Kahn & Feldman, Inc.

In the Matter of KAHN & FELDMAN, INC., and UNITED TEXTILE WORKERS OF AMERICA, A. F. OF L. Case No. R-069.-Decided Morch 13, 1941 Jurisdiction : silk products manufacturing, industry. Investigation and Certification of Representatives : existence of question: peti- tioner's request for exclusive recognition under a closed-shop contract exe- cuted with another organization, whose local at plant changed its affiliation to the petitioning union, refused by the Company until such time as it was certified by the Board; contract no bar to, where it has been in effect for more than a year; organization which appeared specially at the hearing accorded a place on the ballot inasmuch at it is a party to a closed-shop contract with the Company ; election necessary. Unit Appropriate for Collective Bargaining : all employees of the Company at its Brooklyn plant and warehouse, excluding executives, managers, super- intendents, foremen, assistant foremen, salesmen, and office help ; agreement as to. Mr. Millard L. Midonick, for the Board. Weil, Gotsh,al & Manges, by Mr. Jesse D. Wolff, of New York City, for the Company. Mr. Henry M. Katz, of New York City, and Mr. Lloyd Kle'nert, of Washington, D. C., for the U. T. W. A. Mr. Joseph G. Glass, of New York City, for the T. W. U. A. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF. ELECTION STATEMENT OF THE CASE On October 23, 1940, United Textile Workers of America, A. F. of L., herein called the U. T. W. A., filed with the Regional Direc- tor for the Second Region (New York City ) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Kahn & Feldman, Inc., Brooklyn, New York, herein called the Company , 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 Janu- ary 15, 1941, the National Labor Relations Board, herein called the Bard , acting . pursuant . to Section 9 (c) of the Act and Article 30 N • L. N&•'°45: 294 KAHN & FELDMAN, INC. 295 III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 2, as amended, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 20, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the -U. T. W. A., and Textile Workers Union of America, herein called the T. W. U. A., a labor organization claiming to represent em- ployees directly affected by the investigation . Pursuant to notice, a hearing was held on January 27 , 1941, at New York City, before E. G. Smith, the Trial Examiner duly designated by the Chief Trial Examiner . The Company , and the U. T. W. A . were repre- sented by counsel and participated in the hearing . The T . W. U. A. (appeared specially by counsel and moved that the proceeding be adjourned . The motion was denied and the T. W. U. A. withdrew from 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. During the course of the hearing the Trial Examiner granted a motion of the U. T. W. A. to amend its petition as to formal matters. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all 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- Kahn & Feldman, Inc., a New York corporation with its prin- cipal office at New York City, operates a factory and warehouse at Brooklyn, New York, where it is engaged in the processing, manufacture, sale, and distribution of new silk , thrown silk, and re- lated products . All raw materials used by the Company are shipped to it from points outside the State of New York. The Company ships over 800,000 pounds of finished products annually to points outside the State of New York, this figure representing more than 50 per cent of the finished products produced by it annually. H. THE ORGANIZATIONS INVOLVED United Textile Workers of America is a labor -organization affili- ated with the American Federation of Labor. It admits to mem- bership employees of the Company. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Textile Workers Union of America is a labor organization affili- ated with the Congress of Industrial Organizations, admitting to membership employees of, the Company. III. THE QUESTION CONCERNING REPRESENTATION On October 13, 1939, the Company and the T. W. U. A. entered into a closed-shop contract covering all of the employees of the Com- pany. This contract was to remain in full force and effect for 2 years after its date. In May 1940, the T. W. U. A. local at the Company's plant changed its affiliation to the, U. T. W. A., the same officers continuing in office. In May 1940, and several times thereafter, the U. T. W. A. requested the Company to recognize it as the exclusive representative, under the contract. The Company informed the U. T. W. A. that due to the existing contract it could not recognize the U. T. W. A. until such time as it was certified by the Board. Inasmuch as the contract has already been in effect for more than a year we find that it does not constitute a bar to a present determination of repre- sentatives? A statement of the Regional Director introduced in evidence at the hearing shows that the U. T. W. A. represents a substantial number of the employees in the unit alleged by it to be appropriate.2 . 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 Com- pany described in Section I above, has a,close, intimate, and sub- stantial 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. " ISee Matter of Rosedale Knitting Company and Rosedale Employees-Association. 23 N L. R B 527; Matter of Lewis Steel Products Corp. and"Local 1225 of* the United Electrical, Radio d Machine Workers of America, C. I: 0., 23 N. L. R. B 793, and-cases cited therein. 2 The Regional Director's statement shows that 459 employees whose names appear on the Company's pay roll of October 31, 1940, have signed membership application cards in the U. T. W. A. Three hundred of these cards were signed in April, 29 In May, and 3 in June, 1949, and 73 are undated. There are 625 employees on the October 31, 1940, pay roll. The Regional Director further reported that the T. W. U. A. did not submit any membership' lists or .cards,- claiming that its proof of representation lies in its bona fide closed-shop contract with the Company which does not expire until October 1941. ,- KAHN''& FELDMAN,. INC. , 297 V. THE APPROPRIATE ,UNIT, The Company and the U. T. W. A. agreed at the hearing that all employees of the Company at' its Brooklyn plant and warehouse, excluding executives, managers, superintendents, foremen, assistant foremen, salesmen, and office help, constitute a unit appropriate for the purposes of collective bargaining. Counsel for the T. W. U. A., although appearing specially, stated that he did not object to this unit.. We find that all employees of the Company at its Brooklyn plant and warehouse, excluding executives, managers, suprintendents, fore- men, assistant foremen, salesmen, and office help, 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 other- wise effectuate the policies of the Act.3 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. We shall accord a place to the T. W. U. A. on the ballot inasmuch as it is a party to a closed-shop contract with the Company. We find that the employees of the Company eligible to vote in the elec- tion shall be those'in the appropriate unit who were employed during the pay-roll period immediately preceding 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 or-absent because called, for military, service and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for cause., 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 Kahn & Feldman, Inc., Brooklyn, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company at its Brooklyn plant and ware- house, excluding executives, managers, superintendents, foremen, as- sistant foreman, salesmen, and office help, constitute a unit 8 This Is the same unit as provided for in the contract between the Company and the T. W. U. A. I 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate 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 Re- lations 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Kahn & Feldman, Inc., Brooklyn, New York, 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 Regional Director for the Second Region, acting in this matter as agent for the National Labor Re- lations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all employees at the Brooklyn plant and ware- house of the Company who were employed during the pay-roll period immediately, preceding the date of this Direction, including em- ployees who did not work during such pay-roll period because they were ill or on vacation or absent because called for military service, and employees who were then or have since been temporarily laid off, but excluding executives, managers, superintendents, foremen, assistant foremen, salesmen, office help, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Textile Workers of America, affiliated with the American Federation of Labor, or by Textile Workers Union of America, affiliated with the Congress of Industrial Or- ganizations, for the purposes of collective bargaining, or by neither.