Transogram Co., Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1941

31 N.L.R.B. 229 (N.L.R.B. 1941)

In the Matter of TRANSOGIts r COMPANY, INC. and LOCAL 721, UNITED
PAPER, NOVELTY & Toy WORKERS OF AMERICA, C. I. 0.
Case No. R-2393.-Decided April 923, ,194.1
Jurisdiction : toy manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition; contract entered into subsequent to notice
served that petition had been filed, no bar to ; eligibility to be determined by a
current pay roll but to include employees on an earlier pay roll who have per-
formed 3 months of satisfactory service ; labor organization not participating
,in the proceedings not accorded a place on the ballot; election necessary.
Unit Appropriate for Collective Bargaining : all employees including the main-
tenance men, but excluding executives, foremen, assistant foremen, the receiv-
ing clerk and his assistant, supervisory employees, and clerical workers.
Mr. Henry Mayer, of New York City, for the Company.
Mr. M. H. Goldstein, of Philadelphia, Pa., for Local 721.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 9, 1940, Local • 721, United Paper, Novelty & Toy
Workers of America, C. I. 0.,1 herein called Local 721, filed with the
Regional Director for the Fourth Region '(Philadelphia, Pennsyl-
vania) a petition 'alleging that a question affecting commerce had
arisen' concerning the representation of employees of Transogram
Company, Inc., Easton, Pennsylvania, herein called the Company,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On January 30, 1941, 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 Regulations-Series 2, as amended, ordered
i In formal papers prior to the hearing the name of the Union appeared as United Paper,
Novelty & Toy Workers Union-C. I. O , Local 721. A motion was, granted at the hearing
to amend the petition and other formal papers so that the name of the Union would
appear as it is printed in the text.
31 N. L. R. B , No. 36.
229
230 DECISIONS OF NATIONAL, LABOR,, RELATIONS BOARD
an investigation and authorized the Regional Director to conduct it
and to provide for an appropriate hearing upon due notice.
On February 13, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, Local
721, and Committee for Production Employees, which had signed
certain collective bargaining contracts with the Company. Pursu-
ant to the notice and amendments, thereto, a hearing was held
on March 11, 1941, at Easton, Pennsylvania, before Jerome I. Macht,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Company and Local 721 were represented by counsel and par-
ticipated in the hearing. No appearance was made on behalf of
Committee for Production Employees. Full opportunity to be heard,
to examine and cross-examine witnesses and to introduce evidence
bearing on the issues was afforded all parties. At the hearing the
Company moved to dismiss the petition on the ground that there was
no evidence that'any employees of the Company had designated Local
721 as their bargaining representative. No ruling was made on
this motion by the Trial Examiner. For reasons which hereinafter
appear, the motion is hereby denied. During the course of the
hearing, the Trial Examiner made several'rulings on other motions
and on objections to the admission of, evidence. The Board has
reviewed the, rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
At the request of the Company and pursuant to notice duly served
upon all the parties, a hearing for the purposes of oral argument
was had before the Board in Washington, D. C., on March 25, 1941.
The Company and Local 721 were represented by counsel and par-
ticipated in the argument. - On March 24, 1941, Local 721 filed a
brief which has been considered by the Board.
After the hearing for oral argument, counsel for the Company
submitted to the Board a proposed additional exhibit with the
request that it be made a part of the record. Local 721 objected
to such admission of the exhibit. The Board, having examined the
exhibit, finds it to have no bearing on the issues 2 and hereby denies
the Company's request.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Transogram Company, Inc., is a corporation organized and exist-
ing under the laws of Pennsylvania having plants in Easton, Penn-
'The exhibit deals with the question of whether the petitioning union bore the local
number " 721" during 1937 and 1938.
TRANSOGRAVi COMPANY, INC. 231
sylvania, and New York City, and executive offices and showrooms
in New York City.
The Company is engaged at its Easton plant, the only one involved
here, in the manufacture, sale, and distribution of toys and games.
