H. Cohen & Co., Inc.

In the Matter of H. COHEN & CO., INC. and STEEL WORKERS ORGANIZING COMMITTEE, LOCAL No. 2237 , AFFILIATED WITH THE C. I. 0.1 Case No. j R-2270.Decided March 3, 1941 Jurisdiction : sorting, grading, and preparation of scrap metal. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; contract shortly to expire, no bar to ; elec- tion necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees at the Roxbury and Chelsea plants of the Company, excluding executives, supervisory employees, office and clerical employees, truck drivers, employees of the Lead Division, engineers, and specifically named employees desired excluded by one of the unions which neither the Company nor the competing union objected to. Friedman, Atherton, King cfi Turner, by Mr. Frank L. Kozal, of Boston, Mass.; for the Company. Mr. Samuel E. Angoff, of Boston, Mass., for the S. W. O. C. Mr. Robert E. Sullivan and Mr. John J. Falvey, of Boston, Mass., for the A. F. of L. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 30, 1940, Steel Workers Organizing Committee, Local No. 2237, affiliated with the C. I. 0., herein called the S. W. O. C.,1 filed with the Regional Director for the First Region (Boston, Massa- chusetts) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of H. Cohen & Co., Inc., Chelsea, Massachusetts, herein called the Company, at its Roxbury and Chelsea plants, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On Decem- ber 9, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, 1 The S. W. O. C. amended its petition to set forth its name therein as above stated. 30 N. L. R. B., No. 4. -31 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 3, of National Labor Relations Board Rules and Regula- tions-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 December 28, 1940, the Regional Director issued a niotice of hearing, copies of which were duly served upon the Company, the S. W. O. C., and International Hod Carriers, Building & Common Laborers Union No. 1102, affiliated with the A. F. of L., herein called the A. F. of L., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hear- ing was held on January 27, 1941, at Boston, Massachusetts, before Albert J. Hoban, the Trial Examiner duly designated by the Board. The Company, the S. W. O. C., aird,the A. Y. of L. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues was afforded all parties. No objections to the admission of evidence were made at the hearing. During the course of the hearing the Trial Examiner made several rulings on, motions. 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 1. THE BUSINESS OF THE COMPANY H. Cohen & Co., Inc., a Massachusetts corporation with its principal office at Chelsea, Massachusetts, is engaged in the sorting, grading, and preparation of iron and steel scrap metal. It operates a plant at Chelsea and a plant at Boston, commonly called the Roxbury plant. During 1940 the Company sorted, Traded, and prepared more than 50,000 tons of materials, valued at $8 per ton. Approxi- mately 5 per cent of these materials originated outside the Common- wealth of Massachusetts. During the same period approximately 50 per cent of the said materials processed by the Company were shipped to points in the United States outside the Commonwealth of Massachusetts and in Great Britain. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Local No. 2237 is a labor organization affiliated with Steel Workers Organizing Committee and, through it, with the Congress of Industrial Organizations. It admits to membership employees of the Company. H. COHEN ,&_ CO., INC. 33 International Hod Carriers, Building & Common Laborers Union No. 1102 is a labor organization affiliated with the American Fed- eration of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION By letter dated August 28, 1940, the S. W. O. C. requested the Com- pany to meet with it as the collective bargaining representative of the Company's employees for the purpose of negotiating an agreement concerning wages, hours, and ,working conditions. The Company refuses to meet with the S. W. O. C. for the reason that the Company is in contractual relationship with the A. F. of L. On August 30, 1940, the S. W. O. C. filed the instant petition. The A. F. of L. contends that its contract with the Company, dated May 11, 1939, and renewed in 1940, discussed below, is a bar to this proceeding. On February 1, 1938, the Board held a consent election among the employees of the Company to determine whether they desired to be represented by the A. F. of L. or by an unaffiliated labor organization. Of the 89 ballots cast in this election, 27 were for the A. F. of L. and 60 were for the unaffiliated labor, organization. Shortly thereafter the A. F. of L. approached the Company and claimed to represent a majority of its employees and submitted certain membership cards to the Company. A representative of the Company testified that lie did not compare the names on the cards with the Company's pay roll or ascertain the authenticity of the signatures affixed thereto, but that on the basis of the A. F. of L.'s claim he was satisfied that it repre- sented a majority of the Company's employees. On March 9, 1938, the Company, as an affiliate of the Institute of Scrap Iron & Steel, Inc., Boston Chapter, an association of employers dealing in scrap iron, entered into an exclusive bargaining contract with the A. F. of L. The contract provided, among other things, that the Company's "free- dom of choice and selection of men to be hired shall not be limited or restricted, except that the new men shall be members of the [A. F. of L.]" and that the agreement would remain in force for 90 days and thereafter, so long as 'Mutually agreeable to the parties, and might be terminated by 30 days' written notice given by either party to the other. This contract apparently continued in effect until May 11, 1939, when the Company entered into another contract with the A. F. of L. The record does not show the A. F. of L.'s representation among the Company's employees on May 11, 1939. The second contract provided, among other things, that all persons then employed should immedi- ately become members of the A. F. of L., that all newly hired persons should become members within 1 week, and