D. Blumberg & Son

National Labor Relations Board - Board Decisions

May 18, 1943

49 N.L.R.B. 856 (N.L.R.B. 1943)

In the Matter of JOSEPH N. BLUMBERG , doing business as, D.,BLUMBERG
& SON and PACKINGHOUSE' WORKERS ORGANIZING COMMITTEE,
C.I.O. 1
Case No. R--042.Decided May 18,1943
Mr. Jack Davis, for the Board.
Mr. Nathan Sweedler, of New York City, for the Company.
Mr. Meyer Stern, of New York City; for the C. 1. 0.
Ashe ct Rifkin, by Mr. David I. Ashe, and Messrs. Charles Gold-
smith and Anthony T. Lester, all of New York City, for Local 5.
'Mr. William R. Cameron, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by the Packinghouse Workers
Organizing Committee, C. 1. 0., herein called the C. I. O., alleging that
a _question affecting commerce had arisen concerning the representation
of employees of Joseph N. Blumberg, -doing business as D.. Blumberg
& Son,, New York City, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing'upon due
notice before William P. Webb, Trial Examiner. Said hearing was
held at New York City on April 22 and 23; 1943. The C. I. O. and
Local 5, Packing- House Workers Union of the Amalgamated Meat
Cutters & Butcher Workmen of North America, A. F. of L., herein
called Local 5, appeared, participated, and were afforded' full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Company appeared,
but elected not to participate in the introduction of evidence or exami-
nation of witnesses. The Trial Examine'r's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. Local 5 has
filed a brief, which the Board has considered.
Upon the entire record in the case, the'Board makes the following:
49 N. L. R. B., No. 120. '
856
D. BLL'MBERG & SON
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
857
Joseph N. Blumberg is an individual doing business under the trade
name'and style of D. Blumberg & Son. The Company has its principal
place of business in New York City, where it is engaged in the purchase
and slaughtering of calves and lambs, and in the sale and distribution
of the meat products. During the year 1942 the Company purchased
'livestock of the approximate total value of $2,000,000, all of which,
-was shipped to the Company from points outside the State of New
York. During the year 1942 the Company slaughtered, sold, and
distributed meats Of the approximate total value of $2,500,000, of
which approximately 10 percent was shipped by it to places outside of
the State' of New York. The Company concedes that it is engaged
in commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Packinghouse Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, is a labor organization ad-
mitting to membership employees of the Company.
Local 5, Packing House Workers Union of the Amalgamated Meat
'Cutters & Butcher Workmen of North America, affiliated with the
American Federation of-Labor, is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
For a number of years Local 5 has represented the employees of the
Company, in the unit hereinafter found appropriate, in the making of
collective bargaining agreements with the Company. The agreement
now in existence is a written contract, providing for a closed shop,
dated April 20, 1942, for the term of J year and with provision for
automatic renewal' for yearly periods, except that in case the Company
deems it advisable to discontinue operation or sells or transfers the
business then upon 1 week's written notice the agreement shall termi-
nate. Further, the contract provides that it may be reopened upon 30
days' written notice to the Company that-the contracting union wishes
to confer regarding readjustment of wages, hours,'and working condi-
tions, if war or economic conditions warrant it.
A petition for investigation and certification of representatives was
filed by the C. I. O. in April of 1942, and an amended petition on July 7,
1942. Sometime after the filing of the original or amended petition,
the C. L O., in an informal conference relating to its claim of represen-
858 DECISIONS OP NATIONAL-LABOR RELATIONS BOARD
tation, had been informed that the Company's position was that in
view of its contract with Local 5 it could -not recognize the C:''I. O.
unless the C. 1. O. was certified as bargaiiuing,represeiitative by the
Board. By letter dated March 8,1943, the C. I. O. requested a bargain-
ing conference with the Company. No reply to _ this letter was
received.
No notice has been given by either of the parties to the contract of
intention to terminate. it., Local 5 contends that this contract has been
automatically renewed for another year and therefore is a bar to a,pro-
ceeding to determine representatives at,this time. The Company, at
the hearing, made no statement of its, position in that 1 egard. We
find no merit in-the contention of Local 5.
We have held that the existence of a contract similar to the one now
in force between the Company and Local 5 is a bar to a determination
of representatives, where no notice of termination--was given by the
contracting parties prior to its renewal date and where notice of the
petitioning union's claim to representation had not been given until
after the renewal clause in the contract-had taken effect.'
In the case now before the Board, however, a petition by the C. I. O.
for investigation and determination-of representatives has for some
time been pending before the Board, and notice by the C. I.. O. to the'
Company on March 8, 1943, preceded by more than 30 days the con-
tract's prescribed expiration date, and therefore was given before
the contract could have-been automatically renewed for another yearly
period. We have repeatedly held that contracts renewed subsequent
to institution of preceedings for investigation and certification of rep-
resentatives, and after conflicting -claims of representation have been
presented, do not preclude investigation to determine representatives.2
