Leviton Manufacturing Co., Inc.

National Labor Relations Board - Board DecisionsNov 19, 1940

28 N.L.R.B. 22 (N.L.R.B. 1940)

4 In the Matter of LEVITON MANUFACTURING COMPANY, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 3 (A. F. OF L.) Case No. R-0082 SECOND SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES November 19, 1940 On October 10, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled case.' The Direction of Election provided that an election by secret ballot be conducted within thirty (30) days from the.date thereof among certain designated classes of employees, includ- ing certain named working foremen of Leviton Manufacturing Com- pany, Inc., herein called the Company, in the appropriate unit set forth therein, to determine whether or not they desired to be repre- sented for collective bargaining purposes by International Brother- hood of Electrical Workers, Local 3, A.. F., L., herein called the I. B. E. W.2 On ,October 11, 1940, Stationary Local Union No. 30, International Union of Operating Engineers, affiliated with the American Federa- tion of Labor, herein called the Engineers, filed a petition with the Regional Director alleging that a question affecting commerce had /arisen concerning the representation of employees of the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The petition further alleged that the operating engineers employed by the Company constituted a unit appropriate for the purpose of collective bargaining. On October 9, 1940, the I. B. E. W. filed with the Regional-Director a "Motion to Amend Petition" wherein the I. B. E. W., being advised of the Engineers' claim to represent operating engineers employed by 127NLRB735 2 Local 1224, United Electrical, Radio and Machine Workers of America, which was placed upon the ballot by the Board's Decision and Direction of Election, was permitted shortly thereafter, pursuant to it provision of the Decision, to withdraw its name from the ballot. 28 N. L. R. B., No. 9. 22 LEVITON MANUFACTURING COMPANY, INC. - 23 the Company , moved that the I . B. E. W.'s petition for investigation and certification be amended so as to allege that the appropriate unit was one excluding operating engineers, who, in accordance with a stipulation previously made by the I. B. E. W. and the Company, had been found by the Bbard, in its original Decision and Direction of Election, to be a part of the appropriate unit. On October 10, 1940, the Company filed with the Regional Director an "Answer and Ob- jections of Respondent to Motion of International Brotherhood of Electrical Workers to Amend Petition ," wherein it opposed the I. B. E. W. motion. On October 21, 1940, the Board issued and duly served upon the parties an Amendment to Decision and Direction of Election ,3 wherein the Board amended its original Decision and Direction of Election by striking therefrom the Direction of Election and substituting a Direc- tion of Elections excluding the operating engineers from voting for or against the I. B. E. W. but permitting them to indicate in a separate election whether or not they desired to be represented for collective bargaining purposes by the Engineers. It was -further directed that the Regional Director seal all ballots cast by the operating engineers pending further action by the Board to determine whether or not the operating engineers constituted , and might properly be severed into, 'a separate appropriate unit. Pursuant to the Direction of Elections, elections by secret ballot were conducted on October 24, 1940, under the direction and supervision of the Regional Director. On November 8, 1940, the Board issued â€¢a Supplemental Decision and Certification of Representatives 4 in which it certified the I. B. E. W. as the exclusive bargaining representative of certain des- ignated classes of employees , including certain named working fore- men of the Company, but specifically excluding, among others, . the operating engineers. After reciting the above facts the Board stated in the Supplemental Decision : . I We are unable at this time to decide the issues raised by the petition filed by the Engineers,, by the motion filed by the I. B. E. W., and by the "Answer and Objection" filed by the Com- pany. For that purpose we, on November 2, 1940, ordered that the record be reopened and authorized the Regional Director to issue a notice of further hearing in the matter. We do not think, however, that the Board , especially in view of the existing strike situation , should withhold the benefits of collective bargaining pending a determination of this issue . We shall, therefore, issue a certification applicable to the employees other than the operat- ing engineers . When the Board has made a final determination 8N.LRB741. 