Joseph S. Finch & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1938

10 N.L.R.B. 896 (N.L.R.B. 1938)

In the Matter of JOSEPH S. FINCH & Co., INC. and UNITED DISTILLERY
WORKERS UNION, LocAL No. 3
In the Matter of JosEPH S. FINCH & Co., INC. and INTERNATIONAL
BROTHERHOOD OF FIREMEN AND OILERS , LOCAL No. 77
Cases Nos. R-394 and R-395, respectvvely
Units Appropriate for Collective Bargaining: (1) all the production and main-
tenance employees, including the carpenter, but excluding firemen, water tenders,
watchmen, office workers and supervisory employees and other direct representa-
tives of the management; (2) firemen and water tenders; desires of a single em-
ployee not determinative as to his inclusion in or exclusion from a bargaining
unit-Certification of Representatives: following election.
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
December 30, 1938
On June 8, 1937, United Distillery Workers Union, Local No. 3,
herein called the United, executed and subsequently filed with the
Regional Director 'for the Sixth Region (Pittsburgh, Pennsylvania)
a petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Joseph S. Finch & Co.,
Inc., Schenley, Pennsylvania, herein called the Company, and re-
questing 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 July 19, 1937, International Brotherhood
of Firemen & Oilers, Local No. 77, herein called the Brotherhood,
filed a similar petition. On August 26, 1937, the National Labor Re-
lations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for appropriate hearings upon due notice, and acting pur-
suant to Article III, Section 10 (c) (2), of said Rules and Regula-
tions, further ordered that the cases be consolidated for purposes of
hearing.
On September 4, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
United, the Brotherhood, the Committee for Industrial Organization,
10 N. L. It. B., No. 78.
896
DECISIONS AND ORDERS 897
herein called the C. I. 0., and the American Federation of Labor,
herein called the A. F. of L. Pursuant to the notice, a hearing was
held on September 13 and 14, 1937, at Pittsburgh, Pennsylvania,
before Alvin J. Rockwell, the Trial Examiner duly designated by the
Board. At the hearing, a motion was made and granted to amend
the original petition of the United so as to designate all the produc-
tion and maintenance employees of the Company, except watchmen,
office workers, and persons employed in supervisory positions, as the
bargaining unit alleged to be appropriate. Upon motion at the hear-
ing, Carpenters' District Council of Pittsburgh and Vicinity of
United Brotherhood of Carpenters and Joiners of America, herein
called the Council, was permitted to intervene and to file a petition.
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the Act.
At the hearing, the United claimed that all the production and
maintenance employees, except watchmen, office workers and super-
visory employees, constituted a single unit appropriate for the pur-
poses of collective bargaining. The Brotherhood contended that the
firemen and water tenders should be considered a separate appro-
priate unit. The Counsel asserted that the carpenters constituted a
separate appropriate unit.
On May 2, 1938, the Board issued a Decision and Direction of
Elections., In its Decision, the Board made no final determination
of the unit or units appropriate for the purposes of collective bar-
gaining with the Company. It found that all the production and
maintenance employees, except watchmen, office workers and super-
visory employees, could appropriately constitute a single bargain-
ing unit, as claimed by the United, or that the firemen and water
tenders and the carpenters, respectively, could appropriately con-
stitute separate bargaining units, as claimed by the Brotherhood and
the Council. It held that the desires of the firemen and water-
tenders and the carpenters should be the determining factor, but
found that doubt existed as to the desires of such employees. It
stated that elections would, therefore, be held to determine whether
the firemen and water tenders wished to be represented by the
Brotherhood or the United, or by neither, and whether the carpenters
wished to be represented by the Council or the United, or by neither.
It stated also that if either group chose to be represented by the
United, such group would be included in a single unit with the other
employees desiring to be represented by the United 2 and that if
either group chose to be represented by a labor organization other
17 N L R. B. 1.
2The Board found on the basis of the record that a majority of the production and
maintenance employees, exclusive of watchmen, office workers, supervisory employees and
other employees directly representing the management, and either inclusive or exchisive of
4be firemen, water tenders, and carpenters, desired to be represented by the United.
898 NATIONAL LABOR RELATIONS BOARD
than the United, such group would constitute a separate bargaining
unit.
. The Direction of Election directed that the aforesaid elections be
conducted by secret ballot within fifteen (15) days among the fire-
men and water tenders and among the carpenters who were employed
by the Company at any time during the pay-roll period next preced-
ing the date of the issuance of the Decision and Direction of Election,
excluding employees who had left the employ of the Company or
were discharged for cause between such date and the date of the
election.
On May 9, 1938, the United filed with the Board in Washington,
.D. C., a motion for oral argument in opposition to the Decision
and Direction of Election. The United contended generally that a
separate unit either for firemen and water tenders or for carpenters
was inappropriate and particularly that a separate unit for car-
penters was inappropriate, because the carpenters were included in a
closed-shop contract between the Company and the United and be-
cause the number of carpenters employed by the Company had been
reduced from five to one. The motion prayed that a stay of elec-
tions be granted until such oral argument was had.
