Leonard-Burke Co.

National Labor Relations Board - Board Decisions

Aug 19, 1943

51 N.L.R.B. 1424 (N.L.R.B. 1943)

In the Matter of AMERICUS J. LEONARD , JOHN S. BuRKE, MINNIE G.
KASSAN , , INDIVIDUALS AND CO-PARTNERS D/B/A LEONARD -BURKE
COMPANY 1 and UNITED STEELWORKERS OF1 AMERICA , C. I. O.
Case No. R-5717.Decided August 19, 1943
Mr. Jesse Perlmutter, of New York City, for the, Company.
Mr. Charles Kovacs, of Trenton, N. J., for the C. I. O.
Mr. John L. Mauer, of Trenton, N. J., for the A. F. L.
Mr. William C. Baisiner, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Steelworkers of America, C. 1. 0.,
herein called the C. I. 0., alleging that a question affecting commerce
has arisen concerning the representation of employees of Americus J.
Leonard, John S. Burke, Minnie G. Kassan, individuals and co-part-
ners d,/b/a Leonard-Burke Company, Trenton, New Jersey, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Geoffrey J. Cunniff,
Trial Examiner. Said hearing was held at Trenton, New Jersey, on
July 20, 1943. The Company, the C. I. 0., and International Asso-
ciation of Bridge, Structural & Ornamental Iron Wbrkers, Shop-men's
Local Union No. 579, A. F. L., herein called the A. F. L., appeared,
participated, and were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, to introduce evidence.,beari ng on the
issues, and to file briefs with the Board. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
I At the hearing the parties stipulated that the true name of the Company is as appears
in the above caption and that the caption , the petition , and all formal papers may be
amended in accordance therewith. We hereby order that such corrections be made.
51 N. L. B. B., No. 229.
1424
LEONARD-BURKE COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
1425
Americus J. Leonard, John S. Burke, Minnie G. Kassan, individuals
and co-partners d/b/a Leonard-Burke Company, is a partnership
engaged at Trenton, New Jersey, in the manufacture, sale, and distri-
bution of cranes. From November 1942 • to the date of the hearing,
the Company purchased raw materials valued in excess of $100,000, of
which approximately 50 percent was shipped to the Company from
points outside the State of New Jersey. During the same period the
Company manufactured finished products valued in excess of $100,000,
of which approximately .50 percent was sold and transported from the
Company's Trenton, New Jersey, plant to purchasers outside the State
of New Jersey. The Company admits that it is engaged in commerce
within the meaning of the NationaLLabor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
International Association of Bridge, Structural & Ornamental Iron
Workers, Shopmen's Local Union No. 579, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The A. F. L. began organizing the Company's employees in the
latter part of 1942, and, on or about February 14, 1943, requested the
Company to recognize it as the exclusive bargaining representative of
employees in an alleged appropriate bargaining unit. The Company
refused to accord the A. F. L. such recognition unless the A. F. L. could
present proof that it represented a majority of the employees in the
alleged appropriate bargaining unit. Thereafter, on March 8, 1943,
representatives of the A. F. L. met with representatives of the Com-
pany for the purpose of presenting evidence in support of its majority
representation claim. This evidence was checked against the Com-
pany's pay roll and, as a result, the Company admitted that the A. F. L.
represented a majority of the Company's employees. Thereafter, and
during the next few weeks the A. F. L. and the Company met on several
occasions in bargaining conferences. These meetings were held on
March 19, 22, April 6 and 8, 1943. At the April 6 meeting the parties
were in substantial agreement with respect to the provisions to be
included in a bargaining contract and, at the April 8 meeting, the
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. F. L. presented a tentative draft embodying the terms and condi-
tions previously agreed upon. On the same day, the Company advised
the A. F. L. that it was submitting the draft to its attorney for his
opinion. On May 14, 1943, at the request of the Company, the A. F. L.
agreed to the deletion of a certain section from the tentative draft.
Thus, at this stage, both parties had verbally agreed upon all the terms
and conditions to be contained in a collective bargaining agreement.
On May 19,1943, the Company and the A. F. L. met for the purpose of
formally executing the contract. However, at this meeting, the Com-
pany informed the A. F. L. that the Wage Stabilization Division of
the National War Labor Board refused to approve the wage increase$
embodied in the contract until all of the Company's employees were
classified. Accordingly, between May 19 and 26, 1943, the A. F. L.
and the Company worked out job classifications for the various
production and maintenance employees.
On or about May 25, 1943, a representative of the C. I. O. com-
municated with an executive of the Company by telephone to arrange
for an appointment. Later the same day he met with one of the
Company's partners and advised the partner that the C. I. O. rep-
resented a majority of the Company's employees and that the Coin-
pany was obligated, under the law, to bargain with the C. I. O.
The partner informed the C. I. O. representative that the Company
could not recognize the C. I. O. because it was negotiating with the
A. F. L. for a collective bargaining contract. The C. I. O. repre-
sentative then went to Philadelphia, Pennsylvania, to discuss the
matter with the C. I. O.'s regional director, who on May 27, 1943,
posted a letter to the Company advising that the C. I. O. was entitled
to bargaining rights in the Company's plant and, further, admonish-
ing the Company not to enter into a contract with any other labor
organization. Also on May 27, 1943, the C. I. O. filed the petition,
upon which this proceeding is based, with the Board's Regional
Office. On May 29, 1943, the job classifications and wage rates, which
had been worked out by the Company and the A. F. L. and approved
by the Wage Stabilization Division of the National War Labor Board,
were inserted into the contract and the parties formally executed
their agreement, which, according to its terms, was to remain in
