Frank Brothers Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

May 4, 1942

40 N.L.R.B. 1143 (N.L.R.B. 1942)

In the Matter of FRANK BROTHERS MFG. CO., INC. and WHOLESALE &
WAREHOUSE WORKERS UNION, LOCAL 65, C. I. O.
• Case No.11-3661.Decided May 4,1940
Jurisdiction : plumbing supply parts manufacturing and distributing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord petitioner recognition ; contract with rival union, no bar where
in subsequent agreement entemed into by Company, petitioner, and this union,
parties agreed to be bound 6y Board's determination of their conflicting claims
to representation ; laid-off employees having a reasonable expectation of re-
instatement in view of an arbitration award held eligible to vote; elections
necessary
Units Appropriate for Collective Bargaining :, all shop 'employees including
assemblers, but excluding officers, supervisory and managerial employees, and
the Company's one truck driver; all office employees excluding officers, super-
visory, and managerial employees, and outside salesmen.
Mr. Louis A. Jackson, of New York City, for the Company.
Mr. Herman G. Schiller, of New York City, for Local 1146.
Leider, Witt c Cammer, by Mr. Harold 1. Camiiner, of New York
City, for Local 65. ,
Mr. Harry H. Kuskin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by Wholesale & Warehouse.Workers Union,
Local 65, of.the United Retail, Wholesale & Department Store Work-
ers of America, affiliated with the Congress of Industrial Organiza-
tions, herein called Local 65, alleging that a question affecting
commerce hind arisen concerning the representation of employees of
Frank Brothers.Mfg. Co., Inc.,' New York City, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before James C. Paradise, Trial Exam-
The Company was incorrectly named in the petition as "Frank Bros Manufacturing
Co , Inc " At the hearing, the petition and other formal papers were amended to indicate
the Company 's correct name ^
40 N L R B, No. 194.
1143
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner. Said hearing was held at New York City on March 19 and 20,
1942. The Company, Local 65, and Plumbing, Hardware, Paint,
Electrical, Radio Supplies and Automobile Accessories Employees'
Union Local No. 1146 of Retail Clerks International Protective Asso-
ciation, affiliated tivith the American Federation of Labor, herein called
Local 1146, appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing 'on the' issues-. 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 :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Frank Brothers Mfg. Co., Inc., is a New York corporation engaged
,in New York City in the manufacture and sale of plumbing supply
parts and the distribution of plumbing specialties. The materials
used in the Company's manufacturing operations are processed brass
and copper. Approximately $175,000-worth, or 70 percent, of these
materials came from outside the State of, New York during the 6
months preceding the hearing. Approximately $125,000 worth, or
more than 50 percent, of the Company's finished products were shipped
outside the State of New York during the same period: The. Company
admits that it is engaged in commerce, within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Wholesale & Warehouse Workers Union, Local 65, of the United
Retail, Wholesale & Department Store Workers of America, is a labor
organization affiliated with the Congress of Industrial Organizations.
Plumbing, Hardware, Paint, Electrical, Radio Supplies and Auto-
mobile Accessories Employees' Union Local No. 1146 of Retail Clerks
International Protective Association is a labor organization affiliated
with the American Federation of Labor.
Each admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In October 1941, Local 65 requested, and was refused, recognition
as collective bargaining representative of employees of the Company:
The parties stipulated at the hearing that there is a question concern-,
ing the representation of the office employees of the Company, and
that there is also a question concerning the representation of the Com-
FRANK BROTHERS MFG. CO. 1145
pany's shop employees if an existing contract between the Company
and Local 1146 is not a bar.
The contract in question is dated April 1, 1941, contains a closed-
-shop provision, and is for a 2-year period terminating April 1, 1943.
It relates to hours and working conditions, but not to wages, of the
Company's shop clerks, and provides that wages and hours for the
year starting April 1, 1942, shall be "discussed" 30 days prior to that
date.
In October 1941, when Local 65 was organizing the Company's em-
ployees, Local 1146 insisted upon enforcement of the closed-shop pro-
,vision *of its contract with the Company. As a consequence thereof, a
strike or lock-out 2 resulted, and the Company's plant was shut down
-for about 61/2 weeks. On December 13, 1941, the Company and Local
65 entered into an agreement in settlement of the dispute. On the
same day, the Company, Local 65, and Local 1146 entered into another
agreement providing for immediate cessation of all picketing and
other similar activity by the unions. This agreement recited that both
Local 65-and Local 1146 claimed to be the sole bargaining agent for
the Company's employees and that "there is now pending . . . a pro-
ceeding before the National Labor Relations Board for the determina-
tion of such conflicting claims," 3 and provided that both unions would
be bound by the Board's decision. In view of this agreement, we find
,that-the contract between the Company and Local 1146 is not a bar
to the present proceeding.4
A statement of the Regional Director, in evidence, shows that both
Local 65 and Local 1146 represent a substantial number'of employees
of the Company.s
We find that a question affecting commerce has arisen concerning the
representation of the shop employees, as well as of the office employees
of the Company, within the meaning of Section 9 (c) and Section 2
( 6) and (7) of the National Labor Relations Act.
