Transformer Corp. of America

National Labor Relations Board - Board Decisions

Aug 10, 1940

26 N.L.R.B. 476 (N.L.R.B. 1940)

In the Matter of TRANSFORMER CORPORATION OF AMERICA' and LOCAL
430 OF THE UNITED ELECTRICAL, RADIO AND MACHINE WOEKERS OF
AMERICA, C. I. O.
Case No. R-1942.-Decided August 10, 1940
Jurisdiction : amplifying equipment manufacturing industry.
Investigation and Certification of Representatives : existence of question. con-
flicting claims of rival representatives; contract about to expire, no bar to;
election necessary.
Suit in State courts between, union parties to proceeding held no bar to
existence of question concerning representation.
Old employees reemployed in place of new employees who had displaced
them following stoppage.of work held eligible to vote.
Unit Appropriate for Collective , Bargaining : production employees, including
testers, special department and repair employees, inspectors, wire men, assem-
blers, packers, and shippers, but excluding all executives, foremen, office and
clerical employees, and stock and shipping employees engaged in clerical work
or work not directly applicable to production.
Mr. Shad Polier for the Board.
Carb, Reichman & Luria by Mr. Edward E. Reichman, of New York
City, for the Company.
Mr. Frank Scheiner, of New York City, for the United.
Mr. William Karlins, of New York City, for I. B. E. W.
Mr. D. M. Byrd, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 15, 1940, Local 430 of the United Electrical, Radio &
Machine Workers of America, C. I. 0., herein called the United, filed
with the Regional Director for the Second Region, (New York City) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Transformer Corporation
of America, New York City, herein called the Company, and request-
ing an investigation and certification of representatives pursuant to
t Erroneously designated in the petition and formal papers as Transformer Corp of America.
26 N. L. R. B., No. 44.
476
TRANSFORMER CORPORATION OF AMERICA'- ' 47'7
,Section 9 (c) of the National Labor Relations Act; 49. Stat., 4'49;^1ie'rein
called the Act. l - : 1,
(_ ill'- ^ '
On June 19, 1940, the National Labor Relations Board, herein
called the Board, acting pursuant to kSection''9 (c) of the Act and
Article III, Section 3, of National'Labor'RelationsiBoard Rlules;and
Regulations-Series-2, as amended, ordered ari investigation,,and, au-
thorized the Regional Director to conduct it- and to ,provide for, ;an
appropriate hearing upon due notice.
On June 27, 1940, the Regional' Director issued a' notice; of hearing,
copies of which were served upon the,Company; the. United,'rndi,the
International Brotherhood of Electrical Workers,, Local, ;B=11010,
herein called the I. B. E. W., a labor organization claiming to repre-
sent employees directly affected by the investigation. Pursuant to
notice a hearing was held on July 8,1940,' at New York'City before
James C. Paradise, the Trial Examiner duly designated by the Board.
The Company, the United, and the'I.,B. E. W. were represented by
counsel and participated in the hearing. Full, opportunity to examine
and cross-examine witnesses and to, introduce evidence bearing, upon
the issues was afforded-all parties. ,IDuring, the course,,of the„ Bearing
the,Trial Examiner made several rulings on motions and objections
to the admission of evidence. The Board has reviewed: the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted.' In addition the I. B. E. W.' made it motion'to'dismiss the
petition upon 'the basis ' of 'evid'enc'e adduced. ' Tlie Trial' Examiner
reserved decision upon this'motion. The motion to'disrniss the pe-
tition is hereby denied for reasons app'earulg'below:
Pursuant to leave, the'United filed a brief 'which' `the' Board has
rnn ci tiered .
c
Upon the entire record in the case the Board makes the 'following:
'FINDINGS lOF, FACT
I. THE BUSINESS OF THE COMPANY r
Transformer Corporation of America is a New York corporation,
having its office and principal place of business located at 69 Worcester
Street, New York City. , The Company is engaged in
i J.,
the manufacture,
I
l lf, I .
i
1 ) • It u ' ' ..
