L. S. Cohen & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1942

40 N.L.R.B. 711 (N.L.R.B. 1942)

In the Matter of L. S. COHEN & CO., INo and INTERNATIONAL UNION,
'MINE, MILL'&'SMELTER WORKERS, CASTING DIVISION, C. I. O.
Case No. R-.9684.-Decided April 18,1940
Jurisdiction : copper smelting and refining industry.
Investigation and Certification of Representatives : existence of question : refusal
to accord petitioner recognition; contract automatically renewed by its terms
after notice of rival union's claim to representation; no bar to; election neces-
sary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Company, excluding supervisory employees, foremen not
engaged in production work, office employees, metallurgists, chemists, watch-
men, truck drivers, employees who have the authority to hire or discharge or
recommend hire or discharge'
Mr. Benjamin R. Cohen, of Chicago, Ill., for the Company.
Meyers di Meyers, by Mr. Irving Meyers, of Chicago, Ill., for, the
C. I. O.
Mr. Joseph M. Jacobs, of Chicago, Ill., for Local 714.
Mr. Louis Cokin,.of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 11, 1942, International' Union, Mine, Mill & Smelter
Workers, Casting Division, C. I. 0., herein called the C. I. 0., filed
with the Regional Director for the Thirteenth Region (Chicago,
Illinois) a petition, and on March 17, 1942, an amended petition, alleg-
ing that a question affecting commerce had arisen concerning the rep-
resentation of employees of L. S. Cohen & Co., Inc., Chicago, Illinois,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On March
25, 1942, 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
40 N L. R. B., No. 120
711
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On March 26, 1942, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the C. I. O.
and upon Machinery, Scrap Iron & Metal Chauffeurs and Helpers'
Union, Local 714, herein called Local 714, a labor organization claim-
ing to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on March 31, 1942, at Chicago,
Illinois, before Russell Packard,, the, Trial Examiner duly designated
by the Chief Trial Examiner. The Company, the C. I. 0., and Local
714 were represented and participated in the hearing. Full opportu-
nity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. During
,the course of the hearing, the Trial Examiner granted motions of the
C. I. O. to amend its petition, as amended, as to formal matters and
made several rulings on other motions=and on objections to the admis-
sion of evidence. The Board has reviewed all 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
L. S. Cohen & Co., Inc., is an Illinois corporation with its principal
place of business at Chicago, Illinois, where it is engaged in the busi-
ness of smelting, refining, and selling copper, tin, aluminum, and alloy
scrap. During the last 6 months of 1941, the Company purchased
about $460,000 worth of materials, approximately 90 percent of which
was shipped to it from points outside the State of Illinois. During
the same period, the Company sold products valued at about $800,000,
approximately 20 percent of which was shipped by it outside the State
of Illinois. The Company admits that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
International Union, Mine, Mill & Smelter Workers, Castiilg'Divi
Sion, is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
Machinery, Scrap Iron & Metal Chauffeurs & Helpers' Union, Local
714, is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 9, 1942, the C. I. 0., claiming to represent a'majority
of the Company's employees, requested the Company to recognize it as
L. S. COHEN & CO., INC. 713
the exclusive representative of its employees. The Company denied
this request, stating that it was operating under a contract with Local
714.
On March 1, 1941, Local 714 and the Company entered into an exclu-
sive bargaining contract to run until April 30, 1942. The contract
further provided that it should "continue thereafter' unless notice is
given by either party 60 days prior to that date." No such notice has
been given by either party to the contract. ^ Local 714 contends that
its contract is a bar to a present determination of representatives and
seeks-to have the petition dismissed. - However, the C. I. O. made its
demands known to the Company on February 9, 1942, and filed its
original petition herein on February 11, 1942, so that the Company
was aware of the C. I. O.'s claim to a majority prior to the date upon
which the contract was automatically renewed. We accordingly find
that the contract does not preclude the Board from investigating or
certifying a bargaining representative for the purpose of negotiating
a new agreement for the period following April 30, 1942, if such is
desired. I I
Statements of the Regional Director and the Trial Examiner, intro-
duced into evidence during the hearing, show that the C. I. O. and
Local 714 each represents a substantial number of employees in the unit
hereinafter found to be appropriate." • ,
We find that a question has arisen concerning the representation of
employees of the Company.
