Semon Bache & Co.

National Labor Relations Board - Board Decisions

Mar 28, 1942

39 N.L.R.B. 1216 (N.L.R.B. 1942)

In the Matter of SEMON BACHE & COMPANY and LOCAL 528, BROTHER-
HOOD OF PAINTERS, DECORATORS & P. H. OF A.
Case No. R-342,0.-Decided March 28, 1942 ,
Jurisdiction : mirror and glass manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
tract in effect for more than three years, no bar to ; failure to claim majority
no ground for dismissing petition where petitioning union represents substan-
tial number of employees in appropriate unit and rival union also shows sub-
stantial representation ; election necessary.
Unit Appropriate for Collective Bargaining : production employees and working
foremen, excluding salesmen , watchmen, clerical and non-productive super-
visory employees ; stipulation as to.
Mr. Richard J. Hickey, of New York City, for the Board.
Rubinton and Coleman, by Mr. Samuel Rubinton, of Brooklyn.
N. Y., for the Company.
Mr. Herman Rosenfeld, of New York City, for Local 528.
Mr. Max Ehrlich., of Brooklyn, N. Y., for the Association.
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 22 and October 31 , 1941 , respectively, Local 528 , Brother-
hood of Painters , Decorators & Paper Hangers of America, herein
called Local 528, filed with the Regional Director for the Second
Region ( New York City ) a petition and an amended petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Semon Bache & Company, New York City,
herein called the Company , and requesting an investigation and certifi-
cation of representatives pursuant _ to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Decem-
ber 6, 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
39 N. L . R B , No. 226.
1216
SEMON BACHE & COMPANY 1217
Regional Director to conduct it and to provide for an appropriate.
hearing upon due notice.
On December 12, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, Local
528, and Semon Bache Employees Association, herein called the Asso-
a labor organization claiming to represent employees directly
affected by the investigation. Pursuant to notice, a hearing was held
on December 23, 1941, at New York' City, before Charles E. Persons,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Company, Local 528, 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 evi-
dence bearing on the -issues was afforded all parties. During the
course of the hearing the 'trial Examiner made various 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 January 14, 1942, the Company, Local 528, and the Association
each filed a brief which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Semon Bache & Company, a New York corporation, is engaged
in the manufacture, sale, and distribution of mirrors, glass, and
related products in New York City. The principal materials used
by the Company in the manufacture of its products are glass and
nitrate of silver. From April 1 to October 31, 1941, the Company
purchased in excess of $20,000 worth of such materials, approxi-
mately 90 percent of which was shipped from places outside the
State of New York. During the same period the Company sold
more, than $50,000 worth of its finished products, approximately 65
percent of which was shipped to New Jersey, Delaware, Pennsyl-
vania, and other points outside the State of New York. In the
United States Patent Office the Company has registered the trade
marks known as "Evabrite," "Evalast," "Waterwite,"'and "Maltese."
II. THE ORGANIZATIONS INVOLVED
Local 528, Brotherhood of Painters, Decorators & Paper Hangers
of America is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the
Company.
Semon Bache Employees Association is an unaffiliated labor or-
ganization, admitting to membership employees of the Company.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 III. THE QUESTION CONCERNING REPRESENTATION
In August 1941; representatives of Local 528 requested the secre-
tary of the Company to negotiate a collective bargaining agreement
with them. He refused because of the existence of an agreement
between the Company and the Association. -
The Company urges that this agreement constitutes a bar to a
present determination of representatives. It appears that the agree-
ment between the Company and the Association was entered into do
October 19, 1938, and provides that it shall remain in full force
and effect up to and including December 31, 19431 Since the agree-
ment has already been in effect for more than 3 years, we are of the
opinion that it should not constitute a bar to a determination of
representatives at the present' time.2
The Association contends that Local 528's petition should be dis-
missed since it appears on its face that Local 528 does not represent
a-majority of the Company's employees,3 and since Local 528 admit-
tedly did not claim to represent a majority of the employees when
its representatives requested the Company to 'negotiate a collective
bargaining agreement. We have held, however, that it is sufficient
for the petitioning union to make a substantial showing, adequate
to raise the probability that it may be selected by a majority .4 In
addition, in this proceeding both Local 528 and the Association
claim to represent employees of the Company, and each has sub-
mitted proof of substantial representation among the employees in
the unit hereinafter found appropriate .-5 We are of the opinion and
i Amendments of the "open shop" provisions and of the wage scale were entered into
on July 15 and December 18, 1941, respectively , but the expiration date and other pro-
visions of the original contract remained unchanged.
2 Matter of Metro-Goldwyn -Mayer Studios, and Motion Picture Producers Assn ., et al. and
Screen Writers ' Guild, Inc., 7 N. L R. B. 662, 696-697
3 The following statement appeared in the petition : "Number or percentage of employees
in such unit who have designated or selected petitioner to be their representative for
collective bargaining : About 45%."
4 See Matter of Smith & Caffrey Company and International Association Bridge Structural
Ornamental Iron Workers Local Union .# 621, 38 N. L R. B. 90, wherein the Board
held, in overruling a motion to dismiss the petition on the ground that the petitioner had
failed to make a prima facie showing that it represented a majority :
We overrule this contention; since we are of the opinion that it is sufficient, in
order to obtain an election , for a union to establish that it has been designated by
a substantial number of employees in the appropriate unit.
See also, Fifth Annual Report, page 54, and cases cited therein.
e A statement of the Regional Director , introduced at the hearing, shows that Local 528
submitted 62 signed authorization cards which were not dated but which Local 528 claimed
were signed between the middle of June and the middle of August 1941 . Fifty -six of the
cards bore signatures which appeared to be genuine ; 58 of the cards bore signatures which
correspond to the names of persons appearing on the Company's October 14, 1941, pay roll
which contained 144 employees in the claimed unit. The Association submitted a dues record
book showing dues payments of August, September , and October 1941, by 117 employees
