Lewittes & Sons, Inc.

National Labor Relations Board - Board Decisions

Apr 1, 1942

40 N.L.R.B. 43 (N.L.R.B. 1942)

In the Matter of LEwIrr1 s & SONS, INC., ALSO KNOWN AS SILCON FURNI-
TURE COMPANY, INC. AND THE GRovEviLLE' CORP., and UNITED
FURNITURE WORKERS OF AMERICA
Case No. R-2600
SUPPLEMENTAL DECISION,
ORDER SETTING ASIDE ELECTION
AND
AMENDMENT TO DECISION AND DIRECTION OF
ELECTION
April 1, 1942
On June ^ 28, 1941, the National Labor Relations Board, herein
called the Board, issued its Decision and _ Direction of Election in
this, proceeding.' Pursuant to the Direction of Election, an election
by secret ballot was conducted on July 10,, 1941, by the Regional
Director for the Second Region (New York City). On July 24, 1941,
the Regional Director, acting pursuant to Article III, Section 9, of
National Labor Relations Board Rules and Regulations-' Series 2, as
amended, issued and duly served upon the parties her Election Report.
As to the balloting and its results, the Regional Director reported
as follows :
Total number eligible to vote_________________________________ 223
Total number of ballots cast_________________________________ 221
Total number of valid ballots --------------------------------
Total number of votes cast in favor of United Furniture Workers
221
of America, Beacon Local 78_______________________________ 110
Total number of votes against afore-mentioned Union__________ 111
Total number of blank ballots________________________________ 0
Total number of void ballots_________________________________ 0
Total number of challenged ballots___________________________ 0
Upon receipt of • the Election Report, United Furniture Workers
of America, herein called the Union, the petitioner in this proceeding,
filed objections to the conduct of the election and to the Election
Report.
1 33 N. L. R. B. 29.
40 N. L. R. B., No. 6.
43
.44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Sptember 30, 1941 , the Regional Director , having investigated
the matter, issued and duly served upon the parties her Report on
Objections . The Regional Director reported that her investigation
revealed indications of unlawful intimidation and interference with
the election , and she recommended that the Board order a hearing on
the objections before a Trial Examiner to be ' designated by the Board.
On October 6, 1941, Lewittes & Sons, Inc., also known as Silcon
Furniture Company, Inc., and The Groveville Corp., Beacon, New
York, herein called the Companies ,2 filed objections to the Regional
Director 's Election Report and Report on Objections , and requested
permission to argue orally before the Board with respect to the suffi-
ciency of the issues -raised by the Regional Director 's Report on
Objections.
On January 2, 1941, the Board, having duly considered the Election
Report, the Union 's objections , the Regional Director 's Report on
Objections , and the Companies' objections to such reports , directed
that a hearing be held on the objections to the Election Report and
denied the request of the Companies for oral argument.
On January 13, 1942, the Regional Director issued and duly served
upon the parties a,notice of hearing , on objections to the Election
Report. Pursuant^to notice, a hearing was held on January 26 and,28,
1942, at Beacon, New York, before Henry J. Kent, the Trial Examiner
duly designated by-the Chief Trial -Examiner. The Board , the Com-
panies, and the Union were represented by counsel , and all 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 . At the close of the Union's case , the Companies
moved to , dismiss the proceeding on the ground that the, evidence was
insufficient to disclose any interference with , the election by the Com-
panies. The Trial Examiner referred this motion to the Board. For
reasons which appear below , the motion is 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 record so made, the Election Report, the objections of
the Union , the Report on Objections , the Companies ' objections to
the Regional Director's reports , and, the record previously made, the
Board makes the following :
3In its Decision and Direction of Election , 33 N. L. R B. 29, the Board found that the
activities of the three Companies constituted an integrated enterprise and that the three
Companies were employees of the employees herein involved within the meaning of the Act
LEWI` TES & SON'S, INC. 45
SUPPLEMENTAL FINDINGS OF FACT
A. The conduct of the election
Among its objections to the conduct of the election , the Union
alleged in substance ( 1) that on election day and on the days immedi-
ately preceding the election John Patten, superintendent of the plant,,
made certain anti-union statements to named - employees in the plant
and, (2 ) that the Companies offered John Mazzuca, an employee in,the
upholstery department , a raise in salary if he would vote against the
Union and that, being so advised , Mazzuca voted against the Union.
1. The anti -union statements of Patten
The only plant involved in this proceeding is the Companies ' furni-
ture factory at Beacon , New York. Israel Lewittes is the plant man-
ager and John Patten the superintendent . The frame department is
under the direct supervision of Patten . At the time of the election,
Ernest Garrett , Frank Ward, Walter Fennell , and Thomas Ciccarelli
were employees in the frame department and Patten was their
immediate supervisor.
