Garod Radio Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1941

32 N.L.R.B. 1010 (N.L.R.B. 1941)

In the Matter of GAROD I AD1o CoRYORATJON all( LOCAL 430 of THE
UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. R-0185
SUPPLEMENTAL DECISION
AND
DIRECTION
STATEMENT OF THE CASE
June 23,1941
On January 24, 1941, the National Labor Relations Board, herein
called the Board, issued its Decision and Direction of Election' in the
above-entitled proceeding.2 Pursuant to the Direction of Election
an election by secret ballot was conducted on February 13, 1941, under
the direction and supervision of the Acting Regional Director for
the Second Region (New York City). On March 5, 1941, the Regional
Director, acting pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, issued
her Election Report, copies of which were duly served upon the
parties.
As to the balloting and its result, the Regional Director reported
as follows:
Total number of eligible to ------------------ 26
Total number of ballots cast ---------------------------------- 31
Total number of valid ballots________________________________ 22
Total number of votes in favor of Local 430 of the United
Electrical Radio & Machine Workers of Xinerica, C. I. O____ 11
Total number of votes in favor of Local B-1010 of Inter-
national Brotherhood of Electrical Workers, A. F. of L______ 11
Total number of votes in favor of neither union________________ 0
Total number of blank votes -------------- 0
Total number of void ballots_________________________________ 0
Total number of challenged ballots ----------------------------- 9
1 29 N. L. R. B. 184.
2 On February 10, 1941, Radio Union, Local B-1010 , International Brotherhood - of
Electrical Workers, affiliated with the American Federation of Labor , herein called Local
13-1010, filed a protest to the Direction of Election and moved that the Board amend the
Direction of Election by permitting additional employees to vote. On February 12, 1941,
the Board issued its order denying the motion.
32 N. L. R. B., No. 163.
1010
GAROD RADIO CORPORATION 1011
Ili her Election Report the Regional Director recommended that
certain of the challenges be overruled and the ballots considered valid;
and that the other challenges be sustained and the ballots not con-
sidered valid. She also recommended that Frank Lopez, an ' em-
ployee eligible to vote in the election but who had not voted because
of illness, bel permitted to vote, and that Paul -Cangiolosi, an eligible
employee who did not vote in the election because he Was absent on
military service, not be permitted to vote.
On March 12, 1941, Local B-1010 filed Objections to the Elec-
tion Report and on March 17, 1941, Local 430 of the United Electrical,,
Radio & Machine Workers of America, C. I. 0., herein called Local
430, filed its Objections to the Election Report. On March 22; 1941,
the Regional Director issued her Report on Objections. -
By its Order dated April 12, 1941, as amended by its Order dated
April 16, 1941, the Board, acting pursuant to Article III, Section
9, of the said Rules and Regulations, having found that•the•Objec-
-tions raised substantial and material issues with respect to the con-
duct of the ballot, ordered that a hearing be held on the Objections
and directed the Regional Director to issue a notice of such hearing.
On or about April 23, 1941, the Regional Director issued a Notice of
Hearing, copies of which were duly served upon Garod Radio Cor-
poration, Brooklyn, New York, herein called'the Company, Local
430, and Local B-1010. Pursuant to notice, a hearing was held on
May 5 and 6, 1941, at New York City, before Henry J. Kent, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the Company, Local 430, and Local B-1010 were represented
by counsel and participated in the hearing. Full opportunity 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 rulings on motions
and on objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
At the opening of the hearing Local B-1010 and,the Company
moved that the proceeding be dismissed on the ground that no ques-
tion concerning representation any longer existed, since during April
1941 all the employees of the Company had signed a statement to
the effect that they were members of Local B-1010 and had author-
ized, ratified and accepted a certain closed-shop agreement between
Local B-1010 and the Company, effective April 11, 1941. The mo-
tion is hereby denied. ,
Local 430 and Local B-1010 have filed briefs with the Board, and
Local B-1010 requested oral argument. On June 3,' 1941, pursuant
to notice, a hearing was held before the Board in Washington, D. C.
