Levin & Rosenberg

National Labor Relations Board - Board Decisions

Nov 27, 1941

36 N.L.R.B. 1289 (N.L.R.B. 1941)

In the Matter of LEVIN & ROSENBERG and LEVIN & ROSENBERG
ORGANIZING COMMITTEE
Case No. B-3094 .-Decided November 7, 1941
Jurisdiction : buckle and belt manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition ; contract in effect for almost two years
and shortly to expire, no bar to , election necessary
Unit Appropriate for Collective Bargaining : all employees of the Company ex-
cept those doing supervisory, office, or sales work.
Mr. Louis Bender, of New York City, for the Company.
Mr. Michael A. Braun , of New York City, for the Independent.
Mr. 'Elias Lieberman , by .Mr. Nathaniel H. Janes, of New York
City, for Local 132.
Mr. Milton A. Kallis, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 6, 1941, the Levin & Rosenberg Organizing Committee,
herein called the independent, filed with the Regional Director for
the Second Region (New York City) a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of- Levin & Rosenberg, New York City, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 18, 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 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. Ori September 25, 1941, the Independent filed an amended
petition also alleging that a question affecting commerce had arisen
concerning the representation of employees of the Company.
36 N. L. R. B, No 260.
1289
1290 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
On September 29, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the Independent and upon Local 132, International Ladies Garment
Workers' Union of New York City, herein' called Local 132; a labor
organization alleged to represent employees directly affected by the
investigation. Pursuant to notice, a hearing was held on October
7 and 9, 1941, at New York City before Richard J. Hickey, the Trial
Examiner duly designated by the Chief Trial-,Examiner. The Com-
pany,, Local 132, and the Independent were represented by counsel
and participated in the hearing. Full opportunity to be heard, to ex
amine and cross -examine witnesses , and to introduce evidence bearing
on the issues was afforded all parties . During the course of the hear-
ing, 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.
On November 17, 1941, the Company, the Independent and Local
132 entered into a written stipulation to the effect that five named
employees were not included in the bargaining unit under the terms
of the contract executed on January 12, 1940, by and between the
Company and Local 132 to which contract reference is hereinafter
made. This stipulation was filed with the Board on November 19,
1941, and is hereby made a part of the record of this proceeding.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Levin & Rosenberg is a copartnership with its offices and plant in,
New York City and is engaged in the manufacture and sale of buckles
and belts. For the first 9 months of 1941, it purchased $150,000 worth
of materials of which 5 per cent was shipped from points outside the
State of New York, and during the same period it sold $220,000 worth
of merchandise, of which 40 per cent was shipped to points outside of
the State. The Company admits that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Levin & Rosenberg Organizing Committee is an unaffiliated labor
organization admitting to membership employees of the Company.
Local 132, International Ladies Garment Workers' Union is a labor
organization admitting to membership employees of the Company.
I LEVIN & ROSENBERG 1291
III. THE QUESTION CONCERNING REPRESENTATION
On January 12, 1940, the Company and Local 132 entered into a
contract which by its terms expires on December 25, 1941, and pro-
vides among other things that the Company will employ only members
of Local 132 in the manufacture of buttons and buckles but that
seasonal workers shall not become members of Local 132 nor be con-
trolled by it. The contract covers approximately 90 employees in
the cutting and buckle departments.
The Independent on July 28, 1941, and also on August 6, 1941, made -
certain demands on the Company. They involved chiefly an agree-
ment for higher wages. The Company refused to discuss the matter,
stating that by reason of the aforesaid contract it could not recognize
the Independent.
Local 132 contends that an election should not be held until the
contract is about to expire. Since the contract has been in effect for
almost 2 years and will expire on December 25, 1941, we find that it
is no bar to a present determination of representatives.'
A statement of the Regional Director introduced in evidence at the
hearing shows that the Independent represents a substantial number
of the employees in the unit found to be appropriate.2
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen 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 commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing, the Company, Local 132, and the Independent
