Syracuse Ornamental Co.

National Labor Relations Board - Board Decisions

Feb 27, 1940

20 N.L.R.B. 877 (N.L.R.B. 1940)

In the Matter of ALEx HOLSTEIN , DAVID HOLSTEIN , PHILIP HOLSTEIN,
AND MOSES WINKELSTEIN , D/B/A SYRACUSE ORNAMENTAL Co. and
INTERNATIONAL LADIES' HAND BAG , POCKETBOOK & NovEIIrY WORK-
ERS UNION 1 A. F. OF L. (LOCAL TO BE CHARTERED)
Case No. R-1677.-Decided February 27, 1940
Moulded Wood and Novelty Manufacturing Industry-Investigation of Repre-
sentatives : controversy concerning representation of employees : refusal of em-
ployer : to,recognize petitioning union-Unit Appropriate for Collective Bargain,
ing:' all production employees , exclusive of supervisory employees ( foremen 'and
assistant foremen ), clerical and office , shipping , maintenance , stock, design,
cleaning , and machine-shop employees , employees classified as "production mis-
cellaneous," casual laborers , and (five ) members of the wood-carvers union;
supervisory nature of work of employees , controversy as to-Representatives:
eligibility to participate in choice of : current employees plus "temporary" em-
ployees discharged during December 1939 who worked twenty ( 20) weeks or
longer in 1939 and in addition for any period of time during the 1938 season-
Election Ordered
Mr. Edward D. Flaherty, for the Board.
Mr. Warren Winkelstein and Mr. H. Duane Bruce, of Syracuse,
N. Y., for the Company.
Mr. Elias Lieberman, by Mr. Nathaniel H. Janes, of New York
City, for the Union.
Mr. Norman M. Neel, of counsel 'to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 2, 1939, International Ladies' Hand Bag, Pocketbook
and Novelty Workers Union, A. F. of L., herein called the Union, 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 Alex Holstein, David Hol-
stein, Philip Holstein, and Moses Winkelstein, doing business as
Syracuse Ornamental Co., Syracuse, New York, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
20 N. L. R. B., No. 84.
877
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, 49 Stat. 449, herein called the Act. On December 22, 1939, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relatons' Board Rules and Regulations=Series 2,
ordered an investigation and directed the Regional Director to con-
duct it- and to provide for an appropriate hearing upon, due notice.
On December 28, 1939, : the Regional. Director. issued- a : notice'- of
hearing, copies of which were duly served upon the Company and
upon the Union. Pursuant to the notice, a hearing was held on
January 4 and 5, 1940, at Syracuse, New York, before Earl S. Bell-
,man, the Trial Examiner duly designated by the Board. The Board,
-the Company, and the Union were represented by counsel and par-
ticipated 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. During the course of the hearing,
.the Trial Examiner made several rulings on motions and on objec-
tions 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 6
and 8, 1940, the Union and the Company, respectively, requested
leave to file briefs in support of their contentions. The Board, in
accordance with these requests, granted the Company and the Union
until January 16, 1939, to file briefs. Each party availed itself of
this privilege.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY'
The Company is and has been since 1921 a copartnership composed
of Alex Holstein, David Holstein, Philip Holstein, and Moses Win-
kelstein, doing business under the firm name and style of Syracuse
Ornamental Co. Its principal office and place of business is located
in Syracuse, New York, where it is engaged in the manufacture,
sale, and distribution of imitation wood carvings, ornaments, radio
parts and cabinets, and other moulded wood products. The raw ma-
terials used by the Company are wood, metal, fillers, glues, lacquers,
and other finishing materials. The value of the raw materials used
by the Company at its plant in Syracuse, New York, purchased dur-
ing the period from December 1, 1938, to December 1, 1939, was
approximately $140,000, of which approximately 75 per cent were
shipped to the Company from States other than the State of New
I The findings in this section are based upon a stipulation of facts entered into by the
Company, the Union, and the Board.
SYRACUSE ORNAMENTAL COMPANY 879
York. The approximate value.of the finished products shipped by
the Company during the same period, amounted to $600,000, of which
approximately 75 per cent were sent to points outside the State of
New York.
H. THE ORGANIZATIONS INVOLVED
International Ladies' Hand Bag, Pocketbook;&. Novelty : Workers
Union; A. F. of L., is a'labor organization admitting to membership
production employees of the Company.
International Wood Carvers Association, A. F. of L., is a labor
Organization admitting to membership employees skilled in wood-
carving.
III. THE QUESTION CONCERNING REPRESENTATION.
The Union began its organizational efforts in the middle of Octo-
ber 1939 and on November 22, 1939, notified the Company that it
represented a majority of the employees of the Company and sought
recognition as the exclusive bargaining representative. The Com-
pany expressed doubt that the Union represented a majority of such
employees and the Union refused to submit documentary evidence in
support of its claim. The Company indicated its desire that an
election be held.
We find that a question has arisen concerning the representation
of the employees of the Company.
