H. Cohen & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1941

30 N.L.R.B. 31 (N.L.R.B. 1941)

In the Matter of H. COHEN & CO., INC. and STEEL WORKERS ORGANIZING
COMMITTEE, LOCAL No. 2237 , AFFILIATED WITH THE C. I. 0.1
Case No. j R-2270.Decided March 3, 1941
Jurisdiction : sorting, grading, and preparation of scrap metal.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition ; contract shortly to expire, no bar to ; elec-
tion necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at the Roxbury and Chelsea plants of the Company, excluding
executives, supervisory employees, office and clerical employees, truck drivers,
employees of the Lead Division, engineers, and specifically named employees
desired excluded by one of the unions which neither the Company nor the
competing union objected to.
Friedman, Atherton, King cfi Turner, by Mr. Frank L. Kozal, of
Boston, Mass.; for the Company.
Mr. Samuel E. Angoff, of Boston, Mass., for the S. W. O. C.
Mr. Robert E. Sullivan and Mr. John J. Falvey, of Boston, Mass.,
for the A. F. of L.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 30, 1940, Steel Workers Organizing Committee, Local
No. 2237, affiliated with the C. I. 0., herein called the S. W. O. C.,1
filed with the Regional Director for the First Region (Boston, Massa-
chusetts) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of H. Cohen &
Co., Inc., Chelsea, Massachusetts, herein called the Company, at its
Roxbury and Chelsea plants, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On Decem-
ber 9, 1940, the National Labor Relations Board, herein called the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
1 The S. W. O. C. amended its petition to set forth its name therein as above stated.
30 N. L. R. B., No. 4.
-31
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 3 , of National Labor Relations Board Rules and Regula-
tions-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 December 28, 1940, the Regional Director issued a niotice of
hearing, copies of which were duly served upon the Company, the
S. W. O. C., and International Hod Carriers, Building & Common
Laborers Union No. 1102, affiliated with the A. F. of L., herein called
the A. F. of L., a labor organization claiming to represent employees
directly affected by the investigation. Pursuant to the notice, a hear-
ing was held on January 27, 1941, at Boston, Massachusetts, before
Albert J. Hoban, the Trial Examiner duly designated by the Board.
The Company, the S. W. O. C., aird,the A. Y. of 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 upon the issues was afforded all parties. No objections
to the admission of evidence were made at the hearing. During the
course of the hearing the Trial Examiner made several rulings on,
motions. 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
H. Cohen & Co., Inc., a Massachusetts corporation with its principal
office at Chelsea, Massachusetts, is engaged in the sorting, grading,
and preparation of iron and steel scrap metal. It operates a plant
at Chelsea and a plant at Boston, commonly called the Roxbury
plant. During 1940 the Company sorted, Traded, and prepared
more than 50,000 tons of materials, valued at $8 per ton. Approxi-
mately 5 per cent of these materials originated outside the Common-
wealth of Massachusetts. During the same period approximately
50 per cent of the said materials processed by the Company were
shipped to points in the United States outside the Commonwealth of
Massachusetts and in Great Britain. The Company admits that it
is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Local No. 2237 is a labor organization affiliated with Steel Workers
Organizing Committee and, through it, with the Congress of Industrial
Organizations. It admits to membership employees of the Company.
H. COHEN ,&_ CO., INC. 33
International Hod Carriers, Building & Common Laborers Union
No. 1102 is a labor organization affiliated with the American Fed-
eration of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated August 28, 1940, the S. W. O. C. requested the Com-
pany to meet with it as the collective bargaining representative of the
Company's employees for the purpose of negotiating an agreement
concerning wages, hours, and ,working conditions. The Company
refuses to meet with the S. W. O. C. for the reason that the Company
is in contractual relationship with the A. F. of L. On August 30,
1940, the S. W. O. C. filed the instant petition. The A. F. of L. contends
that its contract with the Company, dated May 11, 1939, and renewed in
1940, discussed below, is a bar to this proceeding.
On February 1, 1938, the Board held a consent election among the
employees of the Company to determine whether they desired to be
represented by the A. F. of L. or by an unaffiliated labor organization.
Of the 89 ballots cast in this election, 27 were for the A. F. of L. and
60 were for the unaffiliated labor, organization. Shortly thereafter
the A. F. of L. approached the Company and claimed to represent a
majority of its employees and submitted certain membership cards to
the Company. A representative of the Company testified that lie
did not compare the names on the cards with the Company's pay roll
or ascertain the authenticity of the signatures affixed thereto, but that
on the basis of the A. F. of L.'s claim he was satisfied that it repre-
sented a majority of the Company's employees. On March 9, 1938,
the Company, as an affiliate of the Institute of Scrap Iron & Steel,
Inc., Boston Chapter, an association of employers dealing in scrap
iron, entered into an exclusive bargaining contract with the A. F. of L.
The contract provided, among other things, that the Company's "free-
dom of choice and selection of men to be hired shall not be limited or
restricted, except that the new men shall be members of the [A. F. of
L.]" and that the agreement would remain in force for 90 days and
thereafter, so long as 'Mutually agreeable to the parties, and might be
terminated by 30 days' written notice given by either party to the
other.
This contract apparently continued in effect until May 11, 1939,
when the Company entered into another contract with the A. F. of L.
The record does not show the A. F. of L.'s representation among the
Company's employees on May 11, 1939. The second contract provided,
among other things, that all persons then employed should immedi-
ately become members of the A. F. of L., that all newly hired persons
should become members within 1 week, and that the agreement would
remain in force until April 1, 1940, and thereafter from year to year
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless one party should, not less than 60 days prior to the annual
terminal date, serve notice of termination upon the other.
