Admiar Rubber Co.

National Labor Relations Board - Board Decisions

Oct 18, 1938

9 N.L.R.B. 407 (N.L.R.B. 1938)

In the Matter of ADMIAR RUBBER COMPANY and AMERICAN FEDERATION
OF LABOR ON BEHALF OF EMPLOYEES OF COMPANY
In the Matter Of IDEAL NOVELTY & Toy COMPANY, INC. and AMERICAN
FEDERATION OF LABOR ON BEHALF OF EMPLOYEES OF COMPANY
Cases Nos. R-845 and R-846.-Decided October 18, 1938
Doll and Toy Manufacturing hiduslry-Investigation of Representatives: con-
troversy concerning representation of employees : controversy concerning appro-
priate unit ; rival organizations ; petition for , dismissed , where no question con-
cerning representation has arisen in a unit which is appropriate for the purposes
of.,collective bargaining-Unit Appropriate for Collective Bargaining: contro-
versy as to whether employees of a single employer constitute an appropriate
unit in an industry where most employers belong to an association which carries
on collective bargaining for them and administers their labor relations generally;
history and functioning of employee organization; single union representing
practically all employees in industry ; employer organization : group of employers
belonging to association which bargains collectively for its members ; history
of contractual relationships : system of arbitration created by contract between
single union and association of employers ; standardized wages, hours, and
working conditions ; conditions prevailing throughout industry in accord with
such contract.
Mr. Gordon O'Hanlon, for the Board.
Mr. George Lion Cohen, by Mr. I. Henry Kutz, of New York City,
for the Company.
Mr. Murray Frank, of New York City, for the Federal.
Mr. Emil Schlesinger, of New York City, for the Playthings Union.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 7, 1938, the American Federation of Labor, herein called
the A. F. of L.,' filed with the Regional Director for the Second
Region (New Yolk City) two separate petitions alleging that ques-
' Although the petition was filed by the A. F of L, Federal Labor Union, Local 20728,
affiliated with the A F of L, appeared by counsel at the hearing and participated therein
as the petitioner.
9 N. L. R. B., No. 35.
407
408 NATIONAL LABOR RELATIONS BOARD
tions affecting commerce had arisen concerning the representation of
employees of Admiar Rubber Company, Brooklyn, New York, herein
called the Admiar, and of employees of Ideal Novelty & Toy Company,
Inc., New York City, herein called the Ideal, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
The Admiar and the Ideal are herein called the Companies when re-
ferred to collectively. On May 24, 1938, 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 1, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice; and acting pursuant to Ar-
ticle III, Section 10 (c) (2), of said Rules and Regulations, further
ordered that the cases be consolidated for purposes of hearing.
On June 2, 1938, the Regional Director issued a notice of hearing;
copies of which were duly served upon the Companies, Federal Labor
Union, Local 20728, affiliated with the A. F. of L., herein called the
Federal, and upon Playthings and Novelty Union, Local Industrial
Union No. 223, affiliated with the Committee for Industrial Organi-
zation, herein called the Playthings Union, a labor organization
claiming to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on June 15, 16, 17, and 18,
1938, at New York City, before William Seagle, the Trial Examiner
duly designated by the Board. The Board, the Companies, the Fed-
eral, and the Playthings Union were represented by counsel and par-
ticipated 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 inade several rulings on motions aid on objec-
tions to the admission of evidence. The Board has reviewed these
rulings and finds that no prejudicial errors were made. The rulings
are hereby affirmed. Thereafter, the Playthings Union and the Com-
panies filed briefs with the Board and requested an opportunity for
oral argument. On July 21, 1938, oral argument was had before the
Board at Washington, D. C. The Companies and the Playthings
Union were represented by counsel and participated in the oral argu-
ment. The Federal, although duly notified, did not appear at the
oral argument. On September 2, 1938, the American Federation of
Labor submitted a reply memorandum to the briefs filed by the Com-
panies and the Playthings Union and requested leave to file the same.
On September 9, 1938, the Board issued an order granting this re-
quest. On September 10, 1938, the Playthings Union filed an answer-
ing brief to the reply memorandum submitted by the American
Federation of Labor. On September 15, 1938, the Board issued an
DECISIONS AND ORDERS 409
order granting the Playthings Union's motion to file this additional
brief., The Board has considered the briefs filed by all the parties.
