Marks Brothers Co.

National Labor Relations Board - Board Decisions

May 13, 1938

7 N.L.R.B. 156 (N.L.R.B. 1938)

In the Matter Of MARKS BROTHERS COMPANY and UNITED TOY AND
NOVELTY WORKERS LOCAL INDUSTRIAL UNION No. 538, AFFILIATED
WITH THE C. I. O.
Cases Nos. C-464 and B-619.-Decided May 13, 1938
Toy Manufacturing Industry-Interference, Restraint , and Coercion-Com-
pany-Dominated Union: domination of and interference with formation and
administration ; support ; discrimination in favor of , in recognition as repre-
sentative of employees ; disestablished as agency for collective bargaining-
Discrimination : discharge and refusal to reinstate ; charges of , not sustained-
Investigation of Representatives : controversy concerning representation of em-
ployees: employer's refusal to grant recognition of union-Unit Appropriate for
Collective Bargaining : production employees, excluding supervisory employees,
foremen, assistant foremen, clerical and office employees, and employees in
maintenance department and machine shop-Contract : repudiated by employer
as not having been executed under its authority-Strike-Election Ordered:
company-dominated union excluded from ballot.
Mr. Norman F. Edmonds, for the Board.
Mr. Jeremiah W. Mahoney and Mr. Arthur L. Sherin, of Boston,
Mass. , and Mr. Henry A. Meyers, of Holliston, Mass., for the
respondent.
Mr. Sidney Grant, of Boston, Mass., for the United.
Mr. Hyman H. Rovner, of Chelsea, Mass., for the Association.
Mr. Joseph B. Robison, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 3, 1937, Toy and Novelty Workers Organizing Com-
mittee of the C. I. 0., herein called the Organizing Committee, filed
a charge with the Regional Director for the First Region ( Boston,
Massachusetts), alleging that Marks Brothers Company, Boston,
Massachusetts, herein called the respondent, had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of the National Labor Relations Act, 49 Stat. 449,
156
DECISIONS AND ORDERS 157
herein called the Act. On November 8, 1937, an amended charge
was filed by United Toy and Novelty Workers Local Industrial
Union, No. 538, affiliated with the C. I. 0., herein called the United.-
On the same day the National Labor Relations Board, herein called
the Board, by the Regional Director, issued its complaint and notice
of hearing, copies of which were duly served upon the respondent
and upon Marks Brothers Employees Association, herein called the
Association, a labor organization which is described and discussed
in Section III B below.
The complaint alleged that the respondent had committed unfair
labor practices within the meaning of Section 8 (1), (2), and (3)
,of the Act in that (1) it had dominated and interfered with the
formation and administration of the Association and had given aid
thereto, while at the same time discouraging its employees from
becoming members of the United; and (2) it had discharged, and
had since refused to employ, Carmella Sanella, an employee, for
the reason that she joined and assisted the United and engaged in
.activities, for the purpose of collective bargaining. The respondent
filed an answer dated November 12, 1937, in which it admitted certain
of the allegations concerning the character of its business, but denied
all the other material allegations of the complaint. With respect to
the alleged discriminatory discharge of Sanella, the respondent
.averred affirmatively that she had not been reemployed because of
lack of work in the department in which she had been previously
employed.
On November 8, 1937, the United also filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Act. On November 12, 1937, the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered an investigation and authorized
the Regional Director to conduct it and provide for an appropriate
hearing upon due notice, and, acting pursuant to Article III, Section
10 (c) (2), and Article II, Section 37 (b), of said Rules and Regula-
tions, further ordered that this case be consolidated for the purposes
of-the hearing with the case arising upon the charges filed by the
United.
1 The name which appears in the amended charge is "United Toy and Novelty Workers,
L I. Union No 538, affiliated with C. I. 0." In the petition , referred to below, the name
of the United appears as "United Toy & Novelty Workers Local Industrial Union No. 538 ,
of the C. I. O."
The relationship between the organizing Committee and the United is described below
in Section II.
158 NATIONAL LABOR RELATIONS BOARD
On November 12, 1937, the Regional Director issued a notice,of
hearing in the consolidated cases, copies of which were duly served
upon the respondent and the Association, which claimed to represent -
employees directly affected by the investigation.