'Local 1146 contends that Local 65 called a strike, while Local 65 maintains that the
employees were locked out
° The reference was to the present proceeding.
4 On January 2, 1942 , Local 1146 , in a suit against the Company in the Supreme Court
of the State of New York , moved for a temporary mandatory injunction enforcing the
closed-shop provision of the contract . Local 65 was allowed to intervene in that -proceeding.
Thereafter , the Court , in view of the agreement of December 13, 1941, denied the motion
without prejudice to its renewal after the Board's decision.
5 The Regional Director reported that Local 65 had 49 membership application cards dated
in the month of October 1941 ; that all the cards bore signatures which appeared to be gen-
uine ; and that all the names on the cards appeared on the Company ' s pay roll of October 24,
1941. He further reported that Local 1146 submitted an agreement with the Company dated
April 1 , 1941 , and 14 membership application cards dated as follows : 8 in July 1937, 2 in
April 1938 , 1 in March 1939, 1 in November 1940, and 2 undated cards ; that all the cards
bore signatures which appeared to be genuine ; and that all the names on the cards appeared
on the Company 's pay roll of October 24 , 1941. The record does not show the number of
employees appearing on the Company 's pay roll of October 24, 1941 . However, the settle-
ment agreement of December 13, 1941 , between the Company and Local 65 provided for
reinstatement by the Company of a total of 63 employees
1146 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
- Local 1146 contends that all employees in the Company's shop, ex-
cluding officers, supervisory and managerial employees, outside sales-
men, assemblers, and the Company's one truck driver, constitute an
appropriate unit. Local 65 also wants officers, supervisory and man-
agerial employees, outside salesmen, and the Company's one truck
driver excluded, but contends that all other shop and office employees of
-the Company constitute a single appropriate unit, or, in the alternative,
that the office employees constitute one appropriate unit and the shop
employees another appropriate unit. Local 65 also desires to include
assemblers, whether in a shop unit or in a plant-wide unit.
The office employees work in the same building as the shop employ-
ees. There is, however, nothing in the record to show any similarity in
work between the office employees and the shop employees. The Com-
pany has never bargained with Local 11461 or the office employees, and
they are not covered by the contract between the Coinpany and Local
"1146. Under the circumstances, we are of the opinion that the office
employees. constitute a separate bargaining unit.° -
With respect to the assemblers, Local 1146 contends that all tempo-
rary employees should- be excluded and that assemblers who do only
assembly work are temporary employees. Local 1146 agrees that
assemblers who do other work in addition to assembly work, or who
were originally hired on a permanent basis, should be included.
Assemblers put together parts of fixtures. They work at tables in
the rear of the first floor of the plant. Like the other employees of the
Company, they are hourly paid, and the record also shows that, with
few exceptions, assemblers spend part of their time assisting employees
in the shop who do other work. The Company states that it set up an
assembly department on a temporary basis in 1939 and 1940, and that
assemblers are temporary employees. It admits, however, that its pres-
ent operations require assemblers, that it has promised permanent sta-
tus to a few assemblers, that some assemblers have been employed by
the Company for several years, and that it has given assembly work to
some of the steady employees supplied by Local 1146 pursuant to the
contract.
- Local 1146 admittedly enrolled four assemblers as members in 1938,
.but argues that they did other work, too. At the hearing, however, a
representative of Local 1146 was unable to distinguish between the
work of these four and the work of other assemblers at the plant.
Local 1146 concedes, further, that it sought assemblers as members in
i
"See Matter of The Texas Company and.O2l Workers International Union , Local 367, 33
-N L R B 1214 ; Matter of St Louis Airplane Division Curtiss-Witght Corporation and
International Association of Machinists , District No 9, 28 N L R B 29
FRANK BROTHERS MFG. CO. ;1147
.October 1941 , although allegedly only as temporary employees, and
adds that it has not sought to enroll assemblers since that time: Local
.1146 would also consider several assemblers to be steady employees as
of April 1, 1941, in view of their length of service with the Company.
