Teleradio Engineering Corp.

National Labor Relations Board - Board Decisions

Aug 20, 1940

26 N.L.R.B. 853 (N.L.R.B. 1940)

In the Matter of TELERADIO ENGINEERING CORPORATION and LOCAL
430 OF THE UNITED ELECTRICAL, RADIO & MACHINE WORKERS,
OF AMERICA, C. I. O.
Case No. R-1944.-Decided August 20, 1940
Jurisdiction : radio apparatus and electro-mechanical appliance manufacturing
industry.
Investigation and Certification of Representatives : existence of question: refusal
to accord recognition to union; election necessary.
Where contract with rival union has expired and an alleged working agree-
ment, de facto situation, or renewal thereof was not made or in existence
prior to its expiration date and therefore first' came into existence after
institution of the proceedings held no bar to existence of question concerning
representation.
Unit Appropriate for Collective Bargaining : production employees including
employees in the stockroom, repair and lacquer departments, machine-shop
employees, set-up men, inspectors, and testers, but excluding all such employees
,who at the date of the Direction of Election herein have not worked for the
Company at least 4 consecutive weeks, managers, assistant managers, superin-
tendents, foremen, assistant foremen, supervisors, tool makers, maintenance
men, porters, employees in the engineering department, laboratory and office
employees, and salaried employees receiving more than $25 per week.
Mr. Shad Polier, for,the Board.
Mr. Henry D. Dorfman, of New York City, for the Company.
Mr. Frank Schemer, of New York City, for Local 430.
Mr. William Karlin, of New York City, for Local B-1010.
Mr. William Beedie, of Matawan, N. J., for the I. B. E. W.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 15, 1940, Local 430 of the United Electrical, Radio and
Machine Workers of America, C. I. 0., herein called Local 430,
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 employees of Teleradio
Engineering Corporation, New York City, herein called the Com-
pany, and requesting an investigation and certification of representa-
26 N. L. R. B., No. 89.
323429-42-55 853
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On June 19 the National Labor
Relations Board, herein called the Board, acting pursuant to Sec-
tion 9 (c) of the Act and Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and. authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
On June 27 the Regional Director issued a notice of hearing, copies
of which, together with copies of the petition, were duly served upon
the Company, upon Local 430, and upon the following labor organiza-
tions claiming to represent employees directly affected by the investi-
gation: Local B-1010, International Brotherhood of Electrical
Workers, A. F. of L., herein called Local, B-1010, and International
Brotherhood of Electrical Workers, herein called ,the I. B. E. W.
Pursuant to the notice, a hearing was held on July 8 and 12 at
New York City, before James C. Paradise, the Trial Examiner duly
designated by the Board. The Board, the Company, Local 430,
Local B-1010, and the I. B. E. W. appeared and were represented
by counsel or a representative, and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence hearing on the issues was afforded
all parties. During the course of the hearing the Trial Examiner
excluded as irrelevant and immaterial certain' proof, more particu-
larly described below, offered by Local B-1010 as bearing upon the
issues hereinafter considered relating to the question concerning
representation. For reasons subsequently appearing below we are
of the opinion that this ruling of the Trial Examiner was correct and
hereby affirm the same. The Trial Examiner made several other
rulings on motions and on objections to the -admission of evidence.
The Board has reviewed these 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
Teleradio Engineering Corporation is a New York corporation
with its principal office and only plant at New York City and with
sales offices at Chicago, Illinois, and Los Angeles, California. It is
engaged in the manufacture, sale, and distribution of radio apparatus
and electro-mechanical appliances. In the course of its manufac-
turing operations at the New York City plant the Company uses
various raw materials, including' steel, brass, bronze, bakelite, ceram-
ics, mica films, and various semifinished and finished component
parts of 'its finished products. From December 1, 1939, to May 31,
TELERADIO ENGINEERING CORPORATION 855
1940, the Company purchased a quantity of such materials for such
purpose, of which approximately 65 to 70 per cent in value, or $35,000,
was purchased and shipped to the plant,from outside the State of
New. York. During the same period the Company shipped from its
plant finished products which it sold amounting to approximately
$75,000 in value, or about 80 per cent of the value of its total sales
of such products, to destinations outside the State of New York.
