Blanchard Bro. & Lane, Inc.

National Labor Relations Board - Board DecisionsSep 27, 1938

8 N.L.R.B. 1271 (N.L.R.B. 1938)

In the Matter of BLANCHARD BRO. & LANE, INC. and LEATHER WORKERS UNION No. 21687 ESSEX & HUDSON COUNTIES, N. J. OF THE AMERICAN FEDERATION OF LABOR Case No. R-986.-Decided September 27, 1938 Leather Tanning and Manufacturing Industry-Investigation of Representa- tives: controversy concerning representation of employees : rival organizations; doubt raised as to majority status by change of affiliation by employees to rival organization ; refusal by employer to recognize either union as exclusive repre- sentative of employees until certification by Board-Unit Appropriate for Collec- tive Bargaining : factory, maintenance , and shipping employees , excluding super- visory and clerical employees and salesmen ; stipulation as to-Representatives: proof of choice : comparison of petitioning union's membership application cards with pay roll ; comparison of signatures on cards with signatures on pay-roll vouchers of company ; claim of company interference in behalf of petitioning union found without merit-Certification of Representatives: upon proof of majority representation. Mr. Will Maslow, for the Board. Kaye, Scholer, Fierman d i Hays, by Mr. James S. Hays, of New York City, for the Company. Mr. Harold Forgang, of Newark, N. J., for the -Leather Workers Union. Mr. Joseph H. Goodwin, of New York City, for the N. L. W. A.' Miss Edna Loeb, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On July 15, 1938, Leather Workers Union No. 21687 Essex and Hudson Counties, New Jersey, of the American Federation of Labor, herein called the Leather Workers Union, filed with the Regional Director for the Second Region (New York City) a petition alleg- ing that a question affecting commerce had arisen -concerning the representation of employees of Blanchard Bro. & Lane, Inc., Newark, i The Company was improperly designated in the pleadings as Blanchard Bros. & Lane, Inc., but the pleadings were amended upon motion of counsel for the Board, to designate the Company properly. 8 N. L. R. B., No. 157. 1271 1272 NATIONAL LABOR RELATIONS BOARD New Jersey, herein called the Company, 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. On July 26, 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. On August 3, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Leather Workers Union, and upon Tannery Workers' Local No. 27, affiliated with the National Leather Workers Association, herein called the N. L. W. A., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hear- ing was held on August 11 and 12, 1938, at New York City, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board, the Company, the Leather Workers Union, and the N. L. W. A. were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the beginning of the hearing the N. L. W. A. appeared and filed a motion for leave to intervene. This motion was unnecessary for the N. L. W. A. had previously been made a party to the proceed- ing. The N. L. W. A. also filed a motion to consolidate the pro- ceeding with Case Number II-C-1817, arising upon charges which the N. L. W. A. filed with the Regional Director on August 10, 1938, charging that the company had committed unfair labor practices within the meaning of Section 8 (1) of the Act, by intimidating and coercing its employees to join the Leather Workers Union. This motion was later withdrawn by the N. L. W. A., and it filed a third motion, requesting adjournment of the proceeding on the grounds, first, that decision should be withheld until determination had been made of Case Number II-C-1817, and, second, that the N. L. W. A. had retained new counsel who had had insufficient time to prepare its case. The parties thereupon stipulated that if the Board should issue a complaint in Case Number II-C-1817 within 30 days and consolidate the proceeding upon the complaint with the proceeding upon the petition, any evidence introduced in the proceeding upon the petition which was relevant to such complaint should be deemed evidence in Case Number II-C-1817. On August 27, 1938, the Re- gional Director refused to issue a complaint on the afore-mentioned charges and his refusal was subsequently affirmed by the Board on DECISIONS AND ORDERS 1273 appeal. The Trial Examiner denied the motion on the first ground, but granted an adjournment of one day on the second ground. The Board has reviewed the rulings made by the Trial Examiner during the course of the hearing on these and other motions and on objec- tions to the admission of evidence, 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 1. THE BUSINESS OF TILE COMPANY 2 Blanchard Bro. & Lane, Inc., is a New Jersey corporation engaged in the manufacture of leather for the use of the automobile, railway coach, bus, airplane, shoe, luggage, and furniture industries. It owns and operates a plant and warehouse in Newark, New Jersey, and normally employs 235 workers. In its manufacturing