Upon .the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. 1 HE COMPANIES AND THEIR BUSINESS
Admiar Rubber Company is a New York corporation engaged in
the manufacture, sale, and distribution of rubber dolls, rubber parts
of dolls, and other rubber items. Its manufacturing plant is in
Brooklyn, New York. The principal raw materials used by. the
Admiar are rubber and, chemicals, of which 90 per cent are shipped
to it from sources outside the State of New York. In 1937, the
Adiniar Rubber Company sold 90 per cent of its finished products,
valued at •$300,000, to the Ideal Novelty & Toy Company, Inc., New
York City, its chief custolner.
The Ideal Novelty & Toy Company, Inc. is a New York corporation
engaged in the manufacture, production, sale, and distribution of
dolls and doll parts. Its plant is in New York City. The principal
raw materials used by the Ideal consist of wood pulp, glue,, lacquer,
chemicals, resin, mohair, human hair, and cotton goods. In 1937, the
value of such, raw materials used by the Ideal amounted to $300,000.
Approximately 60 per cent of such raw materials were shipped to the
Ideal from points outside the State of New York. The value of its
finished products amounted to $1,000,000 in 1937, of which approxi-
mately 85 per cent were sold and delivered to customers outside the
State of New York.
Both the Ideal Novelty & Toy Company, Inc. and the Admiar Rub-
ber Company are owned by the same stockholders and have the same
board of directors. This board of directors determines the policies
of both Companies.
The toy industry is seasonal and during its slack season the Com-
panies, together employ approximately 250 employees. During the
busy season the Companies together employ as many as 800 workers.
Approximately 250 workers were employed by both Companies at the
time of the hearing.
H. THE ORGANIZATIONS INVOLVED
Federal Labor Union, Local 20728, is a labor organization affiliated
with the American Federation of Labor, admitting to its membership
all production and maintenance employees, shipping clerks, and ma-
chinists employed by the Company, excluding office and supervisory
employees.
Playthings and Novelty Union, Local Industrial Union No. 223, is
a labor organization affiliated with the Committee for Industrial Or-
410 NATIONAL LABOR RELATIONS BOARD
ganization . It admits to its membership employees in the doll and
toy industry in and around New York City, includingrthe employees
of the Companies.
III. THE HISTORY OF EMPLOYEE ORGANIZATION
Organizational efforts among the employees in the doll and toy
industry in New York City and vicinity began in 1910 under the
direction of The United Hebrew Trades. Sweatshop conditions, the
"contracting of work to individuals, child labor, low wages, long hours,
and other similar conditions were prevalent throughout the industry.
In 1913 the first organized industry-wide strike to improve these con-
ditions was called. The strike was lost by the employees. In 1927 an-
other strike was called and lost. A series of strikes in the industry
occurred during the period from 1930 to 1933. The employees were
unsuccessful in most of these strikes. Lack of unity among the em-
ployees was one of the reasons for losing the strikes.
In 1933, there were two major Unions in the doll and toy industry
in New York City. Both were called the Doll and Toy Workers
Union. One was unaffiliated, while the other was affiliated` with the
American Federation of Labor. In August 1933, the unaffiliated
Union amalgamated with the American Federation of Labor Union,
Doll and Toy Workers Union, Local 18230. In September 1933 fol-
lowing this amalgamation, the Doll and Toy Workers Union, Local
18230 conducted a successful industry-wide strike, as a result of which
it obtained a contract with the Association of Doll Manufacturers of
New York City, herein called the Association. This Association
represented the larger manufacturers of dolls and doll parts in and
around New York City.
Shortly after the amalgamation of the two major Unions, repre-
senting approximately 1,500 employees in the industry, the employees
of the Ideal and the Admiar formed an unaffiliated Union, known as
the Ideal and the Admiar Employees Association. In 1935 this
Employees Association amalgamated with the Doll and Toy Workers
Union, Local 18230. As finally organized, the Doll and Toy Workers
Union represented practically all of the 1,800 employees engaged in
the doll and toy industry in New York City and vicinity.
In June 1937 the members of the Doll and Toy Workers Union,
Local 18230, held a meeting at which they voted unanimously to
affiliate with the Committee for Industrial Organization. In ac-
cordance with the vote the Doll and Toy Workers Union, Local 18230,
transferred its affiliation to the Committee for Industrial Organization
and became known as Playthings and Novelty Union, L. I. U. #223,
affiliated with the Committee for Industrial Organization. In March
1938, the Playthings Union represented approximately 1,800 of the
2,000-doll and toy workers within the vicinity of New York City.