On May 12, 1938, the Board issued an Order denying the motion
for oral argument, without prejudice to its renewal following issu-
ance of the Intermediate Report upon secret ballot, and ordering seg-
regation of the ballots of the carpenters pending further order of
the Board.
Pursuant to the Decision and Direction of Elections, an election
by secret ballot was conducted on May 13, 1938, under the direction
and supervision of Charles T. Douds, Regional Director for the
Sixth Region (Pittsburgh, Pennsylvania). Full opportunity was
accorded to all parties to this investigation to participate in the
conduct of the secret ballot and to make challenges.
On May 16, 1938, the Regional Director acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, issued and duly served upon the parties
an Intermediate Report on the ballots. No objections to the ballots
or Intermediate Report have been filed by any of the parties.
As to the balloting among the firemen and water tenders and its
results, the Regional Director reported as follows :
Total number eligible------------------------------------------- 18
Total ballots cast----------------------------------------------- 18
Total number of blank ballots---------------------------------- 0
Total number of void ballots------------------------------------ 0
Total number of challenged ballots------------------------------ 0
Total number of ballots cast for International Brotherhood of Fire-
men and Oilers, Local No. 77---------------------------------- 14
Total number of ballots cast for United Distillery Workers Union,
Local No. 3-------------------------------------------------- 4
DECISIONS AND ORDERS 899
The Regional Director also reported that only one carpenter was
eligible to vote in the election among the carpenters and that such
carpenter had cast a ballot. Pursuant to the Order of the Board
of May 12, 1938, the ballot was segregated and transmitted to the
Board in Washington, D. C.
On June 13, 1938, the Board, by Nathan Witt, Secretary, informed
all parties that the ballot of the single carpenter eligible to vote
and voting in the aforesaid secret election had been examined by
the Board and had been found to have been cast for the Council and
that the right was thereby granted, within ten days, to apply for
oral argument or permission to file briefs concerning the unit appro-
priate for collective bargaining for the carpenter. On June 20,
1938, the United filed with the Board a request for such oral argu-
ment.
Pursuant to notice to all parties, oral argument was had on Au-
gust 2, 1938, before the Board in Washington, D. C. The Company,
the United, and the American Federation of Labor were repre-
sented by counsel and participated in the argument. At the oral
argument, the United contended that the Board incorrectly directed
an election among the carpenters ; that the carpenters should be in-
cluded within the unit which the- United claimed as appropriate
regardless of the results of such election; and that any other action
would constitute an improper interference with the closed-shop agree-
ment between the Company and the United. The United asserted
in this connection that the Council was not active among the car-
penters employed by the Company until,after the closed-shop agree-
ment was executed.
Upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
At the time of the hearing before the Trial Examiner, the Com-
pany had five carpenters in its employ. With such facts before it, the
Board held that the desires of the carpenters should be determina-
tive as to whether the carpenters should constitute a separate bar-
gaining unit or be included in a bargaining unit with other of the
production and maintenance employees and directed the holding of
an election to determine the desires of the carpenters. It developed,
however, that only one carpenter was in the employ of the Company
at the time the election was held. The principal of collective bar-
gaining presupposes that there is more than one eligible person who
desires to bargain, and the Act does not empower the Board to cer-
8 Matter of Schick Dry Shaver Company and Lodge No. 1557, International Association
of Machinists, Matter of Schick Dry Shaver Company and Schick Local of the United
Electrical and Radio Woi kers of America, 4 N. L R. B. 246; Matter of Luckenbach
Steamship Company, Inc and Gatemen, Watchmen, and Miscellaneous Waterfront Work-
ers Union , Local 38-124, International Longshoremen's Association, 2 N. L R. B. 181.
900 NATIONAL LABOR RELATIONS BOARD
tify where only one employee is involved.s The carpenter, there-
fore, cannot be considered as a separate bargaining unit. We have
held, however, that where a company employs only one employee of
a recognized craft such employee should be given the opportunity to
indicate whether or not he desires to be part of an industrial unit'
Upon further consideration, we feel that the desires of a single em-
ployee should not be determinative as to his inclusion in or exclu-
sion from a bargaining unit. Under all the facts, we conclude that
the carpenter should be included in the unit with the production and
maintenance employees, exclusive of watchmen, office workers, super-
visory employees, and other direct representatives of the manage-
ment. It is, therefore, unnecessary here to consider the objections
raised by the United at the oral argument relative to the carpenters.
The issues with respect to the carpenters which were before the Board
at the time of its Decision of May 2, 1938, are now moot.
We find that all the production and maintenance employees of the
Company at its plant at Schenley, Pennsylvania, including the car-
penter, but excluding water tenders, watchmen, office workers, and
supervisory employees and other direct representatives of the man-
agement, constitute a unit appropriate for the purposes of collective
bargaining, and that said unit will insure to such employees the full
benefit of their right to self-organization and collective bargaining
and otherwise effectuate the policies of the Act.
We find that the firemen and water tenders employed by the Com-
pany at its plant at Schenley, Pennsylvania, constitute a unit appro-
priate for the purposes of collective bargaining, and that said unit
will insure to such employees the full benefit of their right to self-
organization and collective bargaining and otherwise effectuate the
policies of the Act.
