Levtion Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1940

27 N.L.R.B. 735 (N.L.R.B. 1940)

In the Matter of LEVITON MANUFACTURING COMPANY, INC. and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 3
(A. F. OF L.)
Case No. R-2082.-Decided October 10, 1940
Jurisdiction : electrical appliance manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; pay roll preceding strike directed to
be used ; election necessary.
Request of representative to withdraw its name from ballot granted
if decision is communicated within 24 hours of receipt of Direction of
Election to Regional Director who is authorized to make deletion.
Representative's name placed on ballot even though such representative
refused to submit evidence in support of membership claims when company
and competing union agreed it might appear on ballot.
Unit Appropriate for Collective Bargaining : production, maintenance, stock-
room, and shipping department employees, including working foremen, who
spend one-half or more of their time performing nonsupervisory functions,
but excluding all other supervisory employees, office, clerical, and sales
employees.
Mr. Shad Polier, for the Board.
Whitman, Ransom, Coulson & Goetz, by Mr. Jacob H. Goetz, and
Mr. William L. Schwartz, of New York City, for the Company.
Frankle, Ashe & Rifkin, by Mr. David I. Ashe, of New York City,
for the I. B. E. W.
Mr. Frank Scheirer, of New York City, for the United.
Mr. D. M. Byrd, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECT'[ON
STATEMENT OF THE CASE
On October 1, 1940, International Brotherhood of Electrical Work-
ers, Local 3, A. F. of L., herein called the I. B. E. W., filed with
the Regional Director for the Second Region (New York City) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Leviton Manufacturing
Company, Inc., Brooklyn, New York, herein called the Company,
27 N. L. R. B., No. 136.
735
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. On October 2, 1940, 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.
On October 2, 1940, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the
I. B. E. W., and Local 1224, United Electrical, Radio & Machine
Workers of America, herein called the United, a labor organization
claiming to represent employees directly affected by the investigation."
Pursuant to the notice, and following a waiver of notice by the
parties, a hearing was held on October 4, 1940, at New York City
before George Bokat, the Trial Examiner duly designated by the
Board. The Board, the Company, the I. B. E. W., and the United
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. During the course of the hearing the Trial Examiner made
several rulings upon motions and 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
Leviton Manufacturing Company, Inc. is a New York corporation
having its factory and principal office located at 236 Greenpoint
Avenue, County of Kings, New York, and maintains warehouses in
connection with the conduct of its business at Warwick, Rhode Island,
Chicago, Illinois, and Los Angeles, California.
The Company is engaged in the manufacture, sale and distribution
of electrical appliances, wiring devices, and related products. In'
the course of its business as aforesaid the Company annually pur-
chases and causes to be shipped to its said factory at 236 Greenpoint
Avenue from points outside the State of New York raw materials
3 On October 2, 1940, the United, by its attorney waived notice of hearing in the above
proceedings and agreed that a hearing might be held on October 4, 1940, at 120 wan
Street, New York City . Likewise , on October 1, 1940, by stipulation , the Company and the
I B E W agreed to waive notice of hearing and agreed further that a hearing should be
held on October 4, 1940, at 120 Wall Street, New York City.
LEVITON MANUFACTURING COMPANY, INC. 737
costing it in excess of $500,000 , and sells, distributes and ships from
its said factory to points outside the State of New York ( including
points in South America ) finished products sold for in excess of
$1,000,000.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local 3, affili-
ated with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company and workers
similarly engaged in New York City and vicinity.
Local 1224 of United Electrical, Radio & Machine Workers of
America, affiliated with the Congress of Industrial Organizations,
is a labor organization admitting to membership employees of the
Company and other workers similarly engaged in New York City
and vicinity.
