Erasmus Atlass, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1941

35 N.L.R.B. 447 (N.L.R.B. 1941)

In the Matter of ERASIIUS ATLASS, INC. and,FuR & LEATHER WORKERS'
UNION, LEATHER WORKERS' DIVISION, LOCAL 35, C. I. O.
Case No. R--i'30.Decided September 17, 1941,
Jurisdiction : leather novelty manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal by Company to negotiate with petitioning union because of contract
with another union ; contract held no bar ; eligibility to be determined as of
date of execution of closed-shop contract, where there is evidence that con-
tract was enforced, and where employment is subject to seasonal fluctuations;
election necessary.
Unit Appropriate for Collective Bargaining : all production employees, exclud-
ing office employees and supervisors who have the right to hire or discharge.
Mr. Irving E. Epstein, of New York City, for the Company.
Isserman, Isserman ct Kapelsohn, by Mr. Sol D. Kapelsohn, of
Newark, N. J., and Mr. Jacob A. Salzman, of New York City, for
the C. I.0.
Mr. Ossip J. Walinski, of New York City, for the A. F. L.
Mr. Armin Uhler, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 3, 1941, Fur & Leather Workers'-Union, Leather Workers'
Division, Local 35, C. I. 0., herein called the C. I. 0., filed with the
Regional Director for the Second Region (New York City) a peti-
tion alleging that a question affecting commerce had arisen concern-
ing the representation of employees of Erasmus Atlass, Inc., New
York City, herein called the Company, and requesting an investiga-
tion and. certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On July 5, 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 Regu-
lations-Series 2, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
35NLRB,No100
447
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 8, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the C. I. O.
and upon Pocketbook Workers' Union of New York, Local No. 1,
affiliated with the American Federation of Labor, herein called the
A. F. L., a labor organization claiming to represent employees directly
affected by the investigation. Pursuant to notice, a hearing was
held on July 15, 1941, at New York City, before Richard J. Hickey,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Company, the C. I. 0., and the A. F. L. 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 C. I. O. moved to amend its petition to state
correctly the name of the Company,' and further, to amend the al-
legations in the petition concerning the appropriate unit.2 The
Trial Examiner granted the motions. The Company twice moved to
dismiss the proceeding upon the ground that the Company has a
valid contract with a bona fide labor organization. The Trial Ex-
aminer reserved rulings on these motions for the Board. The motions
to dismiss are hereby denied for the reasons set forth below. During
the course of the hearing the Trial Examiner made several rulings on
other 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Erasmus Atlass, Inc., is a New York corporation with its principal
office and factory in New York City. The Company manufactures
for sale and distribution small leather novelties such as tobacco
pouches, cigarette cases, change purses, cigar cases, tie racks, belts,
and leather watch holders. The principal materials used by the Com-
pany are leather, linings, oilskins, zippers, fasteners, and glue. Dur-
ing the first 6 months of 1941 the Company purchased materials
valued at approximately $8,000, 50 per cent of which were shipped to
it from 'outside the State of New York, principally from Massa-
chusetts, New Jersey, and Pennsylvania. During the same period
the Company sold finished products valued at approximately $16,000,
75 percent of which were shipped to destinations outside the State
'On the original petition the Company is designated as Erasmus Atlas, Inc, while the
correct name of the Company is Erasmus Atlass, Inc.
See Section 'V, infra.
ERASMUS ATLASS, INC. 449
of New York, principally to Michigan, New Jersey, Ohio, and Wash-,
ington, D. C. The number of employees on the Company's pay roll
during the -past 10 months has varied from 6 to 23 workers, depend-
ing upon the season. The Company concedes'that it is engaged in
commerce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Fur & Leather Workers' Union, Leather Workers' Division, Local
35, is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
Pocketbook Workers' Union of New York, Local No. 1, is a labor
organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company and the A. F. L. contend that a closed-shop contract
between them constitutes a bar to the present proceeding. The
C. I. O. contends that the contract is not a bar, inasmuch as the Com-
pany was advised of the representation claims of the C. I. O. in
advance of the signing of the contract. The contract was consum-
mated on April 8, 1941, and is to remain in effect until July 1, 1942.
The C. I. O. commenced to organize the employees of the Com-
pany early in 1941. An organizer of the C. I. O. testified that,
having secured the signatures of a majority of the employees, he
informed the Company on April 7, 1941. of the C. I. O.'s claim and
requested a conference to negotiate a contract; that he was told by
one of the partners of the Company (Rosenthal) that the other
partners in the business would have to be consulted; that he returned
on April 8 and was told, first, that the Company's attorney would
have to be consulted, and, later in the day, that the Company was
of the opinion that the A. F. L. had "jurisdiction" over its employees;
and that on April 9 he heard that the Company had entered into a
contract with the A. F. L. Another C: I. O. representative further
testified that up to the time when the contract was executed none
of the employees were aware that the A. F. L. had undertaken to act
in their behalf. Rosenthal on the conti ary testified that the C. I. O.
first presented its claim on April 9, the day after the contract was
signed, and an organizer for the A. F. L. testified that he had repeat-
edly conferred with the Company (at the request of employees)
during a period of a year prior to the execution of the contract.
