Brillo Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 1940

24 N.L.R.B. 153 (N.L.R.B. 1940)

III the Matter of BRILIO MANUFACTURING COMPANY, INC. and LooAI,
#12084, UNITED MINE WORKERS OF AMERICA, DISTRICT 50
Case No. R-1821.Decided May 09, 1940
Metal Wools Manufacturing Industry-Investigation of Representatives: Con-
troversy concerning representation of employees ; rival organizations ; contract
entered into after petition was filed, no bar to-Unit Appropriate for Collective
Bargaining ; all production and maintenance employees with specified exclu-
sions ; agreement as to-Election Ordered
Mr. D. R. Dimick, for the Board.
Mr. Henry Wooq, of New York City, for the Company.
Mr. Herman A. Edelsberg and Mr. Allan Wolfsont, of New York
City, for the United.
Mr. Burton A. Zorn, of New York City, for the Association.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 17, 1940, Local #12084, United Mine Workers of
America, District 50, herein called the United, filed with the Re-
gional Director for the Second Region (New York City) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of Brillo Manufacturing Company,
Inc., Brooklyn, New York, herein called the Company, and request-
ing an investigation and certification of representatives pursuant to
Section 9 (c) of the National Labor Relations Act., 49 Stat. 449,
herein called the Act.
On' April 12, 1940, 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 April 22, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the United,
24 N. L. R. B., No. 5. 153
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and upon Employees Mutual Benefit Association of Brillo Manu-
facuring Company, Inc., herein called the Association , a labor organ-
ization claiming to represent employees directly affected by the
investigation . Pursuant to the notice , a hearing was held on May
2, 1940, at New York City, before Edward G. Smith , the Trial
Examiner duly designated by the Board. The Board , the Company,
the United , and the Association 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 commence-
ment of the hearing, counsel for the United moved to amend the
petition . The motion was granted . This ruling is hereby affirmed.
During the course of the hearing and at the close of . the hearing,
counsel for the Company moved to dismiss the petition on the ground
that no question concerning representation had arisen . At the close
of the hearing , counsel for the Association moved to dismiss the
petition on the ground that no question concerning representation
had arisen . The Trial Examiner reserved ruling on these motions.
For the reasons stated in Section III below, the motions are hereby
denied. During the course of the hearing the Trial Examiner made
several rulings on other motions and on objections to the admission
of evidence . The Board has reviewed these rulings and finds that
no prejudicial errors were committed . The rulings are hereby
affirmed. On May 11, 1940, the Company filed a brief which the
Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINBBS OF THE COMPANY
Brillo Manufacturing Company, Inc., a New York corporation, is
engaged in the manufacture , sale, and distribution of steel wools
and other metal wools and products made therefrom . Its principal
offices and plant are located in Brooklyn , New York. During 1939
the Company purchased raw materials , consisting of metal wire,
soap, vegetable oils, and caustics , amounting in value to approxi-
mately $695,000.00, 50 per cent of which were transported to its
plant from points outside the State of New York. During the same
year the Company sold finished products amounting in value to
over $1,500,000.00 , of which more than 60 per cent were shipped to
points outside the State of New. York. The Company admits that
it is engaged in interstate commerce within the meaning of Section
2 of the Act.
BRILLO MANUFACTURING COMPANY, INC.
II. THE ORGANIZATIONS INVOLVED
155
Local #12084, United Mine Workers of America, District 50, is
a labor organization affiliated with the Congress of Industrial Organ-
izations. It admits to membership all production and maintenance
employees of the Company, excluding watchmen, plant protectors,
supervisory employees, and clerical employees.
Employees Mutual Benefit Association of Brillo Manufacturing
Company, Inc., is an unaffiliated labor organization admitting to
membership the same classes of employees of the Company as the
United.
III, THE QUESTION CONCERNING REPRESENTATION
On September 30, 1937, the United and the Company entered into
'an exclusive bargaining contract to remain in effect until December
31, 1938. In October 1938 the Association informed the Company
that it represented a majority of the employees and filed a petition
with the Regional Director. Shortly thereafter the United filed
,charges with the Regional Director alleging that the Company had
dominated and interfered with the formation and administration of
the Association. Upon these charges the Board, by the Regional
Director, issued a complaint dated June 28, 1939, alleging' that the
Company had dominated and interfered with the Association. A
hearing was thereafter held before a Trial Examiner, who, on Decem-
ber 6, 1939, issued his Intermediate Report in which he recommended
that the complaint be dismissed.
