Monroe Calculating Machine Co.

In the Matter Of MONROE CALCULATING MACHINE COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 431, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-249.-Decided February 15,1941 Jurisdiction : office machine manufacturing industry. Investigation and Certification of Representatives : existence of question: com- pany bargained with one faction of the union and refused to bargain with the other; contract entered into with one union with notice of the other union's claim to representation, no bar to; consent election held a year ago, no bar.to ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, including timekeepers and truck drivers, but excluding superintend- ents, assistant superintendents, foremen, assistant foremen, supervisory em- ployees generally, and office and clerical workers ; stipulation as to. Mr. Mark Lauter, for the Board. Mr. Samuel L. Rothbard, of Newark, N. J., for Local No. 431. Davis, Wagner, Heater d Hallett, by Mr. Erwin Bruce Hallett and Mr. Guy C. Heater, of New York' City, for the Company. Mr. Richard J. Fitzmaurice, of Orange, N. J., for the E. I. R. P., Inc. Mr. Milton E. Harris, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 12, 1940, United Electrical, Radio & Machine Work- ers of America, Local No. 431, affiliated with the Congress of Indus- trial Organizations, herein called Local No. 431, 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 Monroe Calcu- lating Machine Company, herein called the Company, Orange, New Jersey, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations 29 N L. R. B., No. 113. 653 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, 49 Stat . 449, herein called the Act. On December 11, 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 Na- tional Labor Relations Board Rules and Regulations-Series' 2, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide 'for an appropriate hearing upon due notice . On December 23, 1940 , the Regional Director issued a notice of hearing, which was served upon Local No. 431 , the Com- pany, and Employees Independent Representation Plan ', Inc., herein called the E. I. R. P ., Inc., a labor organization claiming to represent employees of the Company. Pursuant to the notice, a hearing was held in New York City from January 6 to 9, 1941, before Henry Kent, the Trial Examiner duly designated by the Board. Local No. 431, the Company, and the E. I. R. P., Inc., 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 upon the issues was afforded all parties . During the course of the hearing , the Trial Examiner reserved ruling on separate motions to dismiss the petition made by the Company and by the E. I. R. P.; Inc. For reasons here- inafter discussed , these motions are hereby 'denied. The Trial Ex- aminer made various 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 com- mitted. The rulings are hereby affirmed. Pursuant to notice , a hearing for the purpose of oral -argument was held before the Board in Washington , D. C., on January 23, 1941. Local No. 431 , the Company , and the E. I. R. P ., Inc., were repre- sented by counsel and participated therein. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Monroe Calculating Machine Company, a Delaware corporation, maintains its principal executive offices in Orange , New Jersey, where it also- operates a plant for the manufacture and production of office machines, including calculating , adding, and bookkeeping machines. The materials used by the Company in such manufacturing opera- tions include motors, steel , brass, spring wire , and molding plastics. The materials shipped to the plant from points outside the State of New Jersey during the calendar,year 1940 exceeded $100,000 in value, and constituted about 75 per cent of the total volume of materials purchased by the Company during that year. The finished products MONROE CALCULATING MACHINE COMPANY 655 -manufactured at the plant and sold and shipped by the Company to points outside the State of New Jersey during the calendar year 1940 exceeded $100,000 in value, and constituted about 97 per cent of the Company's total sales for that year. The Company stipulated that it was engaged in commerce, within the meaning of the Act, and further stipulated that it would not contest the jurisdiction of the Board in this proceeding. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, Local No. 431, affiliated with the Congress of Industrial Organizations, and Employees Independent Representation Plan, Inc., are labor organi- zations admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In the spring of 1939, a group of employees at the Company's plant organized an unaffiliated and unincorporated labor organiza- tion known as Employees Independent Representation Plan, herein called the Independent. On May 11, 1939, H. Edward Neese, as attorney for the Independent, requested the Company to bargain collectively with the Independent as the representative of all, the employees; but the Company refused to do so, on the ground that another labor organization, known as Employees Representation Plan, herein called the Plan, also claimed to represent employees. The Independent thereupon filed a charge, alleging that the Com- pany had dominated and supported the Plan, within the meaning of Section 8 (2) of the Act. After a preliminary investigation of the charge, conducted by the Board's Regional Office, the Company, on July 13, 1939, posted a notice to its employees, stating in part that it withdrew all recognition from the Plan and in the future would not recognize the Plan or "any successor to such organization", and that none of the Company's representatives would "in any man- ner interfere with, restrain, or coerce its employees in the exercising of, the rights guaranteed" in the Act. Thereafter the Independent again requested the Company to bargain with it; but the Company again re- fused to do so, on the'ground that another labor organization known as Progressive Employees Welfare Association, Inc., herein called the Association, had come into existence and claimed to represent em- ployees. On October 18, 1939, the Independent, the Association, and the Company entered into an agreement