Frederick H. Levey Co., Inc.

I In the Matter of FREDERICK H. LEVEY Co., INC. PHILADELPHIA PLANT and UNITED MINE WORKERS OF AMERICA, DISTRICT 50, LOCAL 12092, C. I. O. Case No. R-2419.-Decided April 24, 1941 Jurisdiction : printing ink manufacturing industry. Investigation and Certification of Representatives : existence of question: stip- ulated; election necessary. Unit Appropriate for Collective Bargaining : all non-supervisory employees in the production, maintenance, shipping, and cleaning departments and elevator operators, including the assistant foreman in the shipping department, but excluding office clerical employees, plant clerical- employees, non-working supervisory employees, management employees, truck drivers, research labora- tory employees, production laboratory employees, mechanical laboratory em- ployees, the telephone operator, salesmen, and sales service chemists. Clark, Carr d Ellis, by Mr. Paul A. Crouch and Mr. William D. Ahern, of New York City, for the Company. Mr. Sand C. Waldbaum, Mr. Leif Dahl. and Mr. John J. Bruin, of Philadelphia, Pa., for the U. M. W. Mary M. Persinger, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 24, 1941, United Mine Workers of America, District 50, Local 12092, C. I. 0., herein called the U. M. W.,, filed with the Regional Director for the 'Fourth Region (Philadelphia, Pennsyl- vania) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Frederick H. Levey Co., Inc., Philadelphia, Pennsylvania, herein called the Com- pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 28, 1941, the Na- tional Labor Relations Board, herein called the Board, acting pursu- ant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to 31 N. L. R. B., No. 44. 292 FREDERICK H. LEVEY COMPANY, INC. 293 conduct it and to provide for an appropriate hearing "upon due notice. On March 10, 1941, the Regional Director issued a notice of hearing, and on March 13, 1941, at the request of the Company, a notice of postponement of hearing, copies of which notices were duly served upon,the Company and the U. M. W.1 Pursuant to notice, a hearing was held on March 24, 1941, at Philadelphia, Pennsylvania, before Geoffrey J. Cunniff, the Trial Examiner duly- designated by the Chief Trial Examiner. The Company and the U. M. W. were represented by counsel and participated in the hearing. Full oppor- tunity 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 made several rulings on motions and 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. - At the request of the U. M.`W. and pursuant to notice to all parties, a hearing for the purpose of oral argument before the Board was scheduled for April 8, 1941. Counsel for the Company appeared but did not argue.. The U. M. W. did not appear. On April 5, 1941, the Company filed a brief, which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Frederick H. Levey Co., Inc., is a New' York corporation which op- erates manufacturing plants and branches in Brooklyn, New York, Monmouth Junction, New Jersey, Springfield, Ohio, Chattanooga, Tennessee, and Philadelphia, Pennsylvania. The present proceeding involves only the plant in Philadelphia, Pennsylvania, where the Company is engaged in the manufacture and sale of printing inks. Dye-stuffs, toners, resin, acids, oils, gums, varnishes, dry colors, com- pounds, waxes, mineral spirits, greases, pails, and drums, are the principal raw materials used at this plant. During the year 1940 the Company purchased $1,000,600 worth of these raw materials, of which 85 per cent were obtained by it from outside the State of Pennsylvania. Finished products manufactured at the Philadelphia plant in 1940 were valued at $1,500,000. Approximately 20 per cent of such products were shipped by the Company to points outside the State of Pennsylvania. 1 Copies of both notices were also served upon International Printing Pressmen and Assistants Union. However, this union did not appear at the bearing. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD / H. THE ORGANIZATION INVOLVED United Mine Workers of America, District 50, Local 12092, C. I. O., is a labor organization, affiliated with the Congress of Industrial Or- ganizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION At the hearing the parties stipulated that the Company had refused to recognize the U. M. W. as the exclusive representative of its em- ployees in a specified unit 2 in the absence of certification of the U. M. W. as such by the Board. A statement prepared by the Regional Director and introduced into evidence discloses that the U. M. W. represents a substantial num- ber of the Company's employees." 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 APPROPRIATE UNIT The U. M. W. and the Company agree that the appropriate unit for the purposes of collective bargaining consists of all non-supervisory. employees in the production, maintenance; shipping, and cleaning departments and elevator operators, including the assistant foreman in the shipping department, but excluding office clerical employees, non-working supervisory employees, management employees, truck dri Viers, and research laboratory employees. The U. M. W. desires that plant clerical employees and production laboratories employees also be excluded from the unit, while, the Company desires their inclusion. 