Transformer Corp. of America

In the Matter of TRANSFORMER CORPORATION OF AMERICA' and LOCAL 430 OF THE UNITED ELECTRICAL, RADIO AND MACHINE WOEKERS OF AMERICA, C. I. O. Case No. R-1942.-Decided August 10, 1940 Jurisdiction : amplifying equipment manufacturing industry. Investigation and Certification of Representatives : existence of question. con- flicting claims of rival representatives; contract about to expire, no bar to; election necessary. Suit in State courts between, union parties to proceeding held no bar to existence of question concerning representation. Old employees reemployed in place of new employees who had displaced them following stoppage.of work held eligible to vote. Unit Appropriate for Collective , Bargaining : production employees, including testers, special department and repair employees, inspectors, wire men, assem- blers, packers, and shippers, but excluding all executives, foremen, office and clerical employees, and stock and shipping employees engaged in clerical work or work not directly applicable to production. Mr. Shad Polier for the Board. Carb, Reichman & Luria by Mr. Edward E. Reichman, of New York City, for the Company. Mr. Frank Scheiner, of New York City, for the United. Mr. William Karlins, of New York City, for I. B. E. W. Mr. D. M. Byrd, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 15, 1940, Local 430 of the United Electrical, Radio & Machine Workers of America, C. I. 0., herein called the United, filed with the Regional Director for the Second Region, (New York City) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Transformer Corporation of America, New York City, herein called the Company, and request- ing an investigation and certification of representatives pursuant to t Erroneously designated in the petition and formal papers as Transformer Corp of America. 26 N. L. R. B., No. 44. 476 TRANSFORMER CORPORATION OF AMERICA'- ' 47'7 ,Section 9 (c) of the National Labor Relations Act; 49. Stat., 4'49;^1ie'rein called the Act. l - : 1, (_ ill'- ^ ' On June 19, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to kSection''9 (c) of the Act and Article III, Section 3, of National'Labor'RelationsiBoard Rlules;and Regulations-Series-2, as amended, ordered ari investigation,,and, au- thorized the Regional Director to conduct it- and to ,provide for, ;an appropriate hearing upon due notice. On June 27, 1940, the Regional' Director issued a' notice; of hearing, copies of which were served upon the,Company; the. United,'rndi,the International Brotherhood of Electrical Workers,, Local, ;B=11010, herein called the I. B. E. W., a labor organization claiming to repre- sent employees directly affected by the investigation. Pursuant to notice a hearing was held on July 8,1940,' at New York'City before James C. Paradise, the Trial Examiner duly designated by the Board. The Company, the United, and the'I.,B. E. W. were represented by counsel and participated in the hearing. Full, opportunity to examine and cross-examine witnesses and to, introduce evidence bearing, upon the issues was afforded-all parties. ,IDuring, the course,,of the„ Bearing 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 com- mitted.' In addition the I. B. E. W.' made it motion'to'dismiss the petition upon 'the basis ' of 'evid'enc'e adduced. ' Tlie Trial' Examiner reserved decision upon this'motion. The motion to'disrniss the pe- tition is hereby denied for reasons app'earulg'below: Pursuant to leave, the'United filed a brief 'which' `the' Board has rnn ci tiered . c Upon the entire record in the case the Board makes the 'following: 'FINDINGS lOF, FACT I. THE BUSINESS OF THE COMPANY r Transformer Corporation of America is a New York corporation, having its office and principal place of business located at 69 Worcester Street, New York City. , The Company is engaged in i J., the manufacture, I l l f, I .i 1 ) • It u ' ' .. sale, and distribution of amplifying' equpment. Raw material's, consisting of sockets, transformers, .tubes, chassis,, wire and''miseel- laneous fabricated parts purchased byt '.the; Company. outside the State of New York during the period from November P,193`9 to April 3, 1940, amounted to $50,000 in value and approximately 50 per cent in value of the Company's total, purchases of raw, materials. ' During the same period the gross volume of the Company's finished ' products shipped to places outside of the 'State' of New'York amounted 'in value to approximately $160,000 and' constituted approximately 70 per cent of the Company's sales during the same period. