Teleradio Engineering Corp.

In the Matter of TELERADIO ENGINEERING CORPORATION and LOCAL 430 OF THE UNITED ELECTRICAL, RADIO & MACHINE WORKERS, OF AMERICA, C. I. O. Case No. R-1944.-Decided August 20, 1940 Jurisdiction : radio apparatus and electro-mechanical appliance manufacturing industry. Investigation and Certification of Representatives : existence of question: refusal to accord recognition to union; election necessary. Where contract with rival union has expired and an alleged working agree- ment, de facto situation, or renewal thereof was not made or in existence prior to its expiration date and therefore first' came into existence after institution of the proceedings held no bar to existence of question concerning representation. Unit Appropriate for Collective Bargaining : production employees including employees in the stockroom, repair and lacquer departments, machine-shop employees, set-up men, inspectors, and testers, but excluding all such employees ,who at the date of the Direction of Election herein have not worked for the Company at least 4 consecutive weeks, managers, assistant managers, superin- tendents, foremen, assistant foremen, supervisors, tool makers, maintenance men, porters, employees in the engineering department, laboratory and office employees, and salaried employees receiving more than $25 per week. Mr. Shad Polier, for,the Board. Mr. Henry D. Dorfman, of New York City, for the Company. Mr. Frank Schemer, of New York City, for Local 430. Mr. William Karlin, of New York City, for Local B-1010. Mr. William Beedie, of Matawan, N. J., for the I. B. E. W. Mr. Daniel J. Harrington, 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 and Machine Workers of America, C. I. 0., herein called Local 430, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Teleradio Engineering Corporation, New York City, herein called the Com- pany, and requesting an investigation and certification of representa- 26 N. L. R. B., No. 89. 323429-42-55 853 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 19 the National Labor Relations Board, herein called the Board, acting pursuant to Sec- tion 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 June 27 the Regional Director issued a notice of hearing, copies of which, together with copies of the petition, were duly served upon the Company, upon Local 430, and upon the following labor organiza- tions claiming to represent employees directly affected by the investi- gation: Local B-1010, International Brotherhood of Electrical Workers, A. F. of L., herein called Local, B-1010, and International Brotherhood of Electrical Workers, herein called ,the I. B. E. W. Pursuant to the notice, a hearing was held on July 8 and 12 at New York City, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board, the Company, Local 430, Local B-1010, and the I. B. E. W. appeared and were represented by counsel or a representative, and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence hearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner excluded as irrelevant and immaterial certain' proof, more particu- larly described below, offered by Local B-1010 as bearing upon the issues hereinafter considered relating to the question concerning representation. For reasons subsequently appearing below we are of the opinion that this ruling of the Trial Examiner was correct and hereby affirm the same. The Trial Examiner made several other rulings on motions and on objections to the -admission of evidence. The Board has reviewed these rulings of the Trial. Examiner and finds that no prejudicial errors were committed The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Teleradio Engineering Corporation is a New York corporation with its principal office and only plant at New York City and with sales offices at Chicago, Illinois, and Los Angeles, California. It is engaged in the manufacture, sale, and distribution of radio apparatus and electro-mechanical appliances. In the course of its manufac- turing operations at the New York City plant the Company uses various raw materials, including' steel, brass, bronze, bakelite, ceram- ics, mica films, and various semifinished and finished component parts of 'its finished products. From December 1, 1939, to May 31, TELERADIO ENGINEERING CORPORATION 855 1940, the Company purchased a quantity of such materials for such purpose, of which approximately 65 to 70 per cent in value, or $35,000, was purchased and shipped to the plant,from outside the State of New. York. During the same period the Company shipped from its plant finished products which it sold amounting to approximately $75,000 in value, or about 80 per cent of the value of its total sales of such products, to destinations outside the State of New York. The Company concedes that its business and operations affect commerce, within the meaning of the Act. II. ' THE ORGANIZATIONS INVOLVED Local 430 of the United Electrical, Radio and Machine Workers of America, C. I. 0., is a local of United Electrical, Radio and Machine Workers of America, a labor organization affiliated with the Congress of, Industrial Organizations. Local B-1010, International Brother- hood of Electrical Workers, A. F. of L., is a local of -International Brotherhood of Electrical Workers, a labor organization affiliated with the American Federation of Labor.. Both Local 430 and Local B-1010 admit to membership production employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On August 17, 1937, a consent election by secret ballot was con- ducted under the supervision of the Regional Director among em- ployees of the Company, excluding executives, foremen, technical staff office, office staff, .and porters, to determine whether or not they desired to be represented by Local B-1010 for purposes of collective bargaining. The results of the election showed that a substantial majority of the employees voting in the election desired to be rep- resented to Local B-1010, and, in consequence, that that labor organization was the statutory representative of all employees who were eligible to vote. Thereafter, in August 1937, the Company and Local B-1010 made a collective contract, as of July 1, 1937, which included provisions relating to wages, hours of service, and other working conditions of employees of the Company. Sometime prior to July 14, 1939, this contract terminated. On July 14, 1939, the Company and Local B-1010 entered into another collective contract i covering wages, hours of service, and other working conditions of employees of the Company. The contract provided that the Company recognized Local B-1010 as the exclusive collective bargaining rep- resentative of all employees of the Company "engaged in processing operations," exclusive of certain classifications; that all employees who were members of Local B-1010 as well as new employees were required to be and remain members of Local B-1010; and that the I Local B-1010 is referred to in the contract as Radio Union, Local B-1010 International Brotherhood of Electrical Workers, A F. of L. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company extended to Local B-1010 the privilege of supplying it with new help and in hiring would prefer members of that union. By its terms the contract was to continue in effect until July 1, 1940, and in that connection contained the following provision: "With the consent of both parties expressed in writing sixty (60) days prior to the expira- tion hereof this agreement shall automatically renew itself for an additional period of one (1) year, with or without modification or change, as the parties hereto mutually agree." Neither within the time prescribed in this provision, nor at any other time have the Company and Local B-1010 mutually consented or otherwise agreed in writing to any renewal of the agreement or its terms. On or about May 7, 1940, Local 430 notified the Company in writing to the effect that it was the exclusive collective bargaining representa- tive of the Company's employees and requested a conference with the Company for collective bargaining.' The Company did not reply to this request. After the filing of the petition for investigation and certification herein and on or about May 27 the Company at a con- ference with Local 430 and an agent-of the Board took the position that it would not recognize Local 430 as the collective bargaining representative of its employees until the expiration of its above- mentioned contract with Local B-1010. At the hearing Local B-1010 claimed to be the collective bargaining representative of the Company's employees herein involved. It appears from the report of the Regional Director, as hereinafter set forth, that during the period in which Local 430 thus requested but failed to obtain recogni- tion as collective bargaining representative, a substantial number of the Company's employees designated that labor organization as their representative for purposes of collective bargaining. The failure or refusal of the Company prior to the filing of the petition herein to accord recognition to or otherwise bargain collec- tively with Local 430, and its refusal thereafter to do so, whether because of its above-mentioned exclusive recognition contract with Local B-1010, or otherwise, as well as the competing claims advanced in these proceedings by the two unions to representation of the Com- pany's employees, have resulted in an uncertainty as to the status of Local 430 as the statutory representative of employees of the Company, and given rise to a question concerning representation. However, Local B-1010 contended at the hearing that no question concerning representation herein cognizable had arisen, because there was opera- tive and in effect since July 1, 1940, a "working agreement" between 2 Local 430 also informed the Company in connection with its notification and request that Local B-1010 had "severed its affiliation with the International Brotherhood of Electrical Workers" and had become Local 430 The record contains no proof of this statement As noted above both Local 430 and Local B-1010 appeared by counsel and participated in the hearing . At the hearing counsel for Local B-1010 referred to Local 430 as a "dual union " and it is apparent that a "dual union" situation existed prior to and at the time of the hearing. TELERADIO ENGINEERING CORPORATION 857 it and the Company, a "de facto situation," under or in which the Company observed the same conditions and practices with respect to working conditions of its employees, and obtaining new help from Local B-1010, as it had observed under the contract of July 14, 1939. Local B-1010 states that it had intended to take steps under the contract for a renewal thereof, but had been prevented from so doing "only through the gross negligence of a discredited union official." It admitted that the Company "is asserting that there is no working agreement" between the Company and Local B-1010. Whether there has existed since July 1, 1940, a working agreement or de facto situation of the kind alleged by Local B-1010, or, for that matter, whether the contract of July 14, 1939, was on July 1, 1940, renewed by acts of the parties or as a matter of law, we are of the opinion that the existence or occurrence of such working agreement, situation, or renewal constitutes no ground for our not proceeding at the present to an investigation and determination of the question concerning representation here presented. There' has been no deter- mination of representatives by the Board since August 1937.3 The contract of July 14, 1939, between the Company and Local B-1010 expired on July 1, 1940. The alleged working agreement, de facto situation, or any renewal was not made or in existence prior to July 1, 1940, and, hence, first came into existence after the question concern- ing representation was submitted to the Board and after the Board assumed jurisdiction of the controversy.4 Finally, in view of the assertion of Local B-1010 that the Company is still preferring its members in matters of employment, and only a "working agreement," or de facto situation covering the matter exists, we think it particularly important that the question concerning representation be determined.' We find that a question has arisen concerning representation of, employees of the Company. 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 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. 3 Matter of Wilson & Co., Inc. and International Brotherhood of Teamsters , Chauffeurs, Stablemen and Helpers of America, Local §202, affiliated with the A F of L , 25 N L R. B., 938. 4 Matter of Wilson-Jones Company and Employees Benevolent Association of Elizabeth, N. J, Inc., et al , 21 N. L. R B., No. 92 , Matter of Wickwire Spencer Steel Company and Federated Industrial Union, 18 N. L. R. B., 372. 6 See the proviso clause of Section 8 (3) of the Act. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT At the hearing the Company, Local 430, and Local B-1010 agreed that all production employees of the Company, including employees in the stockroom, repair and lacquer departments, machine-shop employees, set-up men, inspectors, and testers, but excluding manag- ers, assistant managers, superintendents, foremen, assistant foremen,. supervisors, tool makers, maintenance men, porters, employees in the engineering department, laboratory and office employees, and sal- aried employees receiving more than $25 per week, constitute a unit t appropriate for the purposes of collective bargaining. The recor shows that new employees are required to serve a 4-week "trial" or "learning period" before being accepted by the Company as regular employees of the Company and becoming eligible to seniority and other employment benefits. We think that employees holding such temporary status are without the proposed collective bargaining unit.' Accordingly we find that all production employees of the Company, including employees in the stockroom,. repair and lacquer depart- ments, machine-shop employees, set-up men, inspectors, and testers,, but excluding all such employees who at the date of the Direction of Election herein have not worked for the Company at least 4 consecu- tive weeks, managers, assistant managers, superintendents, foremen, assistant foremen, supervisors, tool makers, maintenance men, porters, employees in the engineering department, laboratory and office employees, and salaried employees receiving more than $25 per week, 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 From a report of the Regional Director introduced in evidence it appears that in the period from May 5 to May 15, 1940, a substantial number of the employees of the Company within the unit we have found to be appropriate applied for membership in Local 430, and thereby designated Local 430 their representative for purposes of col- lective bargaining. Local B-1010 was party to the contract expir- ing July 1, 1940, and still claims to be the exclusive collective bar- gaining representative of these employees. We are of the opinion, and find, that the question concerning representation which has arisen and now exists can best be resolved by the holding of an election by secret ballot among the employees in the appropriate unit to deter- 6 See Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers, 7 N. L. R. B. 24, 34; Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No 502, 6 N. L R. B. 171, 186-187. Cf. Matter of Quaker Oats Company and United Cereal Workers, Local No 683 (CIO), 24 N. L. R. B. 589. TELERADIO ENGINEERING CORPORATION 859 mine their desires with regard to representation . Accordingly, we shall direct that an election by secret ballot be held , subject to such limitations as may be stated in the Direction of Election. The record shows that the number of employees at work in the Company's plant fluctuates from time to time, that the peak period of plant employment extends from September through November, with smaller peak periods occurring throughout the remainder of the year. Under the July 14, 1939, contract between the Company and Local B-1010 above mentioned and also since July 1, 1940 , employees are laid off and recalled to work by the Company on the basis'of seniority . As above stated , an employee obtains seniority upon working for the Company more than 4 weeks. An employee loses seniority if he or she absents himself from duty without notifying the Company thereof within 24 hours, if he or she severs his employment with the Company by resignation, or otherwise, or, in the case of laid- off employees, if he or she fails to return to work within 3 days after notification of his or her recall to work. Subject to such loss, an employee who has been laid off and not recalled retains his seniority for 1 year. At the hearing the parties took various positions as to the basis of eligibility to vote in the election, in view of the fluctuation in employment. We are of the opinion that eligibility to participate in the election should be extended to all regular employees, whether or not they are at work in the plant at the time of the election , who were employed in the plant during the year preceding the date of the Direction of Election and who at that date held seniority, as delimited by the company practice above mentioned , but who have not 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 Teleradio Engineering Corporation, 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 of the Company, including employees in the stockroom, repair and lacquer departments , machine-shop employees, set-up men, inspectors , and testers , but excluding all such employees who at the date of the Direction of Election herein have not worked for the Company at least 4 consecutive weeks, managers, assistant managers, superintendents , foremen, assistant foremen, supervisors , tool makers, maintenance men, porters , employees in the engineering department, laboratory and office employees , and salaried 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees receiving more than $25 per week, constitute a unit appro- priate 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, 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 purposes of collective bargaining with Teleradio Engineering Corporation, 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, Sec- tion 9, of said Rules and Regulations, among all persons employed as production employees by the Company during the year preceding the date of this Direction of Election and who, at said date, have seniority,' irrespective of whether at the time of the election theybe at work in the plant, including employees inthe stockroom, -repair and lacquer departments, machine-shop employees, set-up men, inspectors, and testers, but excluding all such employees who at the date of this Direction of Election had not worked for the Company at least 4 consecutive weeks, or who between that date and the date of the election will have quit or been discharged for cause and further excluding managers, assistant managers, superintendents, foremen, assistant foremen, supervisors, tool makers, maintenance men, porters, employees in the engineering department, laboratory and office em- ployees, and salaried employees receiving more than $25 per week, 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 Local B-1010, International Brotherhood of Electrical Workers,•A. F. of L., for the purposes of collective bargaining, or by neither. 7 By "seniority" as used in the Direction of Election is meant an employee who has worked at the plant more than 4 weeks, and who has not lost his or her seniority because of absenting himself or herself from duty without notifying the Company thereof within 24 hours, of severing his or her employment with the Company by resignation, or otherwise , or, in cases of laid-off employees, of failing to return to work within 3 days after notification by the Company of his or her recall to work.