Ernest Garrett testified that 1 to 3 weeks before the election, Super-
intendent Patten came to him at work and asked him if he had joined
the Union , and continued "Well, I am going to tell you like I told all
the rest of the fellows , if you vote for the Union, you will be out of
a job, and if you do not vote for the Union, you will 'always have
a steady job"; and, further , that on the day after this Patten said to
him, "If the Union wins the election , Izzy [Israel Lewittes] will never
sign a contract. Then the fellows will go on a strike, and Izzy will
get other fellows to work in their place."
Frank Ward testified that 3 to 7 days before the election, while he
was at work , Patten told him, "If you vote for the Union, you will
probably have to go out on strike, " but that he did not reply to Patten,
and that Patten said nothing further to him.
Walter Fennell testified that about a week before the election, Patten
asked him if his wife was going to have a baby and that, when he
answered in the affirmative, Patten told him that he ought not to bother
with the Union and, in substance, that if he did not bother with the,
Union, he would always have a steady job, but that if he bothered
with the Union and the Union lost out, there would always be better
men to take his place ; and, further , that on election day Patten said
to him, "You know how to vote."
Thomas Ciccarelli testified that about a week before the election,.
Patten shouted to him, and to the employee working next to him, that
if he voted for the Union , he would vote himself out of a job.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patten denied having the conversation related by Garrett with any
employee in the plant. Although Patten did not specifically _deny
talking with Ward, he denied that he told any man in the shop that
if he voted for the Union he would be out of a job or that he said
any words to that effect. Patten denied making the above statements
to Fennell . In answer to a question put to him by the Companies' at-
torney, whether he advised or discussed with the men whether they
should or. should not belong to the Union, Patten testified that he
never brought up a discussion, but that when employees came to him
and consulted him, he told them that he was not sure what to do or
to tell them what to do, or that they had better use their own judg-
ment. On the basis of the whole record, we do not credit Patten's sev-
eral denials . We find that Patten made the statements attributed
to him by Garrett, Ward, Fennell, and Ciccarelli, respectively, in
substantially the form in which such employees testified that such
statements were made.
On the election day, during the noon hour and shortly after work
was resumed at 1 o'clock, an anti-union leaflet was distributed by some
employees at the plant. The leaflet was handed directly to employees
or laid upon their work benches. Union sympathizers threw their
leaflets to the floor. One of these leaflets was handed to Ciccarelli
while he was working at his bench in the frame department. He
threw the leaflet on the floor, pulled a package of union pamphlets
from his bench, and began to distribute them. Patten saw him doing
this.
According to Ciccarelli, Patten took the union pamphlets from
him and told him to go back to work, calling him a communist. Cicca-
relli testified further that Patten destroyed part of the union pamphlets,
and then picked up an anti-union leaflet from the floor, handed it
to Ciccarelli, and told him to read it and that it would do him good.'
According to Ciccarelli, he told Patten that he did not want to read
the`anti-union leaflet and he put it down on his bench and resumed
his work, but Patten continued to talk to Ciccarelli, telling him that
if he did not vote the Union's way he would get a better job, but
that "if he went out," he would not be able to come back again, and
'concluding : "Chick, you stay around here and don't go out with those
niggers. You will get abetter job and those fellows won't come back in
again. Mr. Lewittes won't sign a contract with the Union, even if
they did do it."
Patten admitted that he saw Ciccarelli distributing union pam-
phlets on more than one occasion. Patten testified that such material
was thrown to the floor and that he often picked it up. He denied
handing any leaflet to Ciccarelli. In response to a question whether
LEWITTES & y0NS, INC. 47
he had told Ciccarelli to read the anti-union leaflet, Patten testified
that he did not remember telling Ciccarelli or any employee to read
the anti-union leaflet or any circular, and further denied that he had
ever had any dispute with Ciccarelli either on election day or at any
other time. ,Patten denied taking union pamphlets from Ciccarelli
and throwing them away or tearing them up. Ciccarelli's testimony
is affirmed in part by the testimony of employees who worked near
him on election day. On the basis of the whole record, we do not
credit Patten's denial of the statements and actions attributed to him
by Ciccarelli. We find that Ciccarelli is a credible witness and that
Patten made the anti-union statements to him in substantially the
form in which Ciccarelli testified.
2. The increase in` Mazzuca's `wages
John Mazzuca was hired'on March 3, 1941. He was assigned to
the upholstery department to learn the trade as apprentice under
David Rosenberb, the "keyman" in charge of that department.