Pursuant to the notice of hearing and to a postponement of the
hearing agreed to by counsel for all parties, a hearing was held in
Boston, Massachusetts, on November 26 and 27, 1937, before Eugene
Lacy, the Trial Examiner duly designated by the Board. The Board,
the respondent, the United, and the Association were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to produce evi-
dence bearing upon the issues was afforded all parties.
During the course of the hearing, counsel for the Board moved
to amend the complaint as to the date of the alleged discharge of
Carmella Sanella. The motion was granted. Counsel for the re-
spondent moved to dismiss the complaint, and counsel for the Asso-
ciation moved to dismiss one paragraph of the complaint, for failure
to comply with the requirements of the Rules and, Regulations. These
motions were denied. Each of the above rulings is hereby affirmed.
On February 28, 1938, the Trial Examiner duly filed his Inter-
mediate Report, in which he found that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3), and Section 2 (6) and
(7) of the Act, but that the respondent had not engaged in unfair
labor practices within the meaning of Section 8 (2) of the Act. He
recommended that the respondent cease and desist from its unfair
labor practices and, affirmatively, that it offer to Sanella reinstate-
ment with back pay.
The United filed exceptions to that portion of the Intermediate
Report which found that the respondent had not engaged in unfair
labor practices within the meaning of Section 8 (2) of the Act. The
respondent, after obtaining an extension of time, filed its exceptions
to the Intermediate Report and to the record, excepting specifically-
to the Trial Examiner's failure to dismiss the complaint at the hear-
ing and to his findings and recommendations with regard to the
alleged unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (3), and Section 2 (6) and (7) of the Act. Tho
Association filed a motion to dismiss the exceptions filed by the
United to the Intermediate Report.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C., on April 19, 1938, for the purpose of oral argument.
The Association was represented by counsel, and the respondent
by its plant superintendent. The United filed a brief which has been
given due consideration by the Board.
DECISIONS AND ORDERS 159
During the course of the hearing before the Trial Examiner, a
number of rulings were made on motions and on objections to the
admission of evidence . The Board has reviewed these rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. These rulings, one of which is discussed below in Section
III B, are hereby affirmed.
The motion of the Association to dismiss the exceptions filed by
the United to the Intermediate Report is hereby denied , and these
exceptions are hereby sustained . The exceptions filed by the re-
spondent to the Intermediate Report 'are likewise sustained in so far
as they are directed at the Trial Examiner 's finding and recommen-
dation respecting the alleged discriminatory discharge of Carmella
Sanella.
Upon the entire record in the case, the Board makes the following::
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Marks Brothers Company, is a Massachusetts
corporation engaged in the manufacture of various kinds of toys
and novelties . It occupies part of a building in Boston , Massa-
chusetts, the remainder of which is occupied by Keystone Manu-
facturing Company, herein called Keystone . Some of the officers of
the latter company, which also manufactures toys and novelties, are
also officers of the respondent.
The respondent uses a wide variety of raw materials , including
steel, cloth , lumber, electric wire, and various rubber parts. The
total value of the raw materials purchased by the respondent be-
tween November 1, 1936, and November 1, 1937, was approximately
$80,000. Over 55 per cent of these purchases were made outside of
the State of Massachusetts. During the same period, the total value
of the respondent's sales was $200,000. More than 60 per cent of its
finished products were shipped outside the State of Massachusetts
to purchasers situated in every State in the United States and in the
possessions.
The respondent has salesmen operating in New York City and in
San Francisco, California. It distributes advertising catalogues on
a nation-wide basis and advertises in magazines which are circu-
lated in all the States.
H. THE ORGANIZATIONS INVOLVED
United Toy and Novelty Workers Local Industrial Union No. 538
is a labor organization affiliated with the Committee for Industrial
Organization , from which it received its charter on September 10,
1937. It admits to membership production workers employed by the
160 NATIONAL LABOR RELATIONS BO AIM
respondent and by Keystone. It was organized by the Toy and
Novelty Workers Organizing Committee, a labor organization which
is also affiliated with the Committee for Industrial Organization.
Marks Brotliers"Employees Association is an unaffiliated labor
organization. Its membership is limited exclusively to employees, of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The strike
The Organizing Committee started to organize the respondent's
employees during the latter part of July 1937. On August 13 Sand-
berg, its organizer, sent a letter to the respondent requesting that a
conference for the purpose of collective bargaining be arranged.