III. THE QUESTION CONCERNING REPRESENTATION
During the course of the hearing the Trial Examiner admitted
into evidence a stipulation wherein it was agreed by the Company
and the I. B. E. W. that by reason of the following a question affect-
ing commerce had arisen concerning the representation of em-
ployees of the Company : the I. B. E. W. claims to have been desig-
nated as collective bargaining agency by a majority of the employees
in an appropriate unit and has requested the Company to bargain
collectively with it as such representative; and the United claims
to have been designated as collective bargaining agency by some
of the employees in an appropriate unit.
There was introduced in evidence a report by the Regional Di-
rector, showing that the I. B. E. W. represents a substantial number
of the employees in the unit found appropriate below.2
We find that a question has arisen concerning the representation
of employees of the Company.
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, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
2 The I. B. E. W. submitted 1278 application cards dated between August 27, 1940,
and September 23, 1940, all of which appeared to contain genuine original signatures of
persons listed on the Company 's pay roll of the week ending August 20, 1940. The
Regional Director reported that the said pay roll showed a total of 1552 employees, other
than sales , office, and clerical employees.
323428-42-vol. 27-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The United made no contentions as regards the unit of the Com-
pany's employees appropriate for the purposes of collective
bargaining.
The I . B. E. W. and the Company agreed that the unit appropriate
for the purposes of collective bargaining should include all pro-
duction, maintenance , stockroom , and shipping department em-
ployees, and operators of the Company ; at its Brooklyn plant,
excluding office, clerical , and sales employees. The I. B. E. W.
and the Company disagreed , however, as to the inclusion or ex-
clusion of certain classes of supervisory employees . The I . B. E. W.
contended both in its petition and at the hearing that the appro-
priate unit should include all "working foremen," but should ex-
clude all other supervisory employees ; the Company contended
that all supervisory employees having authority to discharge, or
to recommend discharge , should be excluded from the appropriate
unit.
During the course of the hearing there was introduced into evi-
dence, as Board Exhibit No . 6, a schedule listing the supervisory
employees . The Company took the position that any employee
listed on the Exhibit as having the authority to recommend the
discharge of employees , or the power to recommend the hiring of
employees should be deemed a supervisory employee and thus ex-
cluded from the appropriate unit. The I. B. E. W . took the posi-
tion that any employee , as shown by Board Exhibit No. 6, who
devotes some time to non-supervisory work, regardless of the per-
centage of his time devoted to such work , is a "working foreman"
within the meaning of its petition and should be included. In view
of this conflict , we conclude that all foremen who actually spend
half or more of their time performing non-supervisory functions
should be included in the unit as "working foremen."
Although the I . B. E. W. did not concede the correctness of the
statements in Board Exhibit No. 6 as to the percentages of time
spent by supervisory employees in duties of a non-supervisory na-
ture, it did rest on the percentages as sufficient to substantiate its
contention for the inclusion of such employees . We feel that the
Exhibit affords the best evidence upon which to base a determination
of whether or not specific foremen - should be included in the unit
as "working foremen." On the basis of the entire record, we find
that Max Novak , Morris Zieger , Michael Hurley , Otto Siepler, Paul
LEVITON MANUFACTURING COMPANY, INC. 739
Gramegna, Jerry Tourney, T. Marzano, Jas. Black, A. McCaw,
J. Oldakowski,3 A. Cross, Wm. Lindell, E. Sylvander, and James
Smith perform functions which warrant their inclusion within the
appropriate unit as "working foremen." All other supervisory em-
ployees listed on Board Exhibit No. 6 are to be excluded from the
unit.
We find that all production, maintenance, stockroom, and shipping
department employees and operators of the Company at its Brook-
lyn 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. Syl-
vander, and James Smith, but excluding all other supervisory em-
ployees, office, clerical and sales employees, constitute a unit appro-
priate for the purposes of collective bargaining, and that said unit
will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We shall direct an election to be held to resolve the question con-
cerning representation which has arisen.
As to the membership of the United, the Regional Director reported
that the United had declined to submit any evidence in support of any
claim which it might make. The United stated at the hearing, how-
ever, that since the Company and the I. B. E. W. had agreed that it
might appear on the ballot, it would not submit such evidence.
