Memo Leather Goods Co.

National Labor Relations Board - Board Decisions

Sep 15, 1943

52 N.L.R.B. 625 (N.L.R.B. 1943)

In the Matter Of MAX MORDKA AND FLORA MORDKA, CO-PARTNERS D/B/A
MEMO LEATHER GOODS COMPANY and POCKETBOOK WORKERS UNION,
NEW YORK, AFFILIATED WITH UNITED HANDBAG, LEATHER GOODS AND
NOVELTY WORKERS OF AMERICA, INDEPENDENT 1
Case No. B-5790.-Decided September 15, 1943
Mr. Daniel Baker, for the Board.
Mr. Joseph M. Schwartz, of New York City, for the Company.
Boudin, Cohn & Glickstein, by Mr. Leonard B. Boudin, and Mr.
Ossip Wolinsky, of New York City, for the Independent.
Mr. Max H. Frankle and Mr. George Weisbrod, of New York City,
for the A. F. L.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition and amended petition duly filed by Pocketbook
Workers Union, New York, affiliated with United Handbag, Leather
Goods and Novelty Workers of America, Independent, herein called
the Independent, alleging that a question affecting commerce had
arisen concerning the representation of employees of Max Mordka
and Flora Mordka, Co-partners, d/b/a Memo Leather Goods Com-
pany, New York City, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Henry J. Kent, Trial Examiner. Said hearing was held at
New York City on August 2, 1943. The Company and the Independ-
ent appeared and participated. International Ladies Handbag, Lug-
gage, Belt & Novelty Workers Union, A. F. of L., appeared and in-
tervened specially for the sole purpose of challenging the Board's
jurisdiction on the following grounds: (1) that the Independent's pe-
tition was defective because (a) it failed to set forth the present bar-
, The Trial Examiner granted the Independent 's motion to amend the petition and all
other formal papers by setting forth thereon the correct name of the Independent as it
appears in the above caption.
52 N. L. R. B., No. 107.
625
626 DEICLSIONS OF NATIONAL LABOR R'ELAT 'ION'S' BOARD
gaining representative of the employees in the alleged appropriate
unit; (b) it failed to set forth the name and address of any labor
organization claiming to represent any of the Company's employees,
and (c) it failed to set forth whether or not there was a bargaining
contract in existence; (2). that the Company and the A. F. L. had
entered into a valid collective bargaining contract which is still in
effect and constitutes a bar to this proceeding; (3) that the instant
proceeding contravenes the provisions contained in the "rider" at-
tached to the Board's current Appropriation Act. The Trial Ex-
aminer reserved ruling upon this motion for the Board. The first
grounds upon which the A. F. L. challenges the jurisdiction of the
Board in this proceeding is clearly without merit. Since the A. F. L.
was duly served with the notice of hearing dated July 23, 1943, and
thereby was afforded an opportunity to appear and participate in the
hearing generally, it was not prejudiced by the failure of the Independ-
ent to disclose its interest in the petition for investigation and certifica-
tion of representatives. We find the second ground upon which the
A. F. L. challenges the Board's jurisdiction also to be without merit
for reasons set forth in Section III, infra. A contention similar to
the third ground upon which the A. F. L. challenges the Board's
jurisdiction, viz, that the provision contained in the current Appro-
priations Act 2 which limits the expenditure of the Board's funds
precludes the Board from proceeding in the instant case, was pre-
sented to the Board in the recent California Door Company case.3
In that case we said, "Since the limitation referred to has no appli-
cation to representation cases, but specifically provides that it applies
to `a complaint case,' the contention is without merit." We hereby
affirm our previous ruling.
All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence bearing upon the
issues, and to file briefs with the Board. The Trial Examiner's
rulings made at the hearing are free from prejudical error and are
hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACTS
I. THE BUSINESS OF THE COMPANY
Max Mordka and Flora Mordka, Co-partners d/b/a Memo Leather
Goods Company, is a partnership engaged at New York City in the
manufacture and sale of leather goods. During the past 12 months,
2 National Labor Relations Board Appropriation A'ct, 1944, Title IV, Act of July 12,
1943, P. L 135, 78th Congress, 1st Session.