DECISIONS AND ORDERS 411
There was only one large manufacturing concern and a number of
small concerns , employing two or three persons, whose employees
remained unorganized . The number of unorganized workers did not
-egceed'250. -
Sometime prior to April 1938, the American Federation of Labor
chartered a new doll and toy workers union known as the Federal
Labor Union, Local 20728 . The efforts of the Federal to secure the
membership of employees of the Aclmiar and Ideal shops have given
rise to the present controversy.
IV. THE ASSOCIATION OF DOLL MANUFACTURERS
The Association of Doll Manufacturers of New York City was
organized in 1933 and at the time of the hearing this Association was
composed of about 27 companies engaged in the manufacture of
dolls and-doll' parts in and around New York City. The Association
represents 50 per cent of such manufacturers. The manufacturers
who are members of the Association, employ approximately 90 per
cent of the workers engaged in the industry and manufacture ap-
proximately 80 per cent of the dolls and doll parts manufactured in
New York City and vicinity. The Admiar and the Ideal became
members of the Association in 1935.
Solomon Eckstein, executive secretary of the Association, testified
that the main reason for organizing the Association was to admin-
ister the labor relations of its members. He stated that 90 per cent
of the Association's time is spent in dealing with labor -relations.
The constitution and bylaws of the Association declare that the pur-
pose of the organization is:
. . . to negotiate and make on behalf of its members collective
agreements with other organizations in the industry.
A Board of Directors, composed of 11 directors elected by the As-
sociation members, formulates its labor policies. The constitution of
the Association provides that the Board of Directors has full power
to negotiate, make, and enter into collective agreements with labor
unions.,-,, The constitution of the Association also prohibits members
of the Association from making separate or individual agreements
with any labor organization. All members of the Association are
bound by the terms and conditions of any collective agreement duly
entered into between the Association and any labor organization.
The bylaws of the Association provide for the establishment of a
Labor Bureau for the benefit of members of the Association to repre-
sent them in all questions affecting their relations with their em-
'a The constitution provides that a collective agreement negotiated by the board of
directors is subject to ratification by members of the Association at a general or special
meeting at which 11 members constitute a auotum
412 NATIONAL LABOR ItELATIONS BOARD
ployees and any labor union with which the Association may have a
collective agreement . The executive secretary of the Association is
in charge of the Labor Bureau and is in command of the active man-
agement and business of the Association . He represents the Associ-
ation in the adjustment of all labor disputes that may arise between
members of the Association and their workers. Minor grievances and
disputes between members of the Association and their employees are
usually handled and settled by the executive secretary and a repre-
sentative of the Union . If, however , the problem is of some im-
portance , either because it involves a number of employees, or be-
cause it involves a problem of general application , it may be referred
to a so-called - Conference Committee on Labor , consisting of five
members of the Association.
It is evident from the facts set forth above that the Association has
taken over practically all of the employer attributes normally exer-
cised by the individual employers of the Association in so far as
collective bargaining is concerned.
V. THE HISTORY OF COLLECTIVE BARGAINING
After the strike in 1933, negotiations for a contract between the
Association and the Doll and Toy Workers Union, Local 18230, were
held under the auspices of the old National Labor Board established
under the National Industrial Recovery Act. An agreement was
made in September 1933 which settled the strike. This agreement,
dated September 29, 1933, was designed as a temporary agreement and
provided for a permanent agreement to be entered into between the
Association and the Doll and Toy Workers Union prior to January 1,
1934 . Such an agreement was negotiated soon after , on October 28,
1933. However, it provided that it was to become effective only if
the Doll and Toy Workers Union entered into similar contractual
relations with the Regal Doll Manufacturing Company of Trenton,
New Jersey . The Doll and Toy Workers Union failed to make such
an agreement and the Association declared the contract null and void
in accordance with its terms . As a result , a dispute arose between
the Association and the Doll and Toy Workers Union. The dispute
was brought before the old New York Regional Labor Board under
the National Industrial Recovery Act, which finally secured from
both sides an agreement to arbitrate . Dr. N. I . Stone , the arbitrator
designated by the old New York Regional Labor Board , in a decision,
dated March 19, 1934, and supplementary decision , dated April 19,
1934 , determined the wages and hours that were to prevail in the
industry . On May 26, 1934, a contract was finally consummated be-
tween the Association and the Doll and Toy Workers Union. Dr.