The United further stated, however, that it desired to reserve the
right to withdraw its name from the ballot prior to the holding of
the election. We shall now direct that the name of the United be
placed upon the ballot, and if, within 24 hours of receipt of our De-
cision and Direction of Election it notifies the Regional Director that
it does not desire to participate, the Regional Director is hereby
authorized to delete its name from the ballot.
The I. B. E. W. and the Company stipulated and agreed that
eligibility to participate in an election should be `determined-as of
the week ending August 20, 1940, which was prior to the calling of
a strike among the Company's employees which was still in effect
at the time of the hearing. The United expressed no desire as to this.
We shall direct that employees within the appropriate unit who were
employed by the Company during the pay-roll period for the week
8 Oldakowski is listed on Board Exhibit No. 6 as spending from 40 to 50 per cent of his
time on non -supervisory work. He testified that he spent substantially all of his time
doing maintenance work . We credit this testimony.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ending August 20, 1940 , including employees who did not work during
such pay-roll period because they were ill or on vacation , and employees
who were then or have since been temporarily laid off , but excluding
those who have since quit or been discharged for cause , shall be eligible
to participate in the election.
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 Leviton Manufacturing Company, Inc.,
Brooklyn, New York, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
2. All production , maintenance , stockroom , and shipping depart-
ment employees and operators, including Max Novak , Morris Zieger,
Michael Hurley , Otto Siepler, Paul Gramegna, Jerry Tourney, T.
Marzano, Jas. Black, A. McCaw, J. Oldakowski, A. Cross, Win. Lindell,
E. Sylvander , and James Smith, but excluding all other supervisory
employees , office, clerical , and sales employees , constitute a unit appro-
priate 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 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 I
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Leviton Manufacturing Company, Inc., Brooklyn, New York,
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 of
Election 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 , maintenance , stockroom,
and shipping department employees and operators who were employed
during the pay-roll period ending August 20, 1940 , 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. Sylvander, and James Smith , and employees
who did not work during such pay-roll period because they were ill
LEVITON MANUFACTURING COMPANY, INC. 741
or on vacation , and employees who were then or have since been tem-
porarily laid off , but excluding all other supervisory employees, office,
clerical , and sales employees, and any employees who have since quit
or been discharged for cause , to determine whether they desire to be
represented by International Brotherhood of Electrical Workers, Local
3 (A. F. of L .), or by Local 1224 of United Electrical , Radio & Machine
Workers of America, for the purposes ' of collective bargaining, or by
neither.
[SAME TITLE]
AMENDMENT TO DECISION
AND
DIRECTION OF ELECTION
October 21, 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 proceeding. The Direction of Election provided that
an election by secret ballot should be conducted under the direction
and supervision of the Regional Director for the Second Region
(New York City) among all production, maintenance, stockroom,
and shipping department employees and operators of Leviton Manu-
facturing Company, Inc., Brooklyn, New York, herein called the
Company, who were employed during the pay-roll period ending
August 20, 1940, including Max Novak, Morris Zieger, Michael
Burley, Otto Siepler, Paul Gramegna, Jerry Tourney, T. Marzano,
Jas. Black, A. McCaw, J. Oldakowski, A. Cross, Wm. Lindell, E. Syl-
vander, and James Smith, and employees who did not work during
such pay-roll period because they were ill or on vacation, and em-
ployees who were then or have since been, temporarily laid off, but
excluding all other supervisory employees, office, clerical, and sales
employees, and any employees who have since quit or been discharged
for cause, to determine whether they desire to be represented by
International Brotherhood of Electrical Workers, Local 3 (A. F.
of L.), or by Local 1224 of United Electrical, Radio & Machine
Workers of America, for the purposes of collective bargaining, or by
neither. °
On October 11, 1940, Local No. 30, International Union of Operat-
ing Engineers, affiliated with the American Federation of Labor,
herein called the Engineers, filed a petition with the Regional Di-
rector, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of the Company, and request-
ing an investigation and certification of representatives pursuant to
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9 (c)' of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. The petition of the Engineers alleged specifi-
cally that the operating engineers of the Company constituted a
unit appropriate for the purposes of collective bargaining' The
Board hereby directs that the Engineers' petition be, and the same
hereby is, incorporated in the record in this case.