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company admits that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVED Local 430 of the United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Com- pany and other employees similarly engaged in New York City. International Brotherhood of Electrical Workers B-1010, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company and other employees similarly engaged in New York City. III. THE QUESTION CONCERNING REPRESENTATION On August 29, 1939, the Company and the I. B. E. W. executed a written contract, herein called the I. B. E. W. contract, providing for wages, hours of employment, and other working conditions of the Company's employees within an appropriate bargaining unit and by its terms to remain in force until August 24, 1940. The contract further specified that there would be no sympathetic strikes, stoppages, strikes, or lock-outs and that: The employer agrees to call upon the Union for any pro- duction employees it may require and the Union agrees to supply the workers required within 24 hours after request is made for them. If they are not so supplied by the Union the Employer may obtain such Workers elsewhere, in which event such new workers shall be given a working card by the Union. Such new employees shall be on a trial period of two weeks, and after satisfactorily serving their trial period shall become members of the Union and continue to be members of the Union in good standing. Some time prior to May 7, 1940, the membership of Local B-1010 of the I. B. E. W. voted to disaffiliate from the I. B. E. W. and to affiliate with the United. On May 7 the Company was by letter advised that the United claimed to be exclusive representative of the employees. On May 8, 1940, the I. B. E. W. wrote the Company and requested that Sam Lippman and John Granelli, two employees, be discharged in "accordance with the contractual agreements entered into between Local B-1010 and the Company . . . as they are no longer members of Local B-1010 IBEW." On May 15 the Company replied that in compliance with the I. B. E. W. request of May 8 it had dismissed Lippman and Granelli "on the basis that they were no longer members TRANSFORMER CORPORATION OF AMERICA 479 of B-1010 of the IBEW with whom we now.-have a contractual arrangement." It appears that the discharge of Lippman and Granelli precipitated a stoppage of work by all of the employees. Thus the Company also wrote the I. B. E. W. on May 15 that at the close of the morning session of work on May 14 a number of "your members failed to return to work," and advising the I. B. E. W. further that in accordance with the second paragraph of the I. B. E. W. contract the Company proposed to seek satisfactory workers elsewhere unless the I. B. E. W. took immediate action to comply with the terms of the agreement. Because of the work stoppage the Company's production suffered a complete cessation at that time, and none of the employees taking part in the stoppage was again employed by the Company until May 27, 1940. On May 16, 1940, the Company resumed production with an entire new force of 28 employees, herein called the new employees, consisting in part of persons supplied by the I. B. E. W. and in part of persons secured by the Company and given working cards by the I. B. E. W. These persons continued in the employ of the Company until May 24, 1940. On that date the Company and the United entered into a written agreement in which the United warranted, and the Company accepted, that it represented a majority of the Company's employees within the same bargaining unit described in the I. B. E. W. contract. Although this contract provided that it was not to be construed as one granting the United exclusive recognition it specified that pending the ordering of an election by the Board pursuant to the petition previously filed by the United and pending certification of the United as the exclusive collective bargaining agency of the employees, the United agreed to withdraw, with prejudice, charges which it theretofore had filed with the Board and to withdraw all pickets from before the Company's plant. In return the Company agreed to reemploy all employees who were employed on March 6, binding itself further not to discriminate against its employees. In addition the contract provided that in the event the United should be certified as the collective bargaining agency for the Company's employees, the I. B. E. W. contract should be deemed to be an agreement between the Company and the United from the date of such certification until December 3, 1940. Finally, it was specified that in the event the United should not be certified by the Board as the collective bargain- ing agency the United agreement should terminate. On the morning of May 25 the Company notified the new employees that they were "unconditionally discharged" and on May 27 it resumed normal production, with the employees who failed to return to work after the morning session of May 14. 