During 1940, the Company purchased for use at its Easton plant
raw materials valued at approximately $350,000, of which approxi-
mately 50 per cent were shipped from outside of Pennsylvania.
Sales of finished products from the Company's Easton plant in 1940
amounted to approximately $700,000, of which about 75 per cent
were shipped outside of Pennsylvania. The Company has stipulated
that it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 721, United Paper, Novelty & Toy Workers of America,
is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company
A its Easton plant. The local organization in the Company's Easton
plant has been affiliated successively with the American Federation
of Labor in 1936, as a Federal union; with Steel Workers Organiz-
ing Committee in 1936 and 1937; and with Toy Workers Organizing
Committee (C. I. _O.) , from which it held a charter in 1938. In
1938 or 1939 it became Local 721 of International Union of Play-
things & Novelty Workers of America (C. I. 0.). On or about
September 15; 1940, a number of local paper workers' industrial
unions, affiliated with the Congress of Industrial Organizations,
amalgamated with International Union of Playthings -and, Novelty
Workers of America, the resultant organization being named United
Paper, Novelty & Toy Workers of America. Local 721 has applied
for a charter from the new organization.
III. THE QUESTION CONCERNING REPRESENTATION
In 1936 the labor organization which was the predecessor of Local
721, and which was then affiliated with the American Federation of
Labor, was selected as bargaining representative by the majority of
production employees at the Company's Easton plant, in a consent
election conducted by the Board. The Company, following this
election in 1936, And again in 1937, signed an agreement with a
"Committee representing production employees." In each year the
persons signing for the Committee were representatives of the labor
organization then in existence at the plant. The 1937 agreement rec-
ognized the Committee as sole bargaining agent for its production
employees"; it was to remain in effect -until December 31, 1938, and to
continue in effect from year to year thereafter unless terminated by
either party after a 30-days' written notice.
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232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1940, Local 721 requested the Company to recognize
it as the bargaining representative of the ' Company's production
employees at its Easton plant. After the Company's president had
expressed doubt as to whether Local 721 represented the majority
of these employees, the petition in this case was filed.- On Novem-
ber 14, 1940, the Company was notified by the Regional Director of
the filing of the petition.
On January 30, 1941, nevertheless, the Company signed a contract
with a "Committee representing production employees." The eight
persons signing for the Committee are the president and seven other
officers of Local 721. This agreement,purports to be a supplement
to the 1937 contract, and continues the latter agreement with certain
changes. At the oral argument, the Company contended that the
existence of this contract bars an election. This contention the
Board finds to be without merit, in view of the fact that the Janu-
ary 30 agreement was signed subsequent to the notice served on the
Company that the petition in this case had been filed.3
From a statement of the Regional Director introduced in evidence,
it appears that Local 721 has been designated by a substantial num-
ber of the Company's employees at its Easton plant.4
We find that a question has arisen concerning representation of
employees of the Company at its Easton plant.
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 com-
merce and the free flow of commerce. '
8 See Matter of General Dry Batteries, Inc. and Battery workers' Federal Labor Union,
No 22516, A F of L , 29 N. L. R B 1017, and cases cited therein
4 The Regional Director's statement shows that 192 persons whose names are on the
Company's pay roll for October 25, 1940, have signed application cards designating
"International Union, Playthings & Novelty Workers of America" as their representative.
All the cards were signed in September and October 1940 The Company had about 320
employees at this time
The Company contested the relevancy of these cards on the ground that they do not
designate the petitioning union, Local 721 From the evidence introduced at the hearing,
it appears that the cards were signed during a campaign to reorganize Local 721 and
that the amalgamation mentioned in Section II above took place in the midst of this
campaign In view of all the evidence and the testimony of representatives of the Inter-
national Union and Local 721 at the hearing, we are of the opinion that a sufficient
showing of designation has been made to warrant the election hereinafter directed.
