Fada Radio & Electric Co., Inc.

In the Matter of FADA RADIO & ELECTRIC COMPANY, INC. and LOCAL 430 OF THE UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. 0. 'Case No. R-2186.-Decided January 24, 1941 Jurisdiction : radio manufacturing industry. Investigation and Certification of Representatives : existence of question : con- flicting elahns 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, latboratory, watchmen porters, maintenance, and toolroom time-study men, timekeepers, experimentkl 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. Louis Scadron, of New York City, for the Company. Mr. Frank Scheirer, of New York City, for Local 430. Mr. William Karlin, by Mr. Leo Greenfleld, of New York City, for Local B-14910. Mr. George Turitz, 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 concerning the representation of employees'of Fada Radio & Electric Company, Inc., New York City, herein called the Company i and. 'The-Company was incorrectly designated in the petition and in the order directing the Investigation and hearing as Fada Radio & Electric Co, and in the notice of hearing and the order designating the Trial Examiner as Jacob M Marks, doing business under the trade name of Fada Radio and Electric Co. Counsel for the Board and for the Company stipu- lated that the correct name of the Company is Fada Radio & Electric Company, Inc. The petition, notice of hearing, and all othei papers in this proceeding are hereby amended accordingly. 29 N. L. B. B., No. 35. 191 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requesting' an investigation and certification of representatives pur- suant 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, acting pursuant 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 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 Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, herein called Local B-1010, a labor organization claiming to represent 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 opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing Local B-1010 moved to dismiss the petition on the ground that no question con- cerning representation exists. The Trial Examiner did not pass upon the motion. The motion is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other mo- tions 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 : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Fada Radio & Electric Company, Inc., is a New York corporation having its factory and offices in New York City. It is engaged in the manufacture of radios. The principal materials and parts which the Company uses in the course of manufacture at its factory are radio tubes, transformers, condensers, coils, and other allied mate- rials. During the first 6 months of 1940 the Company purchased materials and parts valued at more than $100,000, 60 per cent of which were shipped to the Company's 'factory from points outside New York State. During the same period the Company sold finished products manufactured by it valued at,, more than $100,000, 60 per FADA RADIO & ELECTRIC COMPANY, INC. 193 cent of which were shipped by the Company from its plant in New York City to points outside the State of New York. The Company concedes that it is engaged in interstate commerce within the meaning of the Act. IT. 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 Elec- trical Workers, is a labor organization, affiliated with the American Federation 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 which, as duly extended on February 15, 1939, will expire on March 1, 1941, and pursuant to which the Company recognized Local B-1010 as the exclusive bargaining agent of the employees in the Company's production departments. On ,May 7, 1940, Local 430 wrote a letter to the Company stating that Local B-1010 had severed its affiliation with the International Bro- therhood 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. The Company did not reply to the letter. On May 15, 1940, Local 430 filed with the Regional Director a petition requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the Act, which petition was dismissed by the Board on June 19, 1940. In various conferences and telephone conversations following the filing of the petition on May 15 and following its dismissal the Company informed Local 430 that it would not deal with that organization until it was certified by the Board as the bargaining agency of the employees. On or about July 24, 1940, the Company and Local 430 entered into a written agreement providing, among other things, that the Company would terminate any agree- ment it might have with Local B-1010 not later than March 1, 1941.2 2 Prior to the signing of the agreement Local 430 • submitted to the Company a petition, allegedly signed by all employees of the Company , designating Local 430 as their repre- sentative for the purposes of collective bargaining 1.94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local B-1010 contends that there is no question concerning repre- sentation, since a valid closed-shop contract 3 between the Company and Local B-1010 is now in effect.4 " Since the present contract be- tween the Company and' Local B-1010 will terminate on March 1, 1941, it plainly could not preclude the Board from making an investi- gation and determining a bargaining representative for the purpose of negotiating a new agreement for the period following March 1, 1941, if one is desired.