Newark Rivet Works

National Labor Relations Board - Board Decisions

Dec 21, 1939

18 N.L.R.B. 520 (N.L.R.B. 1939)

In the Matter of NEWARK RIVET WORKS and NEWARK RIVET WORKS
EMPLOYEES MUTUAL ASSOCIATION
Case No. R-1597.-Decided December 21,1939
Metal Products Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees : refusal by employer to
recognize or bargain with petitioner because former Order of Board directs em-
ployer to bargain with another labor organization ; refusal by employer to bargain
with second organization because of claim by petitioner; Board Order no bar
under circumstances of case-Unit Appropriate for Collective Bargaining: agree-
ment by employer and petitioner ; no position taken by second labor organiza-
tion, which appeared specially and did not participate in hearing ; production,
shipping, and maintenance employees of the Company, including operators of all
types of machines , assembly workers , shipping workers, truck drivers, carpenters,
and watchmen , but excluding superintendents , foremen, sub or assistant super-
intendents , sub or assistant foremen, and office clerical help ; unit found herein
differs somewhat from unit found in previous Decision-Representatives: no
proof-Election Ordered
Mr. Richard J. Hickey, for the Board.
Mr. John G. Lerch, of New York City, for the Company.
Mr. Harry Silverstein, of Millburn, N. J., for the Association.
Mr. Samuel L. Rothbard and Mr. Ernest Arvidson, of Newark, N. J.,
appearing specially for the United.
Mr. William Strong, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 29, 1939, Newark Rivet Works Employees Mutual Associa-
tion, herein called the Association, filed with the Regional Director for
the Second Region (New York City) a petition, and on October 5,
1939, an amended petition, alleging that a question affecting commerce
had arisen concerning the representation of employees of the Newark
Rivet Works, Newark, New Jersey, herein called the Company, and
requesting an investigation and certification of representatives pursu-
ant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On September 18, 1939, the National Labor
18 N. L. R. B., No. 71.
520
i\EWARK RIVET WORILS 521
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 2, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On October 5, 19391 the Regional Director issued a notice of hearing,
and on October 13, 1939, a notice of postponement of hearing, copies
of which were duly served upon the Company, the Association, and
United Electrical, Radio and Machine Workers of America, Local
#420, C. I. 0., herein called the United, a labor organization purport-
ing to represent employees directly affected by the investigation. On
October 23, 1939, Madison Hill, the Trial Examiner duly designated by
the Board, postponed the hearing to October 24, 1939. Pursuant to
notice, the hearing was opened on October 24, 1939, at Newark, New
Jersey. At the request of the United, the Trial Examiner granted a
continuance until November 2, 1939, on which date the hearing was
held. The Board, the Company, and the Association were represented
by counsel and participated in the hearing. At the opening of the
hearing, counsel for the United appeared specially for the purpose of
objecting to the proceeding. Counsel for the United refused to par-
ticipate in the hearing and, after making several motions directed to
the holding of the hearing, left the hearing room. 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 ruled upon a number of
motions and objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Newark Rivet Works is a New Jersey corporation engaged, at
Newark, New Jersey, in the manufacture and sale of umbrella frames,
metal stampings, hardware, sheet-metal goods, rivets, and wire. From
January 1 to September 1, 1939, 95 per cent of the raw materials used
by the Company in its production, valued at more than $114,000, were
purchased by it in States other than New Jersey and, during that
same period, 95 per cent of the finished products of the Company,
valued at more than $437,000, were sold or transported to purchasers
in States other than New Jersey.
The Company employs more than 420 employees.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Newark Rivet Works Employees Mutual Association is an unaffili-
ated labor organization admitting to membership production, ship-
ping, and maintenance employees of the Company, including oper-
ators of all types of machines, assembly workers, shipping workers,
truck drivers, carpenters, and watchmen, but excluding superintend-
ents, foremen, sub or assistant superintendents, sub or assistant fore-
men, and office clerical help.
United Electrical, Radio and Machine Workers of America, Local
#420 is a labor organization affiliated with the Congress of Industrial
Organizations. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 27, 1938, the Board issued its Decision and Order in a
proceeding involving the Company, the United, and other parties.-
The Board found therein that the appropriate unit consisted of pro-
duction employees of the Company, excluding supervisory employees,
that the United was the exclusive representative of the employees in
this unit, and that the Company had refused to bargain with the
United, in violation of the Act, and ordered the Company upon request
to bargain with the United.2 On several occasions after the issuance
of the Decision and Order, the Company communicated with the.
United, stating its willingness and readiness to bargain, but the United
declined to enter into bargaining negotiations in response to these
communications.
In April 1939, the Association requested the Company to bargain
with it. The Company refused since the Board had directed it to
bargain on request with the United. On June 8, 1939, the United,
communicated with the Company requesting a conference for the
purpose of collective bargaining but the Company refused on the
ground that the Association claimed to be the exclusive representative.