Upon the basis of the above supplemental findings of fact and
i upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS OF LAW
All the production and maintenance employees of Joseph S. Finch
& Co., Inc., at its plant at Schenley, Pennsylvania, including the car-
penter, but excluding firemen, water tenders, watchmen, office workers
and supervisory employees, and other direct representatives of the
management, constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
'Matter of Schick Dry Shaver Company and Lodge No 1557, International Association
of Machinists, Matter of Schick Dry Shaver Company and Schick Local of the United
Electrical and Radio Workers of America, 4 N L. R. B. 246
DECISIONS AND ORDERS 901
The firemen and water tenders employed by Joseph S. Finch &
Co., Inc., at its plant at Schenley, Pennsylvania constitute a unit
appropriate for the purposes of collective bargaining, within the.
meaning of Section 9 (b) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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
1, as amended,
IT IS HEREBY CERTIFIED that United Distillery Workers Union,,
Local No. 3, has been designated and selected by a majority of
production and maintenance employees of Joseph S. Finch & Co.,
Inc., at its plant at Schenley, Pennsylvania, including the carpenter,
but excluding firemen, water tenders, watchmen, office workers, and
supervisory employees and other direct representatives of the man-
agement, as their representative for the purposes of collective bar-
gaining, and that, pursuant to the provisions of Section 9 (a) of
the National Labor Relations Act, United Distillery Workers Union,
Local No. 3, is the exclusive representative of all such employees
for the purposes of collective bargaining, in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
IT IS HEREBY CERTIFIED that International Brotherhood of Fire-
men & Oilers, Local No. 77, has been designated and selected by aL
majority of the firemen and water tenders employed by Joseph S.
Finch & Co., Inc., at its plant at Schenley, Pennsylvania as their
representative for the purposes of collective bargaining and that,
pursuant to the provisions of Section 9 (a) of the National Labor
Relations Act, International Brotherhood of Firemen & Oilers, Local
No. 77, is the exclusive representative of all such employees for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
CHAIRMAN J. WARREN MADDEN, concurring in part and dissenting in
part :
Since the results of the election held among the firemen and water
tenders show that a majority of such employees desire representation
by the Brotherhood, I concur, for the reasons set forth in the De-
cision of May 2, 1938, in the designation of the Brotherhood as the
exclusive bargaining representative of such employees, and in the
designation of the United as such representative for the other em-
147841-39-vol. 10--58
902 NATIONAL LABOR RELATIONS BOARD
ployees, except that, as I shall indicate, I would exclude the car-
penter.
I do not think that we should certify any bargaining representa-
tive for the carpenter. We have heretofore held that a single em-
ployee cannot be considered as a bargaining unit, but have allowed
a single craftsman under circumstances similar to those here pre-
sented an opportunity to indicate whether he desires to be part of
an industrial unit.5 I still think that this was proper. The same
reasons which might induce two or more carpenters to desire to be
represented by the union of their craft might be applicable to a
single member of the craft. I think the distinction introduced here
is one of the fine points which the law should avoid. Since the
only carpenter in the employ of the Company at the time of the
election showed by his vote for the Council that he did not desire,
to be included in the industrial unit, I would give weight to his
desires and not designate any bargaining unit for him.
In reaching my conclusion I am mindful of the contentions of the
United, in protesting the act of the Board in directing an election
among the carpenters, that there is no substantial history of past bar-
gaining on behalf of carpenters employed by the Company and that
the closed-shop agreement which the United and the Company entered
into on July 20, 1937, covered carpenters. Although the record shows
that there was some bargaining on behalf of the carpenters prior to
the date on which the closed-shop agreement was signed, I do not
think it necessary here to consider in detail the facts pertaining to
such bargaining. I think that the Board should, even in the absence
of substantial past bargaining history in the particular plant in ques-
tion, properly allow the desires of the employees in a recognized craft
to be determinative as to whether they will be included in or excluded
from an industrial bargaining unit. With regard to the second con-
tention of the United, it is to be noted that on June 8, 1937, the United
filed its petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the Company
and requesting an investigation and certification of representatives.
It was not until July 20, 1937, while this representation proceeding
was pending that the closed-shop agreement was executed. Under
such circumstances, I feel that the agreement should constitute no bar
to a determination with respect to the representation of the carpenter.
MR. EDWIN S. SMITH concurring in part and dissenting in part :
I concur with respect to the inclusion of the carpenter in a unit
with other production and maintenance employees of the Company.
G Matter of Schack Day Shaver Company and Lodge No . 1557, International Association
of Machinists, Matter of Schick Dry Shaver Company and Schick Local of the United
Electrical and Radio Workers of America, 4 N L R B 246.
DECISIONS AND ORDERS 903
Although I agree that the fact that only one carpenter is now involved
is a sufficient ground for such inclusion, I feel for the reasons stated
in my dissent to the Decision and Direction of Election of May 2,
1938, that regardless of this consideration a single bargaining unit is
here appropriate.
In view of the considerations set forth in my aforesaid dissent, I do
not think the firemen and water tenders should be established as a
separate bargaining unit.