This letter, which was received, was never answered.
On Monday, August 16, a large number of the employees met on
the fourth floor of the respondent's building, during the lunch hour,,
to discuss whether or not to go out on strike. The employees of Key-
stone had struck on August 14, and the building was being picketed-
In a vote, which was taken after some discussion, a majority of those
present voted in favor of a walk-out. This decision was put into
effect at 1: 15 that afternoon, and the strike thus commenced almost
completely halted the operations of the respondent's plant during the
ensuing week.
The strike was settled on August 23, at a conference at the Re-
gional Office of the Board in Boston, Massachusetts, which was at-
tended by representatives of the Organizing Committee and by an
attorney named Greer, who purported to represent the respondent.
A written agreement was executed by the Organizing Committee and
by Greer on behalf of the respondent, which provided, among other
things, for the return to work of all employees pending settlement
by the Board of certain matters at issue. Most of the employees
returned to work the following day. The contract signed by Greer
was later repudiated by the respondent under circumstances described
below.
B. The Marks Brothers Employees Association
The first activity on the part of the Association took place on
Saturday, August 14, the day after the United first communicated
with the respondent. None of the officials of the Association were
able to`state definitely who first decided to form an organization
within the plant. Thus Donald S. Bloch, secretary, and later vice
president of the Association, testified :
Well, a few of the fellows had heard that Keystone was
forming a company union and I believe they decided to follow
DECISIONS AND ORDERS 161
them and they decided to see what they could do about form-
ing their own company union and they asked if whether I
would cooperate and I told them yes. After a while they asked
me if I would be secretary.2
Carl Braverman, who was one of the most active supporters of
the Association, testified also that he did not know who first inspired
the idea of its formation. He did hear that one could be formed,
however, and when he saw Isadore Marks, the respondent's president
walking through the plant at 11 o'clock on August 14, he asked him
whether it would be all right to form an independent union. Marks
replied that he would have to recognize any union that had a
majority.
Thereafter, at 11:30, Braverman called a meeting of employees
in the stockroom. He called this meeting during working hours,
without procuring permission to do so, although he had never done
such a thing before. The meeting lasted 20 to 25 minutes. Braver-
man spoke to the gathering, and then passed around slips of paper
for them to sign. According to his testimony, Braverman told the
signers that they were signing "for an independent union and not the
C. I. 0." The slips, however, had nothing written at the top and
were in fact blank except for the signatures placed on them.
Braverman and another employee, Slutsky, took the slips immedi-
ately to Marks and requested recognition as the collective bargaining
agency for the plant. According to Marks' testimony he was told
that the slips contained the signatures of 80 employees. He did not
examine the slips in any way. He made no effort to count the names
or to compare them against his pay roll. Apparently, he did not
even ascertain with what organization he was dealing. But he at
once granted the recognition requested.s
In fact, it is difficult to believe that the slips presented to Marks
actually contained the names of 80 of the about 100 employees at the
plant. It appears that they were circulated only at the meeting
called by Braverman. The latter testified that a majority of the
employees were present at that occasion and that he procured 75
signatures. Yet he was unable to explain how employees working on
floors other than that on which the stockroom is located were sum-
moned, and no other witness who testified recalled this meeting or any
2 At the hearing in this proceeding the Trial Examiner excluded all testimony with
regard to events in the Keystone plant. Counsel for the Board contended that the two
companies occupy the same plant and are to some extent at least under the same manage-
ment, and that hence testimony as to the conduct of the executives of Keystone had a
bearing on the conduct of the same individuals with regard to the respondent. While we
believe that this ruling of the Trial Examiner was erroneous, in view of our decision we
do not find that it was prejudicial error.
8 Neither Marks nor the officials of the Association were able to produce the slips at
the hearing.
162 NATIONAL LABOR RELATIONS BOARD
other activity on that day for the purpose of getting signatures. It
is very doubtful whether more than a handful of the employees
signed the blank pieces of paper on which Marks based his recogni-
tion of the newly formed organization.
Thus Marks gave the organizers of the Association the tremendous
advantage of the status of a recognized bargaining agency, although
he did not know how many persons had signed the slips presented
to him, how many of those who signed were employees of the respond-
ent, what the signers thought they were authorizing when they put
their names on the blank slips of paper, or what the organization was
that was claiming recognition; and he did this despite the fact that
he knew that the United had also organized some of his employees.