On January 2, 1940, the United by letter notified the Company
that it claimed to represent a majority of the employees and requested
a conference for the purpose of collective bargaining. On January
5, 1940, the Company replied that it was confronted with conflicting
majority claims of two labor organizations and requested the United
to furnish proof of its majority claim. On January 8, 1940, the
United notified the Company that it was filing a petition with the,
Board. On January 17, 1940, the United filed the petition herein.
On February 8, 1940, after 6 weeks of negotiation, the Association
and the Company entered into an exclusive bargaining contract to
remain in effect until December 31, 1941. On February 24, 1940,
the Board issued its Decision and Order in the unfair labor practice
case, dismissing the complaint.'
A "Statement of Regional Director Concerning Claims of Au-
thorization for the Purpose of Representation" which was intro-
1 Briilo Manufacturing Company, Inc. and District ## 50, United Mine Workers of America,
'20 N. L. R. B. 806.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duced in evidence at the hearing states the following: that according
to the Company's pay roll of February 1, 1940, there were 215
employees in the appropriate unit on said date; that the United
has 75 authorization cards, of which 68 bear names of employees
appearing on the Company's pay roll of February 1, 1940; and that
the secretary-treasurer of the Association presented him with an
affidavit and receipt stubs to the effect that the Association had 130
members who had paid their dues during the months of December
1939, or January or February 1940, and that the names of 124 of
these 130 members appear on the Company's pay roll of February
1, 1940.
The Company and the Association argue that their contract is a
bar to a present determination of representatives. In view of the
fact that the contract was-entered into while this proceeding was
pending and at a time When the United was claiming to represent
a majority in the appropriate unit, we find that the contract does
not constitute a, bar to a present determination of representatives.2
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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company, the United, and the Association agreed at the
hearing that the appropriate unit should consist of all production
and maintenance employees of the Company, excluding watchmen,
plant protectors, foremen, assistant foremen, supervisory employees,
superintendents, clerical employees, and employees in the, sales and
shipping departments. We see no reason for departing from such-
unit.
We find that all production and maintenance employees of the
Company, excluding watchmen, plant protectors, foremen, assistant
foremen, supervisory employees, superintendents, clerical employees,
!See Matter of California Wool Scouring Company and Textile Workers Organizing
Committee, 5 N . L. R. B. 782. -
BRILLO MANUFACTURING COMPANY, INC. 157
and employees in the sales and shipping departments, constitute a
unit appropriate for the purpose 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 effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the rep-
resentation of employees of the Company can best be resolved by
an election by secret ballot. The parties agreed at the hearing that
in the event the Board directed an election eligibility of employees
to vote should be determined by the Company's pay roll of Feb-
ruary. 8, 1940. We find that those employees of the Company within
the appropriate unit whose names appear on the Company's pay
roll of February 8, 1940, shall be eligible to vote, excluding those-
who have since quit or been discharged for cause.
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 rep-
resentation of employees of Brillo Manufacturing Company, 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 maintenance employees of the Company,
excluding watchmen, plant protectors, foremen, assistant foremen,
supervisory employees, superintendents, clerical employees, and em-
ployees in the sales and shipping departments, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 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 Re-
lations Act and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
is is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purpose of collective bar-
gaining with Brillo Manufacturing Company, Inc., Brooklyn, 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
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Direction, under the, direction and supervision of the Regional Di-
rector 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 main-
tenance employees of the Company whose names appear on the.
Company's pay roll of February 8, 1940, excluding watchmen, plant
protectors, foremen, assistant foremen, supervisory employees, super
intendents, clerical. employees, employees in the sales and shipping
departments, and employees who have since quit or been discharged
for cause, to determine whether they desire to be represented by
Local #12084, United Mine Workers of America, District 50, af-
filiated with the Congress of Industrial Organizations, or by
Employees Mutual Benefit Association of Brillo Manufacturing.
Company, Inc., for the purposes of collective _ bargaining, or by
neither.