I. Lewis Cigar Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 21, 1942

44 N.L.R.B. 242 (N.L.R.B. 1942)

In the Matter of I . LEwIs CIGAR MANUFACTURING Co. and CIGAR
MAKERS INTERNATIONAL UNION OF AMERICA, A. F. OF L.
Case No. R-4194.-Decided September 21, 1942
Jurisdiction : cigar manufacturing industry.
investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition election necessary.
Unit Appropriate for Collective Bargaining : all employees including teachers;
but excluding all supervisory and clerical employees and cigar machine mechan-
ics ; teachers included over Company's objection.
Mr. Harry Lewis, of Newark, N. J., for the Company.,
Mr. Maurice Simons, of New York City, and Mr. Samuel R. Isard,
of Newark, N. J., for the A. F. of L.
Mr. Samuel L. Rothbard, Mr. Morris Riger, and Mr. Nicholas J.
Nardiello, of Newark, N. J., for the C. 1. 0.
Miss Viola James, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION'
STATEMENT OF THE CASE
Upon an amended petition duly filed by Cigar Makers International
Union of America, affiliated with the American Federation of Labor,
herein called the A. F. of L., alleging that a question affecting com-
merce had arisen concerning the representation of employees of I.
Lewis Cigar Manufacturing Co., Newark, New Jersey, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before William T. Little,'Trial
Examiner: Said hearing was held at Newark, New Jersey, on August
24, 1942. The Company, the A: F. of L., and United Cigar Workers,
Local 302, affiliated with United Paper, Novelty and Toy Workers
International Union 'and the Congress of Industrial Organizations,
herein called the C. I. 0., 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 are free from prejudicial error and are
hereby affirmed.
44 N. L. R B., No. 44.
242
I. LEWIS CIGAR MANUFACTURING CO. 243
Upon the entire record in the case, the Board makes the following:,
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
1. Lewis Cigar Manufacturing Co., a New Jersey corporation, oper-
ates plants in Selma, Alabama, Steelton, Pennsylvania, and Newark,
New Jersey. Only the Newark plant is involved herein. The prin-
cipal raw materials used at the Newark plant are tobacco, cellophane,,
and lumber. During the year ending August 15, 1942, the Company
purchased for use in the Newark plant raw materials valued at approx-
imately $1,000,000, approximately all of which were shipped from
outside the State of New Jersey. During the same period, finished
products valued in excess of $1,000,000 were manufactured at the
Newark plant, of which approximately 95 percent was shipped outside
the State of New Jersey. The Company concedes that it is engaged
in commerce within the meaning of the National Labor Relations Act.
II. TIIE ORGANIZATIONS INVOLVED
Cigar Makers International Union of America, affiliated with the
American 'Federation of Labor, and United Cigar Workers, Local 302,
affiliated '-with United Paper; Novelty - and Toy Workers International
Union and the Congress of Industrial Organizations , are labor organ-
izations , admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 25, 1942, the A. F. of L. notified the Company that it repre-
sented a majority of the employees and requested exclusive recognition.
The Company refused the request because of its contract with the
C. I. 0., expiring September 24, 1942.
A statement of the Regional Director, introduced in evidence at
the hearing, shows that the A. F. of L. represents a substantial number
of employees in the unit hereinafter found to be appropriate.'
I The Regional Director reported that the A F of L submitted 322 authorization
cards, dated between March and July 1942, with 1 being undated ; that all but 11 appeared
to bear genuine original signatures, 10 cards being signed by an "x" mark and witnessed,
and 1 card hearing a printed signature which was witnessed ; that of the 311 cards bearing
apparently genuine original signatures, the names on 308 also appeared on the Company's
current pay roll which contained the names of 646 persons in the alleged appropriate unit,
including 10 "teachers " Two of the A F of L cards bore the names of persons listed
on the Company's pay roll as teachers
The C I. 0. did not submit evidence to the Regional Director in support of its claim
of representation, but did claim an interest by reason of its contract with the Company'
entered into on September 23, 1941, which expires September 24, 1942. This contract
covers all employees with certain specific exceptions, but including those in the unit alleged
to be appropriate by the A. F. of L.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 -
Both the A . F. of L . and the C. I. 0. allege that the appropriate
unit should ,include all the non-clerical and non -supervisory employees
at the Newark factory . The Company contends that the teachers and
cigar machine mechanics should be excluded from the bargaining unit.
The Company contends the teachers should be excluded on the
ground that they report improper work of the regular operators and
would be less inclined to carry out their duties faithfully if they
belonged to the same labor organization as the production employees.