Subsequent events show that this hasty action on the part of the
respondent's president was taken with the purpose of erecting a
barrier to the attempt of the United to secure recognition as the
bargaining agency for the respondent's employees.
By August 16 the temporary officers of the Association had been
chosen. The record is not clear as to how this was accomplished,
but apparently a few of the leaders of the movement agreed among
themselves to take the responsibility of the various offices. Robert
Austin Sweeney, who was later elected president, first heard of the
Association when he was asked to be its chairman, on August 16.
He was not sure who made this request, but he testified that he
believed it was Bloch. He told Bloch that he would serve on con-
dition that a regular election be held as soon as possible. This
,election was not held until October 7, and the temporary officers
served until that time. Although delegates were elected in some of
the departments during the strike, they never held any meetings.
On August 16 or 17 Marks and his brother decided, partly because
of the fact that a strike was in progress, to announce an 18-per cent
raise in wages, a reduction of the workweek to 44 hours, payment of
time. and one-third for overtime, and the elimination of Saturday
work. According to Marks' testimony, this decision was made entirely
by the respondent. Nevertheless, Marks decided to go through the
form of having it accepted by the Association. He accordingly wrote
out the terms of the wage change and, on August 17, submitted them
to a committee of that organization. At one point in his testimony
he stated that he told the committee that they could accept or reject
the proposal, and in case of rejection, they could make their own
demands. He also testified, however, " . . . as I remember, it was
sort of a granting -sort of telling them that they were going to get
this increase. There were no demands made. It was simply passing
that information to them." The "offer" was accepted on the same
day that it was made. Marks was not sure who was on the committee
DECISIONS AND ORDERS 163
that received the sheets of paper on which the wage change was
described, or who signed them. They were not produced at the
hearing.
On August 18 the respondent notified all of its employees of the
raise in wages. Although Marks was unable to produce a copy of
the letter which was sent out, he testified that it read in substance
as follows :
I wish to announce that we have just issued the following new
working conditions to all production workers: 18 per cent - increase
to both day workers and piece workers; time and a half for over-
time; work week 44 hours; no work on Saturdays. We will'
guarantee to maintain these rates at least until January 1, 1938;,
effective at once.
Those who have been out of work for any reason whatsoever
may return immediately to their jobs.
It has come to my attention that some of our employees have
been threatened bodily. This we believe is only a rumor but
we want to assure all employees that the police department is
cooperating with us and will protect every workman. Anyone
who intimidates or threatens anyone in any way will be arrested
and prosecuted to the full extent of the law.
Following the strike the Association appears to have engaged in
little activity, except the procuring of signatures to membership
cards, until its first meeting on October 7. One other act of the
respondent prior to that date, however, requires consideration. The
contract signed by Greer on August 23 on behalf of the respondent,
which ended the strike, has already been referred to. This contract
was repudiated by the respondent as not having been executed under
its authority. The letter which contained this repudiation was
posted in the respondent's plant on September 2, and reads as,
follows :
Circulars have been given to our employees stating that the
Company signed an agreement with T. & N. W. O. C. affiliated
with the C. I. O.
Mr. Marks and Mr. Swartz did not sign any agreements with
the T. & N. W. O. C. affiliated with the C. I. O.
The only agreements that were signed were those with the
Marks Brothers Company Employees' Association as the only,
bargaining agency we recognize under the Wagner Act and we
will continue to do so as long as you have the majority.
No attorney has been given the right to sign any agreements
for us with any union.
We sign only our own agreements.
164 NATIONAL LABOR RELATIONS BOARD
At the time this letter was posted, no agreement of any kind 'had
in fact been signed between the respondent and the Association.
Sweeney, the president of the Association, so testified at the hearing,
and this position was adopted by counsel for the Association at the
oral argument before the Board. Thus the respondent, which had
given the Association, almost before it started, the advantage of-
recognition as collective bargaining agency, gave it an additional
advantage by creating the false impression that it had procured a
signed agreement.