3 See Matter of California Door Company, 52 N. L R. B. 68.
MEMO LEATHER GOODS COMPANY 627
the Company has used raw materials, principally leather, valued in
excess of $25,000, of which approximately 5 percent was shipped to
its plant from points outside of the State of New York. During
the same period the Company has sold finished products valued in
excess of $50,000, of which approximately 10 percent was shipped
from its plant to points outside the State of New York. The Com-
pany admits that it is engaged in commerce within the meaning-of
the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Pocketbook Workers Union, New York, is a labor organization af-
filiated with United Handbag, Leather Goods & Novelty Workers of
America, Independent, admitting to membership employees of the
Company.
International Ladies Handbag, Luggage, Belt and Novelty Work-
ers' Union, is a labor organization affiliated with the American Fed-
eration of Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In October 1942 the Independent began organizing the Company's
employees. However, at that time there were only 3 production em-
ployees working in the plant and, at the request of Max Mordka, one
of the partners, the Independent temporarily deferred further or-
ganizational activities. On January 28, 1943, without requiring proof
that the A. F. L. represented a majority of the 30 production em-
ployees then employed, the Company entered into a union-shop con-
tract with the A. F. L., which, according to its terms, was to remain
in effect until January 31, 1945. The contract contains the following
clauses with respect to recognition :
This agreement made and entered into this 28th day of January
1943, by and between the International on behalf of
itself and the members thereof now employed or hereafter to
be employed by the employer and the em-
ployer
The employer shall maintain a Union shop, under the terms
and conditions as set forth in this agreement, employing none
but members declared by the Union to be in good standing, .
The first clause appears to indicate that the Company was granting
recognition to the A. F. L. as the bargaining representative of the
Company's employees who were members of the A. F. L. at the time
the contract was executed, or who would thereafter become members.
Since the record contains no evidence indicating that the A. F. L.
represented all or even a majority of the Company's employees on
549875-44-vo'l. 52-41
628 DECISIONS OF NATIONAL LABOR RELAT 'ION'S' BOARD
January 28, 1943, the A. F. L.'s contract might be construed as an
agreement covering only those employees of the Company who were
or who would become members of the contracting union. We have
frequently held that such contracts are not exclusive bargaining con-
tracts and therefore do not constitute a bar to a determination of
representatives under Section 9 (c) of the Act. However, the second
clause above set forth provides for a union shop in the Company's
plant and therefore negates, at least in part, the provisions of the first
clause. While we note the ambiguity of these two clauses, we find it
unnecessary to determine whether or not the contract embodies recog-
nition of the A. F. L. as the exclusive representative of the Company's
employees since we hereinafter find, on other grounds, that it does not
constitute a bar to an immediate determination of representatives.
Shortly after the Company and the A. F. L. had entered into their
contract many of the Company's employees expressed dissatisfaction
with respect to the bargaining agreement. On or about February 23,
1943, as a result of their discontent, a group of the Company's produc-
tion employees met and elected one Sam Tugentman, a production
employee, chairman of a shop committee. This committee, together
with about 20 other employees, went to the headquarters of the Inde-
pendent and requested that organization to represent them. All of the
group signed applications-for-membership in the Independent. Sub-
sequently, shortly after reporting to the plant on February 25, 1943,
a committee of employees approached Max Mordka and requested the
Company to recognize the Independent as the exclusive bargaining
representative of the production employees in the plant. Mordka
refused to discuss the matter with the delegation of employees and
when the committee reported this fact to the other employees, all but
3 of the 33 production employees then employed by the Company
walked out of the plant .4 Immediately following the walk-out, 27 of
the Company's employees proceeded to the Independent's headquarters
and all of them who had not previously joined the Independent signed
application cards the same day or within a day or two thereafter.
After some discussion between the employees and a representative of
the Independent, the representative communicated with Mordka by
phone. Later the same day Mordka, accompanied by his attorney,
appeared at the Independent's office'to discuss the controversy and
entered into a written collective bargaining agreement with the Inde-
pendent., The Independent and the Company also executed a supple-
mental agreement whereby they agreed to submit to the Board for its
A Mordka testified that one of the three employees who continued to work was a relative
of his and the other two were close personal friends.
Mordka further testified that he called the A. F. L. office immediaely after his employees
walked out to report what had happened at the plant but that the A. F. L. failed to take
any steps to get the employees back to work or to supply workers to replace them.