for a consent election, with the Independent, the Association, and "neither" to be on the ballot.1 1 The Company further agreed to bargain collectively with the union receiving a majority of the votes. -656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On,October 26, 1939, the election was conducted by the Regional Di- rector, and resulted in 353 votes for the Independent, 339 for the Association, and 15 for neither. On October 30, 1939, the Inde- pendent requested the Regional Director to conduct a run-off election. On December 5, 1939, the Association requested the Regional Direc- tor to include it on the rim-off ballot; and the Company made a similar request on the following day. The Regional Director sub- mitted the requests of the Association and the Company to the Board, which denied them on January 9, 1940. Accordingly, on February 19, 1940, the Regional Director conducted a run-off election for or against the Independent; and the election resulted in 433 votes for and 228 against the Independent. Pursuant to the Independent's request, the Company met two or three times in April 1940 with the Wage and Adjustment Committee of the Independent, for the purpose of negotiating a contract. The Committee was dissatisfied with the Company's attitude at these con- ferences, and accordingly called a membership meeting for April 18, 1940. At this meeting the membership voted to make a final attempt to reach a satisfactory solution of its difficulties with the Company and, if the attempt were unsuccessful, to hold another,membership meeting to decide the question of what national union to affiliate with in order to strengthen the organization's bargaining power. A further conference with the Company was then held, but the Committee still felt that the Company's attitude was not satisfactory. Accordingly, a second membership meeting was held on May 2, 1940, and the membership, after being addressed by a C. I. O. organizer and an A. F. of L. organizer, voted to affiliate with United Electrical, Radio & Machine Workers of America, herein called the United, a labor organization affiliated with the Congress of Industrial Organ iZatiouS.2 On May 16, at a third membership meeting, a charter was installed as Local No. 431 of the United. On May 17, Neese, who was known to the Company as the attorney for the Independent, wrote to the Company advising it that the Independent had affiliated with the United and would thenceforth be known as Local No. 431 of the United; and he requested a meeting for the. resumption of contract negotiations. On May 18, 1940, Wright, who was secretary of the Independent at least until the meeting of May 2, prepared a notice headed "Em- 2 All but one member of the Independent's Wage and Adjustment Committee had agreed, prior to the meeting , not to address the meeting nor to take any stand on the question of affiliation when Thomas Wright, the Independent 's secretary and the lone dissenter on the Committee , tried to take the floor to make a speech on this subject prior to the vote, the Chairman accordingly refused to recognize him. Wright thereupon left the platform and ceased to act as secretary of the meeting . Shortly thereafter , Wright had some petitions prepared protesting the Independent 's decision to affiliate with the United, and he also wrote a letter to the Regional Office to the same effect . Many employees signed the protest petitions during the following weeks MONROE CALCULATING MACHINE COMPANY 657 ployees Independent Representation Plan" and addressed to "Fellow Members," purportedly calling an Independent meeting for May 22 to, "prevent this high-handed and illegal action, " namely, the Inde- pendent's affiliation with the United. The meeting was held on May 22, but was not restricted to those who had been members in good standing of the Independent prior to May 16, -when the United charter was installed ; and new persons were elected as officers (with Wright continuing as secretary ), and were instructed to proceed with contract negotiations with the Company .3 On May 23, the Company wrote to Neese, acknowledging receipt of his letter of May 17 and advising him that the Company's counsel would reply to the request in' a few days. On May 27, the Company met with Wright and his new asso- ciates and, after addressing a few questions to the group , agreed to recognize them as representatives of the employees and to negotiate a contract with them. On the same day, May 27, the Company's attor- ney advised Neese that the Company would not recognize or meet with Local No. 431 . On June ' 1, the Company entered into a 1-year exclusive contract with the Wright group, acting purportedly on behalf of the Independent.' Shortly thereafter , Local No. 431 filed a charge alleging that the Company had refused to bargain collectively with it and had interfered with, restrained , and coerced employees, within the meaning of Section 8 (1) and ( 5) of the Act ." On June 7, Wright and 14 other employees organized it corporation known as "Employees Independent Representation Plan, Inc. " 6 Although there was no evidence of the continued existence of the Independent after this time, nor of the contemplated assignment of the contract, Local No. 431 did not argue that the contract ceased to exist for these reasons; and we assume, for the purpose of this case , that the contract continued in existence between the Company and the E. I. R. P., Inc. The E. I; R. P., Inc. and the Company argue that, in the foregoing circumstances, the petition of Local No. 431 should be dismissed. First, they argue in effect that the mere existence of the contract of June 1, 1940, is a bar to the present proceeding. However, the con- tract was entered into after the Company had received the letter of Local No. 431 setting forth its claim to represent the employees. Clearly the Company, if it was not willing 'to accept the claim of Local No. 431, could not, by subsequently entering into a contract with 3 At this meeting a committee was also authorized to "arrange for the incorporation of the organization." 