The Company concedes that its business and operations affect
commerce, within the meaning of the Act.
II. ' THE ORGANIZATIONS INVOLVED
Local 430 of the United Electrical, Radio and Machine Workers of
America, C. I. 0., is a local of United Electrical, Radio and Machine
Workers of America, a labor organization affiliated with the Congress
of, Industrial Organizations. Local B-1010, International Brother-
hood of Electrical Workers, A. F. of L., is a local of -International
Brotherhood of Electrical Workers, a labor organization affiliated with
the American Federation of Labor.. Both Local 430 and Local
B-1010 admit to membership production employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 17, 1937, a consent election by secret ballot was con-
ducted under the supervision of the Regional Director among em-
ployees of the Company, excluding executives, foremen, technical
staff office, office staff, .and porters, to determine whether or not they
desired to be represented by Local B-1010 for purposes of collective
bargaining. The results of the election showed that a substantial
majority of the employees voting in the election desired to be rep-
resented to Local B-1010, and, in consequence, that that labor
organization was the statutory representative of all employees who
were eligible to vote. Thereafter, in August 1937, the Company and
Local B-1010 made a collective contract, as of July 1, 1937, which
included provisions relating to wages, hours of service, and other
working conditions of employees of the Company. Sometime prior
to July 14, 1939, this contract terminated. On July 14, 1939, the
Company and Local B-1010 entered into another collective contract i
covering wages, hours of service, and other working conditions of
employees of the Company. The contract provided that the Company
recognized Local B-1010 as the exclusive collective bargaining rep-
resentative of all employees of the Company "engaged in processing
operations," exclusive of certain classifications; that all employees
who were members of Local B-1010 as well as new employees were
required to be and remain members of Local B-1010; and that the
I Local B-1010 is referred to in the contract as Radio Union , Local B-1010 International Brotherhood of
Electrical Workers, A F. of L.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company extended to Local B-1010 the privilege of supplying it with
new help and in hiring would prefer members of that union. By its
terms the contract was to continue in effect until July 1, 1940, and in
that connection contained the following provision: "With the consent
of both parties expressed in writing sixty (60) days prior to the expira-
tion hereof this agreement shall automatically renew itself for an
additional period of one (1) year, with or without modification or
change, as the parties hereto mutually agree." Neither within the
time prescribed in this provision, nor at any other time have the
Company and Local B-1010 mutually consented or otherwise agreed
in writing to any renewal of the agreement or its terms.
On or about May 7, 1940, Local 430 notified the Company in writing
to the effect that it was the exclusive collective bargaining representa-
tive of the Company's employees and requested a conference with the
Company for collective bargaining.' The Company did not reply
to this request. After the filing of the petition for investigation and
certification herein and on or about May 27 the Company at a con-
ference with Local 430 and an agent-of the Board took the position
that it would not recognize Local 430 as the collective bargaining
representative of its employees until the expiration of its above-
mentioned contract with Local B-1010. At the hearing Local
B-1010 claimed to be the collective bargaining representative of the
Company's employees herein involved. It appears from the report
of the Regional Director, as hereinafter set forth, that during the
period in which Local 430 thus requested but failed to obtain recogni-
tion as collective bargaining representative, a substantial number
of the Company's employees designated that labor organization as
their representative for purposes of collective bargaining.
The failure or refusal of the Company prior to the filing of the
petition herein to accord recognition to or otherwise bargain collec-
tively with Local 430, and its refusal thereafter to do so, whether
because of its above-mentioned exclusive recognition contract with
Local B-1010, or otherwise, as well as the competing claims advanced
in these proceedings by the two unions to representation of the Com-
pany's employees, have resulted in an uncertainty as to the status of
Local 430 as the statutory representative of employees of the Company,
and given rise to a question concerning representation. However,
Local B-1010 contended at the hearing that no question concerning
representation herein cognizable had arisen, because there was opera-
tive and in effect since July 1, 1940, a "working agreement" between
2 Local 430 also informed the Company in connection with its notification and request that Local B-1010
had "severed its affiliation with the International Brotherhood of Electrical Workers" and had become
Local 430 The record contains no proof of this statement As noted above both Local 430 and Local
B-1010 appeared by counsel and participated in the hearing . At the hearing counsel for Local B-1010
referred to Local 430 as a "dual union " and it is apparent that a "dual union" situation existed prior to and
at the time of the hearing.
