Garod Radio Corp.

In the Matter of GAROD RADIO CORPORATION and LOCAL 430 OF THE UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Case No. R-2185.Decided January 24, 1941 Jurisdiction : radio manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives; contract about to expire, no bar to; eligibility determined in accordance with desires of the parties ; election necessary. Unit Appropriate for Collective Bargaining : all the employees in the Company's production departments, including' working supervisors, but excluding engi- neering, laboratory, watchmen, porters, maintenance, and toolroom, time-study men, timekeepers, experimental workers, foremen, non-working supervisors, stockroom employees, shipping and receiving room employees, office, clerical, and all other non-production employees ; agreement as to. Mr. Daniel Baker, for the Board. Mr. Morris Weintraub, of New York City, for the Company. Mr. Frank Scheiner, of New York, for Local 430. Mr. William Karlin, by Mr. Leo Greenfield, of New York City, for Local B-1010. Mr. George Twritz, of counsel to the Board. DECISION AND - DIRECTION OF ELECTION STATEMENT OF THE CASE On October 22, 1940, Local 430 of the United Electrical Radio & 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 con- cerning the representation of employees of Garod Radio Corporation, Brooklyn, New York, 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 November 20, 1940, the National Labor Relations Board, herein called the Board, acthig pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules 1 The Company was incorrectly referred to in the petition as Garod Radio Corp. 29 N. L. R. B., No. 34. 184 GAROD RADIO CORPORATION , 185 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 November 25, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon Local 430, and upon Radio Union, Local B-1010, International Brother- hood of Electrical Workers, affiliated with the American Federation of Labor, herein called Local B-1010, a labor organization claiming to rep- resent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on December 7, 1940, at New York City, before Howard Myers, the Trial Examiner duly designated by the Board. The Board, the Company, Local 430, and Local B-1010 were represented by counsel and participated in the hearing. Full oppor- tunity to be heard , to examine and cross-examine witnesses , and to in- troduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Company filed an answer in the form of written objections to the Board 's taking jurisdiction of the proceeding on the grounds , among others , that a certain contract between the Company and Local B-1010 would not expire until March 1, 1941, and could be extended by either party for a further period of 1 year after March 1, 1941; and that the issues of law and fact raised by the petition had already been disposed of by the Board when it dismissed a previous petition filed by Local 430. During the course of the hearing the Company moved to dismiss the proceeding on the grounds above set forth, and Local B-1010 moved to dismiss the petition on the same grounds and on the further ground, among others, that the granting of the relief sought would constitute an illegal and uncon- stitutional interference with Local , B-1010's, contractual rights. The Trial Examiner did not pass upon the said motions. The motions are hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections 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. Upon the entire record in the case, the Board makes the following': FLNDINGS OF FACT I. THE BUSINESS OF THE COMPANY Garod Radio Corporation is a New York corporation having its factory in Brooklyn, New York City. It is engaged in the manufac- ture of radios . For use in such manufacture it annually , purchases materials, consisting mainly of parts , valued at approximately $100,000, more than 50 percent of which are shipped to the Company from points 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside New York State. The Company's total sales 'of its products amount to more than $200,000 per year,Z of which about 25 percent represents products shipped to points outside New York State. The Company concedes that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Local 430 of the United Electrical, Radio & Machine Workers of America is a labor organization, affiliated with the Congress of Indus- trial Organizations, admitting employees of the Company to its membership. , Radio Union, Local B-1010, International Brotherhood of Electrical Workers, is a labor organization, affiliated with the American Federa- tion of Labor, admitting employees of the Company to its membership. III. THE QUESTION CONCERNING REPRESENTATION On March 8, 1938, the Company and Local B-1010 entered into a collective bargaining agreement pursuant to which the Company recog- nized Local I3-1010 as the exclusive bargaining agent of the employees in the Company's production departments. On February 14, 1939, the agreement was duly extended so as to expire on March 1, 1941. • On