Semon Bache & Co.Download PDFNational Labor Relations Board - Board DecisionsMar 28, 194239 N.L.R.B. 1216 (N.L.R.B. 1942) Copy Citation 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 Copy with citationCopy as parenthetical citation