4 MI)2-42-c of 32-6
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of oral argument. Local 430 was represented by
counsel and participated in the hearing. Local B-1010 did not
appear.
Upon the record so made, the Election Report, the Objections, the
Report on Objections, and the record previously made, the Board,
acting pursuant to Article III, Sections 8 and 9 of said Rules and
Regulations hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT
Improperly Marked Ballot . This ballot , instead of being marked
with an "X ," had written in the box under the name of Local 430
the letters "C. I. 0." The Regional Director recommended that the
ballot be considered valid, and Local B-1010 objected to this recom-
mendation .' We find that the intent of the voter to cast his ballot
for Local 430 was clearly indicated and shall therefore direct that
this ballot be counted.
Sidney Gerlack and Bernard Wechsler . The Direction of Elec-
tion directed , pursuant to the stipulation of the parties , that the
persons eligible to vote in the election be those employees in the appro-
priate unit who were employed by the Company on May 6 and
December 7, 1940. The ' Direction also provided that employees who
did not work on said dates because they were ill or on vacation, and
employees who were then or had since been temporarily laid off,
should be eligible to vote, and that employees who had since quit or
been discharged for cause should not be eligible . Both Gerlack and
Wechsler were in the Company's employ on May 6, 1940 , Gerlack
having worked for the Company that day, and Wechsler having been
on a temporary lay-off that day, from which he returned to work on
May 8. Both men were laid off on June 19 , 1940, along with most
of the employees in the plant, because of a temporary slow -down of
production . Thereafter, because they were not members in good
standing of Local B-1010, they were not recalled to work. Both
obtained employment in another radio factory on or about July 15,
1940 . Local 430 contended that Gerlack and Wechsler were tem-
porarily laid off on December 7 and therefore were eligible to vote
within the terms of the Direction of. Election . -It is clear, however,
that on December 7, 1940, Gerlack and Wechsler were not laid-off
employees but were no longer in the Company 's employ. If the
parties had intended that persons whose employment had been termi-
nated under the closed -shop provision of the contract prior to Decem-
ber 7 were to be eligible to vote, specific provision to that effect would
have been included in the stipulation made that day . We think,
therefore , that Gerlack and Wechsler were not eligible to vote within
the terms of the Direction of Election or the stipulation of the parties
GAROD RADIO CORPORATION 1013
upon which the Direction was bated, and shall, accordingly, direct
that their ballots not be counted.
Rosetta Rawson. Rawson worked for the Company on May 6,1940,
and, having been laid off with most of the other employees on or
about June 19, 1940, did' not thereafter return to work. Local 430
contends that Rawson, when being laid off, received a leave of ab-
sence from the Company because of pregnancy and that she was
therefore ill on December 7, 1940, and hence eligible to vote, within
the terms of the Direction of Election. Rawson's testimony shows,
however, that she did not know whether-or not she would ever return
to work and that she received no leave of absence but rather a mere
promise of favorable consideration in the event that she should at
"some time in the future" find it necessary to return to work. Rawson
also testified that she was able to return to work in October 1940 but
made no application for reemployment until January 1941. We find
that Rawson quit her employment prior to December 7, 1940, and
shall accordingly direct that her ballot not be counted.
