Harlich Manufacturing Co.

In the Matter of LEO LICIITENSTEIN, BYRON LICHTENSTFIN AND LIBBIH LICHTENSTEIN, A PARTNERSHIP, DOING BUSINESS AS HARLICH MANU- FACTURING COMPANY and INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS UNION OF NORTH AMERICA (AFL) Case No. R-2381.Decided April 23, 1941 Jurisdiction : paper specialty manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; pay roll preceding strike and lay-offs to determine eligibility ; election necessary. Unit Appropriate for Collective Bargaining : pressmen and die cutters in the printing' department. , ' - Jacobson, Merrick, Nierman & Silbert, by Messrs. David Silbert and Robert B. Shapiro, of Chicago, Ill, for the Company. Mr. Joseph B. Roche, of Chicago, Ill., for the Union. Mr. Sidney L. Daivis, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 12, 1940, February 17, 1941, and February 18, 1941, respectively, International Printing Pressmen & Assistants Union of North America (AFL), herein called the Union, filed with the Re- gional Director for the Thirteenth Region (Chicago, Illinois), a petition, amended petition, and second amended petition, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Leo Lichtenstein, Byron Lichtenstein and Libbie Lichtenstein, a partnership, doing business as Harlich Manu- facturing Company, Chicago, Illinois, herein called the Company,' and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 21, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to 'At the hearing the formal papers were amended to designafe correctly, the Company as set forth above. 31 N. L. R. B., No. 35. 223 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, or- dered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On Feb- ruary 26, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon the Union. Pursuant to notice, a hearing was held, on March 7 and 10, 1941, at Chicago, Illinois, before Robert R. Rissman, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was represented by counsel, the Union by its representative, and all 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 close of the hearing, the Company moved to dismiss the petition. Ruling thereon was referred to the Board. The motion is hereby denied. During the course of the hearing, the Trial Examiner 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 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 Leo Lichtenstein, Byron Lichtenstein and Libbie Lichtenstein, a partnership, doing business as Harlich Manufacturing Company, with its principal office and place of business at Chicago, Illinois, is engaged in the manufacture and sale of punch boards, games, and paper specialties. For the year 1940, the Company purchased raw materials consisting of paper, cardboard, ink, and other materials of an approximate *value of $250,000, of which approximately 25 per cent represented shipments to the plant in Chicago, Illinois, from points outside the State of Illinois. For the year 1940, the Com- pany sold finished products valued at approximately $1,200,000, of which approximately 90 per cent were shipped outside Illinois. H. THE ORGANIZATION INVOLVED International Printing Pressmen & Assistants Union of North America is a labor organization affiliated with the American Feder- ation of Labor, admitting to membership, pressmen and die cutters in the printing department of the Company. LEO LICHTENSTEIN III. THE QUESTION CONCERNING REPRESENTATION 225 In a letter to the Company dated November 11, 1940, the Union, claiming to represent a majority of the pressmen- and die cutters, requested the Company to confer with it. The Company did not reply to this letter, and, at the hearing, stated that it did not recog- nize the Union as exclusive representative of such employees. There was introduced in evidence a report prepared by the Acting Regional Director showing that. the Union represented a substantial number of employees in the unit found below 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 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- anerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union claims that the pressmen and die cutters-in the print- ing department of the Company constitute a unit appropriate for the purposes of collective bargaining. The Company contends that the appropriate unit should be comprised of all production employees, including pressmen, die cutters, compositors, checkers, and other em- ployees. The organization of the Company's business is such that either a unit of all production employees or one limited to pressmen and die cutters could be appropriate for the purposes of collective bargain- ing. Self-organization among the Company's employees, however, has not extended beyond the limits of the unit proposed by the Union, nor is any organization here seeking to represent employees-of the Company other than the pressmen and die cutters. Under these circumstances, we are of the opinion that the unit sought by the Union herein is appro- priate. To find otherwise would deprive the pressmen and die cutters of the benefits of collective bargaining until the remaining production employees had organized. Our determination here as to the appro- priate unit, however, is no bar to a later revision in accordance with 2 The Acting