National Metal-Art Manufacturing Co., Inc.

In the Matter of NATIONAL METAL-ART MANUFACTURING Co., INC. and WHOLESALE AND WAREHOUSE WORKERS UNION , LOCAL 65, C. I. O. Case. No. R-3232.Dedided December 13, 1941 Jurisdiction : cabinet manufacturing industry. Investigation and Certification of , Representatives : existence of question: con- flicting claims of rival representatives; contract entered into with notice of claim to representation by rival union, no bar to ; contract, continued existence of which is conditioned on union's obtaining certification by the Board, no bar to; union not appearing at the hearing to be permitted to withdraw its name from the ballot upon filing request within 5 days ; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees of the Company at its two plants, including packing, shipping, inspection, and assembly employees, but excluding office and clerical employees, outside salesmen, chauffeurs, and certain named executive and supervisory employees ; agreement as to. Liebowitz cfi Sehv'iman, by Mr. Frank E. Nowve and Mr. Simon J. Liebowitz, of New York City, for the Company. Liebman, Leider and Witt, by Mr. Harold I. Cammer, of New York City, for the C. I. O. Mr. Herman J. DeKoven, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On, September 2, 1941 and October 20, 1941,'respectively, Wholesale and Warehouse Workers Union, Local 65, C. I. 0., herein called the C. I. 0., filed with the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of National Metal-Art Manufacturing Co., Inc.,' Brooklyn, New York, herein called the Company, and requesting an investigation i Although the Company is designated "National Metal Art Co " in some of the formal documents , it appears from tin stipulation on the nature of its business that its correct name is "National Metal-Art Manufactui mg Co, Inc" All such documents in the record are hereby amended to show the name of the Company as set forth in the stipulation on the nature of its business 37 N L R B, No 96 561 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 16, 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 October 21, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the C. I.'O., and Wholesale Hardware, Crockery & Housefurnishing Specialties Union, Local 18943, of the American Federation of Labor, herein called the A. F. of L., a labor organization allegedly claiming to represent employees directly affected by the investigation. Pur- suant to notice, a hearing was held on October 30, 1941, at Brooklyn, New York, before William T. Little, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Company and the C. I. O. were represented by counsel and participated in the hearing. - The A. F of L. did not appear at 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE COMPANY National Metal-Art Manufacturing Co., Inc., a New York cor- poration having its principal place of business at 444 Twelfth Street, Brooklyn, New York, is engaged in the manufacture, distribution, and sale of medicine cabinets, bathroom cabinets, kitchen cabinets, and radiator enclosures. It maintains and operates plants at 444 Twelfth Street and 1901 Eighth Avenue, Brooklyn, New York. From March 20 through September 20, 1941, the Company purchased and used in its operations materials valued at approximately $90,000, about 15 percent of which was shipped to its Brooklyn plants from points outside the State of New York. During the same period the Company -shipped from its Brooklyn plants finished products valued at approximately $170,000, about 5 percent of which was shipped to points outside the State of New York. NATIONAL METAL-ART MANUFACTURING CO. II. THE ORGANIZATIONS INVOLVED 563 Wholesale and Warehouse Workers Union, Local 65, is a labor organization affiliated with the Congress of Industrial Organizations and admits to membership employees of the Company. Wholesale Hardware, Crockery & Housefurnishing Specialties Union, Local 18943, is a labor organization affiliated with the Amer- ican Federation of Labor and admits to membership employees of the Company. 111. THE QUESTION CONCERNING REPRESENTATION The C. 1.-0. began to organize employees of the Company at its Twelfth Street plant ' in the summer of 1941 and, after asserting that it represented a majority of such employees , entered into negotiations with the Company for a contract. The parties agreed on many but not all terms. On August 15, 1941, the Company was advised by the A. F. of L. that it represented a majority of the Company's em- ployees, and on August 26, 1941, the Company and the A. F. of L. entered into a, closed-shop contract; covering employees at both plants, effective until February 1, 1943. As part of the settlement of a strike which occurred at the Company 's plants in September 1941, the Company and the C. I. 0., on October 14 , 1941; entered into a closed-shop contract , covering employees at both plants,' effective until October 14 , 1942, and to continue in effect from year to year thereafter unless written notice of intent to amend or cancel be given 45 days prior to the expiration date. The latter contract further provides that it is to continue in full force and effect only if the C. I. O. is designated by a majority of the Company 's employees as their collective bargaining agent at an election which the Board may hold.' The Company states that it is willing to bargain col- lectively with whatever agency is selected by its employees to rep- resent them. The- Company and the C. I. O. stipulated at the hear- ing that a question concerning representation has arisen by,reason of the existence of the two contracts. None of the parties asserted either of the contracts as a bar to a present determination of representatives . Since the C. I. O. claimed to represent a majority of the employees of the Company at its Twelfth Street plant prior to the execution of the A. F. of L. con- tract, and since the continued life of the C. I. O. contract is condi-' 2 The C I . 0 began to organize employees of the Company at its Eighth Avenue plant in September 1941 3 The secretary of the Company testified that it abided by the terms of the A F of L contract until it entered into the C I 0 contact, and that it has been operating in accord- ance with the terns of the C 1 0 contract since its execution 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned upon the C. I. O.'s being designated by a majority of the Company's employees as their collective bargaining agent at an election which the Board may hold, we find that neither contract is a bar to such determination. A statement of the Regional Director introduced in evidence dis- closes that the C. I. O. represents a substantial number of employees in the unit hereinafter found to be appropriate.4 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 C. I. O. requests a unit composed of all production and mainte- nance employees of the, Company at both its Twelfth Street and Eighth Avenue plants, including packing, shipping, inspection, and assembly employees, but excluding office and clerical employees, out- side salesmen, chauffeurs,-' Samuel Katzman (foreman), Aaron Katz- man (treasurer of the Company), Harris Katzman (president of the 4 The secretary of the Company testified that approximately 40 to 45 persons are employed In Its Twelfth Street