Genco Mfg. Co.

In the Matter of GENCO MFG. Co., NOT INC., A CO-PARTNERSHIP CON- SISTING OF Louis GENSBURGi DAVID GENSBURG, AND MYER GENSBURG and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL B-713, A. F. OF L. Case No. R-92222.-Decided January 28, 1941 Jurisdiction : pin game manufacturing industry. Investigation and Certification of Representatives : existence of question • elec- tion necessary. The existence of a question concerning representation does not depend solely upon whether or not an employer has refused to bargain collectively upon request, the Company's contest of the union's allegation of a ma- jority being sufficient proof that a question exists. Unit Appropriate for Collective Bargaining : all production employees, exclud- ing non-working foremen, and office,, sales, experimental, and engineering employees Mr. Philip D. Hoffman, of Chicago, Ill., for the Company. Mr. Daniel D. Carmell, of Chicago, Ill., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 27, October 29, and November 9, 1940, respectively, International Brotherhood of Electrical Workers,. Local B-713, A. F. of L., herein called the Union, filed with the Regional Direc- tor-for the Thirteenth Region (Chicago, Illinois) a petition and amended petitions alleging, that a question affecting commerce had arisen concerning the representation of employees of Genco Mfg. Co., not Inc., a co-partnership consisting of Louis Gensburg, David Gensburg, and Myer Gensburg,l Chicago, Illinois, herein called the 'Company, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On November 30, 1940, the National Labor Relations Board, herein called the Board, 'Incorrectly designated in the formal papers as Genco, Inc. This was coiiected by motion at, the hearing 29 N. L. R. B., No. 42. 236 GENCO. MFG. CO. 237 acting pursuant to Section 9 (c) of the Act, and Article III, Sec- tion 3, of National Labor Relations Board Rules and Regulations- Series 2, as amended, ordered and investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On December 4, 1940, the Regional Director issued a; notice of hearing, copies of which were duly served upon the Company and the Union. On December 11, 1940, the Company filed a motion for a continuance. On December 11, 1940, the Regional Director issued an order granting a continuance and transferring the place of hear- ing. Pursuant to notice, a hearing was held on December 19, 1940, at Chicago, Illinios, before Lester Asher, the Trial Examiner duly designated by the Board. The Company and the Union were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on 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. On January 2 and 7, 1941, respectively, the Company and the Union filed briefs which the Board has considered. On January 10, 1941, the Company filed a reply brief. - Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Genco Mfg. Co., not Inc., is a co-partnership consisting of Louis Gensburg, David Gensburg, and Myer Gensburg, with its place of business at Chicago, Illinois, where it is engaged in the manufacture, sale, and distribution of mechanically and electrically operated pin games. The Company purchases about one million dollars worth of raw materials annually, approximately 75 per cent of which are shipped to it from points outside the State of Illinois. The Com- pany's annual sales amount to about $1,250,000, all of which repre- sents goods shipped by it to points outside the State of Illinois. H. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local' B-713, is a labor organization affiliated with the American Federation of Labor. It admits to membership all production employees of the - 238 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Company, excluding non-working foremen,'and.oflice,,sales, . experi- mental, and engineering employees. III. ,THE QUESTION CONCERNING REPRESENTATION The Company contends that there is no question concerning repre- sentation because the Union has not requested it to bargain and because the Union has not made a sufficient showing of representation. The existence of a question does not depend solely upon whether or not an employer has refused to bargain collectively upon request. The Company, at the hearing, contested the Union's allegation that it represented a majority of the employees. ' Such a denial is suffi- cient proof that a question concerning representation exists.2 A statement of the Trial Examiner during the hearing shows that 72 employees whose names appear on the Company 's pay roll of De- cember 14, 1940, have signed application cards in the Union. A representative of the Union testified that an additional 100 em- ployees orally have signified their intention of joining the Union. There are approximately 280 employees in the alleged appropriate unit. 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 APPROPRATE UNIT The Union urges that all production employees of the Company, excluding non-working foremen, and office, sales, experimental, and engineering employees, constitute an appropriate unit. The Com- pany did not contest the appropriateness of this unit. We find that all production employees of the Company, excluding non-working foremen, and office, sales, experimental, and engineer- ing employees, constitute a unit appropriate for the purposes of collective bargaining, and that such unit will insure to employees 2 See Matter of George G Averroll et a? , and F^ esh Fruit & Vegetable Workers Union, Local 78,C I.0,13N.L.R B 411. GENCO. MFG. CO. 239 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 means of an election by secret ballot. The Union stated that, in the event the Board directed an election, it desired that temporary employees be excluded from the balloting. It further clarified its contention by stating that it considered em- ployees of the Company, who have worked less than 13 weeks at the time of the election to be temporary. A representative of the Company testified that during the 12-month period preceding the hearing only about 2 or 3 employees had been replaced and that it did not have any temporary employees in its enmploy. , We find that the employees of the Company eligible to vote in the election shall be those employees in the appropriate unit who were employed during the pay-roll period immediately preceeding the date of the Direction of Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. UpQn 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 Genco Mfg. Co., not Inc.,- a co-partner- ship consisting of Louis Gensburg, David Gensburg, and Myer Gensburg, Chicago, Illinois, 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, excluding non- working foremen, and office, sales, experimental, and engineering employees, constitute a unit appropriate for the, purposes of collec- tive 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, and pursuant to Article III, Section 8, of National a 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 bargain- ing with Genco Mfg. Co., not Inc., a co-partnership consisting of Louis Gensberg, David Gensburg, and Meyer Gensburg, Chicago, Illinois, 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 Re- gional Director for the Thirteenth Region, acting in this matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direc- tion, including employees who did not work during such pay-roll period because they were _ill or on vacation and employees, who were then or since been temporarily laid off, but excluding all non-working foremen, office, sales, experimental, and engineering employees, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Brotherhood of Electrical Workers, Local B-713, affiliated with the American Federation of Labor, for the purposes of collective bargaining. CHAIRMAN HArxY A. MILLis took no part in the consideration of the above Decision and Direction of Election.