Malina Co.

National Labor Relations Board - Board Decisions

Mar 11, 1946

66 N.L.R.B. 592 (N.L.R.B. 1946)

In the Matter of Louis MALINA AND IRVING J. AIBEL, INDIVIDUALLY
AND AS CO-PARTNERS, DOING BUSINESS AS MALINA COMPANY AND
BENDYTHE COMPANY and FEDERAL LABOR UNION, LOCAL No. 20734,
AFL
Case No. 2-R-5554.-Decided March 11, 1946
Mr. Edward S. Silver, of New York City , for the Company.
Messrs. Arnold Cohen and Samuel Sanderman , of New York City,
for the Union.
Mr. C. G. Kessler, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Federal Labor Union, Local No.
20734; AFL, herein called the Union, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Louis Malina and Irving J. Aibel, individually and as Co-partners,
doing business as Malina Company and Bendythe Company, New
York City, herein separately called Malina and Bendythe and col-
lectively called the Companies, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Cyril
W. O'Gordon, Trial Examiner. The hearing was held at New York
City, on September 6, 1945. The Company and the Union appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Malina Company and Bendythe Company, partnerships owned
and operated by Irving J. Aibel and Louis Malina, are engaged in
66 N. L . R. B., No. 80.
592
MALINA COMPANY AND BENDYTHE COMPANY 593
the business of buying, selling, processing, and dyeing rayon yarn at
a plant in New York City. Malina buys and sells the yarn; Bendythe
processes and dyes the yarn. During the year ending June 1, 1945,
the Companies purchased raw materials consisting of rayon yarn
and dye stuff valued in excess of $50,000, of which more than 50
percent represented shipments from points outside the State of New
York. During the same period of time, the Companies sold processed
and dyed materials valued in excess of $50,000, of which more than
25 percent represented shipments to points outside the State.
The Companies admit, and we find, that each is engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Federal Labor Union, Local No. 20734, is a labor organization
affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Companies have refused to grant recognition to the Union as
the exclusive bargaining representative of certain of their employees
until the Union has been certified by the Board in an appropriate
unit.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit confined to the employees in the dye de-
partment of Bendythe, including the employees in the shipping divi-
sion of that department. The Company contends that the appro-
priate unit should include all non-supervisory employees of Bendythe
and the shipping employees of Malina.
As noted above, Malina and Bendythe are owned and managed
by the same two individuals, namely, Irving J. Aibel and Louis
Malina. Both Companies occupy the same building. The opera-
tions of Malina are separated by a partition from those of Bendythe.
Malina handles the sales and purchasing for both Companies and
1 The Field Examiner reported that the Union submitted 24 cards, and that there are
45 employees in the alleged appropriate unit.
656572-46-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f
maintains the Companies' offices and records. In connection with
its operations, Malina employs clerks, salesmen, and shipping clerks.
Bendythe's activities are devoted to processing and dyeing the yarn
handled by Malina. Bendythe Company is organized into two de-
partments, the dye department and the converting department, which
are separated by a corridor. Each department has its own shipping
division. The employees of both departments of Bendythe are under
different supervision, punch separate time clocks, are carried on
separate pay rolls, and operate different type machinery which re-
quires different skills. Except for some employee interchange be-
tween the shipping divisions of each department, which is for periods
of short duration and does not affect the pay records in either de-
partment, there is no interchange of employees between the two
departments of Bendythe; nor is there any employee interchange
between Bendythe and Malina.2
The record shows that the only bargaining affecting the employees
under consideration occurred in 1937. At that time the Company
executed a 1-year contract with the Textile Workers Union of
America, C. I. 0., coveting all employees of both Companies, with
the exception of clerical and supervisory employees. The Textile
Workers Union of America apparently became, dormant or ceased
to function thereafter. The Company does not urge this bargaining
history in support of its position that all non-supervisory employees
of Bendythe and the shipping employees of Malina constitute the
only appropriate unit. It does, however, advert to the fact that
on January 30, 1945, an inconclusive consent election,3 in which only
the Union participated, was held in a unit comprising all the produc-
tion employees of both Companies, and argues that, because the Union
accepted a plant-wide unit in the consent election, the establishment
of a smaller unit is precluded. This contention is, however, without
merit. The acceptance by the Union of a plant-wide unit in a
previous consent election does not preclude the establishment of a
smaller unit where the results of the election were inconclusive.4
Accordingly, under all the circumstances of the ease, and particu-
larly the fact that the dye department employees, including em-
ployees in the shipping division of that department, constitute an
integrated, homogeneous, and ,identifiable group of employees, we
2 On infrequent occasions when the shippipg employees of Bendythe need assistance,
the shipping employees of Malina haul the yarn over to Bendythe. The usual practice
is for the shipping employees of Bendythe to, call for the yarn to be processed by them.
O The tally of ballots in the consent election showed that the Union was trailing by
three votes and that four ballots were challenged. The results of the election were
thereupon set aside, without prejudice to the Union, by the Regional Director, after the
Union had filed objections alleging interference with the conduct of the election.
* See Matter of Kentucky Fluorspar Company, 52 N. L. R B. 227.
MALINA COMPANY AN]) BENDYTHE COMPANY 595
are of the opinion that a unit limited to those employees is appro-
priate for the purposes of collective bargaining at the present time.
We find, therefore, that all dyer helpers, finishers, assistant finish-
ers, extractors, shakers, laboratory assistants, and shipping employees
of the Companies at the dye department of Bendythe Company,
excluding all maintenance employees, porters and all or any super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in 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.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Louis Malina
and Irving J. Aibel, individually and as Co-partners, doing business
as Malina Company and Bendythe Company, 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 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, Sections 10 and 11, of
said Rules and Regulations, among employees in the unit found
appropriate in Section IV, above, who were employed during the
pay-roll period immediately preceding the date of this Direction,
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those who
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, to determine
whether or not they desire to be represented by Federal Labor Union,
Local No. 20734, AFL, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.