plant and approximately 15 persons in its Eighth Avenue plant. The Regional Director reported that the C. I 0 presented 36 membership application cards, all of which bore apparently genuine signatures , and 30 of which bore the signatures of persons appearing on the Company's pay roll of September 5, 1941. Thirty -two of such cards were variously dated between July 26 and August 18, 1941, and 4 were variously dated between August 27 and September 2, 1941 A shop steward of the C. I O. testified that these 36 cards covered employees at the Twelfth Street plant and that after these cards were submitted to the Regional Director, 8 additional cards were secured by the C I. O. from employees at such plant This witness also identified 14 C I 0 membership applica- tion cards signed by employees at the Eighth Avenue plant and testified that these cards were signed after the submission to the Regional Director of the aforementioned 36 cards. The Regional Director also reported that the A F of L "claiming an interest in the proceeding has submitted no evidence in support of its claim to represent a majority of the persons in the alleged appropriate unit despite repeated requests by the examiner," but that the Company submitted a copy of its contract with the A F of L The secretary of the Company testified that the A F of L , in support of its aforementioned statement to the Company prior to the execution of the A. F of L contract that it represented a majority o!, the Company's employees, submitted to him approximately 40 signed pledge cards 5 The secretary of the Company testified that the term "chauffeurs" is used to describe those who operate trucks and that such persons ate employees of an independent con- tractor and not of the Company Since we are excluding "chauffems" from the appropriate unit, it becomes unnecessary for us to consider whether they ate employees of the Company or of an independent contractor NATIONAL METAL-ART MANUFACTURING CO. 565 Company), and Benjamin H. Katzman (secretary of the Company)." The Company agrees that such a unit is appropriate. It appears that substantially the same types of manufacturing, fabricating, and assembling processes are carried on by the Company in its Eighth Avenue plant as in its Twelfth Street plant and that these two plants are managed and owned by the same entity. Both the A. F. of L. and the C.. I. 0. contracts with the Company cover employees at both plants. It also appears that employees at both plants participated in the aforementioned September strike. Fur- ther, from the statement of the Regional Director and the testimony of a shop steward of the C. I. 0. it appears that the C. I. 0. repre- sents a substantial number of employees in both plants. We shall include employees at both plants within the appropriate unit. We find that all production and maintenance employees of the Company at both its Twelfth Street and Eighth Avenue plants, including packing, shipping, inspection, and assembly employees, but excluding office and clerical employees, outside salesmen, chauf- feurs, Samuel Katzman (foreman), Aaron Katzman (treasurer of the Company), Harris Katzman (president of the Company), and Benjamin H. Katzman (secretary 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 collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion can best be resolved by, and we shall accordingly direct, an election by secret ballot. - We shall accord a place on the ballot to the A. F. of L. inasmuch as it is a party to a closed-shop contract with the Company ; however, since the A. F. of L. did not appear °The C I 0 did not expressly include "maintenance " employees in, of expressly exclude outside salesmen from , the unit which it described at the hearing as appropriate However, the C I 0 stated at the hearing that the unit desired by it is the one covered by its con- tiact with the Company, and this contract expressly covers "mainenance" employees and expressly excludes outside salesmen The C. I 0 contract does not expressly mention packing, shipping, inspection, and assem- bly employees among those covered, does not expressly exclude chauffeurs , and excludes "office" and not "office and clerical " employees However , packing, shipping , inspection, and assembly employees were expressly included in, and "office and cleucal" employees and chauffeurs were expressly excluded from , the unit which the C I 0 described at the bearing as appropiiate The C 1 0 contract also excludes Daniel Katzman if he engages in supervisory work and permits him to be covered if he engages in production work The C I 0 and the Company agreed at the hearing that he should be included in the unit since he is at present engaged in production work The A F of L contract with the Company covers employees working "on the inside" of both plants of the Company, including clerical help, and excludes outside salesmen and Samuel Katzman 433257-42-voL 37--37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the hearing, we shall permit it to withdraw from the ballot upon filing a request with the Regional Director within five (5) days after .the date of this Decision and Direction of Election. The Company and the C. I. O. agreed at the hearing that in the event the Board directs an election, eligibility to vote should be determined by the Company's pay' roll for the period immediately preceding the date of the Direction of Election, and we shall so provide, subject to the limitations and additions 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 of National Metal-Art Manufacturing Co., Inc., Brooklyn, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and mainteiian6e employees of the Company at both its Twelfth Street and Eighth Avenue plants, including pack- ing, shipping,' inspection, and assembly employees, but excluding office and clerical employees, outside salesmen, chauffeurs, Samuel Katzman (foreman), Aaron Katzman (treasurer of the Company), Harris Katzman (president of the Company), and Benjamin H. Katzman (secretary of the Company),' constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Sec- tion 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 Rela- tions 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 National Metal-Art Manufacturing Co., Inc.', Brook- lyn, 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 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 Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company at both its Twelfth Street and Eighth Avenue plants who were employed during NATIONAL METAL-ART MANUFACTURING CO. 567 the pay-roll period immediately preceding the date of this Direction, including packing, shipping, inspection, and assembly employees, 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 train- ing of the United States, or temporarily laid off, but excluding office and clerical employees, outside salesmen, chauffeurs, Samuel Katz- man (foreman), Aaron Katzman (treasurer of the Company), Harris Katzman (president of the Company), Benjamin H. Katzman (sec- retary of the Company), and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Wholesasle and Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organizations, or by Wholesale Hardware, Crockery & Housefurnishing Specialties Union, Local 18943, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.