whose names appeared on the Company 's pay roll. At the hearing it was agreed that 9
additional employees had joined the Association. The Regional Director ' s statement shows
that 43 employees who paid dues to the Association also signed authorization cards for
Local 528.
SEMON BACHE & COMPANY 1219
find that, under such circumstances, a question concerning repre-
sentation has arisen.6
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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The parties stipulated that all production employees 7 and working
foremen of the Company, excluding salesmen, watchmen, and clerical
and non-productive supervisory employees 6 constitute an appropriate
unit. It appears that the agreed unit covers substantially the same
employees as-are included in the agreement between the Company and
the Association previously discussed.9
We find that all production, employees and working foremen of
the Company, excluding salesmen, watchmen, and clerical and non-
productive supervisory employees constitute a unit appropriate for
the purposes of collective bargaining, and that said unit will insure
to the employees of the Company the full benefit of their right to
self-organization and to collective bargaining and otherwise will
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
See Matter of Johns-Manville Products Corporation and International Union of Mine,
Mill d Smelter Workers, etc , 7 N. L. it. B 1055 , wherein two ecompeting unions each
claimed to represent a majority of the Company 's employees but neither had previously
sought to bargain with the Company . The Board concluded that a question concerning
representation had arisen . See also, Matter of Ohio Steel Foundry Company and Inter-
national Molders Union of North America, 6 N. L it. B. 127.
7 The parties agreed that the following are considered production employees • box makers,
general porters , plate-glass cutters, sundry cutters , plate and mirror packers, sundry
packers, mirror cleaners , and employees engaged in silvering , polishing , edge work and
beveling , and power and light , general maintenance , front surface mirror , and shipping
employees.
s The parties agreed at the hearing that non -productive supervisory employees are those
NNho perform no manual work, but give directions and orders.
A representative of the Company testified that none of the employees included within
the stipulated unit were excluded from the agreement
1220 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election by,secret ballot.10 All of the parties requested that in the
event of an election, eligibility to vote be determined as. of December
18, 1941. Under the circumstances we shall give effect to the desire
of the parties, and shall direct that those eligible to vote in the
election shall be the employees within the appropriate unit who were
employed by the Company during the pay-roll period immediately
preceding December 18, 1941, subject to the limitations and additions
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 Semon Bache & Company, New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All production employees and.working foremen of Semon Bache
& Company, New York City, excluding salesmen, watchmen, and
clerical and non-productive supervisory employees, 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 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 Semon Bache & 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 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 Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
10 The Association requested that it be certified without the holding of an election, and in
support of its request introduced in evidence a statement signed by 117 employees of the
Company to the effect that they constituted a majority of the employees , that each was a
member in good standing of the Association, that they previously designated the Associa-
tion as their bargaining agent, and that the Association still represented them in all
matters concerning terms and conditions of employment . We are of the opinion, nonethe-
less, that the question concerning representation should be resolved by an election. See
Matter of The Cudahy Packing Company and United Packinghouse Workers of America,
Local No 21, of The Packinghouse Workers Organizing Committee, affiliated with the Con-
gress of Industrial Organizations , 13 N L. R B. 526
SEMON BACHE & COMPANY 1221
Regulations , among . all production employees and working foremen
of Semon Bache & Company, New York City , who were employed
by the Company during the pay-roll period immediately preceding
December 18 , 1941 , 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 tempo-
rarily laid off , but excluding salesmen , watchmen , clerical and non-
productive supervisory employees , and employees who have since
quit or been discharged for cause , to determine whether they desire
to be represented by Local 528, Brotherhood of Painters , Decorators
& Paper Hangers of America, affiliated with the American Federation
of Labor, or by Semon Bache Employees Association , for the purposes
of collective bargaining , or by neither.
Mn. GERARD D . REILLY, dissenting :
I dissent from the decision of the majority that a question con-
cerning representation has arisen within the meaning of Section
9 (c) of the Act . This proceeding was not instituted by Local 528,
the petitioning union, to resolve a controversy as to - its majority
status, for Local 528 asserted no majority claim at the time it re-
quested recognition of the Company . Nor has this proceeding at
any stage reflected such controversy , for Local _ 528 did not at any
time during the course of this proceeding advance or purport to
advance such claim. In fact, it stated affirmatively in its petition
and admitted , in effect, at the hearing thereon that it represented
less than a majority of the employees . Under the circumstances,
therefore , no doubt or uncertainty as to Local 528's majority status
has arisen and, consequently , no "controversy " within the meaning
of Section 9 (c) exists which need be resolved by an election or
otherwise.
The Board has, as a matter of established administrative pro-
cedure, refused to entertain a petition for investigation and certifica-
tion where the majority claim of the petitioning union is not disputed
by the employer on the ground , as I understand it, that no question
concerning representation , and hence no controversy , exists within
the meaning of Section 9 (c). Similarly , the Board has held that
no question concerning representation has arisen where the employer
has recognized the petitioning union without disputing its majority
claim.- I believe, therefore , that consistency requires that the-same
principle shall here apply . I would dismiss the petition.
13 See , for example, Matter of Pacific Steamship Company, at at. and Sailors' Union of
the Pacific, 2 N. L. R B 214. Under similar circumstances, the Board dismissed an em-
ployer petition in Matter of Northern States Power Company of Wisconsin and District 50,
United Mine Workers of Ame) ica, C. I. 0 , et al, 37 N. L. R B 991