-' Local 430 submitted to the Regional Director evidence of substan- tial membership among the Company's employees.6 We find that a question has arisen concerning the 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. V. ^ THE APPROPRIATE UNIT The Company, Local 430, Local B-1010, and counsel for the Board stipulated to the effect that the appropriate unit, for purposes of this proceeding, consists of the employees in the production depart- ments including working supervisors, and does not include engineer- ing, laboratory, watchmen, porters, maintenance, and toolroom time- study men, timekeepers, experimental workers, foremen, non-working supervisors, stockroom employees, shipping and receiving room em- 8 It is immaterial to the issues of this case whether or not the present contract provides for a closed shop See the cases cited in footnote 5, infra. See, also Matter of Garod Radio Corporation and Local 430 of the United Electrical, Radio cC Machine Workers of America, C 1 0, 29 N L It B. 184; and Matter of United Scientific Laboratories, Inc and Local 430 of the United Electrical, Radio if Machine Workers of America, C 1 0, 29 N L R. B 198 i Local B-1010 contended, further, that the Board had previously adjudicated the matter here in controversy on June 19, 1940 , when it dismissed the petition filed by Local 430 on May 15, 1940 i 5Matter of Quality Furniture Mfg Co and United Furniture Workers of America, Local 510, C I 0 , 8 N L R. B 850, 8-53; Matter of Martin, Bros Box Company and Toledo Industrial Union Council, 7 N L: R B. 88, 91 , Matter of H Margolin cC Co , Inc and 'Int'l Ladies Handbag, Pocketbook & Novelty Workers' Union, 9 N L R B 852, 855 We note, also, that the Company agreed with Local 430 on or about July 24, 1940, that it would terminate any agreement it might hai e sith Local B-1010 not later than March 1, 1941 Local 4;0 submitted 83 signed cards applying for membership in Local 430 bearing the names of persons on the Company's pay roll of October 22, 1940 . The bulk of the cards were dated between May 6 and 27, 1940 FADA RADIO & ELECTRIC COMPANY, INC. 195, ployees, office, clerical and all other non-production employees. We see no reason for not carrying out the desires of the parties in this respect and shall: give effect to this stipulation.7 We find that all the employees in the Company's production de- partments, 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, 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 concerning representation which has arisen can best be resolved by an election by secret ballot. The Company, Local 430, Local B-1010, and counsel for the Board stipulated that in the event the Board orders an election, the em- ployees eligible to vote should be those who were employed by the Company at its plant in New York City on May 6, 1940, and were still employed by the Company on December 6, 1940, together with those employed by the Company on December 6, 1940, who, although not employed by the Company on May 6, 1940, had been employed by the Company at some time prior to May 6, 1940. 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 representation dispute, where, as here, the dispute relates to an earlier period and the disputants have agreed to its determination as of that time, we believe 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, A. F. of L. We shall direct that the ballots be drawn in the form requested. 4 This is the same unit as was established in the Company's contract with Local B-1010 of March 8, 1038, with the addition of working supervisors. 413602-42-v o l 29--14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Fada Radio & Electric Company, Inc., New York City, 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 -leaning 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 DIRECTED that , as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Fada Radio & Electric Company, Inc., New York City, an elec- tion by secret ballot shall be conducted as eiirly 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, New York City, 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 at its New York City plant on May 6, 1940, and still employed by the Company on Decem- ber 6, 1940, and all the employees employed in the Company's said production departments on December 6, 1940, who, although not employed by the Company on May 6, 1940, were employed by it at some time prior to May 6, 1940 , including working supervisors, employees who did not work at any of said times because they were ill or on vacation , and employees who were then or have since been temporarily laid off, excluding engineering , laboratory, Watchmen, porters, maintenance, and toolroom time-study men, timekeepers, ex- perimental - workers, foremen , non-working supervisors, stockroom FADA RADIO & ELECTRIC COMPANY, INC. 197 'employees, shipping and receiving room employees, office, clerical and all other non-production employees, and 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 & Machine Workers of America, C. I. 0., 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. LEISERSON, dissenting in part : On June 19, 1940, the Board dismissed the original petition in this case on the ground that the existing contract was a bar to-a repre- sentation 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 em- ployees 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 pay roll preceding the direction of election. A stipulation which sets aside the legal right of employees to vote is not binding on the Board." 8 Matter of Climax Machinery Company and Metal Polishers, Buffers, Platers and Helpers International Union, Local Union No. 171, affi liated tooth the A F. 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.