operations, the Company uses animal hides, coal, fuel oil, and tanning and finishing materials, costing approxi- mately $1,000,000 annually. Approximately 85 per cent of these raw iaterials are shipped to the Company from points outside New Jersey. Of its finished leathers, which have an approximate annual value of $1,500,000, approximately 90 per cent are sold and shipped by the Company to purchasers outside New Jersey. H. THE ORGANIZATIONS INVOLVED 2 Leather Workers Union No. 21687 Essex and Hudson Counties, New Jersey, of the American Federation of Labor, is a labor organi- zation affiliated with the American Federation of Labor, admitting to its membership employees of the Company. Tannery Workers' Local No. 27 is a labor organization affiliated with the National Leather Workers Association, which is in turn affiliated with the Committee for Industrial Organization. Its mem- bership includes employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION 3 On August 20, 1937, the Company recognized the N. L. W. A. as exclusive bargaining representative of its employees and entered into a contract with it concerning hours, wages, and other conditions of employment. This contract was to remain in effect until August 11, 1938. In a letter dated July 6, 1938, the Company notified the N. L. W. A. that pursuant to a provision in the contract, it desired 2 At the hearing all the parties stipulated the facts set out in this section. 3 All the parties stipulated that a question had arisen concerning the represen *ation of the Company's employees within the appropriate unit. See Section V, infra. 1274 NATIONAL LABOR RELATIONS BOARD to amend or terminate the agreement. On July 11, 1938, the N. L. W. A. sent a letter to the Company requesting a conference. On the same date, the Leather Workers Union served notice upon the Com- pany that it represented a majority of the Company's employees. Because of its inability to determine the relative merits of the claims of the rival organizations, on July 13, 1938, the Company addressed letters to both organizations, stating that it believed it improper for any bargaining negotiations to commence until the representation issue had been determined by the Board. We find that a question concerning representation has arisen con- cerning representation of employees of the Company. IV. THE EFFECT OF TIIE 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 com, merce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing all the parties stipulated that the factory, main- tenance, and shipping employees, excluding supervisory employees, clerical employees, and salesmen, constitute an appropriate bargain- ing unit. We see no reason to alter the agreed unit. We find that the factory, maintenance, and shipping employees of the Company, excluding supervisory employees, clerical employees, and salesmen, constitute a unit appropriate for the purposes of col- lective 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 effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Company's pay roll of August 5, 1938, the week preceding the hearing, showed that there were 168 employees within the unit agreed to be appropriate. A list of the names of the 168 persons was pre- pared by the parties and introduced into evidence. The Leather Workers Union claimed to represent a majority of these employees and submitted in evidence 147 membership application cards to sub- stantiate its claim. Canceled pay-roll vouchers were also submitted to DECISIONS AND ORDERS 1275 demonstrate the genuineness of the signatures upon the cards. Offi- cials and members of the Leather Workers Union testified without contradiction that they personally solicited and secured the applica- tions for membership, referring by name to a great number of the employees whom they had signed up, and further testified that each applicant who had formerly belonged to the N. L. W. A. signed a Iesignation slip from that union before signing an application to become a member of the Leather Workers Union. We have made a check of the cards against the list of employees within the appropriate unit and find that there are signed cards for 115 of the 168 persons named thereon. We were unable to check the signatures on 2 of the 115 cards for the reason that no corresponding pay-roll vouchers were found. We have, however, compared the sig- natures upon the remaining 113 cards with the identification signa- tures and endorsements upon vouchers submitted, and find that the signatures on 95 cards correspond with those on the canceled vouch- ers. A witness for the Leather Workers Union testified that he had signed up George Magle and Vincent Ignacuinos,4 whose cards are numbered among the 95, but that he had heard the 2 men had since joined the N. L. W. A. Some doubt is felt concerning the signatures upon the remaining 18 cards, partly due to the fact that some signa- tures are printed. Since at least 93 of the 168 employees within the appropriate unit, a clear