Mazzuca's version of the incident in question is as follows: About
one week before the election, when Rosenberg and he were talking
outside the factory during lunch hour, Rosenberg asked Mazzuca
what wages he was getting. Mazzuca answered $14. Rosenberg told
Mazzuca that if he. would "vote for Lewittes," he would get $17.
Mazzuca agreed to vote against the Union. The Union lost the- elec-
tion. On the first pay day after the election, the extra $3 was not
in Mazzuca's pay envelope. He complained to Rosenberg, who told
him to see Lewittes. Mazzuca received the $3 increase in the follow-
ing pay envelope.
Rosenberg denied that Mazzuca had ever asked him about a raise
or that he had ever talked to any of the men about their rating, but
that if Mazzuca had spoken to him concerning a raise, he would have
sent Mazzuca to Lewittes.
The election was held on Thursday,'July 10, 1941. According to
Lewittes, Mazzuca's wages for the week ending July 14, 1941, were
$14, for the week ending July 21, $15, and for the week ending July
28, $17. In explaining Mazzuca's increase in wages, Lewittes testi-
fiedthat the raise from $14 to $15 on July 21 was a "general increase"
given to some other employees also at, that time; that the raise from
$15 to $17 on July 28 represented a general increase of 5 percent, or
$1 if less, given to all employees in the.plant, but that an extra dollar
was 'added in Mazzuca's case because Mazzuca asked for it, alleging
that he needed the extra money.
An inexperienced man at the Companies' plant usually begins work
at $14 per week. At the end of 2 weeks, he receives an additional
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dollar if he is promising, and at the end of 5 weeks a second dollar
,raise. Such increases are automatic.' The Companies anticipate that
a new man's wage will reach $20 per week at the end of his first year.
Mazzuca began work with the Companies on March 3, 1941. He
did not receive the two usual raises after 5 "weeks ,of 'service. - The
Companies did not explain this irregularity. Rosenberg, on whose
recommendation any increase to Mazzuca would depend, character-
ized Mazzuca as an average worker, capable of better work if he
were not so lazy. Mazzuca's testimony that his work was often
criticized by Rosenberg, that Rosenberg told him that his work was
too slow and "sloppy," and that his work frequently needed correc-
tion was not contradicted by the Companies. On October 25, 1941,
Mazzuca was discharged by Lewittes. Laziness was the cause al-
leged by the Companies for his discharge. The record does not dis-
close that the character of Mazzuca's work changed during the period
of his employment. It thus appears that the Companies' 'explana-
tion of the sudden and appreciable increase in Mazzuca's pay imme-
diately after the election is not credible, for it does not seem likely
that an employee who was denied the customary increases given to
every promising employee would receive, on demand, two special
increases in addition to the general increase of 5 percent, or $1 if
less, given to all employees, in the absence of some unusual circum-
stance. For this reason, and upon the basis of the whole record,
we find unconvincing the Companies' explanation for Mazzuca's
increase in wages following the election. We find that the Com-
panics offered Mazzuca an increase in wages if he would vote against
the Union and that, subsequent to the election, the Companies paid
Mazzuca the pronlised increase .3
On the basis of the whole record, therefore, we conclude and find
that, through the anti-union statements made by Patten to employees
in the frame department at the plant on the day of the election, and
on days preceding the election, and through the increase in wages
offered to Mazzuca to induce him to vote against the Union, the
Companies interfered with the freedom of their employees to vote
without restraint in the election and that the election did not con-
stitute a fair test of the Union's right to represent the employees in
the appropriate unit as their statutory representative.4 For these
3 Mazzuca testified that the piomised increase of $3 00 was in his pay envelope following
his complaint to Rosenbeig Lewittes testified that an increase of $100 was paid to
Mazzuca on July 21, when all employees received an increase of 5 percent, or $1 00 if less,
and that the increase of $2 00 was paid on the following week Mazzuca was not recalled
to define more particularly the date on which he received his increase We find that this
discrepancy in the testimony with respect to the date on which the increase was paid is
not material to our conclusion set forth above. -
4 Since it clearly appears that the^Compames interfered with the conduct of the election
in the manner noted above, we'find it unnecessary to consider other objections made by
the Union to the conduct of the election
i
LEWITTES & SONS, INC. 49,
reasons, we sustain the Union's objections to the conduct of the elec-
tion. The Companies ' objections to the Election Report and the-,
Report on Objections are hereby overruled.