sale, and distribution of amplifying' equpment. Raw material's,
consisting of sockets, transformers, .tubes, chassis,, wire and''miseel-
laneous fabricated parts purchased byt '.the; Company. outside the
State of New York during the period from November P,193`9 to April
3, 1940, amounted to $50,000 in value and approximately 50 per cent
in value of the Company's total, purchases of raw, materials. ' During
the same period the gross volume of the Company's finished ' products
shipped to places outside of the 'State' of New'York amounted 'in
value to approximately $160,000 and' constituted approximately
70 per cent of the Company's sales during the same period.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company admits that it is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE ORGANIZATIONS INVOLVED
Local 430 of the United Electrical, Radio & Machine Workers of
America, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership employees of the Com-
pany and other employees similarly engaged in New York City.
International Brotherhood of Electrical Workers B-1010, affiliated
with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company and other
employees similarly engaged in New York City.
III. THE QUESTION CONCERNING REPRESENTATION
On August 29, 1939, the Company and the I. B. E. W. executed a
written contract, herein called the I. B. E. W. contract, providing for
wages, hours of employment, and other working conditions of the
Company's employees within an appropriate bargaining unit and by
its terms to remain in force until August 24, 1940. The contract
further specified that there would be no sympathetic strikes, stoppages,
strikes, or lock-outs and that:
The employer agrees to call upon the Union for any pro-
duction employees it may require and the Union agrees to supply
the workers required within 24 hours after request is made for
them. If they are not so supplied by the Union the Employer
may obtain such Workers elsewhere, in which event such new
workers shall be given a working card by the Union. Such new
employees shall be on a trial period of two weeks, and after
satisfactorily serving their trial period shall become members
of the Union and continue to be members of the Union in good
standing.
Some time prior to May 7, 1940, the membership of Local B-1010
of the I. B. E. W. voted to disaffiliate from the I. B. E. W. and to
affiliate with the United. On May 7 the Company was by letter
advised that the United claimed to be exclusive representative of the
employees.
On May 8, 1940, the I. B. E. W. wrote the Company and requested
that Sam Lippman and John Granelli, two employees, be discharged in
"accordance with the contractual agreements entered into between
Local B-1010 and the Company . . . as they are no longer members
of Local B-1010 IBEW." On May 15 the Company replied that
in compliance with the I. B. E. W. request of May 8 it had dismissed
Lippman and Granelli "on the basis that they were no longer members
TRANSFORMER CORPORATION OF AMERICA 479
of B-1010 of the IBEW with whom we now.-have a contractual
arrangement."
It appears that the discharge of Lippman and Granelli precipitated
a stoppage of work by all of the employees. Thus the Company also
wrote the I. B. E. W. on May 15 that at the close of the morning
session of work on May 14 a number of "your members failed to return
to work," and advising the I. B. E. W. further that in accordance with
the second paragraph of the I. B. E. W. contract the Company
proposed to seek satisfactory workers elsewhere unless the I. B. E. W.
took immediate action to comply with the terms of the agreement.
Because of the work stoppage the Company's production suffered
a complete cessation at that time, and none of the employees taking
part in the stoppage was again employed by the Company until May
27, 1940.
On May 16, 1940, the Company resumed production with an entire
new force of 28 employees, herein called the new employees, consisting
in part of persons supplied by the I. B. E. W. and in part of persons
secured by the Company and given working cards by the I. B. E. W.
These persons continued in the employ of the Company until May
24, 1940. On that date the Company and the United entered into a
written agreement in which the United warranted, and the Company
accepted, that it represented a majority of the Company's employees
within the same bargaining unit described in the I. B. E. W. contract.
Although this contract provided that it was not to be construed as
one granting the United exclusive recognition it specified that pending
the ordering of an election by the Board pursuant to the petition
previously filed by the United and pending certification of the United
as the exclusive collective bargaining agency of the employees, the
United agreed to withdraw, with prejudice, charges which it theretofore
had filed with the Board and to withdraw all pickets from before the
Company's plant. In return the Company agreed to reemploy all
employees who were employed on March 6, binding itself further not
to discriminate against its employees. In addition the contract
provided that in the event the United should be certified as the
collective bargaining agency for the Company's employees, the
I. B. E. W. contract should be deemed to be an agreement between
the Company and the United from the date of such certification until
December 3, 1940. Finally, it was specified that in the event the
United should not be certified by the Board as the collective bargain-
ing agency the United agreement should terminate.