2 Substantially the same unit as is hereinafter found to be appropriate for the purposes of collective bargaining' 3 The Regional Director stated that the U. M W. had submitted to him for examination 82 signed membership application cards , all dated February 23 or 24, 1941 , that signatures appearing to be genuine were affixed to 78 of the cards, while the other 4 bore printed names , that 81 of the cards bore names of persons whose names appear on a pay roll of the Company dated Februaiy 24, 1941 He stated that this pay roll contained 215 names , of which 126 are names of employees who appear to be within the unit alleged to be appropriate by the U M W. FREDERICK H. - LEVEY COMPANY, INC. 295, The Company desires the inclusion of the plant clerical employees - on the ground that they are closely connected with production oper- ations and work closely with production employees. The plant clerical employees do typing and keep records in the shipping room, type formulae in the laboratories, and keep figures on inventory and stocks in the plant for the benefit of the production foremen. They perform no manual labor and are paid on a salaried rather than on -an hourly basis, as the production workers are. The U. M. W. desires the exclusion of the plant clerical employees from the unit on the ground that their interests are closer to those of the manage- ment and the office workers than to those of the production employees and because they are excluded from membership in the U. M. W. and have never expressed a desire to become members thereof. In accord- ance with our usual practice we shall exclude the plant clerical employees from the unit. In addition to_the,research or ink laboratory, located on the fifth floor of the plant and which is devoted wholly to research, the Com- pany maintains two so-called "production- laboratories" which are located on the second floor. Employees in these laboratories are salaried. They pass on all samples of ink manufactured by the Company, checking them in various stages of production against formulae specifications. ' Approximately 25 men `vork in the produc- tion laboratories, a few of whom are trained chemists-with college degrees, the rest being experienced production workers who have- been promoted to the laboratory. Apparently there are also a few young men in these laboratories who act as chemists' helpers. The U. M. W. and, the Company make the same ,general -contentions regarding these employees as they do regarding the clerical workers. We shall also exclude the production - laboratories employees from the appropriate unit. No specific contentions were made by the parties as to employees who appear in the following categories on the Company's pay roll: employees in the mechanical laboratory, a telephone operator, sales- men, and sales service chemists. We shall exclude them from the unit. We find that all non-supervisory employees in the production, maintenance, shipping, .,,nd,cleaning,departments, and elevator-oper- ators, including the assistant foremau in the shipping department, but excluding office clerical employees, plant clerical employees, non- working supervisory employees, management employees, truck driv- ers, research laboratory employees, production laboratory employees, mechanical laboratory employees, the telephone operator, salesmen, and sales service chemists, constitute a unit appropriate for the pur- poses of collective bargaining and that such unit will, insure to employees of the Company the full benefit of their right to self- 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 an election by secret ballot. We shall direct that all employees in the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of our Direction of Election, subject to such limitations and additions as are set forth in said Direction, shall be eligible to vote. 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 Frederick H. Levey Co., Inc., Philadelphia, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All non-supervisory employees in the production, maintenance, shipping, and cleaning departments and elevator operators, includ- ing the assistant foreman in the shipping department, but excluding office clerical employees, plant clerical employees, non-working super- visory employees, management employees, truck drivers, research laboratory employees, production laboratory employees, mechanical laboratory employees, the telephone operator, salesmen, and sales service chemists, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the 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 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 bar- gaining with Frederick H. Levey' Co., Inc., Philadelphia, Pennsyl- vania, 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 Direc-' for for the Fourth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, See- FREDERICK H. LEVEY COMPANY, INC. 297 tion 9, of said Rules and Regulations, among all non-supervisory employees in the production, maintenance, ' shipping, and cleaning departments and elevator operators of Frederick H. Levey Co., Inc., at its. Philadelphia plant, who were employed by the Company dur- ing the pay-roll period immediately preceding the date of this Direction, including the assistant foreman in the shipping 'depart- ment, and 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 office clerical employees, plant clerical employees, non-working; supervisory employees, management employees, truck drivers, re- search laboratory employees, production laboratory employees, mechanical laboratory employees, the telephone operator, salesmen, sales service chemists, and those who have since quit or been dis- charged for cause, to determine whether or not they desire to be represented by United Mine Workers, District 50, Local 12092, C. I. 0., for` the purposes of collective bargaining. [SAME TITLE] ORDER PERMITTING WITHDRAWAL OF PETITION May 13, 1941 The Board, on April 24, 1941, having issued a Decision and Direc- tion of Election in the above-entitled case, and, thereafter, on May 10, 1941, the petitioner having filed a request for permission to withdraw the petition, and the Board having duly considered the matter, ,IT IS HEREBY ORDERED that the request of the petitioner for permis- sion to withdraw its petition be, and it hereby is, granted, and that the aforesaid case be, and it hereby is, closed. 31 N. L. R. B.. No. 44a.