The first formal meeting of the Association took place on the
evening of October 7, 1937, in a hall in Boston which was rented
for the purpose. There were 25 persons present. The record does
not disclose what took place at this meeting beside the election of
officers; but apparently as a result of the meeting, the newly elected
secretary, Rose Bottaro, typed out a list of four propositions which
were to be presented to Henry A. Meyers, the superintendent of the
respondent's plant, who had been given authority by the respondent
to deal with the Association. The propositions dealt with such mat-
ters as loss of time while waiting for assignment to a new job and
loss of pay because of improper timing on the various operations.
Bottaro gave the list to Sweeney, the president of the Association,
who had it signed by the other three officers. He then took `it to
Meyers. Meyers looked over the suggestions and made changes limit-
ing the effect of each of them. There was some attempt by Sweeney
to create the impression at the hearing that the changes were in
part made by him. Meyers' testimony shows quite clearly, however,
that he made the changes himself, with little or no discussion, and
that he gave the "corrected demands" back to Sweeney to accept or
reject. It appears also that at some time Meyers discussed the propo-
sitions with Marks.
Sweeney gave the "corrected demands" to Bottaro and told her to
retype them as changed by Meyers. She did so without, however,
changing either the date or the heading, which read :
We, the employees of the Marks Brothers Co. as represented
by the . . . Association, do herewith bring these propositions, to
be effective immediately, for your approval and signature.
Sweeney signed the retyped list of propositions and, after it had
been signed by the other officers, presented it to Meyers who also
signed it. Sweeney told Bottaro not to show the revised list to any
other member of the Association because he did not think it was
necessary for them to know' the result of his actions until the next
meeting, which did not take place until the end of October.
We have already pointed out the extremely shadowy nature of the
Association's organization up to October 7. No one at the hearing
DECISIONS A
11 ,
ND ORDERS
"A
165
was able to state just how it was started, or how its temporary
officers were selected. The membership cards, which were circulated
during and after the strike, were paid for by one of the officers of
the Association 2 or 3 weeks after they were procured; but this
officer did not know, and no other officer explained, at whose request
the cards were printed or how the credit which was advanced was
procured.
Even after the Association started to have meetings, its organiza-
tion continued to be of a somewhat elusive nature. At the time of
the hearing, it had procured 93 signed membership cards, but it
had no constitution or bylaws. Its method of dealing with the
respondent, as described by Marks, was as follows :
The contacts were made by our superintendent who would
talk it over with me and we then decided what demands to
grant and what not to grant and then passed it to the .. .
Association. -
This description fits extremely well the only instance which appears
in the record, and which is described above, of the Association's
dealings with the respondent. -
The Association was supported from the very day of its inception
by 'the respondent's recognition of it as the sole bargaining agency
of its employees, recognition based on the most inadequate sort of
evidence of majority status. Before it assumed the shape and char-
acter even of a budding organization, it had been assured of a status
which excluded its rival, the United, r from effective action on behalf
of its members. The Association never engaged in collective bar-
gaining in any true sense of the term. Instead, it permitted itself
to be used by the respondent, as it was used in the case of the letter
repudiating the Greer contract, as a means of inducing its employees
to abandon the United and to rely on the good graces of Marks and
the other executives of the respondent as a substitute for collective
bargaining.
We find that the respondent has dominated and interfered with the
formation and administration of the Association and has contributed
.support to it.
We find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
their rights to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining and other mutual aid and protection as guaran-
teed under Section 7 of the Act. -
166 NATIONAL LABOR RELATIONS BOARD
C. The alleged discriminatory discharge
Carmella Sanella commenced her employment with the respondent
on June 16, 1937, in the pyrography department. On August 13 she
was laid off by her foreman, Melvin Penansky, who told her to return
on August 17. When she appeared on that day, she found the plant
surrounded by pickets. She thereupon joined the picket line and
became a member of the United. It was not until August 24, the date
on which the strikers returned to work at the plant, that she applied
to Penansky for further work. Both she and the two girls who ac-
companied her were told that there was no work for them on that
day. Those two girls were taken, back a few clays later, but Sanella
was never put back to work, although she requested reinstatement on
several occasions.