We find, therefore, that the contract between the Company and Local
5 does not-constitute a bar to a determination of-representati-vq^s
this time.
'See Matter of Mill B. Inc, dii,ision of Irwin 2f Lyons, partners, doing business ender the
,assumed name of Irwin it Lyons and International Woodurorleis of America, Local 116,
C I 0., 40 N L . R B 346; Matter of Detroit it Cleveland Navigation Company and
National Organization of'Masters, Mates and Pilots of America , A F L, and Great Lakes
Officers Association (C 1 0.), 29 N. L. R. B. 176.
2 See Matter of Service Wood Heel Companil, hue, doing business ender style and trade
'name of Russell Heel Compdny and United Shoe Workers of America, Wood Heel Turners
Local 12A ,( C. I. 0.), 41 Nf L , R B 43 ; Matter of General Motors Corporation , Allison
Di>,ision, and International Union, United Automobile , Aircraft it Agricultural Implement
Woi leers of America , Local 9.33, affiliated with the C 1 0 , 40 N L R . B 1387 ; Matter of
Cudahy Packing Company end -Packinghouse Workers Organizing Committee , C. L 0., 38
N. L. R B. 1009 ; Mattes of Edward Rappaport , James Rappaport , and.Myr Rappaport,
Co-partners , doing business as Northwestern Aato Parts Co and United Electrical, Radio
it Machine Workers of America, Local 1140 , 36 N •L. R. B. 484.
1
D.. BLLJMBERO & SOIL 859'
A statement of the Regional Director, introduced in evidence at the
hearing, indicates that the C. 1. O. represents a substantial number of
employees in the unit hereinafter found to be appropriate.,
We fired that a question affecting commerce has arisen concerning
the representation of--employees of the Company within the meaning
of'Sectibn 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The C. I. O. seeks a unit composed of all 'production employees,
excluding office, supervisory, and maintenance employees,, truck driv-
ers and shochtim. This is substantially the unit specified in' the con-
tract between Local 5 and the Company. At the hearing Local 5 took
the position, and now contends, that the appropria^e unit should in-
clude also the truck drivers and the shochtim. The truck drivers and
shochtim are now represented, and have been for a number of years'
respectively, by Local 640, and Local 491, of the Amalgamated, with
which Local .5 is affiliated. Separate contracts are in effect covering
these two groups. It is apparently the contention of Local 5, not that
the contracts of these two locals with the Company should now be
abrogated, but simply that the employees in these groups should vote
many election to determine bargaining representatives of the unit now
represented by Local 5. This contention is without merit. Inasmuch
as these groups have for a number of years bargained separately and
are now in separate contractual relationship with the Company, and
since there is no indication that any members of these groups desire
inclusion within the unit now represented`by Local 5, we see no snffl-
cient reason for disturbing their present relationship with the Com-
pany and shall therefore exclude them from the unit.
We find that all production employees of the Company, exclusive of
office, supervisory, and maintenance employees, truck drivers and
The Regional Director reported that the C' I 0 had submitted 16 authouzation cards
dated Match 17, 1042, 9 of which appear to bear genuine original srgnatures of Persons
NNh6se`:>7a1i1es appear upon the Company's pay roll of May 1, 1942. The C. I 0. also sub-
mitted'11' application cards, 1 being dated March 20, 1943, 9 dated March 22. 1943, and
1 dated March 2:3, 1943, of which 8 appeal to bear genuine original signatures of persons
whose names appear upon the Company's pay roll of March 20, 194, This latter pay
roll was introduced in evidence and contains 24 nama:s of employees Nsithm the unit
claimed appropr late
Local 5 reties upon its closed-shop contract'as sufficiently establishing its interest
At the hearing Local 5 offered in evidence a statement signed by a number of em-
ploNees puipotti ng to repudiate their signatures -to the authorization and application
caida above mentioned The Trial Examiner rejected this pioflered evidence upon the
around that at the hearing the petitioner (lid not request ceitification but onl.N an election
ilis ruling is afhnued. ` See .hatter of Atlas' Powdci Company. Zapon Dwrsion and Local
12OS3, National Corn eil of Gas, Co/„e C Chemical IVwteis, 43 N. L. R. B. 757 (Footnotes
3 and 4) ; Mattes of A M.Siskiir and Caiimson Siskin doing business as P II. Siskin d
Sons' and Steel 3Vailcirs Ciganizimg Committee (C 1. 0.), 41 N L It B. 187 (Footnotes
2 and 3) ; Matter of H 0 Hill Stores, Inc 1Vaieliou6e and Local 2-; International Long-
choremen's and Warehousemen's Union affiliated with the C. 1 0., 39 N. L. It. B. 874
(Footnote 2).
860 ' DECZSiIONS -OF NATIONAL LABOR RELATIONS BOARD
shochtim, constitute 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 Relatipns Act,
:and pursuant-to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTFD that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Joseph N. Blum-
berg, doing business as D. Blumberg & Son, New York City, an elec-
tion 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 Second
Region, acting in this matter as agent for the National Labor Board,
and subject to Afticle III, Section 10, 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 immediately
preceding, the date of this Direction; 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 any who shave since quit or been discharged for
cause, to determine whether they desire to be represented by Packing-
house Workers Organizing Committee, affiliated with the Congress of
Industrial Organizations, or by Local 5, Packing House Workers
Union of the Amalgamated Meat- Cutters & Butcher Workmen of
North America, affiliated with the American Federation of'Labor,
for the purposes of collective bargaining, or by neither.