A. Sartorius & Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1938

9 N.L.R.B. 19 (N.L.R.B. 1938)

In the Matter of A . SARTORIUS & CO ., INC. and UNITED MINE
WORKERS OF AMERICA, DISTRICT 50, LOCAL 12090
Case No. R-995.-Decided October 4, 1938
Cosmetics 'Manufacturing Industry-Investigation of Representatives : contro-
versy concerning representation of employees : controversy concerning appro-
priate unit ; doubt as to the representation of a majority-Strike-Unit Appro-
priate for Collective Bargaining: production and maintenance employees and
shipping clerks, excluding supervisory and clerical employees-Election Ordered
Mr. Will Maslow, for the Board.
Mr. Samuel M. Birnbaum, of New York City, for the Company.
Mr. Herman Edelsberg, of New York City, for the Union.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 28, 1938, United Mine Workers of America, District 50,
Local 12090, filed with the Regional Director for the Second Region
(New York City) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of A.
Sartorius & Co., Inc., New York City, 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 July 25, 1938, 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 Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On August 4, 1938, the Regional Director issued a notice of hearing
and on August 12, 1938, issued an amended notice of hearing, copies
of both of which were duly served upon the Company and the Union.
Pursuant to notice a hearing was held on August 18, 1938, at New
York City, before W. M. Hepburn, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, and the Union were
9 N. L. R . B., No. 7.
19
134068-39-vol. ix-3
20 NATIONAL LABOR RELATIONS BOARD
represented by counsel and participated in the hearing. Full oppor-
tunity 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 objections to the, admission of evidence.
The Board has reviewed these rulings and finds that-no prejudicial
errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
A. Sartorius & Co., Inc., was incorporated in 1915 under the laws
of the State of New York and maintains its principal place of busi-
ness in New York City. It is engaged in the manufacture and prepa-
ration for sale of cosmetics such as nail polish and its accessories.
Approximately 75 per cent of the raw materials used by the Com-
pany are purchased outside of the State of New York and trans-
ported to its factory in New York City. Approximately 60 per cent
of the finished products manufactured by the Company are sold and
shipped to points outside of the State of New York. The annual vol-
ume of business which the Company does amounts to approximately
$300,000.
H. THE ORGANIZATION INVOLVED
United Mine Workers of America, District 50, Local 12090, is a
labor organization affiliated with the Committee for Industrial Organ-
ization, admitting to membership all persons except supervisory and
clerical employees in New York City employed in the manufacture
and preparation for sale of cosmetics.
III. THE QUESTION CONCERNING REPRESENTATION
On June 27, 1938, and on at least two occasions thereafter confer-
ences took place between the Union and the Company. On each oc-
casion, the Union stated that it represented a majority of the Com-
pany's employees and demanded recognition as the exclusive repre-
sentative of all the Company's employees, but the Company refused
to grant it such recognition. The Union and the Company finally
decided that the Board should determine-if the Union represented a
majority of the Company's employees.
We find that a question has arisen concerning. the representation
of employees of the Company.
DECISIONS AND ORDERS 21
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 Union contends that the appropriate bargaining unit should
include all production and maintenance employees and shipping
clerks of the Company, excluding clerical and supervisory employees.
The Company contends that the appropriate bargaining unit should
also include the clerical employees, but at the hearing it introduced no
evidence in support of this contention. None of the clerical em-
ployees are members of the Union or eligible for membership therein.
It has been our usual practice not to include clerical employees in a
unit composed of production and maintenance employees in the ab-
sence of a convincing showing as to the propriety of such a unit.
Accordingly, we will exclude the clerical employees from the unit.
The Union contends that the appropriate unit should consist of all
the production and maintenance employees and shipping clerks of the
Company. On the Company's pay roll for June 24, 1938, there were
listed 30 such employees. The Company contends that certain em-
ployees whose names appeared on that pay roll had only been employed
by it for a short period of time and therefore should be considered to
be temporary employees and not -included in the unit or counted by
the Board in determining whether an exclusive representative has been
designated by the employees in the unit.
The only difference between permanent and temporary employees
is that those who have worked for the Company over a long period of
time are considered to be permanent while those who have worked
only a short period of time are considered to be temporary employees.
Most of the employees of the Company work irregularly and inter-
mittently. When work is slack due to lack of orders, employees are
laid off without regard to seniority, and when orders increase, they
are returned to their jobs. We are of the opinion that temporary
employees should not be excluded from the unit merely because they
have been with the Company for a shorter period of time than the
other employees, as there is nothing in the record to show that they
do not have the same interest in working conditions in the Company's
plant as the other employees.