4 27 N. L R. B 744 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD l as to the operating engineers, it will, if it finds such employees either constitute a separate appropriate unit, or, as the Company has urged, should be included in one unit with the other employees, issue a supplemental certification embodying that finding. Pursuant to the order of November 2, 1940, above noted, and pur- suant to notice duly served upon the parties, a further hearing was held on November 8, 1940, in New York City before Howard Myers, the Trial Examiner duly designated by the Board. - The Board, the Company, the I. B. E. W., and the Engineers were represented by counsel and participated in the hearing. At the hearing there were introduced applications by the Engineers, the I. B. E. W. and the Company for the withdrawal, respectively, of the Petition for Investi- gation and Certification of Representatives, the "Motion to Amend Petition" and the "Answer and Objection of Respondent to Motion of International Brotherhood of Electrical Workers to Amend Petition." At the same time the above-named parties stipulated and agreed that they consented to the granting of the respective applications by the Board and further that "the Board find and determine that the oper- ating engineers employed by the Company are included in the unit appropriate for collective bargaining and [that it] amend accordingly the aforesaid Certification. The Board hereby approves the stipula- tion entered into by the above-named parties. We shall, therefore, amend our previous certification by including among those to be represented by the I. B. E. W. the operating engineers. Upon the entire record in the case, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT We find, in order to insure to employees of the Company the full benefit. of their right to self-organization and to collective bargaining and otherwise to effectuate the policies of the Act, that all production, maintenance, stockroom, shipping-department employees and oper- ators, and operating engineers of the Company at its Brooklyn plant, including Max Novak, Morris Zieger, Michael Hurley, Otto Siepler, Paul Gramegna, Jerry Tourney, T. Marzano, Jas. Black, A. McCaw, J. Oldakowski, A. Cross, Wm. Lindell, E. Silvander, James Smith, and Joseph Lalor,' but,excluding all other supervisory- employees, 5 The employees above named are working foremen and , with the exception of Joseph Lalor, were included in the Board ' s original finding concerning the appropriate unit The Board inadvertently omitted Joseph Lalor from its finding We found , however, "that all foremen who actually spend half or more of their time performing non-supervisory func- tions should be included in the unit as `won king foremen ' " Since our deter unnatnon of the actual time spent in non -supervisory functions was based upon a schedule introduced into evidence at the original hearing listing the Company's supervisory officials , and since it appears from that schedule that Joseph Lalor, as well as the other employees above named, spends 50 per cent or more of his working time in non-supervisory functions, we shall include him in the Certification of Repiesentatives LEVITON MANUFACTURING COMPANY, INC. 25 office, clerical , S and sales employees , constitute a unit appropriate for the purpose of collective bargaining. , Upon the basis of the above Supplemental Findings, of Fact and upon the entire record in the case, the Board makes the following : SUPPLEMENTAL CONCLUSION OF LAW All production, maintenance , stockroom , shipping-department em- ployees and operators , and operating engineers , including Max Novak, Morris Zieger, Michael Hurley, Otto Siepler , Paul Gramegna, Jerry Touniey, T. Marzanno, Jas. Black, A. McCaw, J. Oldakowski, A. Cross, Win. Lindell, E. Silvander, James Smith, and Joseph Lalor, but ex- cluding all other supervisory employees , office, clerical , and sales em- ployees , constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES 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. IT IS HEREBY CERTIFIED that International Brotherhood of Electrical Workers, Local 3, affiliated with the American Federation of Labor, has been designated and selected by a majority of the production, maintenance , stockroom , shipping-department , employees and opera- tors, and operating engineers, including Max Novak, Morris ZiegerI I Michael Hurley, Otto Siepler, Paul Gramegna, Jerry Tourney, T. Marzano, Jas. Black, A. McCaw, J. Oldakowski, A. Cross, Wm. Lin- dell, E. Silvander, James Smith, and Joseph Lalor, employed by Leviton Manufacturing Company, Inc., at' its Brooklyn plant, Brook- lyn, New York , excluding all other supervisory employees , office, cler- ical, and sales employees, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Na- tional Labor Relations Act, International Brotherhood of Electrical Workers, Local 3, affiliated with the American Federation of Labor, is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.