Stone, as arbitrator , was also instrumental in bringing this result
about.
DECISIONS AND ORDERS 413.
The contract provided for a closed shop and prohibited members
of the Association from purchasing or selling parts to companies
which operated under non-union conditions. The Playthings Union
maintains its own employment bureau from which the members of the
Association secure their employees. The contract required members
of the Association to exhaust the facilities of an employment bureau
maintained by the Union before hiring from any other source. The
contract also provided for a uniform system of wages, hours, and
working conditions, which became the conditions prevailing through-
out the industry. The contract also provided for the settlement of all
disputes between the Doll and Toy Workers Union and any employer
by a committee known as the Adjustment Board, consisting of three
members of the Association and three members of the Union. The
decision of the Adjustment Board was to be binding on the parties to
any such controversy. If the Adjustment Board failed to agree; the
dispute was then to be referred to a permanent arbitrator -known as
the Impartial Chairman of the industry. The decision of the chair-
man was to be final and binding upon the parties.
The contract also prohibited any lock-out or strike, pending the
determination of any complaint or grievance. It further provided
that if there was a strike and the striking employees did not return
to work within 36 hours after the mailing by the employer of a
notice of such a strike to the Union, the striking employees were
deemed to have abandoned their employment. -
The contract, with modifications, was renewed in May 1935 and in
1936. In July 1937, after the Doll and Toy Workers Union became
the'Play"things Union, a supplementary agreement was entered into
between the Association and Playthings Union whereby the contract
was assigned to the Playthings Union and it agreed to carry out its
terms. This contract was to expire on July 1, 1938. On May 10,
1938, after several months of negotiations between the Association
and the Playthings Union the contract expiring on July 1, 1938, was
renewed for a period of 1 year. Dr. Paul Abelson, Impartial Chair-
man of the industry, acting in his capacity as arbitrator, served to
bring about the renewal of the contract.
The Playthings Union also has contracts with approximately 25
other small manufacturers of dolls and doll parts in and around New
York City. In accordance with the contract made with the Associa-
tion, the terms of such contracts cannot be more favorable to em-
ployers who are not members of the Association than the terms
accorded the Association. Thus we have a situation whereby prac-
tically the entire doll and toy industry in and around New York City
is operating under the terms of a single collective bargaining
contract.
414 NATIONAL LABOR Itiu,ATIONs BOARD
VII. THE PRESENT CONTROVERSY
The present controversy arises from a conflict between the Federal
and the Playthings Union over the representation of approximately
250 employees of the Admiar and the Ideal. On April 30, 1938,
Irving Andacht, the then Playthings Union's chairman of the Ideal
shop, went to the A. F. of L. headquarters in New York City and
stated that the employees of the Ideal and the Admiar shops wished
to affiliate with the American Federation of Labor. By May 7, an
apparent majority of the employees in both the Ideal and the Admiar
had signed A. F. of L. membership cards 2 and had signed a petition
in which they indicated their desire to have the Board hold an election
to determine the bargaining representatives of the employees of the
two Companies. They also indicated their desire to affiliate with the
American Federation of Labor, and to resign from the Playthings
Union. On May 7, 1938, Charles Vonie, general organizer of'-the'
A. F. of L., acting on this signed petition, filed with the Regional
Director the two petitions herein involved. He also notified the two
Companies of the proposed change in affiliation of their employes
and attempted to enter into negotiations looking toward a contract.
The two Companies refused to negotiate on the ground that as mem-
bers of the Association they had no right to do so.
On May 16, 1938, the Playthings Union began what it contended
to be a drive to persuade the employees of the Ideal and Admiar to
pay their union dues. Representatives of the Playthings Union
evicted 13 employees from each shop, contending that they were in
arrears in the payment of their dues and therefore no longer in good
standing." The Federal representative appealed to the Regional Office
of the Board in protest against these evictions. At a conference held
at the Regional Office the Playthings Union offered to allow the
26 employees to return to work if they paid their dues. The Federal
insisted upon a return to the status quo and asked that an election be
held to determine the representative of the employees. Neither union
would concede to the other's viewpoint, and as a result the negotia-
tions came to an end without a settlement.