effect for a period of 1 year and from year to year thereafter subject
to the right of either party to terminate the agreement by serving
written notice upon the other party 4 months prior to any anniversary
date of the contract. The A. F. L. and the Company contend that
said contract is a bar to a present determination, of representatives.
The facts of the instant case place it squarely within the rule set
forth in the Eicor case 2 and reiterated in the Cattie Brothers case,3
"Matter of Eicor, Inc., 46 N. L. R. B. 1035.
$ Matter of Joseph P. Cattie & Brothers, Incorporated, 47 N. L. R. B. 81.
LEONARD-BURKE COMPANY 1427
wherein the Board said, "A collective bargaining agreement which has
not been reduced to writing and signed by the parties before assertion
of the rival union's claim does not constitute a bar to a determination
of representatives, since experience has indicated that true stability
of labor relations is not attained until collective bargaining agree-
ments have been reduced to writing and signed."
This case is readily distinguishable from the recent Allis-Chalmers
decision.4 In the latter case the Board found that a written collective
bargaining agreement executed by the contracting parties on June
24, 1942, coupled with a further written agreement signed by the
parties on July 31, 1942, in which the parties agreed to suspend nego-
tiations pending the decision of the National War Labor Board in a
case then before it involving issues similar to those over which the
contracting parties were in dispute; the subsequent Directive Order
of the National War Labor Board; and the agreement executed by
the contracting parties on May 4, 1943, constituted an uninterrupted
and stabilized contractual relationship which was a bar to a deter-
mination of representatives regardless of the fact that the petition-
ing union had requested recognition and filed its petition for in-
vestigation and certification of representatives prior to the execution
of the May 4, 1943, contract.
Moreover other factors to which some weight was given in the
Allis-Chalmers case are not present here. In that case the contracting
union had been selected by a majority of the Company's employees as
their exclusive bargaining representative in a consent election con-
ducted by the Board prior to the execution of the June 24, 1942, agree-
ment. In the instant case the A. F. L. is not the certified representa-
tive of the. Company's employees, since the Company accorded it recog-
nition as the result of an informal check of A. F. L. membership cards
against the Company's pay roll. Nor is there present any written
agreement which the A. F. L. and the Company executed prior to
May 28, 1943. It is undisputed that prior to the execution of the con-
tract, the Company had full knowledge of the C. I. O.'s claim. Fur-
thermore, the C. I. O. filed its petition for investigation and certifica-
tion of representatives prior to the formal execution of the May 28,
1943, contract. Finally, the parties herein are not obligated by any
ruling of an appropriate governmental agency to adhere to any bar-
gaining agreement.
Upon the entire record in the case, we find, for reasons stated in the
Eicor case,6 that the agreement between the A. F. L. and the Company
executed on May 28, 1943, is not a bar to an immediate determination
of representatives.
* Matter of Allis-Chalmers Manufacturing Company , 50 N. L . R. B. 306.
5 See footnote 2, supra.
540612-44-vol. 51-91
1428 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
A statement made by the Trial Examiner at the hearing indicates
,that the C. I. 0. represents a substantial number of employees in the
unit hereinafter found to be appropriate 6
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are in substantial agreement with respect to the compo-
sition of the appropriate unit. The C. I. 0. desires a unit comprised
of all production and maintenance employees of the Company, exclud-
ing all foremen, clerical and office -employees, watchmen, and guards.
The A. F. L. and the Company would broaden the scope of the unit
sought by the C. I. 0. by including working foremen. The only evi-
dence contained in the record concerning the working foremen indi-
cates that they spend a portion of their time working with the pro-
duction and maintenance employees in the plant. The record is silent
with respect to their supervisory powers. We shall exclude from the
unit all supervisory employees with the authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action.
We find that all production and maintenance employees of the Com-
pany, excluding office and clerical employees, watchmen, guards, and
all supervisory employees with the authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
e The Trial Examiner reported that the C. I. 0. submitted 45 currently dated application
for membership cards bearing apparently genuine signatures of persons whose names ap-
pear on the Company's pay roll of June 15 , 1943, which contains the names of 69 persons
within the alleged appropriate unit.
At the hearing the A. F. L. submitted to the Trial Examiner 64 application for member-
ship cards to which were attached dues receipts . The Trial Examiner stated that said
cards bear dates between March 1 and April 30, 1943, and bear apparently genuine signa-
tures of persons whom the A. F. L. claims were employees of the Company when they
signed said cards and are still members in good standing of the A. F. L.
LEONARD -BURKE COMPANY 1429
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 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Americus J. Leon-
ard, John S. Burke, Minnie G. Kassan, individuals and co-partners
d/b/a Leonard-Burke Company, Trenton, 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 Fourth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to'Article III; Section 10, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause, to
determine whether they desire to be represented by United Steel-
workers of America, C. 1. 0., or by International Association of Bridge,
Structural & Ornamental Iron Workers, Shop-men's Local Union No.
579, A. F. L., for the purposes of collective bargaining, or by neither.
CHAIRMAN MIAs took no part in the consideration of the above
Decision and Direction of Election.