May Manufacturing Company, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1939

10 N.L.R.B. 1421 (N.L.R.B. 1939)

In the MATTER OF MAY MANUFACTURING COMPANY, INC. and UNITED
OPTICAL WORKERS UNION, LOCAL No. 208
Case No. R-1149.-Decided January 25, 1939
Optical Equipment Manufacturing Industry-Investigation of Representa-
tives: controversy concerning representation of employees : employer's refusal to
grant recognition of union-Unit Appropriate for Collective Bargaining: pro-
duction employees, excluding shipping clerks, foremen, office help, and salesmen ;
controversy as to classification of certain employees-Election Ordered
Mr. Albert Ornstein, for the Board.
Mr. Maurice Adda, of New York City, for the Company.
,Mr. Samuel,Sacher, of- New York City, for the Union.
Mr. Richard A. Williams, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 1, 1938, the United Optical Workers Union, Local No.
208, herein called the Union, filed with the Regional Director for the.
Second Region (New York City) a petition alleging that a question,
affecting commerce had arisen concerning the representation of the
employees of May Manufacturing Company, Inc.,' New York City,.
herein called the Company, and requesting an investigation and certifi-
cation of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act On Novem-
ber 21, 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 Regula-
tions-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 1, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and upon the
Union. Pursuant to the notice, a hearing was held on December 8,_
I The petition and order directing an investigation and hearing incorrectly referred to-
the Company as "May's Manufacturing Company."
10 N. L. R. B., No. 126.
1421
_1422 NATIONAL LABOR RELATIONS BOARD
1938, before Mapes Davidson, the Trial Examiner duly designated
by the Board. The Company and the Union were represented by
counsel and participated in the hearing. Full opportunity to be heard,
Jo examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was affoided all parties. During the course
,of the hearing the Trial Examiner made several rulings on motions
and on objections to the admission of evidence. The Board has re-
viewed 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
I. THE BUSINESS OF THE COMPANY
May Manufacturing Company, Inc., a New York corporation hav-
ing its principal, office and place of business in New York City, is
-engaged in the manufacture, sale,'and distribution of eyeglass frames
-and other optical equipment. During the year of 1937 the Company
purchased about $30,000 worth of goods and raw materials for use in
its New York plant and sold more than $100,000 worth of goods manu-
factured and processed at the New York plant. Approximately 75
per cent of the raw materials were obtained from outside the State of
New York, and approximately 75 per cent of the finished products were
shipped outside the State of New York. The Company employs some
-4 salesmen whose duties involve travel in approximately 40 States of
the United States.
II. THE ORGANIZATION INVOLVED
United Optical Workers Union, Local No. 208, is a labor organiza-
tion affiliated with the Committee for Industrial Organization, ad-
mitting to its membership all employees of the Company in and about
the optical industry, or engaged in the production of optical com-
.modities, who work for wages at least 15 hours per week, and who do
not have the right to hire and/or discharge optical employees.
III. THE QUESTION CONCERNING REPRESENTATION
Following organizational activities among the employees of the
Company, the Union, in September 1938, sent communications to
the Company stating that the Union represented a majority of the
employees of the Company and requesting that the Company meet
with the Union for the purpose of negotiating a collective bargaining
agreement. The Company refused to meet with the Union unless the
Union showed by a list of its members that it represented a majority
DECISIONS AND ORDERS 1423
of the employees. The Union refused to reveal such a list of its
members. Thereafter, the Union filed its petition for an investigation
and certification of representatives.
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 commerce
and the free flow of commerce. ' • ` . . -
. V. THE APPROPRIATE UNIT ,
At the hearing the Union claimed that all the production employees
of the Company at its New York' City plant, excluding shipping
clerks, foremen, office' help, and salesmen, constituted on appropriate
bargaining unit. All parties agreed that the general superintendent,
the bookkeeper, and assistant bookkeeper were not within the scope
of the unit sought by the Union and were properly excluded there-
from. The parties disagreed, however, as to the inclusion or exclusion
of six,employees, namely, G. Wolf, R. Beer, W. Geary, M. Lopilato,
P. Weiss, and J. Janowski. The Union desired the exclusion of the
six employees from-the unit, whereas the Company claimed that they
should be included.
Wolf is engaged at times as a production worker and apparently
does not have authority to hire or discharge.- He has, however, gen-
eral supervision over a considerable number of employees, distributes
work to them, and is listed by the Company on its pay roll as an
assistant foreman. Under the circumstances and inasmuch as the
only labor organization here involved desires his exclusion from the
unit, we conclude'that he should be excluded and so find.
The duties of the other five employees in question involve cleaning,
-wrapping, ,and packing optical frames. Weiss and Janowski also
make daily deliveries of goods. None of the five employees,are en-
gaged in the skilled technical work required of the employees engaged
in the actual manufacturing processes. The five employees are paid
a weekly salary as contrasted with the hourly wage paid the skilled
technical workers. The representative of the Union testified that the
Union had not attempted to organize these, employees inasmuch as
'another affiliate of the Committee for Industrial Organization had
1424 NATIONAL LABOR RELATIONS BOARD
jurisdiction over persons engaged in packing and shipping. Under
the circumstances, we shall exclude Beer, Geary, Lopilato, Weiss, and
Janowski from the unit.
We find that the production employees of the Company at its
New York City plant, excluding shipping clerks, foremen, office
help, and salesmen, constitute a unit appropriate for the purposes
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
There was introduced in evidence at the hearing a pay roll of the
Company for October 1, 1938. All parties agreed that an election
was necessary to resolve the question concerning representation of
employees and, that the employees -within the appropriate unit who
were employed as of October 1, 1938, excluding those who have since-
quit or been discharged for cause, should be eligible to participate in
the election. We shall order an election by secret ballot in con-
formance with such agreement of the parties.
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 the May Manufacturing Company, Inc.,.
New York City, 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 at its New York
City plant, excluding shipping clerks, foremen, office help, and sales-
men, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National
Labor Relations Act.
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 ordered by the Board to-
ascertain representatives for the purposes of collective bargaining
with May Manufacturing Company, Inc., New York City, an elec-
DECISIONS AND ORDERS 1425
tion 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 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 the pro-
duction employees of May Manufacturing Company, Inc. at its New
York City plant who were employed as of October 1, 1938, excluding
shipping clerks, foremen, office help, salesmen, and those employees
who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by United Optical Work-
ers-Union, Local No. 208, affiliated with the Committee for Industrial,
Organization, for the purposes of ,collective bargaining.