Frankel Bros & Co. Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1942

42 N.L.R.B. 781 (N.L.R.B. 1942)

In the Matter of FRANKEL.BRos & Co INC and -ROCHESTER JOINT
BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA
Case No R-3996 -Decided July 22,194
Jurisdiction: woolen remnants soiting industry ^
Investigation and Certification of Representatives : existence of question: re-
fusal'of Company to consider request for iecogmtion until it had consulted
counsel, a strike being in effect at the time of the hearing, eligibility to vote
determined by pay roll immediately preceding commencement of strike, elec-
tion necessary
Unit Appropriate for Collective Bargaining : all production employees, excluding
office employees, truck drivers, and foremen
MacFarlane, Harris cC Goldman, by Mr Harry Z. Harris and Mr.
Harry D Goldman, of Rochester, N Y, for the Company
Mr Joseph Plati, of Rochester, N Y , for the Union. -
Mr Frederic B Parkes, 2nd, of counsel to the Board
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Rochester Joint Board, Amalgamated
Clothing Workers of America, herein called the Union, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Fro nkel Bros & Co, Inc , Rochester, Nei' York,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Henry J
Kent, Trial Examiner Said hearing was held at Rochester, New
York, on June 29, 1942 The Company and the Union appeared, par-
ticipated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed At the conclusion of
the hearing, the Company moved to dismiss the petition on the ground
that it was not filed by an organization or inchvidual authorized to
present the petition and, theiefoie, that the Board is without juris-
diction The Trial Examiner reserved ruling on the motion for the
Board The motion is hereby overruled since the petition was filed
42NLRB,No 151
781
782 r , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the'Umon through its business representative who was authorized
by a considerable number of the Company's employees to act as then
collective bargaining representative On July 14, 1942, the Company
filed a brief which the Board has considered
Upon the entire record in the case, the Boaid makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Frankel Bros & Co Ind , a New York corporation, is engaged in the
business of buying, sorting, and reselling woolen and cloth remnants
at its plant in Rochester, New York During the year 1941, approxi-
mately 25 percent of the Company's goods was shipped outside the
State of New York in interstate commerce The Company admits
that it is engaged in commerce within the meaning of the Act
II. THE ORGANIZATION INVOLVED
Rochester Joint Board, Amalgamated Clothing Workers of Amer-
ica is a labor organization affiliated with the Congress of Industrial
Organizations , admitting employees of the Company to membership
III ^ THE QUESTION CONCERNING REPRESENTATION
The Union commenced its organizational activities among the Com-
pany's employees in May 1942 During that month, the business rep-
Iesentative of the Union informed the Company that a majoiity of its
employees had authorized him to act as their collective bargaining
representative and requested that the Company recognize him as such
representative The Company refused to consider the request until it
had consulted its counsel. I
A statement of the Board's Field Examiner intioduced into evidence
indicates that the Union represents `a substantial number of employees
within the unit hereinafter found to be appropriate 1
We find that a question affecting commerce has arisen concerning
the representatition of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act
i The Field Examiner stated that the Union submitted to him an authorization in the
following form "we the undersigned , hereby authorize Mr Joseph Plati , of the Amalga-
mated Clothing Workers of America to represent us in all dealings with regard to wages,
and other conditions of emploiment " The Field Examiner stated that the authorization
contained 66 signatures dated as follows 53 on May 18 , 1942, 12 on June 3, 1942, and
I on June 4, 1942 The Field Examiner reported that 55 of the 66 signatures appeared
to be genuine and original signatures , that 11 of the 66 signatures have been attested
to by the signer ' s "mark" (X), and that all of the 55 signatures which appear to be genuine
and original were names of persons on the Company 's pay roll As of May 15, `1942,
there « eie approximately 85 employees within the unit found below to be appropriate
FRANKEL BROS & CO. INC.
IV THE APPROPRIATE UNIT
783
The Union contends that all production employees, excluding office
employees and tiuck diivers, constitute an appiopriate unit The
Company stated that it has no objection to the unit proposed by the,
Union Although the Union did not specifically urge the exclusion of
supervisory employees, its business iepresentative testified that foie-
men having authority to employ and discharge are not eligible to mem-
bership in the Union We shall exclude foremen fiom the unit Since
the truck diiver is eligible to membership in another labor oiganization,
we shall also exclude him from the unit We find that all production
employees of the Company, excluding office employees, tiuck driveis,
and foiemen, constitute a unit appiopri ate for the purposes of collective
baigaining within the meaning of Section 9 (b) of the Act
V THE DETERMINATION OF REPRESENTATIVES
We find th it the question concei Ding representation which has ai isen
can best be resolved by an election by secret ballot A strike was called
on May 15, 1942, and was still in effect at the time of the lien t i ug
Since the Company stated no objection to the use of a pay roll current
at the commencment of the strike to determine eligibility to vote and
since such a pay roll is of a recent date, we find that the employees
of the Company eligible to vote in the election shall be those who -%ieie
employed during the pay-ioll period immediately pieceding May 15,'
1942, subject to the limitations and additions set foith in the Direction
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Laboi
Relations Boaid by Section 9 (c) of the National Labor Relations Act,
and puisuant to Article III, Section 8, of National Laboi Relations
Boaid Rules and Regulations-Sei ies 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascei tali representa-
tives for the purposes of collective bargaining with Frankel Bros
Co Inc , Rochester, New York, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days fiom
the date of this Direction, undei the direction and supeivision of the
Regional Diiectoi for the Third 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 the employees in, the
unit found appropriate' in Section TV, above, who weie employed
during the pay-roll period immediately preceding May 15, 1942, in-
cluding any such employee-, who did not woik during that pay-ioll
period because they were ill or on vacation or in the active military
784 DECISIONS OF NATIONAL LABOR RELATIONS t BOARD
service or training of the United States, or temporarily laid off, but
excluding any who have since quit or been discharged for cause, to de-
termine whether or not they desire to be represented by Rochester Joint
Board, Amalgamated Clothing Workers of America, affiliated with
the Congress of Industrial Organizations, for the purposes of collective
bargaining
MR GERAIiD D REILLY took no part in the consideration of the above
Decision and Direction of Election.