Marks Products Co. Inc.

In the Matter Of MARKS PRODUCTS CO. INC. and UNION OF FACTORY EMPLOYEES OF MARKS PRODUCTS CO. INC. Case No. B-2163.-Decided December 5, 1940 Jurisdiction : electrical wiring device manufacturing industry. Investigation and Certification of Representatives : existence of question: refusal' to accord recognition to union ; election necessary. Unit Appropriate for Collective Bargaining : all production, shipping, and main- tenance employees, including floor boys, but excluding office clerical, and all supervisory employees. Horowitz c6 Bernstein,, by Mr. Charles Horowitz, of New York City, for the Company. Mr. James V. Connelly, of New York City, for the Independent. Frankle, Ashe c6 Rifkin, by Mr. David I. Ashe, of New York'City, for the International. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 16 and November 16,1940, respectively, Union of Factory Employees of Marks Products Co. Inc., herein called the Independent, filed with the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a question affect- ing commerce had arisen concerning the representation of employees of Marks Products Co. Inc., Brooklyn, New York, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 .(c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 15, 1940, the National Labor Relations Board, herein called the Board, acting pur- suant 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 con- duct it and to provide for an appropriate `hearing upon due notice. On November 16, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the 28 N. L. R. B., No. 56. 334 MM ARKS PRODUCTS CO., INC. 335 Independent, and International Brotherhood of Electrical Workers, Local 3, herein called the International, a labor organization claiming to represent employees directly affected by the investigation. Pur- suant to notice, a hearing was held on November 22 and 23, 1940, at New York City, before Shad Polier, the Trial Examiner duly desig- nated by the Board. The Company, the Independent, and the Inter- national 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 afforded all parties. At the commencement of the hearing counsel for the International moved for an adjournment of these proceedings on-the ground that it had filed charges with the Board alleging that the Independent was a company-dominated union within the meaning of Section 8 (2) of the Act. The motion was denied.' During the course of the hearing the Trial Examiner made several rulings on other motions and on objec- tions to the admission of evidence. The Board has reviewed all the 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 1. THE BUSINESS OF TIIE COMPANY Marks Products Co. Inc. is a New York Corporation with its principal office and plant at Brooklyn, New York, where it is,en- gaged in the manufacture, sale, and distribution of electrical wiring devices. From May 1, 1940, to October 31, 1940, the Company pur- chased raw materials from points outside the State of New York valued at approximately $503,000. During the same period the Company sold and shipped finished products to points outside the State of New York valued at approximately $715,000. The Com- pany admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Union of Factory Employees of Marks Products Co. Inc. is an unaffiliated labor organization admitting to membership all produc- tion, shipping, and maintenance employees of the Company, includ- ing floor boys, but excluding office, clerical, and supervisory employees. 'Charges were filed by the International on October 31, 1940 (Case No II-C-3269) On November 9, 1940, the Regional Director advised the parties that she would refuse to issue a complaint. On November 30, 1940, the Board , on appeal by the International, sustained the Regional Director 's refusal to issue a complaint 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local 3, is a labor organization affiliated with the American Federation of Labor. It admits to membership all production, shipping, and maintenance employees of the Company, including floor boys and working super- visory employees, but excluding office, clerical, and non-working supervisory employees. III. THE QUESTION CONCERNING REPRESENTATION On October 8, 1940, the Independent requested the Company to meet with it for the purposes of collective bargaining. The Com- pany refused this request, stating that it desired a determination of the bargaining representative by the Board. A statement of the Regional Director introduced at the hearing shows that the Inde' pendent and the International each represent a substantial number of employees in the unit which each alleges is appropriate.2 We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF TAE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operatibiis 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, com- merce`and the free flow of commerce. t V. THE APPROPRIATE UNIT r' , The • Independent and the International agreed at the hearing that the 'appropriate unit should consist of production, shipping, and maintenanceI employees of the Company, including floor boys but excluding office and clerical employees and certain supervisory em- ployees.' The Independent and the International are in disagree- ment as to the exclusion of 17 other supervisory employees, the Independent desiring their exclusion from the unit, and the Inter- national, their inclusion. Since the two 'unions are in disagreement as to whether the super-' visory employees in question should be included within the appropri= ate unit, we shall, in accordance with our usual practice, exclude them 2 The Regional Director's statement shows that 179 employees , whose names appear on the Company's pay roll of October 5, 1940, have designated the Independent as their representative and that 165 employees on this pay roll have signed application cards in the International , There are approximately 360 employees on the October 5 , 1'940, pay roll. The Independent and International are in - agreement as to the exclusion of G. Nafzieger, F. E. Guinther , A Grohsgal, and A . Rosenthal from the unit. MARKS PRODUCTS CO., INC. 337 from the appropriate unit. However, in so doing, we do not pass upon their right to organize for the purposes of collective bargain- ing and their right to file a subsequent petition for certification. We find that all production, shipping, and maintenance employees of the Company,- including floor boys, but excluding office, clerical, and all supervisory employees,, 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 We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. The parties agreed at the hearing that in the event the Board directed an election eligibility of employees to vote should be determined by the Company's pay roll of October 5, 1940. We find that the employees of the Company eligible to vote in the election shall be those in the appropriate unit whose names appear on the Company's pay roll of _October 5, 1940, excluding those em- ployees 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 rep- resentation of employees of Marks Products Co. Inc., Brooklyn, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production, shipping, and maintenance employees of the Company, including floor boys, but excluding office, clerical , and all 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 Relations Act, 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 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Marks Products Co. Inc., Brooklyn, New York, an election by secret ballot shall be conducted as soon 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 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 Reg= ulations, among all production, shipping, and maintenance employees of the Company, whose names appear on the Company's pay roll of October 5, 1940, including floor boys, but excluding office, clerical, and all supervisory employees and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Union of Factory Employees of Marks Products Co. Inc., or by International Brotherhood of Electrical Workers, Local 3, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. 0