On October 9, 1940, the International Brotherhood of Electrical
Workers, Local 3, A. F. of L., herein called 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 operat-
ing engineers employed by the Company, moved the Board that the
I. B. E. W. petition for investigation and certification be amended
so as to allege that the appropriate unit be composed of "All produc-
tion, maintenance, stockroom and shipping department employees,
and elevator operators exclusive of supervisory employees (other than
working foremen), office, clerical and sales employees and operating
engineers employed at above described plant."
On October 10, 1940, the Company filed with the Regional Director
an "Answer and Objection of Respondent to Motion of International
Brotherhood of Electrical Workers to Amend Petition" wherein it
represented that the Company employs only two operating engineers,
and alleged that to grant the I. P. E. W. motion would be contrary to a
stipulation of the parties concerning the appropriate unit which was
made a part of the record in the above-entitled proceeding and would
raise for the first time an issue upon which the Company has not been
afforded an opportunity to be heard. The Company therefore urged
that the I. B. E. W.'s motion to amend petition be denied in all
respects.
The Board having considered the matter sees no reason why the
election in this matter should be further delayed, since the balloting
may proceed in the manner which we shall direct without material
prejudice to the interest of any party. At the hearing in this matter
it was clear that a question concerning representation had arisen
among employees of the Company, including the operating engineers.
The record reveals that a strike has been in effect at the Company's
plant for some time, and it is clear that the purposes of the Act will
best be served by a determination of representatives as expeditiously
as possible. In our Amended Direction of Election as set forth below,
we will provide for segregation of the ballots of the engineers, but we
withhold any determination at this time as to whether the engineers
• 1 The Regional Director has reported that on October 9, 1940, the Engineers submitted
to the Regional Director two applications for membership dated August 20, 1940, bearing
what appeared to be genuine original signatures of persons whose names appear in the
Company ' s pay roll for the week ending August 24, 1940.
LEVITON MANUFACTURING COMPANY, INC. - 743
may properly constitute a separate appropriate unit. Should the
parties desire to present further evidence on the question of whether
the operating engineers may constitute an appropriate unit this may
be done at a hearing subsequent to the balloting, which, upon request,
we shall direct to be held. In view of the foregoing, we do not rule
at this time on the Company's contention that the I. B. E. W.'s
Motion to Amend Petition should be denied.
On October 21, 1940, the Board was notified by the Regional Direc-
tor that Local 1224 of United Electrical, Radio & Machine Workers
of America had served notice pursuant to the Decision and Direction
of Election, that it did not desire to participate in the election. We
shall therefore exclude the United from the ballot. In the balloting
among the operating engineers, moreover, we shall not include the
I. B. E. W. on the ballot. By filing its Motion to Amend Petition the
I. B. E. W. has indicated that it does not desire to oppose the Engi-
neers in the unit which the latter union claims appropriate.2
The Board hereby amends its Decision and Direction of Election
in the above-entitled proceedings, by striking therefrom the Direction
of Election, and substituting therefor the following:
DIRECTION OF ELECTIONS
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 Leviton Manufacturing Company, Inc., Brooklyn, New York,
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 of
Election 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, maintenance, stockroom,
and shipping department employees and operators who were em-
ployed during the pay-roll period ending August 20, 1940, including
Max Novak, Morris Zieger, Michael Hurley, Otto Siepler, Paul
Gramegna, Jerry Tourney, T. Marzano, Jas. Black, A. McCaw, J.