Betty Schwartz. Schwartz worked for the Company on both May
6 and December 7, 1940. She did not work for the Company at any
time after December 24, 1940, and Local B-1010 and the Company
contend that she quit at that time. Local 430 contends that Schwartz
obtained a leave of absence in December because of pregnancy. The
Regional Director in her Election Report recommended that
Schwartz's ballot not be counted, and in her Report on Objections
overruled Local 430's objection to this recommendation. Schwartz
was confined at the time of the hearing on the objections and did not
testify. No testimony was adduced at the hearing by the Company,
Local 430, or Local B-1010 on the question of whether or not she did
receive a leave of absence. In connection with another objection,
counsel for Local B-1010 and counsel for the Company indicated that
they were under the impression that they could rest on the recommen-
dation in the Regional Director's Election Report unless the object-
ing party produced proof. Counsel for the Board however made
it clear that this impression was incorrect, stating : "I want to correct
Mr. Weintraub's [counsel for the Company] . . . statement of
assumption. He says these things must be in the record. There is a
report by the Regional Director, but I assume that the reason the
Board has ordered a hearing here is that they want whatever the
facts are with respect to those particular objections to be in the record
in the form of testimony in a transcript taken by a reporter before a
trial examiner." Since Schwartz worked on both eligibility dates in
the Direction of Election and there is no proof that she subsequently
quit or was discharged for cause, we shall direct that her ballot-be
counted.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fay Siegel. Siegel worked for the Company on both May 6 and
December 7, 1940, but was discharged on December 31, 1940, pursuant
to a- request by Local B-1010 , because she was not in good standing
in that organization: Local B-1010 and the Company contend that
her discharge was proper since the contract in effect at the time of
the `discharge explicitly required that all employees be members of
Local B-1010 . The contract in question was made on May 17, 1940,
after a large number of employees of the Company had shifted their
allegiance from Local B-1010 to Local 430 and Local 430 had in-
formed the Company that it had been designated by a majority of
the employees as their representative for the purposes of collective
bargaining . Also the execution of the contract was 2 days subsequent
to the filing of a petition by Local 430, which petition the Board dis=
missed; without ordering a hearing , on June 19, 1940. Local 430,
the agents of the Board, and counsel for the Company were not in-
formed of the existence of the contract until early in December 1940,
a few days prior to the hearing on the petition in this case, and the
Board was not informed of its existence when it dismissed the former
petition .. At the hearing on the petition Local 430 contended that, the
closed-shop contract was invalid . We think that the parties , in mak-
ing.-the stipulation on which -the Direction of Election is based; in-
tended to avoid litigating the validity of the closed -shop contract. In
view of the circumstances , the. phrase "discharged for cause" ' in the
Direction of Election was not intended to, and did not, include persons
who were discharged after December 7, 1940, because of failure to be
members in good standing in Local B -1010. We shall therefore
direct that Siegel's ballot be counted.
Joe Pogano . Pursuant to the parties ' stipulation , working super-
visors were included in the appropriate unit; other supervisors, were
excluded . • It is undisputed that Pogano was a supervisor , but the
Company and Local B-1010 contend that he was a working supervisor
and, therefore within the appropriate unit, whereas Local 430 contends
that he was not a working supervisor , and was therefore excluded from
the unit . It was testified without contradiction that Pogano super-
vised approximately 16 employees on the wiring line; that he con-
structed the samples for new models , laid out each operator's work,
showed the operators what to do , inspected the work, vas responsible
for the maintenance . of the proper rate of production , and told em-
ployees when they were to be temporarily laid off. Pogano testified
that he spent 5 to 6 hours, every day "actually working on production"
with his hands , such work including wiring, inspecting , soldering, aiid
making connections; that he moved along . the' wiring line; using his
pliers; cutter , and, soldering iron at all times; that he never spent "as
much as a day or a week merely supervising and looking at others
GAROD RADIO CORPORATION 1015
work ... without actually working" himself ; that, on • occasions,
when an absent operator could not-be replaced, he worked 8 hours in
the line itself, and that in telling the employees'they were, laid off'he
simply followed the instructions of the superintendent as to how many
employees to keep and "inquire [d] as to following seniority list." The
record shows that Pogano's hands were calloused. On the other hand,
Rawson, who worked under Pogano, testified that the only manual
work performed by him consisted of making samples for new models,
relieving some of the slower employees when they had to leave the
work bench, and showing new employees how to do their work; that
Pogano could make all the samples for a new model in half a day; that
during Rawson's employment, which was from February to June
1940, only three new models were introduced; that he relieved em-
ployees on the line only a few times in the course of a week-and then
for at most only 5 minutes; and that Pogano did not replace absent
workers and never assisted in production work in order to make work
go through faster. Most of Rawson's testimony was corroborated by
Wechsler, who also worked in the wiring department.