MEMO LEATHER GOODS COMPANY 629
determination the question concerning the representation of employees
of the Company, and to be bound by the Board's decision. The em-
ployees who had taken part in the walk-out returned to work soon
after the above-mentioned agreement and supplemental agreement had
been executed. The record further indicates that since that date, the
Company has been dealing with the Independent as the bargaining
agent of its employees and that the Independent has held regular
meetings, attended by the employees of the Company.
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the Independent represents a substantial
number of employees in the unit hereinafter found to be appropriate.5
Max Mordka testified that since the day of the walk-out, the A. F. L.
has failed to maintain a shop chairman or a price committee in the
Company's plant as provided for in its agreement with the Company
and furthermore, it has handled no grievances nor, to his knowledge,
held any meetings. It appears in the record that the A. F. L. has in-
stituted suit in a New York State court presumably to enforce its
contract. However, it is significant that the record contains no evi-
dence to indicate that the A. F. L. has otherwise attempted to enforce
the union-shop provision of its contract. Moreover, it is questionable
whether it ever established a functioning local organization for the
Company's employees (if any) who were members of the A. F. L.
The Board is reluctant to proceed with an investigation as to repre-
sentation where there exists a valid contract which is urged as a bar
by one of the contracting parties. However, in certain circumstances,
the Board has found that the right guaranteed to employees by Section
,7 of the Act to bargain collectively through representatives of their
own choosing can best be insured by adjudging that a contract is not
a bar to a determination of representatives. The instant case, we
think, presents such exceptional circumstances. First there is a sub-
stantial doubt as to the continued existence of the A. F. L. as a func-
tioning bargaining agent of the Company's employees, and we have
held that a contract is not a bar where it appears that the contracting
union has become defunct as the bargaining representative of the
employees involved .o Secondly, it appears that an overwhelming
majority of the employees in the affected bargaining unit have indi-
, The Regional Director reported that the Independent submitted 43 membership dues
books bearing names of persons whose names appear on the Company 's pay roll of June
26, 1943, which contains the names of 54 persons within the alleged appropriate unit ;
that 17 of said dues books bear dues stamps for May 1943, and 26 contain dues stamps
for June 1943; that, according to the statement of the Independent 's shop chairman,
there are 3 additional dues books of employees whose names appear on the aforesaid pay
roll ; and that of the remaining 8 production employees on the aforesaid pay roll 2 have
quit the employ of the Company , 2 are part-time employees , and 4 have been in the employ of
the Company 6 weeks or less.
G Matter of Morrison Steel Products, Inc., 50 N. L. R. B. 72 ; Matter of !Sunshine
Mining Company, Manganese Division, 48 N. L . it. B. 301.
630 DECISIONS OF NAfrIlONAL LABOR RELATIONS BOARD
cated a desire to be represented by the Independent, and have taken
such steps as were possible in the circumstances to divorce their labor
organization from the A. F. L. The situation is thus analogous to
that presented to the Board in cases where there has been a schism
or transfer of affiliation by the membership of the contracting labor
organization.7 In view of these facts and since it is apparent that
the A. F. L. has been unable effectively to administer its contract since
February 25, 1943, we find that the contract does not constitute a bar
to a present determination of representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company and the Independent stipulated that all production
employees of the Company, excluding clerical and supervisory employ-
ees, constitute an appropriate bargaining unit. This unit is substan-
tially the same as that covered in the January 28, 1943, contract between
the Company and the A. F. L. We find, in accordance with this
stipulation, that all production employees of the Company, excluding
clerical employees, and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
° See Matter of National Lead Company, et al, 45 N. L. R: B. 182, and cases cited
therein.
MEMO LEATHER GOODS COMPANY 631
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Max Mordka and
Flora. Mordka, Co-parters d/b/a Memo Leather Goods Company, New
York City, 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 direction and supervision of the Regional Direc-
tor for the Second Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, among the employees in the
unit found appropriate in Section IV, above, who were employed dur-
ing the pay-roll-period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
and including • employees in the armed forces of the United States
who present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause, to determine
whether they desire to be represented by Pocketbook Workers Union,
New York, affiliated with United Handbag, Leather Goods and
Novelty Workers of America, Independent, or by International Ladies
Handbag, Luggage, Belt & Novelty Workers Union, A. F. of L., for
the purposes of collective bargaining, or by neither.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.