TRANS 'OGRAM COMPANY , INC. 233'
V. THE APPROPRIATE UNIT
The parties - are in agreement that the appropriate unit should
include all the Company 's employees at its Easton plant , excluding
executives , foremen, assistant foremen, the receiving clerk and his
assistant , supervisory employees , and clerical workers. Those thus
excluded from the unit were also excluded under the 1937 contract.
The Union ' desires further to include , and the Company desires to,
exclude, four persons who do maintenance work and act as watchmen,
who were included under the 1937 agreement . Three of these men
are hourly paid employees ; one, who directs the work of the other
three is paid weekly. He is without power to hire or discharge. All
four appear to spend most of their time in maintenance work. We
shall include them in the unit.
We find that all the Company 's employees at its Easton plant, in-
cluding the maintenance men, but excluding executives , foremen,
assistant foremen, the receiving clerk and his assistant , supervisory
employees, and clerical workers, constitute a unit appropriate for the
purposes of collective bargaining and that such unit will insure to
the employees of the Company the full benefit of their right to self-
organization and collective bargaining and otherwise effectuate the
purposes of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
The Union urges that in the event of an election only Local 721
should appear on the ballot; the Company , on,the other hand, con-
tends that the "Committee 'representing production employees" should
also appear . Although notice of the hearing was served upon the
Committee, no appearance was made at the hearing by any repre-
sentative of such a body ; and although the chairman of the Com-
mittee, who is also the president of Local 721 , testified at the hearing,
no contention was made on the Committee 's behalf that it should be
placed on the ballot. Under all the circumstances , we conclude that.
the "Committee representing production employees "' should not be
accorded a place on the ballot.
Local 721 has requested that the pay roll for the week ending
October 26, 1940, should be made the basis for determining the eligi-
bility of employees voting . in the election ; the Company contends
that the October 26 pay roll would not be representative of normal
employment and urges that a current pay roll should be used. • Evi-
dence was introduced at the hearing showing that the Company e:n-
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ploys about 325 persons during a busy season which starts early in
the summer and which reaches a peak in October or November. In
December there is an abrupt drop in the number of employees. At
the end of December 1940 only 25 or 30 persons were employed.
Reemployment of persons in increasing numbers has already begun,
however, and will continue at an accelerated pace. At the hearing
it was testified by the manager of the Company's Easton plant that
former employees will be recalled before the Company looks to other
sources for workers during the coming busy season. He also testi-
fied that the Company considers any persons who have performed 3
months' satisfactory work to be its employees. _We. shall direct that
an election be held at this time among employees in the appropriate
unit who were employed during the pay-roll period immediately pre-
ceding the date of this Direction of Election, including any employees
who, although not employed during that period, were'in the, employ
of the Company during the pay-roll period ending October 26, 1940,6
and have performed 3 months' satisfactory service; subject to such
limitations and additions as are set forth in the Direction.
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 Transogram Company, Inc., at its Easton,
Pennsylvania, plant, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All the Company's employees at its Easton plant, including
maintenance men, but excluding executives, foremen, assistant fore-
men, the receiving clerk and his assistant, supervisory employees, and
clerical workers, 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 Re-
lations Act and pursuant to Article III, Sections 8 and 9, 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
The parties are agreed that this pay-roll period represents the peak of the Company's
busy season.
TRANS'OGRAM\ COMPANY, INC. 235
with Transogram Company, Inc., Easton, Pennsylvania, 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
Fourth 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 all employees of the Company at its Easton'
plant, including maintenance men, who were employed during the
pay-roll period immediately preceding the date of this Direction of
Election, including employees who, although not employed during
that period, were in the employ of the Company during the pay-roll
period ending October 26, 1940, and have completed 3 months' satis-
factory service,' and further including any employees who did not
work during either of said pay-roll periods because they were ill or
on vacation, or in the active military service or training of the United
States, but excluding executives, foremen, assistant foremen, the re-
ceiving clerk and his assistant, supervisory employees, clerical work-
ers, and those employees who have quit or been discharged for cause,
to determine whether or not they desire to be represented by Local
721, United Paper, Novelty & Toy Workers of America, C. I. 0., for
the purposes of collective bargaining.
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