United Scientific Laboratories, Inc.

In the, Matter Of UNITED SCIENTIFIC LABORATORIES, INC. and LOCAL 430 OF THE UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I: O. Case No. B-2196.-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 super- visors, 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. Albert Wald, Mr. Maxwell N. Rudaw, and Mr. Herman Stern, of New York City, for the Company. Mr. Frank Sch einer, of New York City, for Local 430. Mr. William Karlin and Mr: Leo Greenfield, of New York City, for Local B-1010. _ 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 United Scientific Lab- oratories, Inc., New York City, herein called the Company,' and I The Company was incorrectly designated in the notice of hearing as United Scientific Laboratories, Inc., doing business under the trade name of De Wald Radio Co, and in the other papers in this proceeding as De Wald Radio Co. (United Scientific Laboratories, petition, notice of hearing, and all other papers in this proceeding are hereby amended so as to make the title read as above set forth. 29 N. L R. 13, No 36. 198 UNITED SCIENTIFIC ' LABORATORIES, INC. 199 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 Fed- eration 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 5, 6, and 9, 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 -examine witnesses , and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing Local B-1010 moved to adjourn the hearing on the ground that the appeal of an action involving the same issues was to be argued the following day before the Appellate Division of the Supreme Court of the State of New York. The motion was denied . The ruling is affirmed. At the conclusion of the hearing Local B-1010 moved to dismiss the petition on the following grounds : that the matter in controversy had been finally adjudicated by the Board's dismissal of a prior petition of Local 430 allegedly setting forth the same facts as the present peti- tion; that Local 430 had adduced no proof of having been designated by any employees of the Company as their bargaining agent subse- quent to the dismissal of the earlier petition ; that, because of the existence of certain contracts between the Company and Local B-1010, no question concerning representation had arisen ; and that the grant- ing of the relief sought would be an unlawful and unconstitutional interference by the Board with the contractual rights of Local B-1010 under said contracts . The Trial Examiner did not pass upon the motion. The motion is hereby denied. During the course of the hearing the Trial Examiner made 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 : 200 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY United Scientific Laboratories, Inc., is a New York corporation having its principal place of business and its factory in New York City. The Company is' engaged in the manufacture of radio receiv- ing sets. The principal materials used by the Company in such manufacture are radio parts. During the first 6 month of 1940 the Company's purchases of materials amounted to more than $100,000, more than 50 per cent of which represented materials shipped to the Company's plant from points outside the State of New York. During the same period the Company sold finished products valued at more than $250,000, about 75 per cent of which it shipped to points outside New York State. The Company concedes that it is engaged in inter- state commerce within the meaning of the Act. H. 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 pursuant to which the Company recognized Local B-1010 as the exclusive bargaining agent of the employees in the Company's production departments. On February 15, 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 Inter- national Brotherhood 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 collec- tive bargaining. On May 15, 1940, Local 430 filed with the Regional Director a petition requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act., which petition UNITED SCIENTIFIC LABORATORIES, INC. 201 the Board dismissed on June 19, 1940.2 On May 17, 1940, the Com- pany and Local B-1010 entered into an agreement modifying their agreement of March 8, 1938, above referred to. The modification pro- vided, among other things, for a closed shop; that the modification would remain in effect until March 1, 1941, and would continue in effect "from year to year" thereafter; and that "Either party desir- ing 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 in May, June, July, and October 1940, Local 430 demanded recognition as the exclusive bargaining agency of the Company's employees and requested the Company to enter into an agreement covering the employees. The Company refused so to recognize Local 430, or to enter into a collective bargaining agree- ment with it until the Board certified Local 430 is the bargaining agency -of the employees. On July 15, 1940, the Company and Local 430 entered into a written agreement providing, among other thinks, that the Company would terminate not later than March 1, 1941, any agreement it might have with Local B-1010. Local B-1010 contended at the hearing that, because of the exist- ence of the contract of Marcli 8, 1938, as extended and modified on February 15, 1939, and May 17, 1940, respectively, no question con- cerning representation has arisen. Since the present contract be- tween the Company 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 ne- gotiating a new agreement for the period following March 1, 1941, if one is desired.3 2 On July 17 , 1940 , the Company filed a similar petition with the Regional Director which was likewise dismissed by the Board on August 7, 1940 B Matter of Quality Furniture Mfg. Co and United Furniture Workers of America, Local 576, C 1. 0 , 8 N. L R B. 850, 853 ; Matter of Martin Bros . Box Company and Toledo Industrial Union Council, 7 N L R. B 88, 91 , Matter of II 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 inns from year to year was made after Local 430 hat informed the, Company of its claim to represent the em- ployees and had filed its petition with the Regional Director , and that the contract previ- ously in force had no provision for its extension or reneuual beyond March 1, 1941 . Matter of Colonic Fibie Company, Inc and Cohoes Knit Goods Workers Union No 21514, A F of L, 9 N. L. R r. 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 Piemier 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' Bene- ficial Association, 4 N. L. R. B 1086 , 1090. We note, further, that the Company agreed with Local 430 on July 15, 1940 , that it would terminate any agreement it might have with Local B-1010 not later than Maich 1, 1941 '202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 430 submitted to the Regional Director evidence of sub- stantial 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 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 'Local 430, Local B-1010, and the Company stipulated to the effect that the appropriate unit consists of the employees in the Company's production departments, including working supervisors, and does not include engineering, laboratory, watchmen, porters, maintenance, and toolroom, time-study men, timekeepers, experimental workers, fore- men, non-working supervisors, stockroom employees, shipping and receiving room employees, 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.5 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 super- visors, 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 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. 4 Local 430 submitted 46 signed membership application cards bearing the names of persons on the Company 's pay roll of November 23, 1940, which pay roll was composed .of the names of 50 employees and included only persons who were also on the Company's pay roll of May 6, 1940. The bulk of the cards were dated between May 6 and 8, 1940. 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. UNITED SCIENTIFIC LABORATORIES , INC. 203' Local 430, Local B-1010, and the Company stipulated that in the event the Board directed an election, the employees in the appropriate unit eligible to vote should be those employed by the Company on December 9, 1940, who were on the Company's pay roll- of 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 determina- tive date with respect to the dispute and have agreed that, if the dis- pute 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. 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 United Scientific Laboratories , 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 ap- propriate 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 , - - 204 DECISIONS OF NATIONAL LABOR RELATIONS .BOARD DIRECTED that, as'part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with United Scientific Laboratories, Inc., 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 DirectionT, 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 Regula- tions, among all the employees employed in-the Company's produc- tion departments on May 6 and December 9, 1940, including working supervisors, employees who did not work on said dates because they were ill or on vacation, and employees who were then or have since been temporarily laid off, excluding engineering, laboratory, watch- men, 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, 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. M. 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 stipula- tion 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 pay roll preceding the Direction of Election. A stipulation which sets aside the legal right of em- ployees to vote is not binding on the Board." 0 Matter of Climaa, Machinery Company and Metal Polishers, Buffers, Platers and Helpers International Union, Local Union No 171, affiliated with 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. 1. 0., 15 N. L. It. B. 438, 441.