Otto Bernz Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1941

36 N.L.R.B. 922 (N.L.R.B. 1941)

In the Matter of OTTO BERNZ CO., INC. and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, LODGE #93, AFFILIATED WITH THE A. F. OF,L.
Case No. R-3147-Decided November 14, 1941
Jurisdiction : furnace fire pot, torch, and plumbing tool manufacturing industry.
Investigation and Certification of Representatives : existence of question: Com-
pany refuses to accord union recognition until representatives are certified;
election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance em-
ployees, excluding office, clerical, supervisory, and stock-room employees, and-
shipping clerks.
Mr. Jacob Ark, of Rochester, N. Y., for the Company.
Mr. C. F. McDonald, of Buffalo, N. Y., for the I. A. M.
Mr. Willard Bliss, of Buffalo, N. Y., and Mr. Walter Ho fjord, of
Rochester, N. Y., for the United.
Mr. Wm. F. Sch,arnilcow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT O'F THE CASE
On August 20, 1941, International Association of Machinists, Lodge
#93, affiliated with the A. F. of L., herein called the I. A. M., filed with
the Regional Director for the Third Region (Buffalo, New York) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Otto Bernz Co., Inc.,
Rochester, New York, herein called 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. On September 26, 1941, 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.
36 N. L. R. B., No. 189.
922
OTTO BERNZ CO. INC. 923
On September 29, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon. the Company, the
I. A. M., and United' Electrical, Radio and Machine Workers of
America, herein called the United, a labor organization claiming
to represent employees directly affected by the investigation. Pur-
suant to notice, a hearing was held on October 9, 1941, at Rochester,
New York, before Edward D. Flaherty, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company, the
I. A. M., and the United were represented at, 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. No motions were made, nor objections
taken to the admission of evidence.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Otto Bernz Co., Inc., a. New York corporation with its only plant
at Rochester, New York, is engaged in the. manufacture of fire pots,
torches, and plumbers' tools. During the year ending on July 31,
1941, the Company used raw materials valued at approximately
$300,000, of which approximately 85 per cent was shipped to it from
points outside the State of New York. In the same period, the Com-
pany manufactured fire pots, torches, and plumbers' tools of an ap-
proximate value of $500,000. About 75 per, cent of these products
was shipped outside the State of New York. The Company admits
that it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Lodge #93,. is a labor
organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
United Electrical, Radio and Machine Workers of America is a
labor organization affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Both the I. A. M. and the United, each claiming that it represents
a majority of the employees, have requested recognition by the.Com-
pany. The Company refuses to recognize' any labor organization
as exclusive bargaining representative of its employees until a repre-
sentative is certified by the Board.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement prepared by the Regional Director and introduced
into evidence discloses that both the I. A. M. and the United have
substantial membership among the Company's employees in the unit
hereinafter found to be appropriate.)
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 and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company , the I. A. M., and the United stipulated , and we find,
that all production and maintenance employees of the Company, ex-
cluding office , clerical, supervisory, and stock -room employees, and
shipping clerks, 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 to
collective bargaining, and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by an
election by secret ballot. Although all of the parties stipulated that a
pay roll dated immediately prior to the actual election should deter-
mine eligibility to vote, no reason was given, nor do we find any, for
deviating from our usual practice of determining eligibility by the
pay roll dated immediately prior to the Direction of Election. We
shall, therefore, direct that the'persons eligible to participate in the
election shall be the employees in the appropriate unit who worked
3 The I. A. M. submitted 89 application -for-membership cards, of which 87 bear ap-
parently genuine, original signatures and 2 bear printed signatures . Of the apparently
genuine applications , 59 were dated in July 1941, 22 in August 1941, and 0 in September
1941. Fifty-nine of the apparently genuine signatures are the names of persons given on
a list of employees in the appropriate unit submitted by the Company. .
The United submitted 52 authorization cards, all apparently bearing genuine, original
signatures . One was dated in June 1941 and 51 in July 1941. Thirty-eight of these cards
bear the names of persons on the list of employees in the appropriate unit submitted by
the Company to the Regional Director.
The Company employs from 80 to 95 persons in the appropriate unit.
OTTO BERNZ CO. INC. 925
for the Company during the pay-roll period immediately preceding
the Direction of Election herein, subject to such limitations and
additions as are set forth in the Direction.
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 Otto Bernz Co., Inc., Rochester, New York,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. All production and maintenance employees of the Company ex-
cluding office, clerical, supervisory, and stock-room employees, and
shipping clerks, constitute a unit appropriate for the purpose 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 National Labor Rela-
tions 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 Otto Bernz Co., Inc., Rochester, 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, under the direction and
supervision of the Regional Director for the Third 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 and maintenance employees who worked for the Com-
pany during the pay-roll period immediately preceding the date of
this Direction of Election, including employees who did not work
during such pay-roll period because they were ill or on vacation, or
in the active military service or training of the United States, or,
temporarily laid off, but excluding office, clerical, supervisory, and
stock-room employees, shipping clerks, and those employees who have
since quit or been discharged for cause, to determine whether they
desire to be represented for purposes of collective bargaining by
International Association of Machinists, Lodge #93, affiliated with
the American Federation of Labor, or by United Electrical, Radio and
Machine Workers of America, affiliated with the Congress of Indus-
trial Organizations, or by neither.