that the agreement would remain in force until April 1, 1940, and thereafter from year to year 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless one party should, not less than 60 days prior to the annual terminal date, serve notice of termination upon the other. On January 17, 1940, the A.' F. of L. instituted suit against the Company to recover damages for breach of contract. On January 26, 1940, the Company served upon the A. F. of L. notice of termination of the contract as of April 1, 1940. However, in the latter part of February 1940 the A. F. of L. agreed not to press its suit against the Company and the Company orally withdrew its notice of termination of the contract. The contract dated May 11, 1939, was automatically renewed for another year, beginning April 1, 1940, expiring on April 1, 1941. Under all the circumstances, including the fact that there is some doubt as to the majority designation of the A. F. of L. on March 9, 1938, and on May 11, 1939, the dates on which the successive contracts were executed,2 and that the contract is about to expire,3 we find that the contract dated May 11, 1939, does not constitute a bar to this proceeding. There was introduced in evidence a report prepared by the Re- gional Director showing that the S. W. O. C. represented a substan- tial number of employees in the unit alleged in its petition to be appropriate.4 - - We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REP 1ESENTATION 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 with foreign countries and tends to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The S. W. O. C. contends that all production and maintenance em- ployees at the Roxbury and Chelsea plants of the Company, excluding 2Matter of Southern Chemical Cotton Company and Textile Workers Organizing-Com- mittee, 3 N. L R B . 869, The Stratbury Manufacturing Company and United Garment Workers of America, Local 11x7, affiliated with the American Federation of Labor, 12 N. L. R B 618. 8Matter of The Wadsworth Watch Case Company and International Assn. of Machinists, District #3r, 21 N L R B 476 d The Regional Director reported that the S W O. C. suomitted authorization cards signed by 67 persons whose names appear on the Company 's pay roll of August 29 and 30, 1940 There are approximately 100 employees in the unit hereinafter found to be appro- priate The A. F of L. made no sho« ing of membership , relying on its contention that its contract, discussed above, is a bar to the proceeding. H. COHEN & CO., INC. 35 executives, supervisory employees, office and clerical employees, truck drivers, engineers, and employees of the Lead Division,5 constitute an appropriate unit. The A. F. of L. and the Company offered no objections to this unit. The S. W. O. C. requested the exclusion of Hyman Lipsitz, John Paluso, Charles Cyzon, Joseph Laurie, Joseph Osta, and S. Kurland on the ground that they are supervisory employees, and requested the exclusion of Julius Marcus, on the ground that he is a clerical employee exercising supervisory functions. Neither the Company nor the A. F. of L. offered any objections to these proposed exclusions. The record shows, and we find, that the first six named employees exercise supervisory powers, and that Julius Marcus is a clerical em- ployee exercising supervisory powers. We shall exclude all said em- ployees from the unit. We find that all production and maintenance employees at the Roxbury and Chelsea plants of the Company, excluding executives, supervisory employees, office and clerical employees, truck drivers, employees of the Lead Division, engineers, Hyman Lipsitz, John Paluso, Charles Cyzon, Joseph Laurie, Joseph Osta, S. Kurland, and Julius Marcus, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to the 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 of employees of the Company can best be resolved by an election by secret ballot. We shall direct that an election by secret ballot be held among all employees within the appropriate unit who were employed during the pay-roll period last preceding the date of this Direction, with the inclusions and exclusions set forth in the Direction, to determine whether they desire to be represented by the S. W. O. C., or by the A. F. of L., for purposes of collective bargaining, or by neither. 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 H. Cohen & Co., Inc., Chelsea, Massachusetts, at its Chelsea and Roxbury plants, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. s This group Is employed by a separate corporate entity, which is owned and operated by the same persons who own and operate the Company. 440135-42-, Vol. 30-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All production and maintenance employees at the Roxbury and Chelsea plants of the Company , excluding executives , supervisory em- ployees, office and clerical employees; truck drivers, employees of the Lead Division, engineers, Hyman Lipsitz, John Paluso, Charles Cyzon, Joseph Laurie, Joseph Osta, S. Kurland, and Julius Marcus, consti- tute a unit appropriate for the purposes of collective bargaining. 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, 49 Stat. 449, and pursuant to Article III, Section 8, of Na- tional 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 bargaining with H. Cohen & Co., Inc., Chelsea, Massachusetts, 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 di- rection and supervision of the Regional Director for the First 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 production and maintenance employees employed by said Company at its Chelsea and Roxbury plants during the pay-roll period last preceding the date of this Direction, 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 executives, supervisory employees, office and clerical employees, truck drivers, employees of the Lead Division, engineers, Hyman Lipsitz, John Paluso, Charles Cyzon, Joseph Laurie, Joseph Oita, S. Kurland, Julius Marcus, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Steel Workers Organizing Committee, Local No. 2237, affiliated with the C . I. 0., or by International Hod Carriers, Building & Common Laborers Union No. 1102, affiliated with the A. F. of L., for the purposes of collective bargaining , or by neither.