TELERADIO ENGINEERING CORPORATION 857
it and the Company, a "de facto situation," under or in which the
Company observed the same conditions and practices with respect to
working conditions of its employees, and obtaining new help from
Local B-1010, as it had observed under the contract of July 14, 1939.
Local B-1010 states that it had intended to take steps under the
contract for a renewal thereof, but had been prevented from so doing
"only through the gross negligence of a discredited union official."
It admitted that the Company "is asserting that there is no working
agreement" between the Company and Local B-1010.
Whether there has existed since July 1, 1940, a working agreement
or de facto situation of the kind alleged by Local B-1010, or, for that
matter, whether the contract of July 14, 1939, was on July 1, 1940,
renewed by acts of the parties or as a matter of law, we are of the
opinion that the existence or occurrence of such working agreement,
situation, or renewal constitutes no ground for our not proceeding at
the present to an investigation and determination of the question
concerning representation here presented. There' has been no deter-
mination of representatives by the Board since August 1937.3 The
contract of July 14, 1939, between the Company and Local B-1010
expired on July 1, 1940. The alleged working agreement, de facto
situation, or any renewal was not made or in existence prior to July 1,
1940, and, hence, first came into existence after the question concern-
ing representation was submitted to the Board and after the Board
assumed jurisdiction of the controversy.4 Finally, in view of the
assertion of Local B-1010 that the Company is still preferring its
members in matters of employment, and only a "working agreement,"
or de facto situation covering the matter exists, we think it particularly
important that the question concerning representation be determined.'
We find that a question has arisen concerning 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.
3 Matter of Wilson & Co., Inc. and International Brotherhood of Teamsters , Chauffeurs, Stablemen and
Helpers of America, Local §202 , affiliated with the A F of L , 25 N L R. B., 938.
4 Matter of Wilson-Jones Company and Employees Benevolent Association of Elizabeth, N. J, Inc., et al ,
21 N. L. R B., No. 92 , Matter of Wickwire Spencer Steel Company and Federated Industrial Union, 18 N. L.
R. B., 372.
6 See the proviso clause of Section 8 (3) of the Act.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE APPROPRIATE UNIT
At the hearing the Company, Local 430, and Local B-1010 agreed
that all production employees of the Company, including employees
in the stockroom, repair and lacquer departments, machine-shop
employees, set-up men, inspectors, and testers, but excluding manag-
ers, assistant managers, superintendents, foremen, assistant foremen,.
supervisors, tool makers, maintenance men, porters, employees in
the engineering department, laboratory and office employees, and sal-
aried employees receiving more than $25 per week, constitute a unitt
appropriate for the purposes of collective bargaining. The recor
shows that new employees are required to serve a 4-week "trial" or
"learning period" before being accepted by the Company as regular
employees of the Company and becoming eligible to seniority and
other employment benefits. We think that employees holding such
temporary status are without the proposed collective bargaining unit.'
Accordingly we find that all production employees of the Company,
including employees in the stockroom,. repair and lacquer depart-
ments, machine-shop employees, set-up men, inspectors, and testers,,
but excluding all such employees who at the date of the Direction of
Election herein have not worked for the Company at least 4 consecu-
tive weeks, managers, assistant managers, superintendents, foremen,
assistant foremen, supervisors, tool makers, maintenance men, porters,
employees in the engineering department, laboratory and office
employees, and salaried employees receiving more than $25 per week,
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
From a report of the Regional Director introduced in evidence it
appears that in the period from May 5 to May 15, 1940, a substantial
number of the employees of the Company within the unit we have
found to be appropriate applied for membership in Local 430, and
thereby designated Local 430 their representative for purposes of col-
lective bargaining. Local B-1010 was party to the contract expir-
ing July 1, 1940, and still claims to be the exclusive collective bar-
gaining representative of these employees. We are of the opinion,
and find, that the question concerning representation which has arisen
and now exists can best be resolved by the holding of an election by
secret ballot among the employees in the appropriate unit to deter-
6 See Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers,
7 N. L. R. B. 24, 34; Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America,
Local No 502 , 6 N. L R. B. 171, 186-187 . Cf. Matter of Quaker Oats Company and United Cereal Workers,
Local No 683 (CIO), 24 N. L. R. B. 589.