According to a statement of the Regional Director, which is a part
of the record, the A. F. L. submitted 16 3 authorization cards to
s Inadvertently stated to be 15 In the Regional Director 's statement. A listing of the
cards In the Regional Director 's statement indicates that 16 were submitted
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish its claim of majority representation. All these cards are
dated in May 1941,'except one dated in February 1941. This state-
ment also shows that the C. I. 0., in support of its claim, submitted
23 application-for-membership cards, 15 of which are dated on or
prior to April 7, 1941, and 7 on April 8, 19414 In so far as this
evidence is concerned, it appears that t,n the day of the execution of
the contract the C. I. 0. represented practically all the Company's
employees, whereas the A. F. L. represented only one employee. In
addition, the cards, together with the other evidence concerning the
complete organization of the Companv's employees by the C. I. 0.
by April 8, lend credence to the testimony regarding notice, and we
find that such notice was given by the C. I. 0. prior to the execution
of the contract. Under the circumstances, we hold that the contract
does not constitute a bar to this proceeding.5
We find that a question has arisen concerning the representation
of employees of the Company.
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 C. I. 0. contends that all production employees, excluding
office employees and supervisors who have the right to hire and dis-
charge, constitute an appropriate unit. No conflicting contentions
concerning the appropriate unit have been made by the Company
or the A. F. L., and we find that a unit of all production employees,
excluding office employees and supervisors who have the right to hire
or discharge, constitutes a unit appropriate for the purposes of col-
lective bargaining. We further find that such unit will insure to
employees of the Company the full benefit of their right to self-
organization and to collective bargaining and will otherwise effectuate
the policies of the Act.
4 The exact numbers and dates are as follows :
1 card, April 5, 1941
14 cards, April 7, 1941
7 cards, April 8, 1941
1 card, undated.
5 Matter of W. C Armbruster, doing business as R. H. Armbruster Manufacturing Com-
pany and Congress of Industrial Organzations; 30 N L R B. 457 ; cf Matter of Leo
Hart Co, Inc and Allied Printing Trades Upson, 26 N L R B 125
ERASMUS ATLASiS, INC. 451
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion can best be resolved by an election by secret ballot. At the
hearing the C. I. 0. requested that persons employed for 4 consecutive
weeks or more during the period from January 1, 1941, to April 11,
1941, be permitted to vote. The Company requested, in substance,
that all persons employed between April 11, 1941, and the date of
the election be permitted to vote, whereas the A. F. L. desires that
those employed by the Company for 3 consecutive weeks since April
8, 1941, except those since laid off, be permitted to vote. Employment
in the Company's business is subject to seasonal fluctuations.
As noted above, a closed-shop contract, which we have held no
bar to this proceeding, was entered into by the Company and the
A. F. L. on April 8, 1941. Rosenthal testified at the hearing that
according to his understanding of the contract the Company must,
and would, discharge all employees not A. F. L. members. At the
time the contract was consummated, employment at the Company's
plant was at a peak and since then has undergone the usual decreases
and increases. Under the circumstances, we believe that eligibility
should be determined on the basis of the pay roll immediately,pre-
ceding the execution of the contract on April 8, 1941.° We find,
consequently, 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 immediately preceding
April 8, 1941, subject to such limitations and additions as are 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 Erasmus Atlass, 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 production employees of the Company, excluding office em-
ployees and supervisors who have the right to hire and discharge,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the National Labor Relations
Act.
6Matter o f TV. C. Armbruster, doing business as R, H. Armbruster Manufacturing Com-
pany and Congress of Industrial Organizations, 30 N L R B 457 ; ct Mattei of General
Dry Batteries, Inc and Battery TVorkers' Federal Labor Union, No 22516, A F op L,
29 N L R B 1017 ; Matter of Ansley Radio Corporation and Local 1,30 of The United
Electrical, Radio and Machine Workers of America, C 1 0, 28 N L R B 785
451270-4 2-vol 31--30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 49 Stat. 449, 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 Erasmus Atlass, 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 Article III, Section 9, of said Rules and Regulations,
among all production employees who were employed during the pay-
roll period immediately preceding April 8, 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 temporarily laid off, but excluding office employees,
supervisors who have the right to hire and discharge, and all em-
ployees who have since quit or been discharged for cause, to determine
whether they desire to be represented by Fur & Leather Workers'
Union, Leather Workers' Division, Local 35, affiliated with the Con-
gress of Industrial Organizations, or by Pocketbook Workers, Union
of New York, Local No. 1, affiliated with the American Federation of
Labor, for the purposes of collective bargaining, or by neither.