IV. THE EFFE(9r O^ THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen , occuring 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 Union claimed that all production employees,
excluding supervisory, clerical and office, shipping, maintenance, and
stock employees, should constitute a unit appropriate for the purposes
of collective bargaining. At the hearing, the Union supplemented
its list of desired exclusions and restated its claim as to the appro-
priate unit as follows : all production employees, excluding super-
visory employees (which includes foremen and assistant foremen),
clerical and office, shipping, --maintenance, stock, design, cleaning, and
machine-shop employees, employees classified as "production miscel-
880 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
laneous," casual laborers, and the (five)- members of the International
Wood Carvers Association (A. F. of L:), herein called the
Association. -
The Company agrees to the proposed exclusion of office and clerical
employees, casual laborers, the members of the Association,2 Howard
Roy, supervisory foreman, and Joseph I. Raleigh, assistant superin-
tendent. We shall therefore exclude them. The Company contends,
however, that all its remaining employees should be included in the
appropriate bargaining unit. We shall consider the groups in
dispute.
The shipping employees are concerned merely with the handling of
incoming and outgoing :shipments ; .the;amuintenance employees con-
sist of master mechanic, firemen, elevator man, plumbers, electricians,
and miscellaneous workers, who as a group spend little more than
3 per cent of their time in production work; the stockroom employee,
Morris Freeman, is engaged in releasing materials upon requisition;
the employees in the designing department have duties similar to those
of draftsmen, are paid weekly salaries, and do no work on the fin-
nished product; the cleaning-department employee, Lena Pullen,
scrubs and cleans.
The machine-shop employees consist of a master machinist and two
helpers. They are engaged in repair work, chiefly on moulds, and
also in the manufacture of small metal parts for some. of the Com-
pany's products.
The employees classified under "production miscellaneous" are for
the most part persons with academic degrees utilizing a somewhat
technical training in their work on production problems, techniques,
and lay-outs. ' They are paid' weekly salaries without exception.
The work and incidents of employment of the groups and indi-
viduals hereinabove discussed differ in some degree from those of the
regular production employees, and since the only union involved does
not admit them to membership and desires their exclusion, we shall
exclude them in accord with past practice 3
There are 25 employees whom the Union claims to be foremen and
subforemen and hence not properly within the unit. We pass to a
consideration of those individuals.
William Wood, Forrest G. Merriam, and Joseph Ott are excluded
as machine shop, maintenance, and shipping employees, respectively.
Angelo Manzi, E. J. Kessler, Louis Myrick, Hubert Langenmayr,
George A. Moberg, John K. Fritz, W. Carl West, and Clarence Sper-
2 The Association has been dealing with the Company for these employees for a substan-
tial period of time.
See Matter of May Knitting Company, Inc. and United Wholesale and Warehouse
Employees of New York, Local No. 65, 0. I, 0., 11 N. L. R. B. 772, and` decisions therein
cited.
SYRACUSE ORNAMENTAL COMPANY 881
ling are paid, weekly salaries,,,44mittedly are foremen, and are desig-
nated as such on the Company's "Current Employee". list as of
January 2, 1940. Dominic De Angelloa and Fred K. Davis who
work in the sanding department were identified at the hearing as
foremen by Foreman Howard Roy.4 Severin Bischof was admitted
to be foreman of the woodite finishing section of the knob depart-
ment, by Moses Winkelstein, one of -the partners.
Since the only labor organization involved desires the exclusion
of the 11 last named supervisory employees,5 we shall exclude them
from the unit.
We find that the following hourly paid employees do not exercise
sufficient supervision, either- by. way of apportioning or criticising
work, and are not sufficiently identified with the management to
warrant their exclusion from the unit : Harry Brim, who carries
moulds from' the racks to the benches; Andrew Levandowski, kiln
man, who pushes trucks in and out of the kilns, and unloads them;
Mary Wallace, bench worker in the sanding department, who smooths
the backs of articles with a plastic material; Jessie Niepling, who
stains and fills knobs; Angie Baratta, miscellaneous worker and
utility girl ; Angie Cantalupe, antiquer at the white antiquing table;
Marian L. Essig, concerning whom there is no testimony; Jack
Glinsky, an employee,, in the- gift-packing department, who is tem-
porarily on a .weekly pay basis because of illness in order- that, he
may avoid loss of pay through such disability ; John Pollicino, a
filer in the sanding department; Florence Boyea, antiquer in the fin-
ishing department; Elizabeth Arena, decorator in the finishing
department.
We find that all -production employees, exclusive of supervisory
employees (which includes.-foremen and assistant foremen),, clerical
and office, shipping, maintenance, stock, design, cleaning, and ma-
chine-shop employees, employees - classified as "production miscel-
laneous," casual laborers, and the (five) members of the Association,
constitute a unit appropriate for the purposes of collective bargain-
ing, 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- effectuate. the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing the Company denied the Union's'claim to represent
a majority of the Company's employees within the appropriate unit.
