Mergenthaler Linotype Co.

National Labor Relations Board - Board Decisions

Apr 18, 1938

6 N.L.R.B. 671 (N.L.R.B. 1938)

DECISIONS AND ORDERS 671
In the Matter Of MERGENTHALER LINOTYPE Co. and FEDERATION OF
ARCHITECTS, ENGINEERS , CHEMISTS AND TECHNICIANS
Case No. R_351.-Decided April 18, 1938
Printing Equipment and Accessories Manufacturing Industry-Investigation
of Representatives : request for withdrawal of petition for, denied ; controversy
concerning representation of employees: controversy concerning appropriate
unit ; refusal by employer to recognize any union until certification by Board ;
rival organizations-Unit Appropriate for Collective Bargaining : technical em-
ployees in engineering and research and development departments ; eligibility
for membership in both rival organizations ; skilled ; contention of Company
that confidential nature of work in one department requires separate unit,
held without merit-Election Ordered
Mr. David Moscovitz and Mr. Albert Ornstein, for the Board.
Gleason, McLanahan, Mere,itt d Ingraham, by Mr. Henry Clifton,
Jr., of New York City, for the Company.
Mr. Hyman N. Gliclcstein, of New York City, for the Federation.
Breed, Abbott & Morgan, by Mr. Thomas E. Kerwin and Mr.
Frederick B. Bryant, of New York City, for the Association.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 13, 1937, Federation of Architects, Engineers, Chemists
and Technicians, herein called the Federation, filed with the Re-
gional Director for the Second Region (New York City) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of Mergenthaler Linotype Company,
New York City, herein called the Company, and requesting an inves-
tigation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On August 21, 1937, 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 1, as amended, ordered an investi-
gation and authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice.
A hearing was held on September 13 and 14, 1937, at New York
City before H. R. Korey, the Trial Examiner duly designated by the
Board. The Board, the Company, the Federation, and the Engineer-
ing Department Employees Association of the Mergenthaler Linotype
Company, herein called the Association, were represented by counsel
m
672 NATIONAL LABOR RELATIONS BOARD
and participated in the hearing. Full opportunity to be heard, to
examine and to cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course of
the hearing the Trial Examiner made several rulings on motions and
on objections to the admission of evidence. The Board-has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On February 5, 1938, the Federation filed an application with the
Board requesting leave to withdraw the petition it filed on August 13,
1937, stating that, after the hearing, the Company had laid off a large
number of its members. The Association filed an affidavit with the
Board on February 10, 1938, in opposition to the withdrawal of the
petition, stating that the Association represented a majority of the
employees in the appropriate unit and that, as the Company refused
to bargain collectively until certification of a bargaining representa-
tive by the Board, the withdrawal of the petition would merely involve
unnecessary delay attendant upon the 'commencement of a new
proceeding.
On February 23, 1938, the Board, acting pursuant to Article III,
Section 8, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered that a further hearing be held. On
March 1, 1938, the Regional Director issued a notice of hearing, copies
of which were served upon the attorneys for the Company, the Federa-
tion, and the Association. Pursuant to the notice, a hearing was held
on March 2, 1938, at New York City before.Paul Davier, the Trial
Examiner duly designated by the Board. The Board, the Company,
the Federation, 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 introduce evidence bearing on the
issues was afforded all parties.
Upon consideration of the Federation's application for withdrawal
of its petition, we find that the application should be, and it hereby is,
denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a New York corporation maintaining a plant in
New York City. It is engaged in the manufacture and sale of linotype
machines and other printing equipment and accessories.
Approximately 40 per cent of the raw materials purchased by the
Company are obtained from points outside the State of New York and
approximately 88 per cent of its finished products are shipped to points
outside the State of New York.
DECISIONS AND ORDERS
II. THE ORGANIZATIONS INVOLVED
673
Federation of Architects, Engineers, Chemists and Technicians is a
labor organization affiliated with the Committee for Industrial Or-
ganization, admitting to its membership employees in the engineering
and research and development departments of the Company.
Engineering Department Employees Association of the Morgen-
thaler Linotype Company is an unaffiliated labor organization. It
likewise admits to its membership employees in the Company's
engineering and research and development departments.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to the filing of its petition, the Federation requested the Com-
pany to bargain with it as the representative of the employees in the
engineering and research and development departments. The Com-
pany stated that it would not recognize any bargaining representative
until certification of such representative by the Board.
We find that a question has arisen concerning 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. and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
In its petition, the Federation alleged that all mechanical drafts-
men employed by the Company constitute an appropriate unit. They
evidence shows that the Federation intended by its description of
the unit to include all technical employees in the engineering and
research and development departments. The Association raised no
objection to the Federation's description of the unit. The Company,
however, objected to the inclusion of employees of the research and
development department in the same unit with employees of the
engineering department. It claims that the work performed in the
research and development department is of a confidential nature, that
employees from other departments are forbidden to enter this de-
partment without a special permit, that this department is physically
separated from the rest of the plant, that the employees in this
department are individualists who should not be controlled by
the employees in the engineering department, and that the Com-
674 NATIONAL LABOR RELATIONS BOARD
pany maintains separate records for the research and development
department.
The work of the engineering department includes the designing
and development of the machinery and tools necessary for the man-
ufacture of the products sold by the Company. The employees in
this department are classified, according to the nature of their work,
as operation lay-out men, tool designers, junior tool designers, ma-
chine designers, engineers and technicians, time-study men, drafts-
men, illustrators, and blue-print machine operators. The employees
in the research and development department originate improve-