On January 17, 1940, the A.' F. of L. instituted suit against the
Company to recover damages for breach of contract. On January 26,
1940, the Company served upon the A. F. of L. notice of termination
of the contract as of April 1, 1940. However, in the latter part of
February 1940 the A. F. of L. agreed not to press its suit against the
Company and the Company orally withdrew its notice of termination
of the contract. The contract dated May 11, 1939, was automatically
renewed for another year, beginning April 1, 1940, expiring on April
1, 1941.
Under all the circumstances, including the fact that there is some
doubt as to the majority designation of the A. F. of L. on March 9, 1938,
and on May 11, 1939, the dates on which the successive contracts were
executed,2 and that the contract is about to expire,3 we find that the
contract dated May 11, 1939, does not constitute a bar to this proceeding.
There was introduced in evidence a report prepared by the Re-
gional Director showing that the S. W. O. C. represented a substan-
tial number of employees in the unit alleged in its petition to be
appropriate.4 - -
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REP 1ESENTATION 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 with foreign countries and tends to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The S. W. O. C. contends that all production and maintenance em-
ployees at the Roxbury and Chelsea plants of the Company, excluding
2Matter of Southern Chemical Cotton Company and Textile Workers Organizing-Com-
mittee, 3 N. L R B . 869, The Stratbury Manufacturing Company and United Garment
Workers of America , Local 11x7, affiliated with the American Federation of Labor, 12 N. L.
R B 618.
8Matter of The Wadsworth Watch Case Company and International Assn. of Machinists,
District #3r, 21 N L R B 476
d The Regional Director reported that the S W O. C. suomitted authorization cards
signed by 67 persons whose names appear on the Company 's pay roll of August 29 and 30,
1940 There are approximately 100 employees in the unit hereinafter found to be appro-
priate The A. F of L. made no sho« ing of membership , relying on its contention that its
contract , discussed above, is a bar to the proceeding.
H. COHEN & CO., INC. 35
executives, supervisory employees, office and clerical employees, truck
drivers, engineers, and employees of the Lead Division,5 constitute
an appropriate unit. The A. F. of L. and the Company offered no
objections to this unit.
The S. W. O. C. requested the exclusion of Hyman Lipsitz, John
Paluso, Charles Cyzon, Joseph Laurie, Joseph Osta, and S. Kurland
on the ground that they are supervisory employees, and requested
the exclusion of Julius Marcus, on the ground that he is a clerical
employee exercising supervisory functions. Neither the Company
nor the A. F. of L. offered any objections to these proposed exclusions.
The record shows, and we find, that the first six named employees
exercise supervisory powers, and that Julius Marcus is a clerical em-
ployee exercising supervisory powers. We shall exclude all said em-
ployees from the unit.
We find that all production and maintenance employees at the
Roxbury and Chelsea plants of the Company, excluding executives,
supervisory employees, office and clerical employees, truck drivers,
employees of the Lead Division, engineers, Hyman Lipsitz, John
Paluso, Charles Cyzon, Joseph Laurie, Joseph Osta, S. Kurland, and
Julius Marcus, constitute a unit appropriate for the purposes of
collective bargaining and that such unit will insure to the employees
of the Company the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuate the policies of the
Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation of employees
of the Company can best be resolved by an election by secret ballot.
We shall direct that an election by secret ballot be held among all
employees within the appropriate unit who were employed during the
pay-roll period last preceding the date of this Direction, with the
inclusions and exclusions set forth in the Direction, to determine
whether they desire to be represented by the S. W. O. C., or by the
A. F. of L., for purposes of collective bargaining, or by neither.
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 H. Cohen & Co., Inc., Chelsea, Massachusetts,
at its Chelsea and Roxbury plants, within the meaning of Section 9
(c) and Section 2 (6) and (7) of the National Labor Relations Act.
s This group Is employed by a separate corporate entity, which is owned and operated by
the same persons who own and operate the Company.
440135-42-, Vol. 30-4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All production and maintenance employees at the Roxbury and
Chelsea plants of the Company , excluding executives , supervisory em-
ployees, office and clerical employees; truck drivers, employees of the
Lead Division, engineers, Hyman Lipsitz, John Paluso, Charles Cyzon,
Joseph Laurie, Joseph Osta, S. Kurland, and Julius Marcus, consti-
tute a unit appropriate for the purposes of collective bargaining.
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, 49 Stat . 449, and pursuant to Article III, Section 8, of Na-
tional 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 H. Cohen & Co., Inc., Chelsea, Massachusetts, 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 di-
rection and supervision of the Regional Director for the First 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 and maintenance employees employed by said
Company at its Chelsea and Roxbury plants during the pay-roll period
last preceding the date of this Direction, including employees who
did not work during such pay-roll period because they were ill or on
vacation and employees who were then or have since been temporarily
laid off, but excluding executives, supervisory employees, office and
clerical employees, truck drivers, employees of the Lead Division,
engineers, Hyman Lipsitz, John Paluso, Charles Cyzon, Joseph Laurie,
Joseph Oita, S. Kurland, Julius Marcus, and employees who have since
quit or been discharged for cause, to determine whether they desire
to be represented by Steel Workers Organizing Committee, Local No.
2237, affiliated with the C . I. 0., or by International Hod Carriers,
Building & Common Laborers Union No. 1102, affiliated with the
A. F. of L., for the purposes of collective bargaining , or by neither.