majority, have signed cards of the Leather Workers Union, it is not necessary to determine the validity of the cards with doubtful signatures, the 2 upon which we could make no check, and the cards of the 2 men who were reputed to have left the Leather Workers Union to rejoin the N. L. W. A. In 1937 the claim of the N. L. W. A. to represent a majority of its employees was not disputed by the Company. The N. L. W. A. asserted at the hearing that the claim of the Leather Workers Union to represent a majority of the employees at the present time cannot be sustained for the reason that the Company interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, in that the Company by various means discouraged their affiliation with the N. L. W. A. and encouraged their membership in the Leather Workers Union. The N. L. W. A. charged that any of its members who resigned to join the Leather Workers Union did so through fear of loss of employment and that therefore applications for membership in the latter union constituted no basis for certification of that union. It further claimed that it still represented a majority of the employees by reason of the fact that many of its former members had rejoined A This individual is sometimes designated in the recoi d as Vincent Igonimus 1276 NATIONAL LABOR RELATIONS BOARD its ranks, in turn resigning from the Leather Workers Union. No evidence was introduced in support of the latter claim, but testimony was introduced by the N. L. W. A. in an attempt to substantiate its charges of interference by the Company. Joseph J. Fisher, a witness for the N. L. W. A. and a former em- ployee of the Company testified to the following incident : While working at the plant, he. was approached by William McHugh, a fellow employee, who asked him to sign a Leather Workers Union card. Karl Koeniger, director and superintendent of the company, walked over and asked what was going on. McHugh handed Koe- niger an application card, and after having inspected it, Koeniger slapped Fisher on the back, saying, "Go ahead and sign . . . fine, that is good." Frank Veliky, an employee and a member of the N. L. W. A., testified that when standing in the plant yard one day, he overheard a statement made by a foreman in one of the plant workrooms. He stated that he could not see the speaker, but recognized the voice of Bill Flaherty, alleged foreman of the strop department, addressing the following remark to a person whom Veliky could not identify : "If we get rid of the C. I. 0. Union [the N. L. W. A.] we are going to have a big party in the shop." Veliky testified further that he overheard another statement through a partially opened door, ad- dressed to an unseen person. He claimed that he heard Buck Taylor, foreman of the finishing department, speak the following words : "You are going to join this. If not, you see what is going to happen, the shop is going to be shut entirely or you might lose your job. )'on had better sign because everybody has signed." Veliky stated that the unknown individual was being advised to join the Leather Workers Union. Martin Halmo, another employee and a member of the N. L. W. A., testified that a stranger approached him at work, asked him to sign a paper, and when Halmo refused to sign, stated : "And you don't want to sign the Ameircan Federation [the Leather Workers Union]. If you don't you are going to lose your job." Halmo testified further that he later found out that the stranger was the Company's time- keeper, and at the hearing identified him as Frank Deckert. This is substantially the evidence submitted by the N. L. W. A. to support its claim that the Leather Workers Union is not the free choice of a majority of the Company's employees. Cross-examina- tion and rebuttal testimony, which we shall now review briefly, ren- der the affirmative testimonial evidence unworthy of credence. Three witnesses, McIlugh, Koeniger, and George Penny, a worker who was standing nearby at the time of the alleged incident, effectively contro- verted Fisher's testimony as to Koeniger's conduct, establishing DECISIONS AND ORDERS 1277, clearly that while Fisher was signing a card Koeniger approached, asked what the men were doing, and, on being informed, merely told McHugh that he could not solicit members during working hours or upon the Company's premises. The record indicates that Veliky was an unreliable witness. Flaherty, who, Veliky claimed, was a foreman, is in fact one of the employees upon the list of those in the appropriate unit prepared by the parties, which, according to the stipulation , contained no supervisory employees. Further, Veliky admitted that he had never at any time engaged in conversation with Flaherty and was unable to lay a foundation for his alleged ability to recognize his voice . The circumstances reveal , moreover, that from the distance at which he was standing, Veliky could not have heard any words spoken in the workroom to which he referred, particularly in view of the operation therein