480 DECISIONS i OF NATIONAL ;LABOR RELATIONS BOARD I -,A•-statement of• the-, RegionaL.Director., introduced, into evidence; states that the United presented 27 application cards bearing - dates, between May. 5 and May. 15; that,all of.the 27 signatures affixed to,the cards. appear to be genuine original signatures of the - persons whose names , appear -on, the Company 's pay, roll-,of May . 8,.1940. The Regional Director; further stated that the pay, roll of May 8 showed a total of 27 production employees., On May 27 ; 1940, the I. B..E. W. filed in the, Supreme ,Court of the State of New York' for New York County an' action of the nature -of a suit in equity to enjoin the .Company from violating in any1manner the I. B:. E. W. contract . 2 On -June 10 by motions of the United , "I after the Conipany ;had'filed,its answer ,on-May 28, Frank Sullivan; as president oft Local- 430 of-the United ,. was, joined as,,a=party defendant in the, action. On June 5, 1940 , Justice Lloyd Church denied the motion of the L B. E: W;, for an,injunction pendente-lite "solely on the ground that an, injunction, pendente lite, cannot;issue-except after a hearing (sec: 876-8 CiviltPractices Act). ' This denial, is in no way , a• determination of ;the merits, of -theIcontroversy which -must await the hearing, the time of ;which isjhereby set, for the tenth day of June , 1940 . . . " At, the hearing the 4I ., B. 'E. W. took the position that the existence of-a,question concerning representation'was precluded by the I. B. E. W contract , and by .the, ipendency, of, its suit in the Supreme Court of the. State, of.-New York .. • The-United-and the Company took 'the,opposite view,,,: - 4 4t is not:necessary to;pass upon the status of the I. B. E. W. contract, since; in any event; ,that, contract, is about to expire. ' We :have fre- quently held that,: under-such circumstances ,' the Board; in furtherance of: the purposes ' of the -Act to afford . ,employees the opportunity to selectinew representatives ';,is,n6t precluded, from an investigation and determination., of represehtatives':'-In addition, the Board is of the opinion (that , the pendency ,of, the action in the Supreme Court of the State ofNNewiYork'is ,not!sufficient^to constitute a bar-to • the existence of a question concerning representation., That action is a suit between private parties in'which -the question, concerning representation under Section 9 (c) of the Act cannot .be decided by the Court. -, For -these reasons, the .Board finds, that , a question -has arisen con- cerning,) the' representation, of the Company 's employees, within an appropriate bargaining unit. . I'll . ' r , The action is entitled "Alersnder deral, as president of Radio Local Union B-1010, International' Brotherhood of Electrical Workers, Plaintiff, 'against-Transformer Corporation of America, Defendant 3 Section 93 (b) of the Civil Practice Act of New York State 4 In the Matter of Oppenhen sier Casing Company and United Packin;ihouse Woi kers of America , Local No 75, 15 N -L R ,B',70, In the -Matters of Chrysler Corporation and United Automobile Workers of America; Local 371, 13 N. L R B 121, In the Matter of Atlantic Footweir Company, Inc and Lnited Shoe Workers of America, 5 N L. R B 252,'In the Matter of Shipowners' Association ofthe Pacific Coast , etas and International Longshoremen's and Warehousemen 's Lnion, District No 1, 7 N L R B 1002 , In the-dfatter of Sandusky. Afetal Products, Inc and Ame, ican I ederation of Labor, 6 N L R B 12. TRANSFORMER' CORPORATION OF 'AMERICA ' 481 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 described in Section I'above,' has' t close,' intimate, and substantial relation to trade, traffic, -and commerce among the several States, and tends to lead to ,labor disputes burdening and'obstructing•com- m d 11 fie How of commerce erce an e e I , 1 • • V. THE APPROPRIATE UNIT''" The parties stipulated and the Board finds that "all production employees,•includingtesters, special department and repair employees, inspectors, wire men, assemblers, packers,,and shippers, but excluding all executives, foremen, office- and clerical- employees, and stock and shipping employees engaged in. clerical work or•,work not directly applicable to production'' 5 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 At the hearing a -controversy arose concerning. the pay roll to, be used in determining eligibility to vote in-the event an election should be