Pogano also testified that his status was the same as that of two
employees whose right to vote in the election was unquestioned, namely,
Moss," who, Pogano testified, was a working supervisor in the cabinet
department, and Tolchin, who, he testified, was a working supervisor
in the wiring department doing the same work as Pogano. Katz, busi-
ness manager of Local 430 and formerly business agent for Local
B-1010, testified that he had "serviced" the Company's plant for sev-
eral years; that Tolchin was a wireman on the wiring line; and that
Moss was not a "working foreman" but a "plain production employee
working 8 hours a day fixing sets." The Regional Director stated in
her Election Report that Moss and Tolchin were classified as working
foremen. During the week ending May 7, 1940, Pogano received
$32.40, Moss $30.60 and Tolchin $27.00. ' Wiremen, paid by the hour,
earned approximately $20.00 a week when they worked 40 hours.
Rawson was a very frank witness and to the extent that her testi-
mony and Pogano's were in conflict, we accept her account of Pogano's
duties as being accurate. Furthermore, Pogano's own testimony that
he moved along the wiring line when working shows that he did not
have a place in the line with the ordinary employees, but that the
manual labor performed by him was for the most part only incidental
to his supervisory function. Such a position is not within the ordinary
concept of "working supervisor" or "working foremen," terms more
frequently applied to persons who for the most part perform the same
duties as ordinary employees but in addition have supervisory func-
Moss was also referred to in the record as Morse
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions.4 To the extent that there is any doubt in the matter, we think
it should be resolved in favor of excluding rather than including in
the unit an admittedly supervisory employee. We find that Pogano
was not a working supervisor within the meaning of the Direction of
Election and our finding as to the appropriate unit, and we shall
therefore direct that his ballot not be counted.
Michael Larruccia and Adele Sulzer. The Regional Director recom-
mended that the ballots of these two employees not be counted. In
its Objections to the Election Report Local 430 objected to this recom-
mendation but subsequently it abandoned its objections. We shall
therefore direct that Larruccia's and Sulzer's ballots not be counted.
Frank Lopez. Prior to the election, the Company informed the Re-
gional Director that Lopez was absent on December 7, 1940, because
of illness. Beedie, international representative of the International
Brotherhood of Electrical Workers, 'in charge of Local B-1010, in-
formed Lopez of the election before it was held, but neither Lopez
nor Local B-1010 raised any question about providing Lopez with
special facilities to vote until after the balloting was completed. We
shall'not permit Lopez to cast a ballot at this time.
Paul Cangiolosi. Prior to the election the Company informed the
Regional Director that Cangiolosi was absent on December 7, 1940,
because he had been drafted into the Army. No request was made
that any special facilities be granted for Cangiolosi to vote until after
the balloting was completed. The record shows, moreover, that neither
Local B-1010 nor the Company knew at what military post he was
stationed until the day of the hearing on the Objections. The Com-
pany contends that Cangiolosi was entitled to special treatment with
respect to notice since he is in military service. We do not think,
however, in view of all the circumstances, that Cangiolosi should be
permitted to cast a ballot at this time.
DIRECTION
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, Sections 8 and 9
of National Labor Relations Board Rules and Regulations-Series 2
as amended it is hereby
4 "Working foreman (any Ind.). A general term applied to any supervisory worker
who performs production duties, frequently a straw boss ." " Straw Boss . . . ( any Ind.).
A term applied to a worker who takes the lead in a team or gang , usually small in num-
ber, including himself, performing all the duties of the other workers in the gang ; his
supervisory functions are incidental to the production duties he performs " Dictionary of
Occupational Titles, Part I, Definitions of Titles , prepared by the Job Analysis and Informa-
tion Section , Division of Standards and Research , United States Department of Labor and
United States Employment Service, June, 1939.
GAROD RADIO CORPORATION 1017
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Garod Radio Corporation, Brooklyn, New York, the Regional
Director for the Second Region (New York City) shall, pursuant -to
the said Rules and Regulations and subject to Article III, Section 9,
of said Rules and Regulations, within ten (10) days from the date of
this Direction, open and count the ballots of Betty Schwartz and Fay
Siegel, and count the ballot marked "C. I. 0.," and shall thereafter
prepare and cause to be served upon the parties a Supplemental Elec-
tion Report embodying her findings therein and her recommendations
as to the results of the secret ballot.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Supplemental Decision and Direction.