It appears that the pyrography department, which employed 23
girls at the time of the strike, had been formed only recently. Its
personnel consisted chiefly, of employees who, unlike Sanella, had
worked for the respondent in other departments. After the strike,
this department was greatly curtailed, and the employees were shifted
back to their former jobs. The respondent explained that its failure
to reinstate Sanella was due to the fact that she had no experience in
any work other than that which it was in large part eliminating. It
should be noted, however, that while there were about 100 employees
on the respondent's pay roll at the time of the strike, the number of
employees had been increased to over 150 at the time of the hearing.
A large part of the increase represented new employees taken on in
departments such as general assembly where no experience was needed.
It does not appear in the record that Sanella was unusually active
on the picket line or in any other union activity until September 4,
when she was elected secretary of the United. Other union members
were returned to work on August 24 without discrimination.
While the case is not free from doubt, we are unable to find that the
record sustains the allegations of the complaint that, Sanella was dis-
charged or refused reinstatement because of her union activity. That
portion of the complaint will accordingly be dismissed.
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of Carmella Sanella because of mem-
bership in a labor organization, and thereby discouraged membership
in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
B above, occurring in connection with the operations of the respond-
DECISIONS AND ORDERS 167-
ent, described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States-
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent dominated and interfered with-
the formation and administration of the Association and contributed-
support thereto. By such domination and interference the respond-
ent has prevented the free exercise of its employees' right to self-
organization and collective bargaining. The mere withdrawal of the-
respondent's domination and support of the Association will not be-
sufficient to overcome the impression created among the employees
that it represented the wishes of the employer. Therefore, in order to
restore to the employees the full measure of their rights guaranteed
under the Act, we shall order the respondent to withdraw all recog-
nition from the Association and disestablish it as representative of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment. The respondent will, in addition,-
be ordered to cease and desist from its unfair labor practices
described above.
VI. THE QUESTION CONCERNING REPRESENTATION
As noted above in Section III, the United attempted, on August 13,
to secure a conference with the respondent with regard to collective
bargaining. Since that date further efforts by the United to secure
the status of sole collective bargaining agency have been prevented
by the respondent's position that it would deal only with the
Association.
At the hearing in this proceeding, the membership cards of the
United were produced and examined by counsel. It appeared that
on August 13 it had 34 members and, at the time of the hearing, 66
members, who, an official of the United testified, were employees of
the respondent. The names, however, were not checked against the
pay roll, nor is there anything in the record to show how many of
the members were within the unit found below by the Board to be
appropriate. Moreover, although there were under 100 employees
in the appropriate unit on August 13, there were in the neighborhood
of 150 at the time of the hearing. Since it is impossible to certify
the United as the representative of a majority of the respondent's
employees in the appropriate unit, it is not necessary to consider the
effect of the signatures on the Association's membership cards or on
a petition which was circulated by the Association before the hearing
106791-38-vol vn--] 2
-168 NATIONAL LABOR RELATIONS BOARD
whereby the 'signers stated that they did not wish to be represented
by the United.
We find that a question concerning representation of employees of
the respondent has arisen, and that this question can best be resolved
by the holding of an election by secret ballot. Those eligible to
vote in the election will be employees of the respondent within
the appropriate unit employed during the pay-roll period next pre-
,ceding November 8, 1937, the date of the filing of the petition in this
case, exclusive of those who have quit or have been discharged for
cause between that date and the date of the election.
Since we have found that the Association was dominated, inter-
fered with, and supported by the respondent, we shall make no
provision for its designation on the ballots.
VII. 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 respondent
described in Section I above, has a close, intimate , and substantial
relation to trade, traffic, and commerce among the several States, and
has led and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
The United contends that the appropriate unit for collective bar-
gaining should include the production workers of the respondent,
with certain exceptions. These exceptions are involved in the only
issues which have been raised with regard- to the extent of the
appropriate unit.
The respondent has two foreladies whose work is clearly super-
visory. It has, in addition, three working or assistant foremen.
The latter engage in the duties of set-up men and teach employees
how to perform the various operations . During normal periods their
only productive work is that done in the course of setting up jobs
and teaching. They occasionally have as many as 20 employees
under them . They will be excluded from the appropriate unit.
The United contends for the inclusion of the shipping -room em-
ployees in the appropriate unit and for the exclusion therefrom of
the employees in the stockroom . Although they do not contribute
directly to the manufacture of the product , the employees in both
departments handle the raw materials and products of the respond-
ent. We find that both groups of employees should be included in
the appropriate unit. The head shipper, however, will be excluded,
DECISIONS AND ORDERS 169
since the record shows that his duties are of a supervisory nature.