at the time of several noisy machines , fans , blowers, a spray , and a rolling jack. In the light of this patently unreliable testimony, we cannot credit Veliky's further account of the statements of Foreman Taylor. Deckert, identified by Halmo as the individual who threatened him, is not the Company's timekeeper but only an employee on the prepared list of those within the appropriate unit. Deckert admitted at the hearing that he had requested Halmo to sign an application card but denied that he had threatened him or had any power to enforce such a threat. The N. L. W. A. sought to prove that members of the .Leather Workers Union were permitted by the Company to go through the plant soliciting membership applications on company time and at company expense. From the record it is apparent that the plant is an old building occupying three city blocks, cut up into many small rooms on many different levels. There is no regularized system of delivering work to the benches, as a result of which the employees frequently leave their own rooms and go to others to collect mate- rials. Close supervision is not maintained over their comings and goings. McHugh is the only witness who admitted having signed up any members during working hours. He testified that he knew of no rule against talking to workers in the shop and asserted that it was continually done. He further testified that when he was N. L. W. A. assistant shop chairman he consistently collected dues on the premises and for that reason felt that there was no impropriety in soliciting in behalf of the Leather Workers Union. He is a'piece worker and stated that any time so spent was not company time. According to his testimony, he had talked to 20 or 25 workers, some in the shop and some outside the plant, and Koeniger was the only supervisory official who observed his activities . We have noted that Koeniger forbade the continuance of these efforts . The record also indicates that Koeniger later made inquiries and found that McHugh was 1278 NATIONAL LABOR RELATIONS BOARD obeying his instructions. Other witnesses denied that they had so- licited in the plant during working hours and there is no evidence that any conduct of this kind came to the attention of any foreman or company official other than Koeniger, in the incident described above. In our opinion the evidence does not sustain the assertion that the Company was aware of or knowingly permitted solicitation in behalf of the Leather Workers Union in the plant during working hours. It may also be noted that the N. L. W. A. attempted to establish the fact that several officials and members of the board of trustees of the Leather Workers Union, who were active in the Union's mem- bership campaign, were employed by the Company in positions which allied their interests with those of the management. We find that each one of these persons is named upon the list of employees within the appropriate unit, prepared by the parties. We conclude that the evidence adduced does not support the N. L. W. A.'s assertion of company interference with the employees' choice of bargaining representatives and does not affect the validity of the proof of such choice submitted by the Leather Workers Union in this proceeding. We find that the Leather Workers Union has been designated and selected by a majority of the employees in the appropriate unit as their representative for purposes of collective bargaining. It is, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, and we will so certify. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION'S OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Blanchard Bro. & Lane, Inc., Newark, New Jersey, within the -meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. - 2. The factory, maintenance, and shipping employees of the Com- pany, excluding supervisory employees, clerical employees, and sales- men, constitute a unit appropriate for the purposes of collective bar- gaining, within the meaning of Section 9 (b) of the National Labor Relations Act. . 3. Leather Workers Union No. 21687 Essex and Hudson Counties, New Jersey, of the American Federation of Labor, is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. DECISIONS AND ORDERS CERTIFICATION OF REPRESENTATIVES 1279 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, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Leather Workers Union No. 21687 Essex and Hudson Counties, New Jersey, of the American Federa- tion of Labor, has been designated and selected by a majority of the factory, maintenance, and shipping employees of Blanchard Bro. Lane, Inc., Newark, New Jersey, 'excluding supervisory employees, clerical employees, and salesmen, as their representative for the pur- poses of collective bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, Leather Workers Union No. 21687 Essex and Hudson Counties, New Jersey, of the American Federation of Labor, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Certification of Representatives.