1V. 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
lends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
All the parties agree that all production and maintenance employees
of the Company, excluding supervisory employees, foremen not en-
gaged in production work, office employees, metallurgists, chemists,
' The Regional Director reported that the C I 0 presented 17 authorization cards bearing
the signatures of persons whose names appear on the Company' s pay roll of February 16,
1942. The Trial Examiner repotted that Local 714 presented 20 , membership applica-
tion cards beaung the signatures of persons .whose names appear n the Company's pay
roll of February 16, 1942 There are approximately 25 employees in the unit hereinafter
found to be appropriate
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
watchmen, and truck drivers, constitute an appropriate unit. We
shall, in addition, exclude all employees who have the authority to
hire or discharge, or to recommend hire or discharge.
We find that all production and maintenance employees of the
Company, excluding supervisory employees, foremen not engaged in
production work, office employees, metallurgists, chemists, watchmen,
truck drivers, employees who have the authority to hire or discharge
or recommend hire or discharge, constitute a unit appropriate for
the purposes of collective bargaining- and that such unit will insure
to 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 concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
The C. I. 0. urges that the pay roll of February 11, 1942, the date of
its original petition herein, be used to determine eligibility to vote.
Neither Local 714 nor the Company took any position with respect
to the eligibility date. In accordance with our usual practice, how-
ever, we shall direct that the employees of the Company eligible to
vote in the election shall be those within 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 Direction.
The C. I. 0. requested that it appear on the ballot as "International
Union, Mine, Mill & Smelter Workers, Casting Division, affiliated
with the C. I. 0." The request is -hereby granted.
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 L. S. Cohen & Co., Inc., Chicago, Illinois,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the Act.
2. All production and maintenance employees of the Company,
excluding supervisory employees, foremen not engaged in production
work, office employees, metallurgists, chemists, watchmen, truck
drivers, employees who have the authority to hire or discharge or to
recommend,hire or discharge, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
L. S. COHEN & CO., INC.
DIRECTION OF ELECTION
715
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 L. S. Cohen & Co., Inc., Chicago, Illinois, 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 direction
and supervision of the Regional Director for the Thirteenth 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 maintenance employees of
the Company who were employed during the pay-roll period im-
mediately preceding the date of this Direction, 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
employees, foremen not engaged in production work, office employees,
metallurgists, chemists, watchmen, truck drivers, employees having
the authority to hire or discharge or to recommend hire or discharge,
and employees who have since quit or been discharged for cause,
to determine whether they desire to be represented by International
Union, Mine,'Mill & Smelter Workers, Casting Division, affiliated
with the C. I. 0., or by Machinery, Scrap Iron & Metal Chauffeurs
& Helpers' Union, Local 714, affiliated with the American Federation
of Labor, for the purposes of collective bargaining, or by neither.
In,the Matter of L. S.' COHEN & Co., INC. and INTERNATIONAL UNION,
MINE, MILL & SMELTER WORKERS, CASTING DIVISION, C. I. O.
Case No. R-3684
AMENDMENT TO DIRECTION OF ELECTION
May 5, 1942
On April 18 , 1942, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceeding.' On May 2, 1942, Machinery , Scrap Iron
& Metal Chauffeurs and Helpers ' Union, Local 714, notified the Board
that it does not desire its name to appear upon the ballot.
The Board hereby amends its Direction of Election by striking
therefrom the, words "to determine whether they desire to be repre-
sented by International Union, Mine, Mill & Smelter Workers, Casting
Division , affiliated with the Congress of Industrial Organizations, or
by Machinery , Scrap Iron & Metal Chauffeurs and Helpers ' Union,
Local 714, affiliated with the American Federation of Labor, for
the purposes of collective bargaining , or by neither ," and substituting
therefor the words "to determine whether or not they desire to be
represented by International Union, Mine, Mill & Smelter Workers,
Casting Division , affiliated with the Congress of Industrial Organiza-
tions, for the purposes of collective bargaining."
1 40 N. L . R. B.111.
40 N. L. R.{B., No.•120a.
716