David Kahn, Inc.

In the Matter of DAVID KAHN, INC., and LOCAL 22500 OF THE AMERICAN FEDERATION OF LABOR Case No. R-2446.-Decided May 3, 1941 Jurisdiction : fountain pen and mechanical pencil manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition ; dispute as to appropriate unit ; election necessary. Unit Appropriate for Collective Bargaining : production employees, including machinists, machinists' apprentices, tool and die workers, and, working fore- men, but excluding other supervisory employees, chauffeurs, watchmen, and office employees. Spingarn and Sachs, by Mr. Samuel Spingarn, of Union City, N. J., for the Company. Mr. Jacob Friedland, of Jersey City, N. J.; for Local 22500. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 14, 1940, Patent Pen and Pencil Workers Local #22500 of the American Federation of Labor, herein called Local 22500, 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 David Kahn, Inc., North Bergen, New Jersey, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 21, 1941, the National ,Labor Relations Board, herein called the Board, acting pursuant 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 conduct it and to provide for an appropriate hearing upon due notice. On March 24, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and Local 31 N. L. R. B., No. 95. - 578 DAVID 'KAHN, INC. 579 22500. Pursuant to the notice, a hearing was held on April 2, 1941, at Jersey City, New Jersey, before Richard J. Hickey, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany and Local 22500 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 on the issues was afforded all parties. - During the course of the hearing, the Trial Examiner made several rulings on 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. At the close of the hearing the Company moved to dismiss the petition on the ground that prior to the hearing Local 22500 had made no demand upon the Company for exclusive recognition and that Local' 22500 does not have 'sub- stantial membership among the employees of the Company. The Trial Examiner reserved decision on this motion for the Board. For reasons hereinafter appearing, the motion is hereby denied. - Upon the entire record in the ease, the Board makes the following : FINDINGS OF FACT, 1. THE BUSINESS OF THE COMPANY David Kahn, Inc., a New Jersey corporation, is engaged in the manufacture, sale, and distribution of fountain pens and mechanical pencils at a plant in North Bergen, New Jersey. During 1940 the Company purchased-raw materials, consisting principally of cellu- loid, brass, rubber, steel; and gold pen points, valued at approxi- mately $200,000, of which approximately 40 per cent was obtained from points outside New Jersey. During the same period the Com- pany sold finished products valued at approximately $500,000, of which approximately 95 per cent was shipped to destinations outside the State of New Jersey. - The Company admits that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED Patent- Pen and Pencil Workers Local #22500 is a labor organi- zation affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING' REPRESENTATION Local 225O was organized during the existence of a,strike among employee's of the Company, which began in September 1940 and 441843-42-vol 31-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminated in November 1940. The Company claims, in support of its contention that there is no question concerning representation, that prior to the hearing Local 22500 had not requested the Com- pany for exclusive recognition. Local 22500 contends that the Com- pany had refused its request for recognition. In any _ event, at the hearing Local 22500 requested the Company to recognize it as exclu . sive representative of the Company's employees and the Company refused this request, challenging the majority representation of the Union. At the hearing also the Company and Local 22500 made conflicting contentions concerning the appropriate unit. From a report prepared by the Regional Director and a statement by the Trial Examiner it appears that Local 22500 represents a substantial number ' of employees in the unit hereinafter found to be appropriate.' ' 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 Local 22500 contends that all production employees of the Com- pany, including working foremen, but excluding other 'supervisory, employees, chauffeurs, machinists, machinists' apprentices, tool and die workers, maintenance employees, watchmen; and office employees, constitute a unit appropriate for the purposes of collective bargain- ing. The Company opposes all of the above exclusions except those of supervisory, and office employees. The Company and Local 22500 agree, and we find that six named supervisory employees 2 are to be 1 The Regional Director 's report shows that Local 22500 submitted, in support of its claim to represent employees of the Company,, 141 authorization and application cards. The report also stated that the Regional Director was unable to authenticate the signatures on the cards because of the Company 's refusal , before the hearing, to submit a pay roll. The authenticity of the cards submitted to the Regional Director was not challenged The Trial Examiner stated for the record that at the hearing Local 22500 submitted 16 addi- tional cards signed by persons whose names appear on the Company 's March 29, 1941, pay roll. - There are over 400 employees in the unit hereinafter found to he appropriate 2 Julius Kahn, Samuel Kahn, Jr., Mr. Yager, David Kahn, Mr . Williams, and Samuel Kahn, Sr • DAVID KAHN, INC. 581 excluded' from the unit and that five named working supervisory employees 3 are to be included. The Company employs 50 persons in its machine shop (metal de- partment) including l machinist, 6 machinists' apprentices, and 3 tool and die workers. While the latter three groups of employees may, as contended by Local 22500, be eligible to join certain craft organizations affiliated with the American Federation of Labor, there is no evidence that these employees are members of, or are claimed by any such organizations. These employees are production workers and no persuasive reason has been-advanced for their exclusion from a production unit. We shall include them in the unit. The two chauffeurs and the three watchmen employed by the Com- pany are on the fringe of the production unit. We shall exclude them from the unit as requested by Local 22500. We find that the production employees of the Company, including machinists, machinists' apprentices, tool and die workers; and work- ing foremen, but excluding other supervisory employees, chauffeurs, watchmen, and office employees, constitute a unit appropriate 'for the purposes of collective bargaining, and that said unit will insure 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 employees of the Company can best be resolved by an election by secret ballot. Local 22500 requests that the, pay roll preceding the strike of September 1940 among the Company's em- ployees be used to determine eligibility. The Company urges that a current • pay roll be used for this purpose. The record' shows that since the termination of the strike the Company has employed - ap- proximately 50 new persons to handle its increased production. No sufficient reason • has, been advanced for varying our usual practice of using a current pay roll as determinative of eligibility to partici- pate in an election. We shall, therefore, direct that an election by secret ballot be held among the employees of the, Company in the unit..hereinabove- found appropriate who were employed during the pay-roll period last preceding the date of -our-Direction of Election, 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: a Rudolph Jindella , Patrick Cuozzo , Eleanor Cibulka , Vila Scullion , and Frederick Erbeck. '582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of David Kahn, Inc., North Bergen, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees of the Company, including machinists, machinists' apprentices, tool and die workers, and working -foremen, but excluding other supervisory employees, chauffeurs, watchmen, and office employees, constitute a unit appropriate for the purposes of collective bargaining. within the meaning of Section 9 (b) of the Act. ' DIRECTION OF ELECTION r 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 I hereby DIRECTED that, as part of the investigation authorized by the Board, to ascertain representatives for the purposes of collective bargaining with David Kahn, Inc., North Bergen, 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, 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, Section 9, of said Rules and Regulations, among all production employees of the Company who were employed by said Company during the pay-roll period last preceding the date of this Direction, including machinists, machinists' apprentices, tool and die workers, working foremen, and employees who did not work during said 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 excluding other supervisory employees, chauffeurs, watchmen, office employees, and any employees who have since quit or been discharged for cause, to determine whethep. or not they 'desire to be represented by Patent Pen and Pencil Workers Local #22500, affiliated with the American Federation of Labor, for the purposes of collective bargaining.