The teachers instruct girl operators , both experienced and new, in the
making of cigars . They also relieve operators who are absent a few
minutes at a time. The record does not show how much time they
spend in this relief work . Some teachers receive a higher rate of
pay than the operators , but some do -not. The operators are paid by
piecework and the teachers on an hourly or weekly rate . The teachers
do not hire or discharge employees , but do report faulty work to the
foremen. Teachers are included in the unit for which the C. I. 0.
has been bargaining , and their wages, hours , and vacation privileges
are fixed by the existing contract . The record also discloses that at
least two of the teachers have signed A. F. of L . cards. We shall
include the teachers in the appropriate unit.
The Company contends that the cigar machine mechanics should
be excluded for the same reason advanced for the teachers and in
order to gain harmony in the plant. Although the cigar machine
mechanics were covered by the language of the contract, which con-
tained union shop and check-off clauses , they have persistently re-
fused to join the C. I. 0. or to pay dues. The C. I. 0. did not enforce
these terms of the contract against the cigar machine mechanics, and
in ' effect they were excluded from the unit established by the con-
tract. It appears that neither the C. I. 0. nor the A. F. of L. has any
members among the cigar machine mechanics. All cigar machine
mechanics are paid by the week on an hourly basis and receive a
higher amount than the production employees, and, in some instances,
more than other mechanics. Since the cigar machine „ mechanics
have refused to join the C. I. 0. and pay dues in accordance with the
contract , and are not now members of either union, and since it appears
that they are an identifiable skilled group, we shall exclude them from
the appi opriate unit.
We find that all employees of the Company ,,t its Newark, New
Jersey, plant , including teachers , but excluding all supervisory and
I. LEWIS CIGAR MANUFACTURING Co. 245
clerical employees. and cigar machine mechanics, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing 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 an election by secret ballot among the em-
ployees 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 Direc-
tion.
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,
49,Stat. 449, 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 ordered `by the Board to
ascertain representatives for the purposes-of collective bargaining with
I. Lewis Cigar Manufacturing Co., Newark, 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 direc-
tion 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 the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including any such employees
who'did not work during said pay-roll period because they were ill or
on vacation or in the active military service or training of the United
States, or temporarily laid off, but excluding any who have since quit
or been discharged for cause, to determine whether they desire to be
represented by Cigar Makers International Union, of America, affili-
ated with the American Federation of Labor, or by United Cigar
Workers Local 302, affiliated with United Paper, Novelty & Toy
Workers International Union and the Congress of Industrial Organ-
izations, for the purposes of collective bargaining, or by neither.
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Direction of Election.
In the Matter of I. LEwIs CIGAR MANUFACTURING Co. and CIGAR MAKERS
INTERNATIONAL UNION OF AMERICA , A. F. OF L.
Case No. R-4194
CERTIFICATION OF REPRESENTATIVES
October 12, 1942
On September 21, 1942, the National Labor Relations Board issued a
Decision and Direction of Election in the above-entitled proceeding.'
Pursuant to the Direction of Election, an election by secret ballot was
conducted on September 30, 1942, under the direction and, supervision
of the Acting Regional Director for the Second Region (New York,
New York). Qn October 1, 1942, the Acting Regional Director, acting
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, issued and duly served
upon the parties an Election Report. No objections to the conduct of
the ballot or the Election Report have been filed by any of the parties.
As to' the balloting and its results, the Acting Regional Director
reported as follows :
Total on eligibility list--------------------------------------- 583
Total ballots cast------------------------------------------- 501
Total ballots challenged------------------------------------- 1
Total blank ballots----------------------------------------- 2
Total void ballots------------------------------------------- - 4
Total valid votes counted----------------------------------- 494
,Votes, cast for Cigar Makers. International Union of America,
AFL----------------------------------------------------- 128
Votes cast for United Cigar Workers, Local 302, CIO----------- 299
Votes cast for neither union--------------------------------- 67
Since the number of challenged ballots cannot affect the results of
the election, we find it unnecessary to make any determination with
respect thereto.
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,
49 Stat. 449, and'pursuant to Article III, Sections 8 and 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
1 44 N. L. R. B. 242.
44 N. L. It. B., No. 44a.
246
I. LEWIS CIGAR MANUFACTURING CO. 247
IT IS HEREBY CERTIFIED that United Cigar Workers, Local 302, affili-
ated with United Paper, Novelty and Toy Workers International
Union and the Congress of Industrial Organizations, has been desig-
nated and selected by a majority of all employees of the I. Lewis Cigar
Manufacturing Company at its Newark, New Jersey, plant, including
teachers, but excluding all supervisory and clerical employees and cigar
machine mechanics, as their representative for the purposes of collective
bargaining, and that, pursuant to Section 9 (a) of the Act, the said
United Cigar Workers, Local 302, is, the exclusive representative of
all such employees for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and other conditions
of employment. '
0