Heldman-Schild-Lasser, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1939

11 N.L.R.B. 1289 (N.L.R.B. 1939)

In the Matter of HELDMAN -SCHILD-LASSER , INC. and CINCINNATI
JOINT BOARD OF THE AMALGAMATED CLOTHING WORKERS OF AMERICA
(C. I. 0.)
Case No. R-1176.-Decided March 24, 1939
Men's Clothing Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees : employers ' refusal to grant
recognition of union ; rival organizations ; closed-shop contract expiring shortly
no bar to investigation-Unit Appropriate for Collective Bargaining: produc-
tion employees , excluding foremen, assistant foremen, foreladies, assistant
foreladies , employees having the right to hire and discharge , stock clerks,
shipping clerks, employees in piece-goods department , final examiners, and
cutting-room boys ; stipulation as to-Election Ordered
Mr. Philip G. Phillips and Mrs. Mary T. Iliff, for the Board.
Cohen, Mack cC Hurtig, by Mr. Philip A. Cohen, of Cincinnati,
Ohio, for the Company.
Mr. Charles P. Taft, II, and Mr. Julius Holzberg, of Cincinnati,
Ohio, and Mr. John Abt, of Washington, D. C., for the Amalgamated.
Mr. J. W. Brown, of Cincinnati, Ohio, and Mr. Joseph A. Padway,
of Washington, D. C., for the United.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 14, 1938, Cincinnati Joint Board of the Amalgamated
Clothing Workers of America, herein called the Amalgamated, filed
with the Regional Director for the Ninth Region ( Cincinnati, Ohio)
a petition , subsequently amended, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Heldman-Schild -Lasser, Inc.,' Cincinnati , Ohio, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
I Incorrectly designated "Heldman-Schild & Lasser, Inc " in the petition and "FIeldman-
Schild & Lasser Co., Inc." in the notice of hearing. This was corrected by motion at
the hearing
11 N. L. R. B., No. 119.
1289
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
49 Stat. 449, herein called the Act. On December 6, 1938, 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 Regulations-Series 1, 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 30, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the Amalgamated, and upon the United Garment Workers of Amer-
ica, herein called the United, a labor organization claiming to rep-
resent employees directly affected by the investigation. Pursuant to
the notice, a hearing was held on January 9 and 10, 1939, at Cincin-
nati, Ohio, before Horace A. Ruckel, the Trial Examiner duly
designated by the Board. The Board, the Company, the Amal-
gamated, and the United were represented by counsel, and all par-
ticipated 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 several rulings on motions and on objec-
tions 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. Briefs were filed
by the Amalgamated and the United in support of their respective
contentions. Pursuant to notice duly served on all the parties, a
hearing was held for the purpose of oral argument before the Board
on February 21, 1939, in Washington, D. C. The Amalgamated and
the United were represented by counsel and participated in the
argument.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is an Ohio corporation engaged in the business of
manufacturing, selling, and distributing men's clothing. Approx-
imately 95 per cent of the raw materials used by it are purchased in
States other than Ohio and 80 per cent of the garments manufactured
are shipped to points outside the State. The Company employs
salesmen who travel throughout the United States, and does an
annual business in excess of $500,000.
II. THE ORGANIZATIONS INVOLVED
Cincinnati Joint Board, of the Amalgamated Clothing Workers of
America is a labor organization affiliated with the Congress of
HELDMAN-SCHILD-LASSER, INC., ET AL. 1291
Industrial Organizations. It admits to membership all production
employees of the Company, excluding watchmen, foremen, and
clerical and supervisory employees.
United Garment Workers of America is a labor organization affil-
iated with the American Federation of Labor, admitting to member-
ship the same classes of employees of the Company as the Amalga-
mated.
III. THE QUESTION OONOERNING REPRESENTATION
The Company is the successor to Heldman-Schild Clothing Com-
pany. This latter corporation dissolved on November 30, 1938, and
on December 1, 1938, its former stockholders with the addition of one
new stockholder organized Heldman-Schild-Lasser, Inc. The Com-
pany took over the plant, list of customers, employees, and sales force
of the dissolved corporation.
On June 1, 1938, Heldman-Schild Clothing Company and the
United entered into a closed-shop contract with supplementary wage
and hour provisions governing the employees of the Company. The
contract is for a term of 1 year, with the further provision that it shall
remain in effect from year to year thereafter unless either party
thereto, by, 60 days' notice in writing prior to the expiration of any
year period advises the other of a desire to change, modify, alter,
amend, or terminate said contract. The record does not show whether
the Company succeeded to the rights and assumed the obligations of
Heldman-Schild Clothing Company under this contract.