L
The inclusion of the I. B E. W on the ballot with the Engineers would in effect place
the Board in the position of determining a jurisdictional dispute among unions affiliated
with the same parent body. It has been the Board's practice to make no such determina-
tion. Matter of Aluminum Company of America and Aluminum Workers Union No. 19104,
1 N L. R. B 530 , and subsequent cases.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oldakowski, A. Cross, Wm. Lindell, E. Sylvander, and James Smith,
and employees who did not work during such pay-roll period because
they were ill or on vacation, and employees who were then or have
since been temporarily laid off, but excluding all other supervisory
employees, office, clerical, sales employees, operating engineers, and
any employees who have since quit or been discharged for cause
to determine whether or not they desire to be represented by Inter-
national Brotherhood of Electrical Workers, Local 3 (A. F. of L.),
for the purposes of collective bargaining.
AND IT IS FURTHER DIRECTED that, as part of the investigation
authorized by the Board to ascertain representatives for the purposes
of collective bargaining with Leviton Manufacturing Company, Inc.,
Brooklyn, New York, 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 of Election 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 oper-
ating engineers who were employed during the pay-roll period ending
August 20, 1940, including those who did not work during such pay-
roll period because they were ill or on vacation, and those who were
then or have since been temporarily laid off, but excluding any em-
ployees who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by Stationary Union,
Local No. 30, International Union of Operating Engineers, for the
purposes of collective bargaining.
AND IT IS FURTHER DIRECTED that the Regional Director shall seal
all ballots cast by the operating engineers and shall hold said ballots
sealed pending further action by the Board.
27 N. L. R. B., No. 136a
[SAME TITLE]
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
November 7, 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, in-
cluding certain named working foremen, of Leviton Manufacturing
LEVITON MANUFACTURING COMPANY, INC. 745
Company, Inc., herein called the Company, to determine whether
they desired to be represented for collective bargaining purposes
by International Brotherhood of Electrical Workers, Local 3 (A. F.
of L.) herein called the I. B. E. W., by Local 1224 of United Elec-
trical, Radio & Machine Workers of America, herein called the
United, or by neither. Thereafter, pursuant to a provision of the
Decision, the United was permitted to withdraw its name from the
ballot, thereby leaving the Company's employees to determine
whether or not they desired to be represented by the I. B. E. W. for
the purposes of collective bargaining.
On October 11, Stationary Local Union No. 30, International
Union of Operating Engineers, affiliated with the American Feder-
ation 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 purposes of collective bargaining. In a subse-
quent Amendment to Decision and Direction of Election, below dis-
cussed, the Board directed that the petition be incorporated in the
record of the case.
On October 9, 1940, the I. B. E. W. filed with the Regional Direc-
tor a "Motion to Amend Petition," wherein the I. B. E. W., being
advised of the Engineer's claim to represent operating engineers
employed by the Company, moved the Board that the I. B. E. W.
petition for investigation and certification be amended so as to
allege that the appropriate unit was one excluding operating engi-
neers, who, in accordance with a stipulation previously made between
the I. B. E. W. and the Company, had been found by the Board
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 Objection 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. The
The Board found, inter alia, that the purposes of the Act would
be best effectuated, particularly because a strike had been in effect
at the Company's plant for some time, by an expeditious deter-
mination of the question concerning. representation as to the majority
of the employees concerned. It accordingly amended its original
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision and Direction of Election by striking therefrom the Direc-
tion of Election and substituting a Direction of Elections, excluding
the operating engineers from voting for or against the I. B. E. W.,
which does not desire to represent them in opposition to the Engi-
neers,' but permitting them to indicate in a separate election whether
or not they desired to be represented for collective bargaining pur-
poses 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 oper-
ating engineers constitute, and may properly be severed into, a
separate appropriate unit.
