Presto Recording Corp.

In the Matter of PRESTO RECORDING CORPORATION and LOCAL 430 OF THE UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Case No. R-2686.Decided August 8, 1941 Jurisdiction : recording equipment manufacturing industry. Order of State Court requiring Company to employ only members of one of the unions involved pursuant to terms of closed-shop contract, held no bar in present representation proceedings instituted by another union where closed-shop contract had been in effect for more than 1 year at the time of the issuance of the State Court Order and institution of present proceedings. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; closed-shop contract in effect more than 1 year, no bar to ; eligibility to be determined by pay roll as of the amended petition in view of all circumstances and fact that one of the unions involved has a closed-shop contract with Company ; election necessary. Unit Appropriate for Collection Bargaining : all production employees at its New York plant, excluding clerical and supervisory employees. Mr. Richard J. Hickey, for the Board. Mr. Hyman Winograd, of New York City, for the Company. Mr. Frank Scheiner, of New York City, for Local 430. Mr. William Karlin, by Mr. Leo Greenfield, of New York City, for Local B-1010. Mr. Sidney L. Davis, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 30, 1941, Local 430 of the United Electrical, Radio & Machine Workers of America, C. I. 0.,1 herein called Local 430, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Presto Recording Corpora- tion, New York City, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 'Incorrectly referred to in the formal papers as Local 430, United Electrical, Radio & Machine Workers of America, C. I. O. 34 N. L. R. B., No. 3. 28 PRESTO RECORDING CORPORATION 29 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 11, 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 June 18, 1941, Local 430 filed with the Regional Director an amended petition. On June 19, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon Local 430, and upon Radio Union, Local B-1010, International. Brotherhood of Electrical Workers, A. F. of L., herein called Local B-1010, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on June 30 and July 1, 1941, at New York City, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Company, Local 430, and Local B-1010 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. At the close of the hearing Local B-1010 moved to dismiss the proceeding on the ground that a certain closed-shop contract between the Company and Local B-1010 did not expire until March 8, 1942, and on the further ground that an order of the Supreme Court of the State of New York issued on May 9, 1941, directed the Company to employ none but members in good standing of Local B-1010 until March 8, 1942. The Trial Examiner did not pass upon the motion. The motion is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions and upon 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 Presto Recording Corporation, a New York corporation with its principal office at New York City and factories at Newark and Para- mus, New Jersey, and New York City, is engaged in the manufacture, sale, and distribution of recording equipment and blank recording discs. This proceeding involves only employees of the New York plant. From January 1, 1941, to June 15, 1941, the Company pur- chased raw materials valued at approximately $150,000, of which 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approximately 90 per cent was purchased and shipped from outside the State of New York. During this period, the Company manu- factured finished products valued at approximately $300,000, of which approximately 66 per cent was sold and shipped outside the State of New York. The Company admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Local 430 of the United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Indus- trial Organizations, admitting to membership employees of the Company at'its New York plant. Radio Union, Local B-1010, International Brotherhood of Elec- trical Workers is a labor organization affiliated with the American Federation of Labor, admitting to membership like employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On March 9, 1939, the Company and Local B-1010 entered into a closed shop contract covering the production employees of the Com- pany at its New York plant. On March 6, 1940, the contract was duly extended so as to expire on March 8, 1942. On May 7, 1940, Local 430 wrote a letter to the Company stating that Local B-1010 had severed its affiliation with the International Brotherhood of Electrical Workers and was known as Local 430 of the United Electrical, Radio & Machine Workers of America, that Local 430 was the duly desig- nated exclusive bargaining agency of the Company's employees, and requesting a conference for collective bargaining. At the hearing, Local 430 contended that on July 19, 1940, it had entered into an oral closed-shop agreement with the Company which was to expire on July 13, 1941. The Company denied the making of such an agreement. Since the agreement, if made, has already expired, we need not consider the effects thereof. Pursuant to an arbitration proceeding initiated by Local B-1010 in January 1941, the Supreme Court of the State of New York, on May 9, 1941, entered an order confirming an award of the arbitrators and directing that the Com- pany employ, pursuant to the terms of its contract with Local B-1010, none but members in -good standing of Local B-1010 until March 8, 1942. Thereafter Local 430 renewed its request that the Company grant it recognition as exclusive bargaining representative of its employees. The Company refused the request of Local 430, giving as its reasons the outstanding closed-shop contract with Local B-1010 and the aforementioned order of the New York Supreme Court. PRESTO RECORDING CORPORATION 31 As set forth above, Local B-1010 contends that there is no ques- tion concerning representation because of its outstanding closed-shop contract with the Company and because the order of the New York Supreme Court requires the Company