4 The contract provided in part that the labor organization "shall have the right to incorporate . ... under the name `Employees Independent Representation Plan, Inc that the contract should then be "assigned to and assumed by said corporation," and that the Company should continue to be bound thereby , Local No. 431 subsequently withdrew the charge and filed the petition in this case. This incorporated organization is the only party to the present proceeding in addition to Local No 431 and the Company 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another labor organization, preclude the Board from resolving the question concerning' representation created by the Company's rejec- tion of this claim.? They assert further that the election of February 16, 1940, established as majority representative an unaffiliated labor organization ; that the Company, even, after receipt of notice that the organization had in effect split into two rival groups, was still bound to recognize the group opposing affiliation and operating under the old name; and that the June 1 contract was a valid result of this obligation. We find no 'merit in this contention. The fact that an unaffiliated union won the election may not be construed as a require- ment that such- organization must thereafter refrain from affiliating with a national union or from changing its name. Finally, it is urged that the Wright group is so clearly the successor of the Inde- pendent that the claim of Local No. 431 did not create a question con- cerning representation. The Wright group and Local No. 431 both admitted that their actions did not comply with requirements of the Constitution and By-laws of the Independent. Accordingly, we do not agree with this argument. Moreover, the election was held a year ago; and we are of the opinion that the employees should now be accorded another opportunity to select representatives. There was introduced in evidence a report of the Regional Direc- tor showing that Local No. 431 and the E. I. R. P., Inc. each represented a substantial number of employees in the appropriate unit .8 We find that a question has arisen concerning the representation of the Company's employees. IV. THE EFFECT OF. THE QUESTION CONCERNING REPRESENTATION UPON CODIIIERCE 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 com- coerce and the free flow of commerce. 7 See Matter of Colonie Fibi a Company, Inc and Colioes K ntit Goods Workers Union No 21514, A F of L, 9 N. L. R B. 658. 8 The report stated that Lo, al No 431 had submitted 308 cards applying for membership in United Electrical, Radio & Machine Workers of America, 190 of which were dated in May 1940, and 101 in subsequent months. The report further stated that the E I R. P., Inc. had submitted 370 cards applying for membership in "Employees- Independent Repre- sentation Plan," 345 of which were dated in Ma} 1940 (after the schism had occurred but before the incorporation) and 23 more in subsequent months The Regional Director further reported that all the signatuies on the foregoing cards were apparently genuine original signatures, and checked with the Company's pay roll of June 1, 1940, which contained 706 names. ' MONROE CALCULATING MACHINE COMPANY 659 V. THE APPROPRIATE UNIT The parties stipulated, and we find, that the production and maintenance employees, including timekeepers and truck drivers, ,but excluding superintendents, assistant superintendents, foremen, assistant foremen, supervisory employees generally, and office and clerical workers, constitute a unit appropriate for the purposes of collective bargaining. We find further that such 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 the Company's employees can best be resolved by means of a secret ballot election. We shall, direct that an election be con- ducted among the employees in the aforesaid appropriate unit who Were employed by the Company during the pay-roll period immedi- ately preceding the date of this Decision and Direction of Election," including employees who did not work during such payroll period because they were ill or on vacation or temporarily laid off, but excluding those who have since quit or been discharged for cause. Upon the basis of the foregoing 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 Monroe Calculating Machine Company, Orange, New Jersey, within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the Act. 2. The production and maintenance employees of the Company, including timekeepers and truck drivers, but excluding superintend- ents, assistant superintendents, foremen, assistant foremen, super- visory employees generally, and office and clerical workers, constitute, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. The E . I R. P., Inc . and the Company agreed that all the employees at the time the election is held or directed should be allowed to vote . Local No. 431 stated that it pre- ferred that eligibility to vote should be determined by the pay roll nearest to the date of the petition , but offered no evidence in support of this preference , and it further stated that it had no objection to the Board ' s usual practice of designating the pay roll nearest to the date of its Direction of Election. 413602-42-vol 29--43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Monroe, Calculating Machine Company, Orange, New Jersey, 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 of Election, 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, Sec- tion 9, of said Rules and Regulations, among all the production and maintenance employees of Monroe Calculating Machine Company, Orange, New Jersey, who were employed during the pay-roll period immediately preceding the date-of this Direction of Election, includ- ing timekeepers, truck drivers, and employees who did not work during such pay-roll period because they were ill or on vacation or temporarily laid off, but excluding" superintendents, assistant super- intendents, foremen, assistant foremen, supervisory employees gen- erally, office and clerical workers, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented for the purposes of collective bargaining by United Electrical, Radio & Machine Workers of America, Local No. 431, affiliated with the Congress of Industrial Organizations, .or by Em- ployees Independent Representation Plan, Inc., or by neither.