On the morning of May 25 the Company notified the new employees
that they were "unconditionally discharged" and on May 27 it resumed
normal production, with the employees who failed to return to work
after the morning session of May 14.
480 DECISIONS i OF NATIONAL ;LABOR RELATIONS BOARD
I -,A•-statement of• the -, RegionaL.Director., introduced, into evidence;
states that the United presented 27 application cards bearing - dates,
between May. 5 and May . 15; that,all of.the 27 signatures affixed to,the
cards. appear to be genuine original signatures of the - persons whose
names , appear - on, the Company 's pay, roll-,of May . 8,.1940. The
Regional Director; further stated that the pay, roll of May 8 showed a
total of 27 production employees.,
On May 27 ; 1940, the I. B..E. W. filed in the, Supreme ,Court of the
State of New York' for New York County an' action of the nature -of a
suit in equity to enjoin the . Company from violating in any1manner the
I. B:. E. W. contract . 2 On -June 10 by motions of the United , "I after the
Conipany ;had'filed ,its answer ,on-May 28, Frank Sullivan; as president
oft Local- 430 of-the United ,. was, joined as,,a=party defendant in the,
action. On June 5, 1940 , Justice Lloyd Church denied the motion of
the L B. E: W;, for an,injunction pendente-lite "solely on the ground that
an, injunction , pendente lite, cannot;issue-except after a hearing (sec:
876-8 CiviltPractices Act). ' This denial, is in no way , a• determination
of ;the merits, of -theIcontroversy which -must await the hearing, the
time of ;which isjhereby set, for the tenth day of June , 1940 . . . "
At, the hearing the 4I ., B. 'E. W. took the position that the existence
of-a,question concerning representation'was precluded by the I. B. E. W
contract , and by . the, ipendency, of , its suit in the Supreme Court of the.
State , of.-New York .. • The-United-and the Company took ' the,opposite
view,,,: - 4
4t is not:necessary to;pass upon the status of the I. B. E. W. contract,
since; in any event; ,that, contract, is about to expire. ' We :have fre-
quently held that,: under-such circumstances ,' the Board; in furtherance
of: the purposes ' of the -Act to afford . , employees the opportunity to
selectinew representatives ';,is,n6t precluded, from an investigation and
determination ., of represehtatives ':'-In addition, the Board is of the
opinion (that , the pendency ,of, the action in the Supreme Court of the
State ofNNewiYork'is ,not!sufficient^to constitute a bar-to • the existence
of a question concerning representation., That action is a suit between
private parties in'which -the question, concerning representation under
Section 9 (c) of the Act cannot . be decided by the Court.
-, For -these reasons, the .Board finds, that , a question -has arisen con-
cerning,) the' representation, of the Company 's employees , within an
appropriate bargaining unit. . I'll . ' r ,
The action is entitled "Alersnder deral, as president of Radio Local Union B-1010, International'
Brotherhood of Electrical Workers, Plaintiff, 'against-Transformer Corporation of America, Defendant
3 Section 93 (b) of the Civil Practice Act of New York State
4 In the Matter of Oppenhen sier Casing Company and United Packin;ihouse Woi kers of America , Local No 75,
15 N -L R ,B',70, In the -Matters of Chrysler Corporation and United Automobile Workers of America;
Local 371, 13 N. L R B 121, In the Matter of Atlantic Footweir Company, Inc and Lnited Shoe Workers of
America , 5 N L. R B 252,'In the Matter of Shipowners ' Association ofthe Pacific Coast , etas and International
Longshoremen ' s and Warehousemen ' s Lnion, District No 1, 7 N L R B 1002 , In the-dfatter of Sandusky.
Afetal Products, Inc and Ame, ican I ederation of Labor, 6 N L R B 12.