We shall set aside the election held on July 10 , 194f. When the
Regioiitil Director shall advise us that the time is appropriate; we
shall direct that a new election be held among the Companies'
employees.5
B. The appropriate unit
At the original hearing in this proceeding, held on May 28 and
29, 1941, the parties stipulated that certain named supervisory, em-
ployees, later designated as keymen, should be included in the
appropriate unit.; On June 28, 1941,1941, when the Board issued its
Decision and Direction of Election in this proceeding, the record
did not disclose the duties of these keymen nor their' relation to
ordinary production employees at the plant. The record made at
the hearing on objections, however, clearly discloses that keymen are
regarded as foremen, both by themselves and by the employees whose
work they direct and criticize, and that such keymen recommend'
employees for increases in wages and for discharge. We are of the-
opinion that, in view of their supervisory status, keymen should be
excluded from a bargaining unit composed primarily of ordinary
production employees. We shall accordingly amend the finding of
appropriate unit made in our Decision and Direction of Election in
this proceeding to exclude them. Since keymen will be excluded
from the appropriate unit, they will not be eligible to vote in the
new election which we shall direct among the Companies' production,
employees.
ORDER
The National Labor Relations Board hereby vacates and sets aside
the election held in this proceeding on July 24, 1941, and the result
thereof.
AMENDMENT TO DECISION AND DIRECTION OF
ELECTION
The Decision and Direction of Election hereinbefore issued by the
Board on June 28, 1941, is hereby amended by inserting in the finding
5 Although the Union requested a new election at the time of filing its objections to the
conduct of the election, several months have since elapsed Inasmuch as circumstances-
may have altered since that request was made, we deem it inexpedient to order a second
election forthwith
'David Rosenberg, Rudolph Ross, Mile Pernice, and Nathan Miller were keymen at the
rime of the election Permce left the Companies' employ before the hearing on ob,ections
455771-42-vol 40--4
t
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of fact and in the conclusion of law relating to the appropriate unit,
after the words "company officers" in the list of exclusions from the
unit, the word "keymen."
MR. WM. M. LEISERSON took no part in the consideration of the
above Supplemental Decision Order, Setting Aside Election and
Amendment to Decision and Direction of Election.
In the Matter of LEwrrrEs & SONS, INO., ALSO KNOWN AS SILCON
FURNITURE COMPANY, INC., AND THE GROvEvII.LE CORP. and UNITED
FURNITURE WORKERS OF AMERICA
Case No. R-2600
SECOND SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTION
April 01, 1942
On June 28, 1941, the National Labor Relations Board, herein
called the Board, issued its Decision and Direction of Election in
this proceeding., On April 1, 1942, the Board issued its Supple-
mental Decision, Order Setting Aside Election and Amendment to
Decision and Direction of Election,' in which the Board set aside
the election conducted among employees of Lewittes & Sons, Inc.,
also known as Silcon Furniture Company, Inc., New York City,
and The Groveville Corp., Beacon, New York, at their Beacon, New
York, plant on July 24, 1941, and stated that it would direct that a
new election be conducted, among such employees when the Regional
Director should advise the Board that the time was appropriate for
holding such election. The Regional Director has advised the Board
that an election may appropriately be conducted. We shall accord-
ingly issue a Second Direction of Election.
The parties expressed no opinion with respect to a suitable date
for determining employees eligible to vote in, the second election.
Since the second election is ih no -respects a run-off election, we
believe that employees hired since the eligibility date established in
our original Decision and Direction of Election should be permitted
to vote.' We shall accordingly direct that those eligible to vote in'
the election shall be employees in the amended unit heretofore found
to be appropriate who were employed during the pay-roll period
immediately preceding our - Second Direction of Election, subject
to the limitations and additions set forth therein.
1 33 N. L R. B. 29.
$ 40 N L. R. B 43.
Cf Matter of Mack-International Motor Truck Corporation and Amalgamated Local
259, United Automobile Workers of America, C I. 0., 36 N . L. R. B. 870
40 N. L R B, No. 6a
51
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SECOND 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 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 Lewittes & Sons, Inc., also known as Silcon Furniture Company,
Inc., of New York City, and The Groveville Corp., of Beacon, 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
Second Direction of Election , 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
production employees of the Companies at the Beacon, New York,
plant who were employed during the pay-roll period immediately
preceding the date of this Second Direction of Election , including
employees who did not work during said pay-roll period because they
were ill or on vacation or in the active military service or training of
the United States, or temporarily laid off, but excluding company
officers, keymen , the foremen or supervisors listed in Appendix A
of our Decision and Direction of Election issued on June 28, 1941,
truck drivers , the mechanic , the office staff, stationary engineers,
maintenance men, watchmen , and employees who have since quit or
been discharged for cause , to determine whether or not they desire toy
be represented by United Furniture Workers of America, Beacon
Local 78, for the purposes of collective bargaining.