TELERADIO ENGINEERING CORPORATION 859
mine their desires with regard to representation . Accordingly, we
shall direct that an election by secret ballot be held , subject to such
limitations as may be stated in the Direction of Election.
The record shows that the number of employees at work in the
Company's plant fluctuates from time to time, that the peak period
of plant employment extends from September through November,
with smaller peak periods occurring throughout the remainder of the
year. Under the July 14, 1939, contract between the Company and
Local B-1010 above mentioned and also since July 1, 1940 , employees
are laid off and recalled to work by the Company on the basis'of
seniority . As above stated , an employee obtains seniority upon
working for the Company more than 4 weeks. An employee loses
seniority if he or she absents himself from duty without notifying the
Company thereof within 24 hours, if he or she severs his employment
with the Company by resignation, or otherwise, or, in the case of laid-
off employees, if he or she fails to return to work within 3 days after
notification of his or her recall to work. Subject to such loss, an
employee who has been laid off and not recalled retains his seniority
for 1 year . At the hearing the parties took various positions as to the
basis of eligibility to vote in the election, in view of the fluctuation in
employment. We are of the opinion that eligibility to participate in
the election should be extended to all regular employees, whether or
not they are at work in the plant at the time of the election , who were
employed in the plant during the year preceding the date of the
Direction of Election and who at that date held seniority, as delimited
by the company practice above mentioned , but who have not quit or
been discharged for cause.
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 Teleradio Engineering Corporation, New
York City, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All production employees of the Company, including employees
in the stockroom, repair and lacquer departments , machine-shop
employees , set-up men, inspectors , and testers , but excluding all such
employees who at the date of the Direction of Election herein have
not worked for the Company at least 4 consecutive weeks, managers,
assistant managers, superintendents , foremen, assistant foremen,
supervisors , tool makers , maintenance men, porters , employees in the
engineering department , laboratory and office employees , and salaried
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees receiving more than $25 per week, constitute a unit appro-
priate 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, 49 Stat. 449, 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 Teleradio Engineering Corporation, 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
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, Sec-
tion 9, of said Rules and Regulations, among all persons employed
as production employees by the Company during the year preceding
the date of this Direction of Election and who, at said date, have
seniority,' irrespective of whether at the time of the election theybe
at work in the plant, including employees inthe stockroom, -repair
and lacquer departments, machine-shop employees, set-up men,
inspectors, and testers, but excluding all such employees who at the
date of this Direction of Election had not worked for the Company
at least 4 consecutive weeks, or who between that date and the date
of the election will have quit or been discharged for cause and further
excluding managers, assistant managers, superintendents, foremen,
assistant foremen, supervisors, tool makers, maintenance men, porters,
employees in the engineering department, laboratory and office em-
ployees, and salaried employees receiving more than $25 per week,
to determine whether they desire to be represented by Local 430 of
the United Electrical, Radio and Machine Workers of America,
C. I. 0., or by Local B-1010, International Brotherhood of Electrical
Workers,•A. F. of L., for the purposes of collective bargaining, or by
neither.
7 By "seniority" as used in the Direction of Election is meant an employee who has worked at the plant
more than 4 weeks, and who has not lost his or her seniority because of absenting himself or herself from
duty without notifying the Company thereof within 24 hours, of severing his or her employment with the
Company by resignation , or otherwise , or, in cases of laid-off employees, of failing to return to work within
3 days after notification by the Company of his or her recall to work.