Volupte, Inc.

In the Matter Of VOLUPTE, INC. and INDEPENDENT EMPLOYEES UNION Case No. R-174f.Decided April 17, 1.940 Novelty Manufacturing Industry-Investigation of Representatives : contro- versy concerning representation of employees : rival organizations ; refusal of employer to recognize petitioning union until certified by the Board-Unit Appro- priate for Collective Bargaining : all production and maintenance employees, excluding tool makers, machinists and their helpers and apprentices , polishers, buffers, platers , dippers, enamel colorers , markers, lacquerers , enamel lacquerers, sprayers, and their helpers, clerical employees and supervisory employees- Election Ordered Mr. Christopher Hoey, for the Board. Mr. Fred Spitalny, of Linden, N. J., for the Company. Isserman, Isserman & Kapelsohn, by Mr. Abraham J. Issermam, of Newark, N. J., for the I. A. M. Mr. Jerome Y. Sturm,, of New York City, for the Metal Polishers. Mr. Abraham D. Londa, of Elizabeth, N. J., for the Independent. Mr. Langdon West, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 10, 1939, Independent Employees Union, herein called the Independent, filed with the Regional Director for the Second Region (New York City) a petition and on February 1, 1940, an amended petition alleging that a question affecting commerce had arisen, concerning the representation of employees of Volupte, Inc., Linden, New Jersey, 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 January 23, 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, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 22 N L. R. B., No 84 283033-41-vol 22--66 1029 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 2, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon the Independent, upon the International Association of Machinists , herein called the I. A. M., and upon the Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 44, herein called the Metal Polishers, the latter two being labor organizations claiming to repre- sent employees directly affected by the investigation . Pursuant to notice, a hearing was held on February 13 and 16, 1940 , before Mapes Davidson , the Trial Examiner duly designated by the Board. The Board, the Independent , the I . A. M., and the Metal Polishers were represented by counsel, and the Company by its president, and all par- ticipated in the hearing . At the opening of the hearing on February 16, 1940, the I. A. M. and the Metal Polishers were granted permission to intervene without objection . Thereafter, the Trial Examiner de- nied motions made by counsel for the I. A. M. and for the Metal Polishers to adjourn the hearing for 10 days .' The Trial Examiner's ruling is hereby affirmed. Upon the denial of its motion , the I. A. M. withdrew from the hearing , and thereafter counsel for the Metal Polishers stated on behalf of the I . A. M. that it did not wish to have its name appear on the ballot if the Board ordered an election. 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. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed . At the conclusion of the hearing, the Independent moved that it be certified as the exclusive representative of the employees in an appropriate unit upon the record without an - ' Upon a stipulation entered into on December 9, 1938 . by the Company , the I A. M, Volupte Employees Mutual Benefit Association , an unaffiliated labor organization, and counsel for the Board in settlement of a complaint issued by the Board upon prior charges of unfair labor practices filed by the I. A M , the Board entered its Decision and Order on March 8, 1939 , ordering the Company to cease and desist from unfair labor practices within the meaning of Section 8 ( 1), (2), and (3) of the Act and to take certain agreed affirmative action to remedy the unfair labor practices , including, inter elta, the disestab- lishment of the Volupte Employees Mutual Benefit Association and the reinstatement of 27 employees allegedly discriminatorily discharged because of membership in the I A M. Matter of Volupte, Inc and International Association of Machinists , Lodqe No 315, 11 N. L. R B. 997 . Upon consent of the parties a decree was subsequently entered by the United States Circuit Court of Appeals for the Second Circuit enforcing the Board's order .Catsonal Labor Relations Board v Volupte, Inc, April 17, 1939 (C. C A 2). After the above-described settlement but prior to the hearing in this proceeding , the I A M had filed charges with the Revional Director for the Second Region alleging that the Independent was a company-dominated union The Regional Director had dismissed those charges and upon appeal by the I. A. 111, the Board had sustained the Regional Director in her refusal to issue a complaint The I A M had then appealed to the Board for ieconsideration of its ruling sustaining the dismissal of the charges The I A. M sought the adjournment of the hearing in this proceeding, on the grounds that the unfair labor practices bad not been remedied and that it desired another ruling from the Board on its request for further review of the dismissed charges The Metal Polishers joined in this request on the afore- mentioned grounds, among others, which need not be considered here. VOLUPTE, INCORPORATED 1031 election. The Trial Examiner did not rule upon this motion. The motion is hereby denied. On March 14, 1940, the I. A. M. filed a motion to reopen the record to permit the introduction of evidence to show that it is a labor or- ganization and that it represents a substantial number of the Com- pany's employees, and requested that the name of its local affiliate, Lodge 315, be placed on the ballot should an election be held. The Board hereby denies the motion of the I. A. M. to reopen the record, but grants its request to have the name of Lodge 315 placed on the ballot in the election hereinafter directed.2 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a New Jersey corporation with its principal office and place of business at Linden, New Jersey, is engaged in the manu facture, sale, and distribution of vanity cases and other cosmetic cases, cigarette cases, and other novelties. The principal raw mate- rials used by the Company in its operations are brass and lacquer, about 50 per cent of which are shipped to the Company's plant from points outside the State of New Jersey. Approximately 95 per cent of the finished products manufactured by the Company are sold and shipped by it to points outside the State of New Jersey. The ap- proximate annual cost of materials purchased by the, Company is about $200,000 and the approximate annual sales amount to about $500,000. H. THE ORGANIZATIONS INVOLVED Independent Employees Union is an unaffiliated labor organiza- tion admitting to membership all the Company's production and maintenance employees exclusive of tool makers, machinists and their helpers and apprentices, and those employees within the juris- diction of the Metal Polishers. Metal Polishers, Buffers, Platers and Helpers International Union. Local #44, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company employed as polishers, buffers, platers, dippers, enamel colorers, washers, lacquerers, enamel lacquerers, sprayers, and their helpers. 