Local 65 denies that assemblers are temporary employees. The
Company's business reaches its peak each year during the heating sea-
son, which runs from September to December and then levels off.
-During the heating season , the Company hires additional assemblers,
.if necessary , to take care of the increased business . There is evidence
that most of the assemblers remain as employees throughout the year,
but that six or seven assemblers usually drift away during the year
and are replaced during the heating season.
On all the facts , we are of the opinion that the assemblers are not
temporary employees and that their interests are similar to those of the
remaining shop employees . We shall, therefore , include them in the
-unit of shop employees. -
We find that all shop employees of the Company, including, assen -
,blers ; but excluding officers , supervisory and managerial employees,
.ana the,Company 's one truck driver, constitute a unit appropriate for
.the purposes of collective bargaining , within the meaning of Section 9
(b) of the Act.
We further find that all office employees of the Company, excluding
'officers, supervisory and managerial employees , and outside salesmen,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which ,has
arisen can best be resolved by elections by secret ballot.
It is stipulated that the Company's pay roll for the week ending
March 23, 1942 , may be used to determine eligibility of employees to
vote in any election. We shall direct that the employees of the Com-
pany eligible to vote in the elections shall be those in the appropriate
units whose names appear on the Company's pay roll for the week
ending March 23, 1942 , subject to the limitations and additions set
.forth in the Direction.
- There is some disagreement as to the eligibility of certain laid-off
employees. Local 65 contends that these laid-off employees should bea
allowed to vote because they were improperly laid off and still retain
their employee status, and. because the arbitration award described
.below gives them a reasonable expectation of reinstatement . The Com-
pany argues that - the arbitration award was improper and not final,
but claims that in any event reemployment was offered to all the laid-
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off employees but was accepted by only half of them. Local 1146 takes
no position with reference to the laid-off employees.
In the agreement of December 13, 1941, between the Company and
.Local 65, referred to in Section III, above, the Company agreed to
reinstate certain named employees, but was given the right to lay them,
off thereafter in order of seniority; subject to arbitration of disputes
arising out of any such lay-offs. 'The Company did, thereafter, lay
-off 30 assemblers for the stated reason that work had slackened. Arbi-
tration proceedings were instituted and, on March 9, 1942, the arbi-
-trator made his award in which he ruled that 4 of the laid-off
employees 7 were oldest in point of service, had been improperly laid
off, and should therefore be reinstated with pay within 5 days; that
the 26 others had been improperly laid off only to the extent that
employees retained were permitted to work overtime; that the Com-
pany should divide an amount equal to the sum paid by it for overtime
work equally among the other 26 laid-off employees;. that there should
be no further overtime work during these lay-off s; and that these 26
•laid-off employees, should be given employment if employees junior'
to them in length of service are employed by the Company. The Com-
pany contends that, under its contract with Local 1146, it must retain
members of Local 1146 regardless of seniority. Local 65 contends that
the amount of overtime worked by retained employees justifies the
return of almost all those laid off, and denies that all the laid-off
employees ' were offered reinstatement and that half of them were
actually reinstated. It is not clear from the record which laid-off
employees have been offered and have refused reinstatement. How-
ever, the agreement of December 13, 1941, between the Company and
Local 65 provides that the Company may not employ anyone with less
seniority than the laid-off employees, thereby in effect giving the laid-
off employees preferential status for reemployment. Under the cir-
cumstances, we find that all the laid-off employees, except those who
have been offered and have refused reinstatement, are entitled to par-
ticipate in the elections.
DIRECTION OF ELECTIONS
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 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 Frank Brothers Mfg. Co., Inc.,, New York City, an election by
7 Leon Schenker , Seymour Glickman , Fred Richman , Meyer Itzkowltz.
FRANK BROTHERS MFG. CO. 1149
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 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
the employees in each of the units found appropriate in.Section IV
above whose names appear on the Company's pay roll for the week
ending March 23, 1942, including employees who did not work during
such pay-roll period because they were ill or on vacation or in the
active military service or training of the United States, and all laid-off,
employees except those who were offered and who refused reinstate-
ment, but excluding employees who have since quit or been discharged
'for cause, to determine whether they desire to be represented by Whole-
sale & Warehouse Workers Union, Local 65, of the United Retail,
Wholesale & Department Store Workers of America, affiliated with
the Congress of Industrial Organizations, or by Plumbing, Hardware,
Paint, Electrical, Radio Supplies and Automobile Accessories Em-
ployees' Union Local No. 1146 of Retail Clerks International Protective
Association, affiliated with the American Federation of Labor, for the
purposes of collective bargaining, or by neither.