agreed that all employees except those doing supervisory, office, or
sales work, constitute a unit appropriate for the purposes of collec-
i See Black Diamond Steains/np Corp, 2 N L . R B 241 , 245,; H. Maigohn if Co ., Inc.,
9 N L. R B 852, 855 ; United Scientific Laboratories, Inc, 29 N L R B, No. 36
A statement of the Regional Director shows that on August 20, 1941, the Company had
178 employees Of the 140 names on the signed membership cards held by the `Inde•
pendent. 101 were on that pay roll. All of the 140 cards submitted, except 8, were dated
in July and August 1941. Forty-seven of the employees working on August 20, 1941, had
been employed less than 3 months and 131 were employed more than 3 months Forty
signers of cards were employed for less than 3 months, and 01 signets of cards were
employed for more than 3 months.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining., However, the Company employs five persons 4 con-
cerning whom a dispute has arisen. Local 132 contends that they
are not, supervisors and are thus in the unit. The Independent urges
that they are supervisors and hence should be excluded from the unit.
The evidence discloses that each of these five employees has certain
supervisory duties and has limited authority to discharge employees
under his supervision. The parties have stipulated that these five
employees were not within the bargaining unit established by the
contract of January 12, 1940, between the Company and Local 132.
We find that these five employees 5 are supervisory employees and
shall exclude them from the bargaining unit herein found appro-
priate.
We find that all employees of the Company except those doing
supervisory, office, or sales work constitute a unit appropriate for
the purposes of collective bargaining. We further find 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 which has arisen concerning repre-
sentation can best be resolved by an election by secret ballot.
The Independent contends that the proper pay roll for determining
eligibility to participate in the election is that of July 28, 1941, the
date on which it presented its demands to the Company, and that an
election should be held promptly. Local 132 requests that the elec-
tion be held in December 1941 and that the pay-roll period just prior
to the election be selected to determine eligibility.
During the period from October 1940 through March 1941, the
Company had approximately 100 employees. In April 1941 it had
110 employees and in May 1941 it had between 140 and 150 em-
ployees. During June, July, and August 1941 it employed between
180 and 190 persons and in September 1941 from approximately
145 to 155, while in October 1941 approximately 115. The pay-roll
situation was substantially the same during 1937, 1938, 1939, and
1940. Persons laid off are not discharged. The Company keeps
their names and addresses and writes to them when the peak season
starts. However, only about 1 per cent accepts reemployment.
These laid-off persons do not retain any seniority status.
8 The agreed unit is broader than that covered by the contract in that the agreed unit
includes the shipping department . However, there are only 15 employees in the'shipping
department Therefore, the agreed unit is not substantially different from that established
by the contract.
s I Smolofsky, T. Bulfair , L DiGiovanni, J. Rifkin, and C. Siegel.
'Names in footnote 4, supra
LEVIN & ROSENBERG 1293
In view of all the circumstances we do not believe that we should
depart from our usual practice of using a current pay -roll date.
Accordingly , 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 pre-
ceding the date of the Direction of Election herein, subject to the
limitations and additions set forth in the Direction.
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees at Levin & "Rosenberg , New York City., with-
in the ' meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. All employees of the Company except those doing supervisory,
office, and sales work 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 Rela-
tions 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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Levin & Rosenberg, New York City, 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 super-
vision of the Regional Director for the Second Region, acting in this
matter as agent "for the National Labor Relations Board, and sub-
ject to Article III, Section 9, of said Rules and Regulations, among
all employees of the Company who were employed during the pay-
roll period immediately preceding the date of this Direction , includ-
ing 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
employees doing supervisory , office, or sales work, and employees
who have since quit or been discharged for cause , to determine
whether they desire to be represented by Levin & Rosenberg Organ'
izing Committee or by Local 132, International Ladies Garment
Workers' Union for the purposes of collective bargaining, or by
neither. "