He routes the material in the shipping room and apportions the work
of the employees under him.
The maintenance employees, the machinists , and the clerical em-
ployees will likewise be excluded from the appropriate unit, in view
of the desire of the United to exclude them,and the absence of any
evidence to show that they should be included.
We find that the production employees of the respondent , exclud-
ing supervisory employees, foremen, assistant foremen, clerical and
office employees , and employees in the maintenance department and
machine shop , constitute a unit appropriate for the purposes of col-
lective bargaining , and that said unit will insure to employees of the
respondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
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. Toy Sc Novelty Workers Organizing Committee of the C. I. 0.,
United Toy and Novelty Workers Local Industrial Union No. 538,
affiliated with the C. I. 0., and Marks Brothers Employees Associa-
tion , are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By its domination and interference with the formation of the
Association , and by contributing support thereto, the respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( 2) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The afore-mentioned unfair labor practices are unfair labor
practices affecting commerce, within the meaning of Section 2 (6)
and (7) of the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Carmella Sanella because of her member-
ship in a labor organization and thereby discouraged membership in
a labor organization within the meaning of Section 8 (3) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent within the meaning of Sec-
tion 9 ( c) and Section 2 (6) and (7) of the Act.
7. The production employees of the respondent , excluding super-
visory employees, foremen, assistant foremen, clerical and office em-
ployees, and employees in the maintenance department and machine
170 NATIONAL LABOR RELATIONS BOARD
shop, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Marks Brothers Company, Boston, Massachusetts, and its officers,.
agents, successors, and assigns, shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the
administration of Marks Brothers Employees Association, or with the
formation or administration of any other labor organization of its
employees, and from contributing support to Marks Brothers Em-
ployees Association, or to any other labor organization of its em-
ployees;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-drganiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining and
for mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Marks Brothers Employees
Association as representative of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, and other conditions of
employment, and completely disestablish Marks Brothers Employees
Association as such representative;
(b) Immediately post notices in conspicuous places throughout
its plant, and maintain such notices for a period of thirty (30) con-
secutive days from the date of such posting, stating (1) that the
respondent will cease and desist as provided in paragraph 1 of this
order, and (2) that the respondent will withdraw all recognition from
Marks Brothers Employees Association as representative of its
employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, rates of pay, wages, hours of employ-
ment, and other conditions of employment, and that the Marks
Brothers Employees Association is completely disestablished as such
representative;
(c) Notify the Regional Director for the First Region, in writing,
within ten (10) days of the date of this order, what steps the respond-
ent has taken to comply herewith.
It is further ordered that the allegations of the complaint that
DECISIONS AND ORDERS 171
the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3J of the Act by discharging and thereafter
refusing to employ Carmella Sanella are hereby dismissed.
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, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIBEarED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Marks Brothers Company, Boston, Massachusetts, an election
by secret ballot shall be conducted within forty-five (45) days from
the date of this Direction, under the direction and supervision of
the Regional Director for the First Region, Boston, Massachusetts,
acting in this matter as agent for the National Labor Relations
Board and subject to Article III, Section 9, of said Rules and Regula-
tions, among the production employees of Marks Brothers Company,
employed during the pay-roll period next preceding November 8,
1937, excluding those who have quit or have been discharged for
cause between that date and the date of the election, and excluding
supervisory employees, foremen, assistant foremen, clerical and office
employees, and employees in the maintenance department and ma-
chine shop, to determine whether or not they desire to be represented
by United Toy and Novelty Workers Local Industrial Union No.
538, affiliated with the C. I. 0., for the purposes of collective
bargaining.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
May 31, 1938
On May 13, 1938, the National Labor Relations Board, herein called
the Board, issued a Decision and Direction of Election in the above-
entitled proceeding, the election to be held within forty-five '(4.5)
days from the date of the Direction, under the supervision of the
Regional Director for the First Region (Boston, Massachusetts). At
the request of the Regional Director, we shall postpone the election
for the present.
The Board hereby amends its Direction of Election by striking out
the words-"within forty-five (45) days from the date of this Direc-
tion" and substituting therefor the words "at such time as the Board
may in the future direct."