4 Roy stated on cross-examination that he did not know the positions of these two
employees by "personal knowledge," but in view of Roy's status, we are of the opinion that
he was in a position to testify accurately concerning the Company's supervisory employees.
5 See supra, footnote 3.
882 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
We find that the question concerning representation can best be re-
solved by holding an election by secret ballot.,
It is the contention of the Union that the persons entitled to vote
should be the employees within the appropriate unit who are listed on
the Company's pay roll as of December 2, 1939, the date of filing
the petition. The Company contends on the other hand, that this
pay roll represents an abnormal period of employment and claims
that its employee list of January 3, 1940, is representative of regular,
permanent employment. The Company's business is seasonal 11 and
each year the Company experiences increases in employment which
begin in midsummer and end in the early weeks of December? In
accordance with past practice, during the month of December 1939,,
the Company discharged 8 in the inverse order of hiring, about 170
persons whom it considered to be temporary employees. The Com-
pany contends that those employees were discharged and hence
should not be eligible to participate in the election, while the Union
maintains that they, were laid off, that they enjoy a reasonable ex-
pectation of reemployment when the Company's seasonal operations
require additions to its force, and that they therefore should be
permitted to vote. We shall consider the Company's practice with
respect to such seasonal reductions in force.
When additions to the force become necessary, general notice is
given of the availability of jobs and. persons are hired from-among
the applicants who appear at the plant. The Company asserts that.
those who worked during the previous season are given no individual
notification,. that they are not rehired on a seniority or similar basis,
and that previous employment is not a factor considered in such
hiring. However, the Company's employment records establish that
the seasonal employees who worked a substantial period of time
during the 1939 peak season had been employed in prior seasons.
Thus on the list of employees discharged during December 1939
approximately 62 worked for a period of 20 weeks or longer during
1939, and of that number approximately 72 per cent worked for some
period of time during the 1938 season as well. We conclude, upon
the basis of the Company's actual practice, that seasonal employees
in the appropriate unit who worked 20 weeks or more in 1939 and
who worked in addition for any period of time during the 1938
season, are likely to be reemployed in the next season and accord-
' The dull or normal season is from January until midsummer at which time there
begins a gradual increase in employment which continues until the peak is reached imme-
diately before Christmas.
' In 1939 additional employment began at an earlier date (March) because of an increase-
in business due to the world's Fair.
6 Upon discharge , an employee's number is not held for him, he is listed as discharged
on the Company's Social Security Report , and on Community Chest pledges.
SYRAGUSE ORNAMENTAL COMPANY 883
ingly have an interest in the conditions of employment which may
be agreed upon during the period when they are not working, and
should be allowed to participate in the selection of representatives.e
We direct that all employees in the appropriate unit whose names
appear on the Company's current pay roll, and in addition those
employees discharged in December 1939 who have worked for a
period of 20 weeks or longer during 1939 and for any period of time
during the 1938 season according to the 'Company's records, are
entitled to participate in the selection of representatives.
Upon the basis of the foregoing 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 Alex Holstein, David Holstein, Philip
Holstein, and Moses Winkelstein, doing business as Syracuse Orna-
mental Co., Syracuse, New York, ' within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations Act.
2. All production employees of the Company, exclusive of super-
visory employees (which includes foremen and assistant foremen),
clerical and office, shipping, maintenance, stock design, cleaning, and
machine-shop employees, employees classified as "production mis-
cellaneous," casual laborers, and the (five) members of the Interna-
tioi aF.Wood Carvers Association (A. F. of L.), 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 Rela-
tions 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Alex Holstein, David Holstein, Philip Holstein, and Moses
Winkelstein, doing business as Syracuse Ornamental Co., Syracuse,
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 Direc-
tor-for the Third Region, acting in this matter as agent for the
National Labor Relations Board and subject to Article III, Section
9 See Matter of National Distillers Products Co. and United Distillery Workers of N. A.,
Local No. 484, affiliated with the Committee for Industrial Organization , 5 N. L. R. R. 862.
884 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
9, of said Rules and Regulations, among the production employees
of the Company exclusive of supervisory employees (which includes
foremen and assistant foremen), clerical and office, shipping, main=
tenance, stock, design, cleaning, and machine-shop employees, em-
ployees classified as "production miscellaneous," casual laborers, and
the (five) members of the International Wood Carvers Association
(A. F. of L.), appearing on the Company's current pay roll, includ-
ing employees who did not work during such pay-roll period because
they were ill or on vacation, but excluding all persons who have
quit or have been discharged for cause, and in addition, among those
appearing on the Company's list of temporary employees discharged
during December 1939 who have worked for a .period, of twenty. (20)
weeks or longer during 1939, and in addition, worked for any period
of time during the 1938 season , to determine whether or not they
desire to be represented by the International Ladies' Hand Bag,
Pocketbook & Novelty Workers Union, A. F. of L., for the purposes
of collective bargaining.