In September 1938 the Amalgamated commenced organizational
activities in the plant and on November 30, 1938, claiming to repre-
sent a majority of the employees, requested the Heldman-Schild Com-
pany to deal with it as exclusive representative of the employees. It
refused this request and stated that it would not bargain with the
Amalgamated or the United unless and until one or the other was
certified by the Board as the exclusive representative of its employees.
The United maintains that since the contract is still in full force
and effect there is no present question concerning representation. It
therefore contends that the petition should be dismissed. We find
no merit in this contention. The 1-year term of the contract ends on
June 1, 1939. Moreover, the period within which negotiations must
be commenced for the modification or termination of the contract
expires on April 1, 1939. Under the circumstances it is clear that the
contract does not preclude the Board from investigating or certifying
a bargaining representative for the purpose of negotiating a new
agreement for the period following June 1, 1939, if such is desired.2
2 Cf. Matter of Utica Knitting Company and American Federation of Labor, Local No.
21,500, 8 N. L. R. B. 783.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 commerc:,
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company, the Amalgamated, and the United agreed at the
hearing, by stipulation, that the appropriate unit should consist of
the production employees of the Company, excluding foremen, assist-
ant foremen, foreladies, assistant foreladies, employees having the
right to hire and discharge, stock clerks, shipping clerks, employees
in the piece-goods department, final examiners, and cutting-room boys.
We see no reason to deviate from the desires of the parties.
We find that the production employees of the Company, excluding
foremen, assistant foremen, foreladies, assistant foreladies, employees
having the right to hire and discharge, stock clerks, shipping clerks,
employees in the piece-goods department, final examiners, and cutting-
room boys, constitute a unit appropriate for the purpose 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
bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company introduced in evidence the pay, roll of Heldman-
Schild Clothing Company dated September 12, 1938, and its own pay
roll of January 7, 1939. The former pay roll contains the names of
276 employees in the appropriate unit and the latter the names of 131
in said unit. In support of its claims to majority representation, the
Amalgamated introduced in evidence 202 membership cards signed
between October 4, 1938, and January 5, 1939. The genuineness of
the signatures on the cards was not challenged. A comparison of
the names on the cards with the afore-mentioned pay rolls tends to
show that on the basis of the September 1938 pay roll, the Amalga-
mated represents 193 employees in the appropriate unit and on the.
basis of the January 1939 pay roll, 86 employees in the appropriate
HELDMAN-SCHILD-LASSER, INC., ET AL. 1293
unit. In addition, the Amalgamated also introduced a petition cir-
culated between January 1 and 8, 1939, designating the Amalgamated
as the collective bargaining representative of the signers. The peti-
tion shows that 75 employees in the appropriate unit in January 1939,
thus designated the Amalgamated.
The United, in opposition to the claims of the Amalgamated, sub-
mitted in evidence a petition signed between December 14, 1938, and
January 6, 1939, by( 125 employees, which recited that said employees
had been coerced intoi joining the Amalgamated. The names of 59
such employees also appear on the membership cards of the Amal-
gamated.
In view of the vacillation of the employees, it is apparent that none
of these documents, whether in the form of membership cards or
petitions, can be accepted as proof that the signers have definitely
selected either of the labor organizations here involved as their' repre-
sentative for the purposes of collective bargaining. We find that the
question concerning representation can best be resolved by means of
an election by secret ballot.
The Amalgamated suggested the pay roll of September 12, 1938,
as a basis for the determination of representatives. The United, on
the other hand, contended that if an election were ordered, any pay-
roll date prior to June 1, 1939, the expiration date of the afore-men-
tioned contract, would not be appropriate. There appears to be no
reason, however, why the current pay roll should not be used to deter-
mine the eligibility of employees to participate in the election, and
since it is a representative and normal pay roll, we shall adopt it for
the purposes of the election.
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 Heldman-Schild-Lasser, Inc., Cincinnati,
Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. The production employees of the Company, excluding foremen,
assistant foremen, foreladies, assistant foreladies, employees having
the right to hire and discharge, stock clerks, shipping clerks, em-
ployees in the piece-goods department, final examiners, and cutting-
room boys, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National
Labor Relations Act.
1294 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, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, 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 Heldman-Schild-Lasser, Inc., Cincinnati, Ohio, an election by
secret ballot shall be conducted within fifteen (15) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Ninth 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 production employees
of the Company who were employed during the pay-roll period next
preceding the date of this Direction, excluding foremen, assistant
foremen, foreladies, assistant foreladies, employees having the right
to hire and discharge, stock clerks, shipping clerks, employees in the
piece-goods department, final examiners, cutting-room boys, and em-
ployees who will have since quit or been discharged for cause between
this date and the date of the election, to determine whether they de-
sire to be represented by Cincinnati Joint Board of the Amalgamated
Clothing Workers of America, affiliated with the Congress of Indus-
trial Organizations, or by United Garment Workers of America, af-
filiated with the American Federation of Labor, for the purposes of
collective bargaining, or by neither.