Spencer Lens Co.

National Labor Relations Board - Board Decisions

Oct 12, 1944

58 N.L.R.B. 953 (N.L.R.B. 1944)

In the Matter of SPENCER LENS COMPANY and OPTICAL WORKERS
ORGANIZING COMMITTEE , C. I. 0.
Case No. 3-R-858.-Decided October 12, 1944
Mr. Edward D. Flaherty, of Buffalo, N. Y., for the Company.
Mr. Harry Jones, of Buffalo, N. Y., for the C. I. 0.
Mr. Daniel B. Shortal, of Buffalo, N. Y., for Local 18 and Local 20.
Mr. Thomas A. Ricci , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Optical Workers Organizing Commit-
tee, C. I. 0., herein called the C. I. 0., alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Spencer Lens Company, Buffalo, New York, herein called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before Peter J. Crotty, Trial Examiner. -Said
hearing was held at Buffalo, New York, on Sept ember 12, 1944. The
Company, the C. I. 0., Metal Polishers, Buffers, Platers and Helpers
International Union, Local 18, A. F. L., herein called Local 18, and
Scientific Instrument Workers of America, Local20, Division of Metal
Polishers, Buffers, Platers and Helpers International Union, A. F. L.,
herein called Local 20, appeared and participated.- All parties were
afforded full opportunity to be heard , to examine and cross -examine,
wits esses , and to introduce evidence bearing on the issues. At the
hearing, the Company and Local 1220 moved to dismiss the petition. The
Trial Examiner referred the motion to the Board for determination.
For reasons set forth in Section III, infra , the motion is denied. The
Trial Examiner 's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board.
.58 N. L . R. B., No 181
953
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Spencer Lens Company, a New York corporation , has its principal
place of business - at Buffalo , New York, where it is engaged in the
manufacture of precision and optical instruments . The Company op-
erates two plants in that city , one on Eggert Road and one on Doat
Street. From January 1 , 1944, to June 30, 1944 , the Company used
raw materials valued in excess of $750,000 , of which more than 40 per-
cent was shipped to the Company from points outside the State of
New York. During the same period the Company manufactured
finished products valued in excess of $4,500,000, of which more than
90 percent was shipped to points outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Optical Workers Organizing Committee, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
Metal Polishers, Buffers, Platers and Helpers International Union,
Local 18, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
Scientific Instrument Workers of America, Division of Metal Pol-
ishers, Buffers, Platers and Helpers International Union, Local 20,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 11, 1944, the C. I. O. filed the petition herein seeking cer-
tification as the representative of all the Company's production and
maintenance employees with certain specified exclusions. On August
21, 1944, the C. I. O. mailed a letter to the Company in which it claimed
to represent a majority of the Company's production and maintenance
employees and requested a conference. The Company did not reply
to the letter.
On April 5, 1939, a consent election among the Company's produc-
tion and maintenance employees was conducted by the Regional Direc-
tor for the Third Region of the National Labor Relations Board, as a
result of which Local 18 was recognized by the Company as the exclu-
SPENCER LENS COMPANY 955
sive bargaining representative of all its production and maintenance
employees. On December 31, 1939, the Company and Local 18 exe-
cuted a collective bargaining agreement for 1 year. This contract was
renewed in December 1940 and again in December 1941, each time for
a further period'of 1 year. In October 1942, pursuant to the provisions
of the 1941 agreement, Local 18 served notice upon the Company of
its election to cancel the contract. From October 1942 until February
1943 a number of conferences took place between the Company's rep-
resentatives and representatives of Loal 18 in an eort to reach
a new agreement. The parties, however, were unable to agree on issues
of wages, union security and vacation. Accordingly, the issues were
certified to the Regional War Labor Board in February 1943. There
followed several directive orders from the Regional War Labor Board
and then an appeal to the National War Labor Board which was finally
decided on September i, 1944. On September 11, 1944, in conformity
with, the final determination of the National War Labor Board, the
Company and Local 20 executed a collective bargaining agreement cov-
ering all the Company's production and maintenance employees, ex-
cluding metal polishing and plating employees
The Company contends that an election at this time would tend to
disrupt the stability of labor relations in its plant. Local 20, having
submitted its dispute to governmental processes and having refrained
from entering into a contract until final determination of the dispute,
contends that it is now entitled to bargain under the terms of the
