Don Juan, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1946

71 N.L.R.B. 734 (N.L.R.B. 1946)

In the Matter of DON JUAN, INC., AND DON JUAN Co., INC., EMPLOYERS
and UNITED PACKINGHOUSE WORKERS OF AMER1C_1, C. I. 0., DISTRICT
No. 6, PETITIONER
Case No. 2-R-6695.-Decided November 22 , 1946
lilessrs. Hyman Friedman and Francis D. Crosby, and Miss Rosalie
Bailey , of New York City , for the Employers.
Messrs. Irving Dreyfus and William Rix, and Miss Charmion Kerr,
of New York City, foi° the Petitioner.
Buitenkant and Cohen , by Messrs. Jacques Buitennkant and Arnold
Cohen , of New York City , and Mrs . Albert lagnei •, of New York City,
for the Intervenor.
Mr. Melvin J. 11'elles , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on July 19, and 24, 1946, before George Turitz, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. The Intervenor's request
for oral argument is denied, inasmuch as the record, in our opinion,
adequately presents the issues and positions of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Don Juan, Inc., and Don Juan Co., Inc., herein collectively called
the Employers, are Delaware corporations, having their principal
office and place of business in New York City. Don Juan, Inc., owns
a substantial amount of the capital stock of Don Juan Co., Inc., and a
majority of the directors of he two companies are the same.
Don Juan Co., Inc., herein called the Company, is engaged in the
manufacture of cosmetics and allied articles. During the year ending
July 19, 1946, the Company purchased materials valued in excess of
71 N L R. B., No. 123
734
DON JUAN, INC. 735
$600,000, of which approximately 50 percent was shipped to it from
points outside the State of New York. During the same period the
Company manufactured and sold finished products valued in excess
of $1,000,000, of which approximately 90 percent was shipped to points
outside the State of New York.
The Employers admit, and we find, that they are engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employers.
Hair Goods, Toiletries and Accessories Workers Union, Local 21906,
herein called the Intervenor, is a labor organization affiliated with the
American Federation of Labor, claiming to represent employees of the
Employers.
III. TILE QUESTION CONCERNING REPRESENTATION
The Company and the Intervenor have had collective bargaining
agreements for a number of years. 1111944, they entered into a contract
which was to expire June 26, 1946; no provision was made for auto-
matic renewal.
On May 24, 1946, they entered into a new contract, which contained
the following clause :
This agreement shall take effect upon the execution hereof as of
June 26, 1946, and shall terminate two years thereafter.
Although vacation provisions of the 1946 contract were immediately
made operative, the primary terms of this contract were not made
effective until June 26, 1946.
The Petitioner notified the Company of its claim to representation
on June 4, 1946, and 'filed its petition on June 12, 1946.
The Employers and the Intervenor contend that the 1946 contract
is a bar to a present determination of representatives. We do not
agree.
It is well settled that the filing of a petition before the expiration
date of a collective agreement in which there is no automatic renewal
clause warrants the direction of an election, despite the fact that
the contracting parties, either before or after the filing, enter into a
new agreement extending the terminal date of their relationship.,
Here, the petition was filed before June 26, 1946, the termination date
i If the filing precedes the making of the new agreement , the nest agreement is, of
course, no bar Matter of Ste Genevieve Lune c Quarry Ooiepavy . 70 N L R R.
12:1 And if the filing follows the making of the new agreement, the new agreement is
717734-47-voi 71 48
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the 1944 contract. We conclude, therefore, that the 1946 contract
does not preclude a current determination of representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employers, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Employers and the Petitioner fully agree with respect to the
composition of the appropriate unit. This unit, as agreed upon, is the
same as that covered by the 1946 contract between the Company and
the Intervenor.2
We find, in accordance with the agreement between the Employers
and the Petitioner, that all hourly paid production and maintenance
employees of the Employers, including group heads other than Mazie
Weiss, porters, handymen, inspectors, assistant to chemist, shipping
department employees, and production clerk, but excluding personnel
department employees, office employees, salesman, Mazie Weiss, the
head chemist, head foreman, head forewoman, plant manager, execu-
tives, and all other supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The record indicates that about two-thirds of the Employers' em-
ployees were recently discharged. Evidence adduced at the hearing
indicates that there is no prospect that these employees will be called
back during 1946, or thereafter. The Employers claim that these
persons should be ineligible to vote; the Petitioner requests that they be
no bar , under the "premature extension " doctrine Matter of American White Cioss
Laboratories , Inc, 60 N. L . R. B 1148
Contrast , however, Matter of Northwestern Publishing Company ( IVDAN), a corpora-
tion, 71 N L R B 167 ; Matter of Greenville Finishing Company , Inc, 71 N. L R B
436 In those cases, which involved the applicability of the premature extension doc-
trine , the old contracts , unlike the 1944 agreement here, contained an automatic renewal
clause and no petition was filed until after the Mill B date and after a new contract
had been executed
Contrast also Matter of Mississippi Lime Company of Missouri, 71 N L. R B 472
There. too. the old contract contained an automatic renewal clause, and on the facts pre-
sented, a majority of the Board ( Mr. Houston dissenting ) held that the usual rule of
determining contract bar issues by the effective rather than the execution date ( Matter
of Foster-Grant, Inc ., 54 N L. R. B. 802 ; Matter of Kimberly -Clark Corporation, 55
N. L. R B. 521 ) should not be applied
2 At the hearing, the Intervenor declined to take any affirmative position relative to
the appropriate unit because of the absence of one of its witnesses One adjournment
was granted to the Intervenor because of the absence of this witness , but a request for
a further adjournment was subsequently denied
DON JUAN, INC. 737
declared eligible; and the Intervenor contends that the Board should
use its usual eligibility date, and that the eligibility of any voter be
determined by challenge where necessary.
Under all the circumstances, we are of the opinion that these per-
sons are not temporarily laid-off employees, and are not eligible to vote
in the election hereinafter directed.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Don Juan, Inc., and Don Juan Co.,
Inc., 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, 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 Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work diiring said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be represented by United
Packinghouse Workers of America, C. I. 0., District No. 6, or by
Hair Goods, Toiletries and Accessories Workers Union, Local 21906,
A. F. L., for the purposes of collective bargaining, or by neither.