Silcon Furniture Co., Inc.

In the Matter of LEwITTES & SONS, INC., ALSO KNOWN AS SLLCON FURNITURE COMPANY, INC., AND THE GROVEVILLE CORP. and UNITED FURNITURE WORKERS OF AMERICA Case No. R-20600.-Decided June 08, 1941 Jurisdiction : furniture manufacturing industry. Investigation and Certification of Representatives : existence of question: dis- pute as to union's representations ; election necessary. Unit Appropriate for Collective Bargaining : all production employees employed by the Companies at manufacturing plant, excluding company officers, agreed foremen or supervisors, truck drivers, the mechanic, the office staff, stationary engineers, maintenance men, and watchmen. Definitions Three interlocking corporations, of which one manufacturers the products, another buys the raw materials and sells the products, and the other owns the manufacturing plant and supplies it with maintenance, employees, held to constitute an integrated enterprise and to be employers of employees at manufacturing plant. Moos, Nathan, Imbrey d' Levine, by Mr. Abraham J. Asche, of New York City, for the Companies. Mr. Harry Weinstock, of New York City, for the Union. Miss Edna Loeb, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 30, 1941, United Furniture Workers of America, herein called the Union, 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 Lewittes & Sons., Inc., also known as Silcon Furniture Furniture Com- pany, Inc., and The Groveville Corp., Beacon, New York, herein jointly called the Companies, and requesting an investigation and certification of representatives, pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449,-herein called the Act. On May 22, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, 1 The pleadings were amended at the hearing to state the Companies' names correctly, as above. 33 N. L. R. B., No. 5. 29 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 May 22, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Companies and the Union. Pursuant to notice, a hearing was held on May 28 and 29, 1941, at Beacon, New York, before Millard L. Midonick, the Trial Examiner duly designated by the Chief Trial Examiner. The Companies and the Union were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Union moved to dismiss the petition as to The Groveville Corp., which motion the Trial Examiner denied. The Trial Examiner granted motions made by the Union, however, to amend its petition in regard to the bargain- ing unit alleged to be appropriate and to conform the petition to the proof. The Trial Examiner also granted a motion made by the Companies to correct the caption of the proceeding. The Board has reviewed the rulings of the Trial Examiner on motions and on objec- tions to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 10 and 14,1941, the Union and the Companies filed briefs, both of which the Board has duly considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES Lewittes & Sons, Inc., Silcon Furniture Company, Inc., and The Groveville Corp., herein called Lewittes, Silcon, and Groveville, re- spectively, are New York corporations which have substantially the same officers and stockholders. Lewittes and Silcon have their prin- cipal offices and place of business on the same premises in New York City and are jointly engaged in the manufacture, sale, and distribu- tion of upholstered furniture and related products at a plant in Bea- con, New York, herein called the Beacon plant. Groveville has its principal office and place of business at Beacon, where it owns the Beacon plant and other property not here involved. Groveville leases the Beacon plant to Lewittes, and Silcon in turn pays Lewittes for the use of said plant by bookkeeping adjustments of their mutual accounts. Lewittes purchases all materials used at the Beacon plant and sells the finished products thereof. Silcon conducts all manufacturing tEwrzmEs & SONS, -INC. 31 operations at the Beacon plant, receiving instructions from Lewittes as to what products to manufacture. The principal raw materials used in these operations are lumber, fabricated steel, down, feathers, cotton, jute, and textiles, approximately 50 per cent of which are shipped to the Beacon plant from points outside the State of New York. Approximately 50 per cent of the products of the Beacon plant, which number in excess of 10,000 units annually, are shipped from the plant to places outside the State of New York. This proceeding concerns the approximately 265 workers employed at the Beacon plant. All maintenance workers and watchmen are em- ployed and paid by Groveville, all others by Silcon, and all the em- ployees work under the direction and supervision of Israel Lewittes, who is an officier of two of the Companies, general manager of the plant for Lewittes and Silcon, and general manager of Groveville. Lewittes, Silcon, and Groveville admit, and we find, that their ac- tivities constitute an integrated enterprise. We find further that the Companies are employers of the Beacon plant employees, within the meaning of Section 2 (2) of the Act. II. THE ORGANIZATION INVOLVED United Furniture Workers of America is a labor organization affili- ated with the Congress of Industrial Organizations. Beacon Local 78 is a labor organization chartered by United Furniture Workers of America, admitting to its membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION On April 24, 1941, the Union sent a letter to Lewittes claiming to represent a majority of the employees at the Beacon plant and re- questing a bargaining conference. On April 26, 1941, Lewittes wrote to the Union stating that it did not believe the Union's majority claim. From the report of the Regional Director introduced into evidence and from the statement of the Trial Examiner at the hearing, it ap- pears that the Union represents a substantial number of the em- ployees in the Beacon plant 2' TV. 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 Companies described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, 2 The Regional Director and the Trial Examiner reported that the Union had signed application cards, bearing what appeared to be genuine original signatures, from 106 of the approximately 265 employees on the pay roll for the first week in May 1940. