus Terminal Checkzrs, Platform & Office Workers Union, A. F. of L., or by Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting in part : I dissent from the view of the majority that the shipping-department employees should be excluded from the appropriate unit. All the parties expressly recognize by stipulation that on the basis of interest S. E. & M. VERNON INCORPORATED 747 and function the shipping-department employees are an, appropriate part of a production and maintenance unit of the Company's employees, for collective bargaining. The closed-shop. contract' covering the ship- ping-department employees was to run for a 26-month period, of which. 10 months have already expired. By the time the Board will be ready to dispose of this proceeding, either by •a certification or. otherwise,. approximately it year will have passed since the contract was entered into. Under these circumstances, I do not consider the contract as a bar to the inclusion of the shipping-department employees in an other- wise concededly appropriate unit,.' especially since the A. F. of L., the. contracting union, does not assert such a bar. For the foregoing rea- sons I would include the shipping-department employees in the appropriate unit. LSAME TITLE] AMENDMENT TO DECISION AND DIRECTION OF ELECTION June. P2., 1 490 On June 15, 1940, , the National Labor Relations Board, herein, called the Board, issued a Decision .and Direction of Election in the above-entitled proceeding. On June' 19, 1940, the Board received -letter from the attorneys for S. E. & M. Vernon Incorporated,. herein called the Company, stating that all parties had stipulated. at the hearing that the office employees and all other employees at the Company's Elizabeth, New Jersey, factory, except those spe- cifically excluded should be included in the unit and requesting that the Decision and Direction of Election be amended to remove all ambiguity with respect to the unit:' The Board has considered the. request and, in order to eliminate any ambiguity concerning the unit to which all parties agreed, hereby amends its Decision and Direction of Election by striking therefrom the phrase "production and maintenance" wherever it occurs. MR. EDWIN S .. SMITI3 took no part . in the consideration of the above Amendment to, Decision and Direction of Election. . 0See Matter of Lewis Steel Products Corp. and Local 1225 of the United Electrical,. Radio 5 Machine Workers o fA.me•iea, O. I. 0., 23 N. L. R. B. 793. 4 The letter also stated that copies were being forwarded to the attorney for the petitioning Union and to the attorney for the C. I. O. 24 N. L. R. B., No. 75a.