ments and develop models and mechanisms for the linotype machine.
Their work is also of a technical nature.
Although the record indicates some physical separation between
the two departments, it is not shown that the separation is such as
to preclude effective collective bargaining among the employees of
the two departments. Furthermore, the contention based upon the
confidential nature of the work performed in the research and de-
velopment department appears to be without merit. The inclusion of
employees of the research and development department in a bar-
gaining unit with employees of the engineering department would
not seem to involve a disclosure of any matters of a confidential
nature. It was pointed out above that the two labor organizations
here involved are in agreement as to the inclusion of employees of
both departments in the bargaining unit. Both labor organizations
admit employees in both departments to their membership and the
evidence indicates that employees of both departments are, in fact,
members of the Federation. Under all the circumstances, we con-
clude that the unit should be composed of employees of both
departments.
Although the Federation and Association are in agreement as to
the description of the bargaining unit, they disagree as to whether
five employees, namely, John Horn, Otto Schoenburg, Edward Bau-
mann, Louis Gaa, and William Koch, properly come within such
description. The Federation claims that the five employees do cleri-
cal rather than technical work and should be excluded from the unit.
The Association, on the other hand, claims that all five employees
do work of a technical nature. Affidavits 1 submitted by the five
employees show that John Horn prepares lists of,all parts of the
various models to be furnished to the industrial engineer for sched-
ule purposes; that Otto Schoenburg classifies orders for parts, tools,
and other products for inventory and insurance purposes, has charge
of the inactive tool storage, and furnishes estimates on additional
work on tools purchased; that Edward Baumann and William Koch
G
1 These affidavits were submitted pursuant to stipulation of the parties.
DECISIONS AND ORDERS 675
do lay-out work and prepare changes to be worked out by the drafts-
men on their drawing boards; and that Louis Gaa prepares lists of
parts for attachments and outside supplies. The affidavit of the chief
clerk of the engineering department substantiates the contention that
the five employees do work of a technical nature.'
We find that the nature of the work performed by John Horn,
Otto Schoenburg, Edward Baumann, Louis Gaa, and William Koch
is such that they should properly be included among the technical
employees of the engineering department.
We find that the technical employees of the Company in its en-
gineering and research and development departments constitute a
unit appropriate 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 collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The evidence indicates that, at the time of the hearing, there were
approximately 113 employees in the unit which we have found to be
appropriate for the purposes of collective bargaining. A representa-
tive of the Federation testified that it represented about 60 or 70 of the_
employees in this unit. The treasurer of the Association testified
that it had about 64 members in the unit. No membership cards, des-'
ignations, or other like evidence was introduced in support of the
claims of the Federation or the Association. We find, therefore, that
the question concerning representation which has arisen can best be'
resolved by an election by secret ballot.,
The parties stipulated at the hearing that, if the Board found
that the appropriate unit should include employees in both the engi-
neering and research and development departments, eligibility to vote
-should be determined on the basis of employee lists entitled Exhibits
A and B, attached to Board Exhibit No. 2, subject to the right of the
Association to propose additions to or deletions from the names.
on the lists. Question arose only as to the addition to the list of the
names of John Horn, Otto Schoenburg, Edward Baumann, Louis Gaa;,
and William Koch, whom, we have found should be included within
the bargaining unit.
We find that all employees of the Company whose names are listed
on Exhibits A and B, attached to Board Exhibit No. 2, together with
John Horn, Otto Schoenburg, Edward Baumann, Louis Gaa, and
William Koch, but excluding those employees who since September
13, 1937 2 have quit or been discharged for cause, shall be eligible:
to vote.
I These affidavits were submitted pursuant to stipulation of the parties
2 The date of the hearing.
676 NATIONAL LABOR RELATIONS BOARD
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 Mergenthaler Linotype Company, New
York City, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. The technical employees of the Company, in its engineering and
research and development departments constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 8, of the National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation ordered by, the Board
to ascertain representatives for the purposes of collective bargaining
with Mergenthaler Linotype Company, New York City, an election
by secret ballot shall be conducted within fifteen (15) 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, Section 9, of said Rules and Regulations, among all the employ-
ees of the Company whose names are listed on Exhibits A and B,
attached to Board Exhibit No. 2, together with John Horn, Otto
Schoenburg, Edward Baumann, Louis Gaa, and William Koch, but
excluding those employees who since September 13, 1937 have quit or
been , discharged for cause, to determine whether they desire to be
represented by Federation of Architects, Engineers, Chemists and
Technicians or by Engineering Department Employees Association of
the Mergenthaler Linotype Company, for the purposes of collective
bargaining, or by neither.
[SAME TITLE ]
AMENDMENT TO DIRECTION OF ELECTION
April 29, 1938
On April 18, 1938, the National Labor, Relations Board, herein
,called the Board, issued a Decision and Direction of 'Election in the
DECISIONS AND ORDERS 677
above-entitled case. Thereafter, the Federation of Architects, Engi-
neers, Chemists and Technicians, the petitioner in the proceeding,
requested the Board to withdraw its name from the ballot in the elec-
tion which the Board ordered in said Decision and Direction of
Election.
After due consideration of this request, the Board hereby
DIE CTS that the Direction of Election in the above-entitled matter,
dated April 18, 1938, be amended by striking out the words, "to de-
termine whether they desire to be represented by Federation of
Architects, Engineers, Chemists and Technicians or by Engineering
Department Employees Association of the Mergenthaler Linotype
Company, for the purposes of collective bargaining, or by neither,"
which appear in the last sentence of the last paragraph of said Direc-
tion of Election, and by inserting in lieu thereof the words, "to,
determine whether or not they desire to be represented by Engineer-
ing Department Employees Association of the Mergenthaler Lino-
type Company for the purposes of collective bargaining."