Pursuant to the Amendment to Decision and Direction of Election,
two separate elections by secret ballot were conducted on October
24, 1940, under the direction and supervision of the Regional Direc-
tor for the Second Region (New York City). On October 25, 1940,
the 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.2
As to the balloting and its results in the election excluding the
operating engineers, the Regional Director reported as follows :
Total number eligible to vote______________________________ 1,489
Total number of ballots cast_____________________________ 1, 385
Total number of valid ballots_____________________________ 1,369
Total number of votes in favor of International Brotherhood
of Electrical Workers, Local 3, (A. F. of L.) ------------- 1,299
Total number of votes against International Brotherhood of
Electrical Workers, Local 3, (A. F. of L.) ---------------- 70
Total number of blank votes______________________________ 0
Total number of void ballots_____________________________ 0
Total number of challenged ballots_______________________ 16
We are unable at this time to decide the issues raised by the peti-
tion filed by the Engineers, by the motion filed by the I. B. E. W.,
and by the "Answer and Objection" filed by the Company. 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
1 As was pointed out in the Amended Decision, the inclusion of thq I B. E W. on the
ballot with the Engineers would in effect have placed the Board in the position of determin-
ing a jurisdictional dispute among unions affiliated with the same parent body. See
Matter of Aluminum Company of America and Aluminum Workers Union No. 19104,
1 N. L. R. B. 530, and subsequent cases
2 The Company, by letter to the Board dated October 30, 1940, stated that it, while desir-
ing to be heard further on the questions raised by its "Answer and Objection" above noted,
"will refrain from taking any action which may delay prompt certification by the Board
.11. As below pointed out, the Board has made provision for - further hearing on these
issues
LEVITON MANUFACTURING COMPANY, INC. 747
Board, especially in view of the existing strike situation, should
withhold the benefits of collective bargaining pending a determina-
tion of this issue. We shall, therefore, issue a certification applicable
to the employees other than the operating engineers. When the
Board has made a final determination as to the operating engineers,
it will, if it finals such employees either constitute a separate appro-
priate unit, or, as the Company has urged, be included in one unit
with the other employees, issue a supplemental certification em-
bodying that finding.3
Upon the entire record in the case, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
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, and subject to our
further decision regarding the operating engineers, we find that all
production, maintenance, stockroom, and shipping department em-
ployees and operators of the Company at its Brooklyn plant, in-
cluding 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. Sylvander, and James
Smith, but excluding all other supervisory employees, office, clerical
and sales employees, and operating engineers, constitute a unit
appropriate for the purposes of collective bargaining.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSION OF LAW
All production, maintenance, stockroom, and shipping department
employees and operators, including Max Novak, Morris Zieger, ^ Mi-
chael Hurley, Otto Siepler, Paul Gramegna, Jerry Tourney, T. Mar-
zano, Jas. Black, A. McCaw, J. Oldakowski, A. Cross, Wm. Lindell,
E. Sylvander, and James Smith, but excluding all other supervisory
employees, office, clerical and sales employees, and operating engi-
neers, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National Labor
Relations Act.
CERTIFICATION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
8 See Matter of Armour and Company and United Packing House Workers Industrial Union
Local 153, affilsated with C. I. 0., 15 N. L. R . B. 827.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of
National Labor Relations Board-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, main-
tenance, and shipping department employees and operators, including
Max Novak, Morris Zieger, Michael Hurley, Otto Siepler, Paul Gra-
megna, Jerry Toumey, T. Marzano, Jas. Black, A. McCaw, J. Olda-
kowski, A. Cross, Wm. Lindell, E. Sylvander, and James Smith, em-
ployed by Leviton Manufacturing Company, Inc., at its Brooklyn
plant, Brooklyn, New York, excluding all other supervisory employees,
office, clerical and sales employees, and operating engineers, as their
representative for the purposes of collective bargaining, and that, pur-
suant to Section 9 (a) of the Act, International Brotherhood of Electri-
cal Workers, Local 3, affiliated with the American Federation of Labor,
is the exclusive representative of all such employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
27 N. L. R. B., No. 136b.