Regional Director reported that 24 of the 53 employees in the printing department for the week ending November 20, 1940, had signed application cards for membership in the Union . Of the 24 who had signed such application cards , 11 had been temporarily laid off, and 8 had quit or had gone on strike during the pay-roll period. I I J 226 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes in the status of self-organization of the Company's employees.3 We find that the pressmen and die cutters in the printing department of the Company 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 col- lective 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 the holding of an election by secret ballot. On November 15, 1940, the Company temporarily laid off 17 press- men and die cutters. On or about November 26, 1940, 8 pressmen and die cutters went out on strike in protest against the aforementioned lay-offs, and at the time of the hearing about 11 were striking. Only 2 of the 17 who were laid off have since been reemployed, and about 6 weeks prior to the hearing the Company hired 7 new pressmen and die cutters. The Union requests the use of a pay-roll date prior to the strike and lay-offs as determinative of eligibility to participate in the, election; since such determination would permit striking employees and those temporarily laid off to vote. The Company desires the use of the pay roll next preceding the Direction of Election. The Company does not dispute that the lay-offs of November 15 were temporary, and at the hearing stated that it intends to reemploy the employees who were laid off when and as production increases. Also prior to and at the hearing, the Company offered to reinstate the striking employees. Be- cause of the refusal of the printing superintendent to divulge informa- tion on advice of counsel for the Company, there is some doubt whether the 7 new pressmen and die cutters were hired to replace the strikers. We are convinced, nevertheless, upon reading the entire record and considering all the circumstances, that the 7 new employees were hired to replace the persons then on strike .4 Under all the circum- stances, we shall use, as the date for determining the eligibility of em- ployees to vote, the pay roll next preceding November 15, 1940, subject to such limitations and additions as are set forth in the Direction. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : 3 See Matter of Crescent Dress Company and Cutters Local 11, 1. L. G. TV. U., A. F. of L., 29 N L R B 351, and cases cited therein. 4 The printing superintendent admitted that at least 1 of the new employees is operating a die cutting machine which had been operated by one of the strikers . The Company also stated that if the strikers accepted its offer of reinstatement , it would be necessary to dismiss some of the other pressmen and die cutters LEO LICHTENSTEIN 227 CONCLUSIONS OF LAW 1. A question affecting commerce has arisen 'concerning the repre- sentation of employees of Leo Lichtenstein, Byron Lichtenstein and Libbie Lichtenstein, a partnership, doing business as Harlich Manu- facturin^ Company, Chicago, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The pressmen and die cutters in the printing department of the Company constitute a unit appropriate for the purposes of col- -lective bargaining within the meaning of Section 9 (b) of the Na- tional 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRiicTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Leo Lichtenstein, Byron Lichtenstein and Libbie Lichtenstein, a partnership, doing business as Harlich Manufacturing Company, Chicago, Illinois, an election by secret ballot shall be conducted as early as possible, but not later thane thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth 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 the pressmen and die cutters in the printing department of the Company whose names appear on the Company's pay roll next preceding November 15, 1940, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but exclud- ing employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Interna- tional Printing Pressmen & Assistants Union of North America (A. F. L.) for the purposes of collective bargaining. MR. EDWIN S. SMITH, concurring : For reasons expressed in my concurring opinion in Matter of East- ern Box Companp,5 I agree that eligibility to vote in the election directed herein shall be determined on the. basis of a pre-strike pay roll. 6 Matter o f Eastern Box Company and Baltimore Paper Box and Miscellaneous Workers' Union, No 481 (A F. L ), 30 N L R B 673 See also Matter of A Sartorius & Co, Inc and United Mine Workers of America, District 50, Local 10090 , 10 N. L. R B. 493. 441843-42-vol. 31-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. WILLIAM M. LEISERSON, dissenting in part: In order to give all the workers now employed a voice in the deter- mination of their bargaining representative, I am of the opinion that it would be better practice to use a current pay roll for the purpose of determining eligibility to vote in the election." 6 See my dissenting opinion in Matter of Easton Publishing Co. and Easton Typographical Union No. 258, affiliated with the International Typograph'eal Union, 19 N. L. R. B. 389. I