TRANSFORMER' CORPORATION OF 'AMERICA ' 481
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' t 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-
m d 11 fie How of commerceerce an e e
I , 1 • •
V. THE APPROPRIATE UNIT''"
The parties stipulated and the Board finds that "all production
employees,•includingtesters, special department and repair employees,
inspectors, wire men, assemblers, packers,,and shippers, but excluding
all executives, foremen, office- and clerical- employees, and stock and
shipping employees engaged in. clerical work or•,work not directly
applicable to production'' 5 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
At the hearing a -controversy arose concerning. the pay roll to, be
used in determining eligibility to vote in-the event an election should
be directed. The United requested, that eligibility be, determined as
of the date of the filing of the petition, or in the alternative as of the
date, of the hearing on July 8. The I.B. E. W., ,on• the other hand,
expressed a desire for, the use of the,pay,roll of May,24. Substantially
the positions. of-the'United and the LB.,E. W. present a question of
the determination of the eligibility of , •the, new employees;
As has been pointed out above, the employees who were employed
by the company prior to the stoppage of,work on May 14 -were at the
time of the hearing, with certain exceptions,6 again employed by•the
company. These employees,''in_niany.iiistance's,, had been with the
company for 5 or 6• years and represent the Company's entire personnel
with a few exceptions added since June' 24.' , On ' the other land,
H. L. Shortt, president-of the"Company, testified •tliat the new' em-
ployees were unconditionally' discharged oh May' 25, 1940, by tele-
graphic communication because of the "very nasty"problem' ''all the
way around" and because, the "new employees not being- able' to'
5 "Work not directly applicable to production" was defined by the parties as that of an employee who
handles a finished product subsequent to its having been placed in a Primary carton immediately upon
being completed
5 The Company's pay roll lists Fred Auerback as resigning May -31, John J Rash,on May 13, George
Buchanan on June 14, and Manfred Vitale as being discharged on June 13
7 The exact number of such employees was not revealed
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turn out the work," production had fallen off. Under the circum-
stances the Board is of the opinion and finds that the policies of the
Act will be best effectuated by holding that the old employees,
presently employed by the Company are eligible to participate in the
selection of the bargaining representative of the employees in the
appropriate unit.'
The record is not clear that the I. B. E. W. desires to appear on
the ballot in the event an election is' ordered on the foregoing terms.
We shall direct that it be placed thereon and if, within 5 days from
the date of our Direction, it notifies the Board that it does not desire
to participate in the ballot, we shall amend our Direction accordingly.'
In accordance with our usual practice, we direct that the employees
of the Company eligible to vote in the election shall be those employees
in the appropriate unit who were employed during the pay-roll period
last preceding, the date of this Direction of Election, including em-
ployees who did not work during such pay-roll period because they
were ill or on vacation, but excluding employees who have since quit
or been discharged for cause.
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 Transformer Corporation of America, 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, including testers, special department
and repair employees, inspectors, wire men, assemblers, packers and
shippers, but excluding all executives, foremen, office and clerical
employees, and stock and shipping employees engaged in clerical work
or work not directly applicable to production, 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
8 Cf. Matter of Easton Publishing Co and Eastern Typographical Lnion No 1Ì€58, 19 N L R B 389,
Matter of A. Sartorius & Co, Inc and Lnited Mine Workers of America District 50, Local 12090, 10
N L. R. B. 493 See also Matter of Johnson- Carper Furniture Co , Inc and Local 293, Lnited Furniture
Workers of America, 14 N L. R. B 1030
Y Matter of Borg - Warner Corp and United Automobile Workers of America Local No 287, affiliated with the
C. 1 O, 19 N L R B. 538
TRANSFORMER CORPORATION OF AMERICA 483
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Transformer Corporation of America, 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 Relations
Board, and subject to Article III, Section 9, of said Rules and Regu-
lations, among all production employees who were employed during
the pay-roll period last preceding the date of this Direction of Election
including testers, special department and repair employees, inspectors,
wire men, assemblers, packers, shippers, employees who did not work
during such pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, but
excluding all executives, foremen, office and clerical employees, stock
and shipping employees engaged in clerical work or work not directly
applicable to production, and any employees who have since quit or
been discharged for cause, to determine whether they desire to be
represented by Local 430 of the United Electrical, Radio and Machine
Workers of America, C. I. 0., or by the International Brotherhood of
Electrical Workers, Local B-1010, for the purposes of collective bar-
gaining, or by neither.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Direction of Election.