directed. The United requested, that eligibility be, determined as of the date of the filing of the petition, or in the alternative as of the date, of the hearing on July 8. The I.B. E. W., ,on• the other hand, expressed a desire for, the use of the,pay,roll of May,24. Substantially the positions. of-the'United and the LB.,E. W. present a question of the determination of the eligibility of , •the, new employees; As has been pointed out above, the employees who were employed by the company prior to the stoppage of,work on May 14 -were at the time of the hearing, with certain exceptions,6 again employed by•the company. These employees,''in_niany.iiistance's,, had been with the company for 5 or 6• years and represent the Company's entire personnel with a few exceptions added since June' 24.' , On ' the other land, H. L. Shortt, president-of the"Company, testified •tliat the new' em- ployees were unconditionally' discharged oh May' 25, 1940, by tele- graphic communication because of the "very nasty"problem' ''all the way around" and because, the "new employees not being- able' to' 5 "Work not directly applicable to production" was defined by the parties as that of an employee who handles a finished product subsequent to its having been placed in a Primary carton immediately upon being completed 5 The Company's pay roll lists Fred Auerback as resigning May -31, John J Rash,on May 13, George Buchanan on June 14, and Manfred Vitale as being discharged on June 13 7 The exact number of such employees was not revealed 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turn out the work," production had fallen off. Under the circum- stances the Board is of the opinion and finds that the policies of the Act will be best effectuated by holding that the old employees, presently employed by the Company are eligible to participate in the selection of the bargaining representative of the employees in the appropriate unit.' The record is not clear that the I. B. E. W. desires to appear on the ballot in the event an election is' ordered on the foregoing terms. We shall direct that it be placed thereon and if, within 5 days from the date of our Direction, it notifies the Board that it does not desire to participate in the ballot, we shall amend our Direction accordingly.' In accordance with our usual practice, we direct that the employees of the Company eligible to vote in the election shall be those employees in the appropriate unit who were employed during the pay-roll period last preceding, the date of this Direction of Election, including em- ployees who did not work during such pay-roll period because they were ill or on vacation, but excluding employees 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 Transformer Corporation of America, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees, including testers, special department and repair employees, inspectors, wire men, assemblers, packers and shippers, but excluding all executives, foremen, office and clerical employees, and stock and shipping employees engaged in clerical work or work not directly applicable to production, 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 8 Cf. Matter of Easton Publishing Co and Eastern Typographical Lnion No `158, 19 N L R B 389, Matter of A. Sartorius & Co, Inc and Lnited Mine Workers of America District 50, Local 12090, 10 N L. R. B. 493 See also Matter of Johnson- Carper Furniture Co , Inc and Local 293, Lnited Furniture Workers of America, 14 N L. R. B 1030 Y Matter of Borg- Warner Corp and United Automobile Workers of America Local No 287, affiliated with the C. 1 O, 19 N L R B. 538 TRANSFORMER CORPORATION OF AMERICA 483 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Transformer Corporation of America, New York City, 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, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regu- lations, among all production employees who were employed during the pay-roll period last preceding the date of this Direction of Election including testers, special department and repair employees, inspectors, wire men, assemblers, packers, shippers, 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 all executives, foremen, office and clerical employees, stock and shipping employees engaged in clerical work or work not directly applicable to production, and any employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local 430 of the United Electrical, Radio and Machine Workers of America, C. I. 0., or by the International Brotherhood of Electrical Workers, Local B-1010, for the purposes of collective bar- gaining, or by neither. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.