Garod Radio Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1941

29 N.L.R.B. 184 (N.L.R.B. 1941)

In the Matter of GAROD RADIO CORPORATION and LOCAL 430 OF THE
UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. R-2185.Decided January 24, 1941
Jurisdiction : radio manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives; contract about to expire, no bar to;
eligibility determined in accordance with desires of the parties ; election
necessary.
Unit Appropriate for Collective Bargaining : all the employees in the Company's
production departments, including' working supervisors, but excluding engi-
neering, laboratory, watchmen, porters, maintenance, and toolroom, time-study
men, timekeepers, experimental workers, foremen, non-working supervisors,
stockroom employees, shipping and receiving room employees, office, clerical, and
all other non-production employees ; agreement as to.
Mr. Daniel Baker, for the Board.
Mr. Morris Weintraub, of New York City, for the Company.
Mr. Frank Scheiner, of New York, for Local 430.
Mr. William Karlin, by Mr. Leo Greenfield, of New York City,
for Local B-1010.
Mr. George Twritz, of counsel to the Board.
DECISION
AND -
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 22, 1940, Local 430 of the United Electrical Radio &
Machine Workers of America, C. I. 0., herein called Local 430, 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 Garod Radio Corporation,
Brooklyn, New York, 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 November 20, 1940, the National Labor Relations Board,
herein called the Board, acthig pursuant to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
1 The Company was incorrectly referred to in the petition as Garod Radio Corp.
29 N. L. R. B., No. 34.
184
GAROD RADIO CORPORATION , 185
and Regulations-Series 2, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On November 25, 1940, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
Local 430, and upon Radio Union, Local B-1010, International Brother-
hood of Electrical Workers, affiliated with the American Federation of
Labor, herein called Local B-1010, a labor organization claiming to rep-
resent employees directly affected by the investigation. Pursuant to
the notice, a hearing was held on December 7, 1940, at New York City,
before Howard Myers, the Trial Examiner duly designated by the
Board. The Board, the Company, Local 430, and Local B-1010 were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard , to examine and cross -examine witnesses , and to in-
troduce evidence bearing on the issues was afforded all parties. At
the opening of the hearing the Company filed an answer in the form of
written objections to the Board 's taking jurisdiction of the proceeding
on the grounds , among others , that a certain contract between the
Company and Local B-1010 would not expire until March 1, 1941,
and could be extended by either party for a further period of 1 year
after March 1, 1941; and that the issues of law and fact raised by the
petition had already been disposed of by the Board when it dismissed
a previous petition filed by Local 430. During the course of the
hearing the Company moved to dismiss the proceeding on the grounds
above set forth, and Local B-1010 moved to dismiss the petition on
the same grounds and on the further ground, among others, that the
granting of the relief sought would constitute an illegal and uncon-
stitutional interference with Local , B-1010's, contractual rights. The
Trial Examiner did not pass upon the said motions. The motions
are hereby denied. 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':
FLNDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Garod Radio Corporation is a New York corporation having its
factory in Brooklyn, New York City. It is engaged in the manufac-
ture of radios . For use in such manufacture it annually , purchases
materials , consisting mainly of parts , valued at approximately $100,000,
more than 50 percent of which are shipped to the Company from points
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside New York State. The Company's total sales 'of its products
amount to more than $200,000 per year,Z of which about 25 percent
represents products shipped to points outside New York State. The
Company concedes that it is engaged in interstate commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Local 430 of the United Electrical, Radio & Machine Workers of
America is a labor organization, affiliated with the Congress of Indus-
trial Organizations, admitting employees of the Company to its
membership. ,
Radio Union, Local B-1010, International Brotherhood of Electrical
Workers, is a labor organization, affiliated with the American Federa-
tion of Labor, admitting employees of the Company to its membership.