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Union petitions for a unit consisting of all production em- ployees employed at the Beacon plant," excluding foremen, truck drivers, the office staff, supervisors, maintenance men, and watchmen. At the hearing the parties agreed that the unit should exclude as foremen or supervisors eight persons listed in Appendix "A," attached hereto, and that the unit should also exclude company officers,' sta- tionary engineers, and the office staff." We shall exclude these groups from the unit. The controversy herein concerns the Companies' truck drivers, mechanic, watchmen, and maintenance men, all of whom the Union would exclude from the unit and the Companies would include. The Companies employ four truck drivers whose principal function is to truck finished products from the Beacon plant to various destinations. The Companies employ a single mechanic whose work is to keep the trucks in good repair. The Companies' watchmen, four in number, serve as guards and gatemen for the Beacon plant and also for other property owned by Groveville. Four maintenance workers are em- ployed at the plant. They are chiefly engaged in general repair and maintenance of the plant and plant machinery and perform electrical and construction work when necessary. The truck drivers, the me- chanic, watchmen, and maintenance men are either ineligible to mem- -bership in the Union or are not customarily organized by the Union in the furniture industry. Their work places them on the fringe of the functions of the production employees, who constitute the bulk of the requested unit. In view of these facts, we shall exclude the truck drivers, the mechanic, watchmen, and maintenance men from the unit' We shall not, however, exclude S. Lunsford, a porter and sweeper, or At the commencement of the hearing the Union urged that the unit be limited to the production workers employed by Lewittes and Silcon only , but later in the hearing and in its brief, the Union waived that limitation and regdested the inclusion in the unit of two, individuals employed by Groveville at the Beacon plant. 4 Officers named in the record are William, Israel, and Morris Lewittes. "The Companies also agreed to the exclusion of coal stokers , if any, but the record shows that the Companies employ no such workers. " See Matter of Swift ci Company and Amalgamated Meat Cutters, etc., 80 N. L. R. B. 550; Matter of Cayuga Linen c6 Cotton Mille, Inc., and Temtiie Workers Organising Committee, 11 N. L. R. B. 1; Matter of Bethlehem Shipbuilding Corporation, et at. and Industrial Union, etc. 11 N. L. R. B. 105. The Companies contend that if drivers , watch- men, and maintenance men are excluded from the unit because they are not directly en- gaged in production work, for the sake of consistency the unit should also exclude two other groups of employees likewise not so engaged , namely, shipping-department em- ployees and five porters and sweepers. These employees are eligible to join the Union and some of them are members thereof. The work of these individuals places them also on the fringe of the functions of the production employees. In view of these facts, we find without merit the Companies ' contention in this regard. LPWWITTES & soNS1, INC. 33 C. Ross, the plant elevator operator. Although these two employees are named on a' list of maintenance employees introduced into evi- dence, the Union urges that they are not properly classified as main- tenance employees and that they should not be excluded as such. Lunsford's duties are similar to those of other employees in the unit, while Ross operates the plant elevator and does not do maintenance work. The record indicates that Lunsford and Ross have been ad- mitted to union membership and that both of them are participating in the current strike called by the Union at the Beacon plant. We find that they are not maintenance employees within the meaning of our above exclusion and that they belong in the unit. We find that all production employees employed by the Companies at the Beacon plant, excluding company officers, the foremen or super- visors listed in Appendix "A," truck drivers, the mechanic, the office staff, stationary engineers, maintenance men, and watchmen, con- stitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Companies 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 The parties agree, and we find, that the question concerning repre- sentation which has arisen can best be resolved by means of an election by secret ballot. The parties agree further that in view of the current strike called by the Union at the Beacon plant on May 16, 1941, eligibility to vote in the election should be determined by the pay roll of May 12,1941, the last pay roll before the strike. We shall give effect to the agreement of the parties and direct that those eligible to vote in the election shall be all employees in the appropriate unit who were employed during the pay-roll period ending May 12, 1941, 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 : CONCLUSIONS OF LAW 1. Lewittes & Sons, Inc., Silcon Furniture Company, Inc., both of New York City, and The Groveville Corp., Beacon, New York, are employers of the employees at the Beacon plant, within the meaning of Section 2 (2) of the National Labor Relations Act. 2. A question affecting commerce has arisen concerning the repre- sentation of employees of Lewittes & Sons, Inc., Silcon Furniture Company, Inc., both of New York City, and The Groveville Corp., Beacon, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. All production employees employed by the Companies at the Beacon plant, excluding company officers, the foremen or supervisors listed in Appendix "A," truck drivers, the mechanic, the office staff, stationary engineers, maintenance men, and watchmen, constitute a unit 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 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 bargaining with Lewittes & Sons, Inc., Silcon Furniture Company, Inc., both of New York City, and The Groveville Corp., Beacon, 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 Relations Board and subject to Article III, Section 9, of said Rules and Regu- lations, among all production employees employed by the Companies at the Beacon, New York, plant, during the pay-roll period ending May 12, 1941, including 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 company officers, the foremen or supervisors listed in Appendix "A," truck drivers, the mechanic, the office staff, sta- tionary engineers, maintenance men, watchmen, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented for the purposes of collective bar- gaining by United Furniture Workers of America, Beacon Local 78. Mx. EDWIN S. SMITH, concurring : The Companies' truck drivers, mechanic, watchmen, and maintenance men, all of whom the Union desires to exclude from the unit, and the shipping-department employees and porters and sweepers, whom the Union desires to include within the unit, are, as the Board has found, employees whose work places them on the fringe of the functions of the production employees. In conformity with the long-established rule of the Board to make the desires of the only union involved deter- minative of the inclusion or exclusion of such "fringe" groups, I con- cur in the exclusion of the mechanic, truck drivers, watchmen, and maintenance men from the appropriate unit, and the inclusion of the LEW1TT+ S & SONSI, INC. 35 shipping-department employees and the porters and sweepers in the appropriate unit' - APPENDIX "A" Bates, Al Friedman, Harry Bernard, William Friedman, Hyman Ernst, Isidore Glazer, Jack Friedman, Abe Patten, Jack ' See my dissenting opinion in Matter of National Lead Company ( Titanium Division) and Gas, By-Product, Coke d Chemical Workers, Local No. 12212, District 50, United Mine Workers of America, 32 N. L. R. B . 607, and authorities cited therein. 450122-42-vol. 33-4