On May 26 the majority of the remaining employees in the Admiar
and the Ideal went on strike in protest against the evictions of the
above-mentioned 26 employees. The two Companies protested the
strike to the Playthings Union through the executive secretary of
2 A check of the A. F. of L membership applications made by an agent of the Board
in accordance with a stipulation made at the hearing , shows that of the 115 signed
applications submitted for employees of the Ideal shop only 62 of the signatures were
genuine. Of the 83 signed applications submitted for employees of the Admiar shop, all
were genuine , but only 61 were those of employees of the company or otherwise entitled
to be counted.
9 The contract between the Association and the Playthings Union provides that the
members of the Association shall "employ only good standing members of the Union "
DECISIONS AND ORDERS 415
the Association. The Playthings Union thereafter sent letters to
practically all of the employees on strike, calling to their attention
the provision of the contract"With the Association which' prohibited
strikes pending the settlement of any dispute and notified the strikers
that if they did not return to work within 36 hours they would lose
their employee status. The letters also stated that, "Of course only
workers who are good standing members of the Union . . . are
entitled to their jobs in the plant." A few employees returned to
work, but the majority remained on strike. The Playthings Union
then proceeded to fill the places of the striking workers with other
workers in accordance with their contractual obligation to the
Association.
VIII. THE APPROPRIATE UNIT
The initial question for our determination, arising from the con-
troversy set forth above, is whether the units proposed by the Fed-
eral are appropriate for the purposes of collective bargaining. In
the A. F. of L.'s separate petitions for investigation and certification
of representatives it was stated that the units appropriate for the
purpose of collective bargaining consisted of (1) all production
employees of the Ideal and, (2) all production employees of the
Admiar. At the hearing, the Federal contended that the mainte-
nance employees, shipping clerks, and machinists in each of the two
Companies should also be included in the' appropriate units. The
Playthings Union and the Companies contended that the unit most
appropriate for the purposes of collective bargaining consisted of
all production workers in the doll and toy industry employed by
members of the Association. -
While under ordinary circumstances the units claimed by the
Federal might be deemed appropriate, the past history and func-
tioning of both employee and employer organization in the industry
in and around New York City is completely persuasive of the
fact that a unit other than that claimed by the Federal is the most
appropriate for the purposes of collective bargaining.'
The rise of an organization of the employers in an association for
the purpose of administering their labor" relations was attended by
the organization of their employees along parallel lines. The success
and effectiveness of collective bargaining on an industry-wide basis
in and around New York City, with the Association representing its
employer-members and a single union representing all the employees
of the employer-members of the Association, is attested by the fact
that since 1934 there has been an orderly functioning of the processes
of collective bargaining and the settlement of disputes, in sharp con-
' See Matter of Shipozaaers ' Association of the Pacific Coast, et at . and International
Longshoremen 's and Warehousemen 's Union , District No 1, 7 N L R. B. 1002.
416 NATIONAL LABOR RELATIONS BOARD
'trast to the chaotic conditions prevailing prior to 1934. By virtue of
such collective bargaining wages and hours have been standardized,;
sweatshop conditions, child labor, and other evils, so long prevalent
in the industry prior to the attainment of a contract in 1934, have
been practically eliminated'; and a system of arbitration has been
established which is mutually satisfactory both to employers-and em-
ployees and which has 'led to a peaceful solution of the -labor prob-
lems arising in the industry.
Under these circumstances and in view of the entire record, we are
of the opinion that the units claimed to be appropriate by the A. F.
of L. and its affiliate, the Federal, are not appropriate. We shall
therefore dismiss the petitions of the American Federation of Labor.
IX. TEIE QUESTION CONCERNING REPRESENTATION
Since, as stated in Section VIII above, we are unable to find an
appropriate unit within the scope of those alleged in the petitions
filed in this case, we find that no question has been raised concerning
the representation of employees of the Companies in an appropriate
bargaining unit.
Upon the basis of the above findings of fact and the entire record
in the case, the Board makes the following :
CONCLUSION OF LAW
No question, concerning representation of employees of Admiar
Rubber Company, Brooklyn, New York, and Ideal Novelty & Toy
Company, Inc., New York City, in a unit which is appropriate for
the purposes of collective bargaining has arisen, within the meaning
of Section 9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact-and conclusion of
law, the National--Labor Relations Board hereby dismisses the peti-
tions for investigation and certification filed by the American Fed-
eration of Labor and its affiliate Federal Labor Union,, Local 20728.