III. THE QUESTION CONCERNING REPRESENTATION
On March 8, 1938, the Company and Local B-1010 entered into a
collective bargaining agreement pursuant to which the Company recog-
nized Local I3-1010 as the exclusive bargaining agent of the employees
in the Company's production departments. On February 14, 1939,
the agreement was duly extended so as to expire on March 1, 1941. • On
May 7, 1940, Local 430 wrote a letter to the Company stating that
Local B-1010 had severed its affiliation with the International Brother-
hood of Electrical Workers and was known as Local 430 of the United
Electrical Radio & Machine Workers of America, that Local 430 was
the duly designated exclusive bargaining agency of the Company's
employees, and requesting a conference for collective bargaining. On
May 15, 1940, Local 430,filed with the Regional Director a petition
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the Act,,;-hich petition was dismissed by
the Board on June 19, 1940. On May 17, 1940, the Company and
Local B-1010 entered into an agreement modifying the agreement of
March 8, 1938, above referred to. The modification, among other
things, provided for a closed shop, that the modification would remain
in effect until March 1, 1941, and "from year to year" thereafter, and
that "Either party desiring to modify this agreement must notify
the other ' in writing at least 60 days prior to March 1 of any
year . . ." In various conferences with the Company following the
filing of the petition of May 15, 1940, and following its dismissal,
Local 430 renewed its claim to be the duly designated bargaining
representative of the employees and its request to the Company for a
collective bargaining agreement. The Company declined to enter
2 The stipulation upon which the above facts as to the Company ' s operations are based
stated • "The total sales volume of the company is in excess of $200,000 ," but it is apparent
from the context that the parties were referring to the annual sales volume.
GAROD RADIO CORPORATION -- 187
into negotiations with Local 430 for such an agreement on the ground
that an unexpired contract was in effect between the Company and
Local B-1010, and stated that it would request the Board to conduct
an election to settle the question concerning representation. On or
about the day'of the hearing the Company stated it would not deal
with Local 430 pending the Board's decision.
The Company and Local B-1010 contend that there is no question
concerning representation, since a valid closed-shop contract between
them is now in effect. Since the present contract between the Com-
pany and Local B-1010 is terminable on March 1, 1941, it plainly could
not preclude the Board from making an investigation and determining
a bargaining representative for the purpose of negotiating a new agree-
ment for the period following March 1, 1941, if one is desired.3
Local 430 submitted to the Regional Director evidence of substantial
membership among the Company's employees'
'We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UNION 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
Local 430, Local B-1010, and counsel for the Board stipulated to
the effect that the appropriate unit for purposes of this proceeding
3Matter of Quality Furniture Mfg Co and United Furniture Workers of America, Local
576, C. 1. 0., 8 N. L. R B 850, 856 ; Matter of Martin Bros. Box Company and Toledo
Industrial Union Council, 7 N. L. R . B. 88, 91; Matter of 77. Margolin & Co , Inc, and
Int'l Ladies Handbag, Pocketbook & Novelty Workers' Union, 9 N. L. R. B. 852, 855. We
note, also, that the modification whereby the present contract runs from year to year was
made after Local 430 had informed the Company of its claim to represent the employees
and had filed its petition with the Regional Director, and that the contract previously in
force had no provision for its extension or renewal beyond March 1, 1941 Matter of
Colonic Fibre Company, Inc . and Cohoes Knit Goods Workers Union No. 21514, A. F. of L.,
9 N. L. R. B. 658, 660; Matter of Showers Brothers Company, Inc and National Furniture
Workers Local No 1, of the Upholsterers International Union of'North America, etc, 13
N L R B. 829, 832 ; Matter of Union Premier Food Stores, Inc., etc and United Retail &
Wholesale Employees of America , etc., 11 N. L. R B. 270, 277; Matter of California Wool
Scouring Company and Textile Workers Organizing Committee, 5 N. L. R. B. 782, 785;
Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial
Association, 4 N. L R. B 1086, 1090.
' Local 430 submitted 24 signed cards applying for membership in Local 430 bearing the
names of persons on the Company's pay roll of October 22, 1940, which pay ioll was com-
posed of the name,, of 42 employees. The bulk of the cards were dated between May 6 and
21, 1940
1 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consists of the employees in the production departments, including
working supervisors, and does not include engineering, laboratory,
watchmen, porters, maintenance, and toolroom, time-study men, time-
keepers, experimental workers, foremen, non-working supervisors,
stockroom employees, shipping and receiving room employees, office,
clerical, and all other non-production employees. The Company stated
that it had no objection to such unit. We see no reason for not
carrying out the desires of the two labor organizations in this respect
and shall give effect to this stipulation.5
We find that all the employees'in the Company's production depart-
ments, including working supervisors, but excluding engineering,
laboratory, watchmen, porters, maintenance, and toolroom, time-study
men, timekeepers, experimental workers, foremen, non-working su-
pervisors, stockroom employees, shipping and receiving room em-
ployees, office, clerical, and all other non-production employees, con-
stitute 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 bargain-
ing and otherwise effectuate the policies of the Act.
171. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot.
Local 430 and Local B-1010 stipulated that in the event that the
Board directed an election, the employees in the appropriate unit.
eligible to vote should be those employed by the Company on May 6
and December 7, 1940. The'Company stated that it had no objection
to this basis for eligibility. The representation dispute in this case
arose as a result of a schism in the ranks of Local B-1010 on May 6,
1940. The parties, by their stipulation, have in effect recognized this
as the determinative date with respect to the dispute and have agreed
that, if the dispute is to be settled by an election, it should be settled as
of that time. While it is ordinarily advisable to use a current pay roll
to determine eligibility to vote in an election designed to settle a rep-
resentation dispute, where, as here, the dispute relates to an earlier
period and the disputants have agreed to its determination as of that
time, we believed that settlement of the dispute can best be achieved
by acting in accordance with the desires of the parties. We shall,
therefore, under the circumstances here present, give effect to the
stipulation.
Local B-1010 requested that its name appear on the ballot as'Local
B-1010 of the International Brotherhood of Electrical Workers,
6 This is the same unit as is established in the Company ' s contract with Local B-1010
of March 8 , 1938, with the addition of working supervisors
GAROD RADIO CORPORATION 189
A. F. of L. We shall direct that the ballots be drawn in the form
requested.
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 rep-
resentation of employees of Garod Radio Corporation , Brooklyn, New
York, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All the employees in the Company 's production departments,
including working supervisors, but excluding engineering, laboratory,
watchmen , porters, maintenance , and toolroom , time-study men, time-
keepers, experimental workers , foremen, non-working supervisors,
stockroom employees , shipping and receiving room employees, office,
clerical, and all other non -production employees , constitute a unit
appropriate for the purposes of collective bargaining , within the mean-
ing 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 Relations
Act, and pursuant'to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining with
Garod Radio Corporation , Brooklyn, New York, 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 the employees employed in the Company 's production departments
on May 6 and December 7 , 1940, including working supervisors, em-
ployees who did not work on said dates because they were ill or on
vacation , and employees who were then or have since been temporarily
]aid off, excluding engineering , laboratory , watchmen, porters, mainte-
nance, and toolroom, time -study men, timekeepers , experimental work-
ers, foremen , non-working supervisors , stockroom employees , shipping
and receiving room employees , office, clerical , and all other non-produc-
tion employees , and employees who have since quit orbeeiI discharged
for cause , to-determine whether they desire to be represented by Local
430, United Electrical , Radio & Machine Workers of America, C. I. O.,
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or by Local B-1010 of the International Brotherhood. of Electrical
Workers, A. F. of L., for the purposes of collective bargaining, or by
neither.
MR. WILLIAM M. LElsrstsoN, dissenting in part : _
On June 19, 1940, the Board dismissed the original petition in this
ease on the ground that the existing contract was a bar to a representa-
tion proceeding. This contract will not expire until March 1, 1941.
Every employee working under the contract has a right to vote for
representatives to negotiate a new contract. The stipulation of the
parties has the effect of denying the right to vote to any employees
who were hired subsequent to May 6. I am of the opinion that the
Board should follow its usual practice of permitting all employees
to vote who were on the payroll preceding the direction of election.
A stipulation which sets aside the legal right of employees to vote
is not binding on the Board.6
6 Matter of Climax Machinery Company and Metal Polishers, Buffers, Platers and Helpers
International Union, Local Union No. 171, affiliated with the A. F. of L, 26 N. L R. B.
1038; Matter of Waggoner Refining Company, Inc., and W. T. Waggoner Estate and Inter-
national Association of Oil Field, Gas Well and Refinery Workers of America, 6 N. L. R. B.
731. 761 ; Matter of Princely Products, Inc. and United Shoe Workers of America, C. I. 0.,
15 N. L. R. B. 438, 441.