On June 29, 1939, the Association filed its petition with the Regional
Director for the Second Region.
Since the Company was willing to bargain, upon demand, with the
United, pursuant to the Board's Decision and Order, and more than 7
months elapsed between the date the Company first communicated its
willingness to the United and the date the United made its demand
1 Matter of Newark Rivet Works and Unity Lodge No. 420, United Electrical d Radio
Workers of ,America, O. I. 0., 9 N. L. R. B. 498.
2 The Board in its Decision found violations of Section 8 (1), (2), (3), and (5) of the Act,
and ordered the Company to take appropriate action. The Company complied with the
order.
NEWARK RIVET WORKS' 523
upon the Company, we find that the Decision and Order of the Board,
dated October 27, 1938, is not a bar to the present proceeding.
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
In its Decision and Order of October 27, 1938, the Board recited
that the United and another labor organization admitted to member-
ship production employees of the Company, excluding supervisory
employees, that the Company did not claim that any other unit was
appropriate, and found, accordingly, that all production employees of
the Company, excluding supervisory employees, constituted an appro-
priate unit.
In the present proceeding, the Company and the Association agree
that all production, shipping, and maintenance employees of the Com-
pany, including operators of all types of machines, assembly workers,
shipping workers, truck drivers, carpenters, and watchmen, but ex-
cluding superintendents, foremen, sub or assistant superintendents,
sub or assistant foremen, and office clerical help, constitute an appro-
priate unit.
The present record discloses that maintenance employees of the
Company are actually production employees who perform some main-
tenance work. While truck drivers, carpenters, watchmen, and other
categories of workmen were not specifically included in the unit we
held appropriate in our Decision and Order, nothing in the prior
Decision or in the present record indicates that we should reject the
unit which the Company and the Association have indicated as being
appropriate.
We find that all production, shipping, and maintenance employees
of the Company, including operators of all types of machines, assembly
workers, shipping workers, truck drivers, carpenters, and watchmen,
but excluding superintendents, foremen, sub or assistant superintend-
ents, sub or assistant foremen, and office clerical help, constitute a unit
8 The United did not take any position as to what constitutes an appropriate unit.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. TH4 DETERMINATION OF REPRESENTATIVES
At the hearing the Association claimed to represent 95 per cent of
the employees within the appropriate unit. It did not, however, offer
proof of designation by the employees and suggested that the Board
conduct an election by secret ballot. We shall, accordingly, direct that
such an election by secret ballot be held.
While both the Association and the Company agreed that the pay
roll for the period immediately preceding the date of the filing of the
amended petition be used as the basis for determining eligibility to
participate in an election, we believe that the pay roll for the period
immediately preceding the date of this Decision and Direction of
Election is the appropriate one for use in the election.
We shall, accordingly, direct that employees of the Company, within
the appropriate unit, whose names appear on the pay roll for the
period immediately preceding the date of this Decision and Direction
of Election, including employees within the appropriate unit who
did not work during such pay-roll period because they were ill or on
vacation, and employees who during that pay-roll period were or have
since been temporarily laid off, and excluding employees who have
since quit or been discharged for cause, shall be eligible to vote in the
election.
Both at the opening of the hearing and, thereafter,-in a letter ad-
dressed to the Board, counsel for the United stated that if the Board
directs an election, the United does not desire to have its name appear
on the ballot. We shall omit the name of the United from the ballot.
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 Newark Rivet Works, Newark, New Jersey,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. All production, shipping, and maintenance employees of the
Company, including operators of all types of machines, assembly
workers, shipping workers, truck drivers, carpenters, and watchmen,
but excluding superintendents, foremen, sub or assistant superintend-
ents, sub or assistant foremen, and office clerical help constitute a unit
NEWARK RIVET WORKS 525
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 Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining 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 of
Election, under the direction and supervision of the Regional Director
for the Second Region acting in the matter as agent for the National
Labor Relations Board and subject to Article III, Section 9, of said
Rules and Regulations, among all production, shipping, and main-
tenance employees of the Newark Rivet Works, Newark, New Jersey,
including operators of all types of machines, assembly workers, ship-
ping workers, truck drivers, carpenters, and watchmen, who were
employed by the Company during the period immediately preceding
the date of this Direction of Election, including employees who were
not employed during that pay-roll period because they were ill or on
vacation, and employees who were or have since been temporarily laid
off, and excluding employees who have since quit or been discharged
for cause, and, further, excluding superintendents, foremen, sub or
assistant superintendents, sub or assistant foremen, and office clerical
help, to determine whether or not they desire to be represented by
the Newark Rivet Works Employees Mutual Association, for the
purposes of collective bargaining.