Federal Scientific Instrument Corp.

National Labor Relations Board - Board Decisions

May 1, 1943

49 N.L.R.B. 362 (N.L.R.B. 1943)

In the. Matter of FEDERAL SCIENTIFIC INSTRUMENT CORP. and UNITED
OPTICAL WORKERS UNION, LOCAL No. 208, C.I.O.
Case No. R-5099.-Decided Mary 1, 191x3
Conrad c0 Smith, by Mr. William W. Conrad, of New York City, for
the Company.
Mr. Edward Homer, of New York City, for the C.I.O.
Mr. William R. Cameron, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Optical Workers Union, Local
No. 208, C.I.O., herein called the C.I.O., alleging that a question
affecting commerce had_ arisen concerning the ' representation of em-
ployees of Federal, Scientific Instrument Corp., New York City,-herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before John J. Cuneo,
Trial Examiner. Said hearing was held at New York City on March
31, 1943. The Company and the C.I.O. appeared, participated, and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. The Company filed a brief,
which the Board has considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Federal Scientific Instrument Corp., a New York corporation, has
its principal office and place of business in the City of New York. It
is engaged in the manufacture of machines for grinding and polishing
lenses. During a period of a little more than 2 months following incor-
poration of the Company on January 14, 1943, the Company has pur-
chased more than $5,000 in value of materials, of which approximately
5 percent was shipped to the Company from points 'outside the State
of New York. Until March 1, 1943, the Company's purchases were
made through and •with the credit assistance of Ultima Optical Cor-
poration and Optical Instrument Corporation, companies whose places
49 N. L . R B., No. 45.
362
r FEDERAL SCIENTIFIC INSTRUMENT CORP. ' 363
of business are located in the same building as the Company with which
we are here concerned. Since March 1, 1943, the Company has made its
purchases directly. During the same period of a little ,over 2 months
since incorporation the Company's sales of finished products have
amounted to more than $6,000. The Company has sold 3 polishing
machines to the United States Army Finance Officer in Jersey City,
New Jersey. These machines were in turn leased by the Finance Offi-
cer to the Optical Instrument Corporation, above-mentioned, and
delivery was made by the Company directly to the lessee. The Com-
pany expects to continue making machines which will be used in the
manufacture of products for the United States Army, Navy, and
Air Corps, selling sometimes directly to a Government agency and
sometimes through the companies named above. It is conceded that
Ultima Optical Corporation is engaged in interstate commerce. The
Company employs approximately 20 employees. We find, contrary to
its contention; that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED '
United Optical Workers Union, Local No. 208, is a, labor organiza_
tion affiliated with the Congress of Industrial Organizations, admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 18, 1943, a petition was filed by the C. I. O. alleging
that a question had arisen concerning the representation of the em-
ployees of the Company and requesting an investigation and certifica-
tion of representatives. The organizer for the C. I. 0., on February
19, 1943, wrote to the Company requesting'a bargaining conference to
be held on February 23, but received no reply. In conversation by
telephone on February 23 the Company's president informed the
organizer that he had not seen the letter, that his associates were out df
town, and that he could not do anything about a bargaining conference
till they returned. He agreed to contact the organizer again, but at
the time of the hearing it appeared that he had not done so. -
The Board has previously found, in cases wherein the employer had
failed to reply to a.request for a bargaining conference,,and had not
bargained with the petitioning union nor indicated its willingness so
to'do, that a question concerning representation existed.' In this case
no reply had been received by the C. 1. 0. to its request for a bargaining
i See Matter of Eclipse Lawn Mower Co and United Steelworkers of America , affiliated
with the 0. I. 0., 43 N. L. R B. 1178; Matter of Pittsburgh Plate Glass Company and
United Automobile Workers, affiliated with the C. I. 0., 31 N. L. R. B. 468; Matter of All
Steel Welded Truck Corporation and International ' Union, United Automobile Workers of
A+merica, affiliated with the C . I. 0., 31 N. 'L. R. B. 191; Matter of Wilson & Co, Inc, a
Delaware Corporation, trading as J Eavenson & Sons , division of Wilson & Co ., Inc. and
United /oap Workers Local Industrial Union No. 931, C. I. 0., 26 N. L R. B. 1353.
364 DECISIONS OF NATIONAL LABOR RELATIONiS BOARD
conference, and it did not appear in evidence at the hearing that the
Company had at, any time indicated willingness to negotiate with the
Union. The record now before the Board thus indicates that a ques-
tion concerning representation has arisen.
A statement of the Regional Director, introduced in evidence at
the hearing, indicates that the C. I. 0. represents a substantial number
of employees in the unit hereinafter found to be appropriate.2
N 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
The C . I. 0. seeks a unit composed of production and maintenance
employees , excluding foremen, executives and office help . At the hear-
ing question arose concerning five part-time employees . The C. I. 0.
contends that these part -time employees should be excluded from the
unit. The Company takes no position in that regard . These part-time
employees are boys from 16 to 18 years of age, who are still regularly
attending New York Metal Training School , but who work at the
factory after school 5 days a week and all day on Saturdays. These
students are trained by the Company , as are also certain graduates of
the school in full -time employ of the Company. They do the same
work and are paid on the same basis, both as to straight time and
overtime, as the full -time employees under similar training . It is the
purpose of the Company , if these students are not first inducted into
the armed forces of the United States, to continue them after gradua-
tion in full -time employment . Under these circumstances , we perceive
no sufficient reason for distinguishing between these part-time em-
ployees and those in full -time employ of the Company , and shall
therefore direct that they be included in the unit.
Question also arose at the hearing concerning one employee who
appears sometimes , to have been , called ; an, assistant , foreman. It
appears in evidence , however, that this employee, named Sabon, is not
designated by the Company as an assistant foreman, that he has no
supervisory duties other than sometimes to instruct some of the less
skilled employees as to the operation of certain machines , and that he
has no authority to issue orders nor to hire or discharge . The evidence
indicates , in fact, that this employee is merely the most highly skilled
worker employed by the Company and paid at a higher hourly rate.
Aside from his greater degree of skill and consequent higher pay there
2 The Regional Director reported that the C. I. 0 had submitted 11 application and hu-
thorization cards all bearing apparently, genuine original signatures of persons whose names
appear on the Company's pay roll for the week beginning February 15, 1943, containing
the names of 17 employees in the unit claimed appropriate Of these cards 8 were dated
February 16, 1943, 1 was dated February 23, 1943, and 2 were dated February 25, 1943.
FEDERAL SCIENTIFIC INSTRUMENT CORP. 365
is no distinction between him and the other production employees.
Inasmuch as it appears that he is not a supervisory employee, and
there appears no other sufficient reason for distinguishing between
him and other production employees of the Company , we shall - direct
that he.be,included in the unit. -
We find that all production and maintenance employees of the
,Company , exclusive of foremen , 'executives and office employees, con-
stitute 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 employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election 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 Relations-Act
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Federal Scientific
Instrument Corp., 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, 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, 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 any such 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 have since quit or been discharged for cause, to
determine whether they desire to be represented by United Optical
Workers Union, Local 208, C. I. 0., for the purposes of collective
bargaining. . '