J. K. Larkin Co.

National Labor Relations Board - Board DecisionsNov 27, 1941

36 N.L.R.B. 1284 (N.L.R.B. 1941)

In the Matter of J. K. LARKIN Co. and WHOLESALE & WAREHOUSE WORKERS UNION -LOCAL' 65, C. I. 0. 1 - I - Case No. B-3198 .-Decided November 27, 1941 Jurisdiction : steel products purchasing and selling industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; contract no bar to, where executed after notice of rival union's claim ; election necessary Unit Appropriate for Collective Bargaining : all production employees employed in warehouse, excluding supervisory and clerical employees, receiving and shipping clerks, truck drivers, and truck drivers temporarily employed in warehouse ; stipulation as to Mr. William T. Little, for the Board. Mr. Hiram S. Hall, of Long Island City, N. Y., for the Company. Mr. Leo Swerdlin and Mr. Al Bernknopf, both of New York City, for the C. I. O. Mr. William G. Monahan, of New York City, for the A. F. of L. Mr. Joseph Zack, of Brooklyn, N. Y., for the Independent. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On' September 6, 1941,, Wholesale & Warehouse Workers Union Local 65, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., filed with-the Regional Director for the Second Region (New York City), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of J. K. Larkin Co., Woodside, Long Island, New York, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. On October 10, 1941, 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 Regula- tions-Series 2, as amended, ordered an investigation and authorized 36 N L. R. B., No. 259. . 1284 J..K. LARKIN CO. 1285 the Regional Director to conduct it and to provide for, an Appropriate hearing upon due notice. On October 15, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the C. I. 0., Local 282, International Brotherhood of Teamsters, affiliated with the American Federation of Labor, herein called the A. F. of L., and Building Service Employees Independent Union, herein called the Independent, labor organizations claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was* held on October 23, 1941, at New York City, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Exam- iner. The Company, the C. I. 0., the A. F. of L., and the Independent were represented 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. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The,Board has reviewed the rulings of the Trial Examiner 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 THE COMPANY J. K. Larkin Co. is a New York corporation with its principal office in Woodside, Long Island, New York. It is engaged in the purchase, sale, and distribution of steel products. During the fiscal year preceding October 1, 1941, the Company purchased and used in its operations materials valued at approximately $750,000, of which approximately 90 per cent were shipped to it from outside the State of New York., During the same period the Company sold products valued at more than $750,000, of which about 10 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 the Act. II. THE ORGANIZATIONS INVOLVED , Wholesale & Warehouse Workers Union Local 65 is a labor organi- zation affiliated with the Congress of Industrial Organizations, which admits to membership employees of the Company. . Local 282, International Brotherhood of Teamsters, is a labor or- ganization affiliated with the American Federation of Labor, which admits to membership employees of the Company. Building Service Employees Independent Union is an unaffiliated labor organization, which admits to membership employees of the Company.c 1286 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD III. THE QUESTION CONCERNING REPRESENTATION In July 1941, the Independent presented evidence to the Company that it represented a majority of the Company's warehouse employees and demanded recognition as the exclusive bargaining agent of such employees. The Company refused to recognize the Independent? On August 27, 1941, the A. F. or L. and the Company entered into an agreement. This agreement has never been reduced to writing although the parties contemplated that it should be reduced to writing. According to testimony introduced on behalf of the Company, this agreement was to continue in force and effect until September 1, 1942, and extended to warehouse employees certain provisions of a contract between the Company and the A. F. of L., dated March 15, 1941, which applied only to the Company's teamsters. The Company and the A. F. of L. contend that,the' agreement of August 27, 1941, constitutes a bar to the present proceedings. This agreement, however, was consummated after the Independent had notified the Company of its claim to represent a majority of the ware- house employees. We have repeatedly held that a contract should not preclude a determination of representatives when it is executed after a rival union has claimed to represent employees covered by the con- tract.2 We hold, accordingly, that the contract constitutes no bar to this proceeding. - It appears from the record that both the Independent and the C. I. O. submitted proof of substantial membership among the warehouse em- ployees.3 - We find that a question has arisen concerning the representation of employees of the Company. 'The C. I 0 also demanded and was refused recognition as the exclusive bargaining agent of the Company's warehouse employees on September 5, 1941 a Matter of Sbieca, Inc. and United Shoe Workers of America, affiliated with the Congress of Industrial Organizations, et al, 30 N L R B , No 11 , Matter of Monroe Calculating Machine Company and United Electrical, Radio if Machine Workers of America, Local No 1131, affiliated with the 'Congress of Industrial Organizations, 29 N. L R. B., No. 113 ; Matter of United Steel and Wire Company and Local 704, Industrial Union, United Auto- mobile Workers of America, affiliated with the C. 1. 0 , et al., 28 N. L. R B, No 115. 3 The C. I 0 submitted to the Regional Director, and later introduced into evidence. 20 signed application cards dated September 5 and 6, 1941 These were checked against the Company's pay ioll for September 17, 1941, which contained the names of 32 ware- house employees The Regional Director repotted that all 20 signatures appeared to be genuine, and corresponded to names appearing on the pay roll He further reported that the A F of L "is conceded by all parties to have been orally designated as the collective bargaining representative by a majority of the employees on or about August 2, 1941 " At the hearing, the Independent submitted in evidence 25 signed application blanks dated July 25, 1941. The Trial Examiner checked these cards against the Company's pay roll of October 18, 1941. It was stipulated that 20 of these cards had been signed by men whose names appeared on the pay roll for October 18, 1941, which listed 29 warehouse employees J. K. LARKIN CO. 1287 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, bas a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing the parties stipulated, and we find, that all produc- tion employees employed in the Company's warehouse, excluding super- visory and clerical employees, receiving and shipping clerks, truck - drivers, and truck drivers temporarily employed in the warehouse, constitute an appropriate unit. We also find that said unit will insure to 'the employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by, and we shall accordingly direct, an election by secret ballot. The C. 1. 0. asks to have eligibility to vote based upon the Company's pay roll of September 7, 1941, and the A. F. of L. requests that the Company's pay roll of August 27, 1941, be used to determine eligi- bility. Neither the C. I. 0. nor the A. F. of L. advanced any ex- planation in support of its request. It is our usual practice to base eligibility to vote on a current pay roll, and we shall so provide herein. We shall direct that the employees of the Company eligible to vote in the election shall be all production employees employed in the Company's warehouse, excluding supervisory and clerical em- ployees, receiving and shipping clerks, truck drivers, and truck drivers temporarily employed in the warehouse, 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 Direction. 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 repre- sentation of employees of J. K. Larkin Co., Woodside, Long Island, 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York, within the meaning of Section 9 (c) and Section 2 ;(6) and (7) of the National Labor Relations Act. 2. All production employees employed in the Company's ware- house, excluding supervisory and clerical employees, receiving and shipping clerks, truck drivers, and truck drivers temporarily em- ployed in the warehouse, constitute a unit appropriate for the pur- poses 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 Rela- tions 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 J. K. Larkin Co., Woodside, Long Island, New York, an elec- tion by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Elec- tion, 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 all production employees employed in the Company's- warehouse during the pay-roll period immediately preceding the date of this Direction of Election, 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, or temporarily laid off, but excluding supervisory and clerical employees, receiving and shipping clerks, truck drivers, truck drivers temporarily employed in the warehouse, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Wholesale & Warehouse Workers Union Local 65, affiliated with the Congress of Industrial Organizations, or, by Local 282, International Brotherhood of Team- sters, affiliated with the American Federation of Labor, or by Build- ing Service Employees Independent Union, for the purposes of collective bargaining, or by none of these organizations.