September 11, 1944, contract. While the Company and Local 20 assert
no particular decision of the Board as authority in favor of their
motion to dismiss the petition, they are, in effect, arguing the Allis
Chalmers 2 doctrine.
The Board there held that a newly recognized or certified repre-
sentative is entitled to a reasonable opportunity to obtain for the em-
ployees the benefits of representation, as evidenced by a collective bar-
gaining contract, and that where delay in obtaining such a contract is
caused by resort to the orderly processes of governmental agencies the
Board will not proceed with a new investigation and determination of
representatives. We do not consider that the instant case is governed
by that holding.
The present members of Local 20 formerly constituted the bulk of
the membership of Local 18. Of the approximately 1,400 production
' From 1939 to 1943, Local 18 embraced all the Company's production and maintenance
employees During the year 1943, the metal polishing and plating emplo,,ees, comprising
the Company's Departments 7 and 14, decided to bargain with the Compan3 independently
As a result, they retained the name Metal Polishers, Buffers. Platers and Helpers Interna-
tional Union, Local 18, and all the Company's remaining production and maintenance em-
ployees formed the Scientific Instrument Workers of America, Local 20, Division of Metal
Polishers, Buffers, Platers and Helpers International Union The present inembeis of
Local 18 are excluded from the stipulated and appropriate unit in this proceeding
Matter of Allis Chalmers Manufacturing Company, 50 N L R B 306.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees in the Company's plants, all but 42, who
remained in Local 18, are covered by the September, 11, 1944, contract.
At the hearing, counsel for Locals 20 and 18 and counsel for the Com-
pany referred to the December 1941 contract, their attempts to agree-
upon another contract, and the subsequent proceedings before the War
Labor Board, as related incidents in'their bargaining relations as
though Local 20 and Local 18 had been one and the same organization.
Thus, Local 20 is but a counterpart of Local 18, is consequently neither
newly certified nor newly recognized, and must be considered as having
had full opportunity to obtain for the employees concerned substantial
collective bargaining benefits 3 Were we to conclude that a determi-
nation of representatives is barred at present, an unreasonable time
will have elapsed between the date when the employees last selected
their bargaining representative and the date when they will be afforded
an opportunity to express a new choice. Under these circumstances,
we see no reason to depart from our general rule of recognizing the
existence of a question of representation when a rival claim to repre-
sentation has been made prior to the execution or renewal of a collective
bargaining contract.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. 0. represents a substantial number of
employees in the,unit hereinafter found appropriate 4
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
We find, in substantial accordance with the stipulation of the parties,
that all production and maintenance employees at the Company's
Buffalo, New York, plants, located on Eggert Road and on Doat Street,
excluding office and clerical employees, militarized guards, technicians,
metal polishers and plating employees in Departments 7 and 14, 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, constitute a unit appropriate for
-the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3 Matter of Fort Dodge Creamery Company, 53 N. L R B 928, and Matter of Bethlehem
Supply Compaug , 56 N. L R B 439
4 The Field Examiner reported that the C. I. 0 submitted 638 membership cards, that
every fourth name on the Company's pay roll of August 12, 1944, was checked against the
cards submitted , and that 40 percent of the names so checked were names for which the
C I 0 had submitted cards bearing apparently genuine signatures
Local 20 relies upon its contract of September 11, 1944 , for the establishment of its
interest in this proceeding.
SPENCER LENS COMPANY 957
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 Libor R,,1a-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
D1RECri D that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Spencer Lens
Company, Buffalo, 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 direction, under the direction and supervision
of the Regional_ Director for the Third Region, acting in this mat-
teir 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 during the pay-roll period nnmediately"preceding
the date of this Direction, including employees who did not work
during the 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 employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine whether they desire to be represented by
Optical Workers Organizing Committee, C. I. 0., or by Scientific
instrument Workers of America, Local 20, Division of Metal Pol-
ishers, Buffers, Platers and Helpers International Union, A. F. L.,
for the purposes of collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.