2 Under the facts of this case , particularly the I A M's participation in the prior pro. ceedings ( see footnote 1, supra) and the evidence herein of the I A M 's past contractual relations with the Company , discussed infra, the Board does not deem a further hearing necessary to permit the I A M. to adduce the proof offered in support of its request for a place on the ballot 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists is a labor organization, also affiliated with the American Federation of Labor, admitting to membership all the Company's production and maintenance em- ployees exclusive of those within the jurisdiction of the Metal Polishers. III. THE QUESTION CONCERNING REPRESENTATION On May 1, 1937, the Company and the I. A. M. entered into two collective contracts, one of which covered tool makers, machinists and their helpers and apprentices, and the other production workers not within the jurisdiction of the Metal Polishers. Both agreements were automatically renewable for another year at the end of their first year unless one of the parties gave notice of termination. On May 14, 1938, the Company and Volupte Employees Mutual Benefit Association entered into a contract for one year covering all employees except the employees in the toolroom and the employees in the plating and polishing room and those engaged in lacquer and enamel finishing. This contract, which contained a renewal clause similar to those contained in the I. A. M.'s contracts mentioned above, was set aside by the consent order entered by the Board on March 8, 1939.3 On July 5, 1939, the Company entered into a contract with the Metal Polishers for one year covering employees within its juris- diction. This contract contained a renewal clause similar to those in the I. A. M.'s contracts. The president of the Company testified at the hearing that his Company had maintained contractual relations with the Metal Polishers for 31/, years. Early in 1939 the Independent, through a committee, asked the Company for exclusive recognition as the bargaining agent of the Company's production and maintenance employees. The Company replied that it could not bargain with the Independent until the In- dependent had been certified by the Board as the representative of the production and maintenance employees. Thereafter, the Inde- pendent called a strike, effective April 10, 1939, in protest against the Company's refusal to recognize it. During the first day of the strike, which lasted only a few days, the Independent filed the original peti- tion for investigation and certification in this proceeding. We find that a question has arisen concerning the representation of employees of the Company. -See footnote 1, supra. VOLUPTE, INCORPORATED 1033 TV. 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 The Independent contends that an appropriate unit consists of all production and maintenance employees of the Company, excluding tool makers, machinists and their helpers and apprentices, and all ,employees coming within the jurisdiction of the Metal Polishers, viz, polishers, buffers, platers, dippers, enamel colorers, washers, lac- querers, enamel lacquerers, sprayers, and their helpers. The Com- pany agreed with the contentions of the Independent. The I. A. M. did not make any contentions with respect to the appropriate unit. The Metal Polishers at first contended that the unit sought by the Independent included some employees over which it claims jurisdic- tion but later the Metal Polishers and the Independent stipulated that the Independent did not desire to include within the proposed unit any employees within the jurisdiction of the Metal Polishers. Since the Independent and the Company are in agreement upon the unit and the Metal Polishers and the I. A. M. have raised no objec- tion to it, and since the unit sought is in accord with the past collec- tive bargaining history reviewed in Section III, supra, we shall adopt it. We find that all production and maintenance employees of the Company, excluding tool makers, machinists and their helpers and apprentices, polishers, buffers, platers, dippers, enamel colorers, washers, lacquerers, enamel lacquerers, sprayers, and their helpers, clerical employees, and supervisory employees constitute a unit ap- propriate for the purposes of collective bargaining and that said unit will insure to such employees 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 The Independent introduced in evidence, without objection, a paper, containing 41 signatures, which designated the Independent as the bargaining agent of the signers. The person who witnessed the 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signing of the paper testified without contradiction that it was signed, in January 1939 by 41 of the Company's employees. The Company's pay roll for February 3, 1940, which was introduced in evidence shows that on that date there were 74 employees in the unit hereinabove found appropriate. The names of only 28 of the 41 employees who designated the Independent were among the 74 employees on the Company's February 3 pay roll.4 The I. A. M. asserts a claim to represent employees in the same unit.b We find that the question which has arisen concerning the repre- sentation of the Company's employees can best be resolved by an election by secret ballot, and we shall direct the holding of such an election. We shall, therefore, direct that those persons eligible to vote shall be all the employees within the appropriate unit who were employed by the Company during the pay-roll period next preceding the date of this Direction, including employees 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, but excluding those who have since quit or been discharged for cause. 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 Volupte, Inc., Linden, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of Volupte, Inc., Linden, New Jersey, excluding tool makers, machinists and their helpers and apprentices, polishers, buffers, platers, dippers, enamel, colorers, washers, lacquerers, enamel lacquerers, sprayers, and their helpers, clerical employees, and supervisory employees, 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 * A witness for the Independent claimed that the Independent represented between forty and fifty of the employees within the appropriate unit U In its motion to reopen the hearing, the I . A M. claimed that a large number of its members were employees of the Company VOLUPTE, INCORPORATED 1035 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Volupte, Inc., Linden, New Jersey, 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, act- ing 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 the production and maintenance employees of Volupte, Inc., Linden, New Jersey, excluding tool makers, machinists and their helpers and apprentices, polishers, buffers, platers, dippers, enamel colorers, washers, lacquerers,.enamel lacquerers, sprayers, and their helpers, clerical employees, and supervisory employees, to determine whether they desire to be represented by Independent Employees Union or by International Association of Machinists, Lodge 315, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.