22 NATIONAL LABOR RELATIONS BOARD
We find that all the production and maintenance employees and
shipping clerks of the Company, excluding supervisory and clerical
employees, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the Com-
pany 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
There was read into the record at the hearing a list of the employees
of the Company as of June 24,1938. Of the 35 employees whose names
appear on this list, 30 were in the appropriate unit. It was agreed by
the Union and the Company that the pay roll of June 30 is identical
with that of June 24. The Union urged that the pay-roll list for
either June 24 or June 30 be used as a basis for the determination of
the question concerning representation. The Company did not object
to using these lists for that purpose, but did object to counting as
employees in the appropriate unit as of June 24 or June 30, 1938,
certain employees who had been in its employ for only a short period
of time prior to those dates. We have already disposed of this objec-
tion in Section V above, where we found that temporary employees
are included in the appropriate unit.
The Union introduced in evidence 19 membership application cards.
The Company does not question the genuineness of the signatures on
the cards. A comparison of the cards with the Company's list of
employees as of June 24, 1938, shows that the 19 employees whose
names appear on the cards were employed within the appropriate unit
on that date. The record also shows that on July 14, 1938, only 17 of
the employees in the appropriate unit on June 24, 1938, were working,
the remainder were apparently laid off due to lack of orders. On
July 18, 1938, a strike of the employees of the Company was called by
the Union. It was still continuing at the time of the hearing. All
except five employees, including one union member, went out on
strike. In the next few days after the commencement of the strike,
some of the striking employees returned to work and the Company
also employed six new employees, so that on July 21, 1938, there were
17 employees in the appropriate unit who were actually working. Of
these 17, 11 had been working as employees in the appropriate unit on
June 24, 1938. There is nothing in the record to show that the remain-
ing 19 employees who were in the unit on June 24, 1938, will not be
returned to work when orders increase or when the strike ends. Since
the employees who were out on the strike which was current at the
time of the hearing have continued to be employees of the Company
within the meaning of Section 2 (3) of the Act, they must be counted
as employees in the appropriate unit. On July 21, 1938, adding the
DECISIONS AND ORDERS 23
six new employees hired during the strike to the 30 who were in the
unit before and during the strike, there were 36 employees in the
appropriate unit. One of the 19 employees who signed union member-
ship cards continued to work during the strike. This may indicate
that this employee has revoked his prior authorization to the Union
to represent him for the purposes of collective bargaining. Excluding
this card, it appears that of the 36 employees in 'the appropriate unit
on July 21, 1938, 18 desired to be represented by the Union. The
record also shows that some strikers returned to work during the
strike, but does not show whether or not they were union members.
Under these circumstances we find that the question concerning repre-
sentation which has arisen can best be resolved by the holding of an
election by secret ballot, and we will so direct. Those eligible to vote
shall be the 30 employees who were in the appropriate unit during the
pay-roll period next preceding June 24, 1938, and the employees who
were in the appropriate unit during the pay-roll period next preced-
ing August 18, 1938, the date of the hearing.
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of A. Sartorius & Co., Inc., New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All the production and maintenance employees and shipping
clerks of the Company, excluding clerical and supervisory employees,
constitute a unit appropriate for the purposes of collective bargain-
ing, 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 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with A. Sartorius
& Co., Inc., New York City, an election by secret ballot shall be
conducted within ten (10) days from the date of this Direction under
the supervision and direction 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
Regulations, among all the production and maintenance employees
and shipping clerks who were employed by the Company during the
pay-roll period next preceding June 24, 1938, and those who were
24 NATIONAL LABOR RELATIONS BOARD
employed during the pay-roll period next preceding the date of the
hearing, August 18, 1938, but excluding clerical and supervisory em-
ployees, and those who have quit or been discharged since June 24,
1938, to determine whether or not they desire to be represented by
United Mine Workers of America, District 50, Local 12090, affiliated
with the Committee for Industrial Organization, for the purposes of
collective bargaining.
MR. DONALD WAR ELD SMITH took no part in the consideration of
the above Decision and Direction of Election.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
October 13, 1938
On October 4, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceeding. The Direction of Election provided that
"an election by secret ballot shall be conducted within ten (10) days
from the date of this Direction under the supervision and direction
of the Regional Director for the Second Region." On October 8,
1938, the petitioning union, United Mine Workers of America, Dis-
trict 50, Local 12090, requested the Board for a further hearing on
certain issues in the proceeding. Pending the determination of this
request the Board will postpone the election.
The Board hereby amends its Direction of Election by striking out
the words "within ten (10) days from the date of this Direction" and
substituting therefor the words "at such time as the Board may in
the future direct."
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Amendment to Direction of Election.
9 N. L. R . B., No. 7a.