to employ only Local B-101.0 members until March 8, 1942. Inasmuch as the contract has already been in effect for more than a year, we find, in conformity with our established practice, that it does not constitute a bar to a present determination of representatives .2 The order of the New York Su- preme Court stems from the contract; it creates no new rights or obligations. We are of the opinion and find that the effectuation of the policies of the Act requires that such order 3 should not be held operative as a bar to a present determination of representatives in this proceeding. At the hearing there was introduced in evidence a report by the Regional Director showing that a substantial number of employees within the unit hereinafter found to be appropriate had designated Local 430 and Local B-1.010 as their respective collective bargaining representatives' 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 430 and Local B-1010 agreed at the hea"ing that all produc- tion employees 5 of the Company at its New York plant, excluding 2 See 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; Matter of Kahn & Feldman, Inc. and United Textile Workers of America, A. F. of L., 30 N. L. R. B. 294. 8It may be noted that the arbitration proceeding in the State court was limited to the issue of whether the Company had abided by the terms of a contract which on its face appeared lawful. * The Regional Director , reported that the membership roster and dues record of Local 430 contained the names of 57 employees who were also listed on the Company's pay roll of May 12, 1941 . The names on 50 application cards submitted by 'Local B-1010 also appeared on this pay roll. There were 63 employees on such pay roll in the appropriate unit. a The production employees are classified as lathe hands, instrument makers, bench hands, machine-shop helpers, skilled assemblers , senior assemblers , junior assemblers, senior wire men, wire men, inspectors , assemblers. 32, DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical and supervisory employees and shipping and receiving em- ployees, constitute a unit appropriate for the purposes of collective bargaining. The Company raised no objection to this unit. We find that all production employees of the Company at its New York plant, excluding clerical and supervisory employees and ship- ping and receiving employees, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to the 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 concerning representation which has arisen can best be resolved by an election by secret ballot. Local 430 contends that the pay roll for determining those eligible to vote in the election should be as of the date of 'the filing of the amended petition or the date of the hearing. Local B-1010 contends that in the event an election is directed the pay-roll period next pre- ceding the date of the Direction of Election should be. 'used. Since a pay roll as of the date of the hearing as requested by Local 430 is not too remote, and considering all the circumstances, including the fact that Local B-1010 has a closed-shop contract with the Company, we shall use as the date for determining eligibility of employees to vote, the pay-roll period next preceding June 30, 1941, the first day of the hearing, 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. A question affecting commerce has arisen concerning the repre- sentation of employees at the New York plant of Presto Recording Corporation, New York City, 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 at its New York plant, excluding clerical and supervisory employees and shipping and re- ceiving employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. PRESTO RECORDING CORPORATION 33 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 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Presto Recording Corporation, New York City, 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 of Election, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations , among all production employees of. the Company at its New York plant who were employed during the pay-roll period next preceding June 30, 1941, including employees who did not work during such pay-toll period because they were ill or on vacation or in the active military service or training of the United States, or tem- porarily laid off, but excluding employees who have since quit or been discharged for cause, and also excluding clerical and supervisory employees and . shipping and receiving employees, to determine whether they desire to be represented by Local 430 of the United Electrical, Radio & Machine Workers of America, C. I. 0., or by Radio Union Local B-1010 of the International Brotherhood of Electrical Workers, A. F. of L., for the purposes of collective bar- gaining, or by neither. MR. WILLIAM M. LEiSERSON, concurring in part : I agree that this Board has exclusive jurisdiction to determine rep- resentation disputes, and in so doing it may find that an existing contract is not a bar to a representation proceeding. But the Board does not have exclusive jurisdiction to determine the obligations of contracts, and I take it that such obligations are not set aside by the mere finding that the contract is not a bar to an election. If, then, the election directed in the present case should result in the certifica- tion of a new representative the Company would still be obligated until March 8, 1942, to employ only members in good standing of Local B-1010 as ordered by the New York Supreme Court. This being true, the Company could hardly be held in violation of Section 8 (5) of the Act if it refused to, bargain with the new representative prior to March 8, 1942, because of its obligation under the current contract. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances, I would condition the Direction of Elec- tion with a proviso that the representative chosen will be authorized to bargain for a new contract after the present contract expires. Since the contract period is not unreasonably long, however, I think the better practice would be to dismiss the petition without prejudice to refiling shortly before the expiration of the contract.