May 7, 1940, Local 430 wrote a letter to the Company stating that Local B-1010 had severed its affiliation with the International Brother- hood of Electrical Workers and was known as Local 430 of the United Electrical Radio & Machine Workers of America, that Local 430 was the duly designated exclusive bargaining agency of the Company's employees, and requesting a conference for collective bargaining. On May 15, 1940, Local 430,filed with the Regional Director a petition requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the Act,,;-hich petition was dismissed by the Board on June 19, 1940. On May 17, 1940, the Company and Local B-1010 entered into an agreement modifying the agreement of March 8, 1938, above referred to. The modification, among other things, provided for a closed shop, that the modification would remain in effect until March 1, 1941, and "from year to year" thereafter, and that "Either party desiring to modify this agreement must notify the other ' in writing at least 60 days prior to March 1 of any year . . ." In various conferences with the Company following the filing of the petition of May 15, 1940, and following its dismissal, Local 430 renewed its claim to be the duly designated bargaining representative of the employees and its request to the Company for a collective bargaining agreement. The Company declined to enter 2 The stipulation upon which the above facts as to the Company 's operations are based stated • "The total sales volume of the company is in excess of $200,000," but it is apparent from the context that the parties were referring to the annual sales volume. GAROD RADIO CORPORATION -- 187 into negotiations with Local 430 for such an agreement on the ground that an unexpired contract was in effect between the Company and Local B-1010, and stated that it would request the Board to conduct an election to settle the question concerning representation. On or about the day'of the hearing the Company stated it would not deal with Local 430 pending the Board's decision. The Company and Local B-1010 contend that there is no question concerning representation, since a valid closed-shop contract between them is now in effect. Since the present contract between the Com- pany and Local B-1010 is terminable on March 1, 1941, it plainly could not preclude the Board from making an investigation and determining a bargaining representative for the purpose of negotiating a new agree- ment for the period following March 1, 1941, if one is desired.3 Local 430 submitted to the Regional Director evidence of substantial membership among the Company's employees' 'We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UNION 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 Local 430, Local B-1010, and counsel for the Board stipulated to the effect that the appropriate unit for purposes of this proceeding 3Matter of Quality Furniture Mfg Co and United Furniture Workers of America, Local 576, C. 1. 0., 8 N. L. R B 850, 856 ; Matter of Martin Bros. Box Company and Toledo Industrial Union Council, 7 N. L. R. B. 88, 91; Matter of 77. Margolin & Co , Inc, and Int'l Ladies Handbag, Pocketbook & Novelty Workers' Union, 9 N. L. R. B. 852, 855. We note, also, that the modification whereby the present contract runs from year to year was made after Local 430 had informed the Company of its claim to represent the employees and had filed its petition with the Regional Director, and that the contract previously in force had no provision for its extension or renewal beyond March 1, 1941 Matter of Colonic Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 21514, A. F. of L., 9 N. L. R. B. 658, 660; Matter of Showers Brothers Company, Inc and National Furniture Workers Local No 1, of the Upholsterers International Union of'North America, etc, 13 N L R B. 829, 832 ; Matter of Union Premier Food Stores, Inc., etc and United Retail & Wholesale Employees of America , etc., 11 N. L. R B. 270, 277; Matter of California Wool Scouring Company and Textile Workers Organizing Committee, 5 N. L. R. B. 782, 785; Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L R. B 1086, 1090. ' Local 430 submitted 24 signed cards applying for membership in Local 430 bearing the names of persons on the Company's pay roll of October 22, 1940, which pay ioll was com- posed of the name,, of 42 employees. The bulk of the cards were dated between May 6 and 21, 1940 1 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consists of the employees in the production departments, including working supervisors, and does not include engineering, laboratory, watchmen, porters, maintenance, and toolroom, time-study men, time- keepers, experimental workers, foremen, non-working supervisors, stockroom employees, shipping and receiving room employees, office, clerical, and all other non-production employees. The Company stated that it had no objection to such unit. We see no reason for not carrying out the desires of the two labor organizations in this respect and shall give effect to this stipulation.5 We find that all the employees'in the Company's production depart- ments, including working supervisors, but excluding engineering, laboratory, watchmen, porters, maintenance, and toolroom, time-study men, timekeepers, experimental workers, foremen, non-working su- pervisors, stockroom employees, shipping and receiving room em- ployees, office, clerical, and all other non-production employees, con- stitute 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 bargain- ing and otherwise effectuate the policies of the Act. 171. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. Local 430 and Local B-1010 stipulated that in the event that the Board directed an election, the employees in the appropriate unit. eligible to vote should be those employed by the Company on May 6 and December 7, 1940. The'Company stated that it had no objection to this basis for eligibility. The representation dispute in this case arose as a result of a schism in the ranks of Local B-1010 on May 6, 1940. The parties, by their stipulation, have in effect recognized this as the determinative date with respect to the dispute and have agreed that, if the dispute is to be settled by an election, it should be settled as of that time. While it is ordinarily advisable to use a current pay roll to determine eligibility to vote in an election designed to settle a rep- resentation dispute, where, as here, the dispute relates to an earlier period and the disputants have agreed to its determination as of that time, we believed that settlement of the dispute can best be achieved by acting in accordance with the desires of the parties. We shall, therefore, under the circumstances here present, give effect to the stipulation. Local B-1010 requested that its name appear on the ballot as'Local B-1010 of the International Brotherhood of Electrical Workers, 6 This is the same unit as is established in the Company 's contract with Local B-1010 of March 8 , 1938, with the addition of working supervisors GAROD RADIO CORPORATION 189 A. F. of L. We shall direct that the ballots be drawn in the form requested. 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 Garod Radio Corporation , Brooklyn, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the employees in the Company 's production departments, including working supervisors, but excluding engineering, laboratory, watchmen , porters, maintenance, and toolroom, time-study men, time- keepers, experimental workers , foremen, non-working supervisors, stockroom employees, shipping and receiving room employees, office, clerical, and all other non -production employees, 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 Rela- tions 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 Garod Radio Corporation , Brooklyn, New York, 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 , 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 Regulations, among all the employees employed in the Company's production departments on May 6 and December 7 , 1940, including working supervisors, em- ployees who did not work on said dates because they were ill or on vacation , and employees who were then or have since been temporarily ]aid off, excluding engineering , laboratory, watchmen, porters, mainte- nance, and toolroom, time-study men, timekeepers , experimental work- ers, foremen, non-working supervisors , stockroom employees, shipping and receiving room employees, office, clerical, and all other non-produc- tion employees, and employees who have since quit orbeeiI discharged for cause, to-determine whether they desire to be represented by Local 430, United Electrical , Radio & Machine Workers of America, C. I. O., 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or by Local B-1010 of the International Brotherhood. of Electrical Workers, A. F. of L., for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LElsrstsoN, dissenting in part : _ On June 19, 1940, the Board dismissed the original petition in this ease on the ground that the existing contract was a bar to a representa- tion proceeding. This contract will not expire until March 1, 1941. Every employee working under the contract has a right to vote for representatives to negotiate a new contract. The stipulation of the parties has the effect of denying the right to vote to any employees who were hired subsequent to May 6. I am of the opinion that the Board should follow its usual practice of permitting all employees to vote who were on the payroll preceding the direction of election. A stipulation which sets aside the legal right of employees to vote is not binding on the Board.6 6 Matter of Climax Machinery Company and Metal Polishers, Buffers, Platers and Helpers International Union, Local Union No. 171, affiliated with the A. F. of L, 26 N. L R. B. 1038; Matter of Waggoner Refining Company, Inc., and W. T. Waggoner Estate and Inter- national Association of Oil Field, Gas Well and Refinery Workers of America, 6 N. L. R. B. 731. 761 ; Matter of Princely Products, Inc. and United Shoe Workers of America, C. I. 0., 15 N. L. R. B. 438, 441.