H. Hertzberg & Son, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1943

46 N.L.R.B. 1162 (N.L.R.B. 1943)

In the Matter of H. HERTZBERG & SON, INC. and UNITED PAPER Nov-
ELTY & Toy WORKERS INTERNATIONAL UNION, LOCAL 292, C. I. O.
Case No. R-4666. L Decided January 16, 1943
Jurisdiction : brush and broom manufacturing industry.
Investigation and Certification of Representatives : existence of question:
stipulation as to ; election necessary
Unit Appropriate for Collective Bargaining : all production , maintenance, and
shipping employees , including hourly paid group foremen , but excluding de-
partmental, foremen and all office and supervisory personnel above the rank
of group foremen.
Mr. Vincent M. Rotolo, for the Board.
Mr. Jacob Schild, of New York City, for the Company.
Mr. Samuel Ballan, of New York City, for the Union.
Miss Muriel J. Levor, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Paper, Novelty & Toy Workers
International Union, Local 292, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of H. Hertzberg & Son, Inc., of New York City, herein
called the Company, the National Labor Relations Board provided
,for an appropriate hearing upon due notice before Charles E. Persons,
Trial'Examiner. Said hearing was held at New York City, on Decem-
ber 14, 1942. The Company and the Union 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.
Upon the entire record in the case, the Board makes the following :
46 N. L. R. B., No. 138.
- 1162
H. HERTZBERG & SON, INC.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
1163:
H. Hertzberg,& Son, Inc., a New York corporation, has its princi-
pal office and plant at New York City, and is engaged in manufactur-
ing brushes, brooms, mops, and cartridge belts. The principal raw
materials purchased by the Company and used in connection with its
manufacturing processes include metals, fibres, hair, cotton, and wood.,
During the 6-month period•ending November 15, 1942, the gross value
of raw materials used by the Company, at its New York City plant,
amounted to $500,000, all of which was obtained from sources outside
the State of New York. During the same period the Company's gross
sales amounted to $700,000, of which 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 ORGANIZATION ' INVOLVED
United Paper, Novelty & Toy Workers International Union, Local
292, is a labor organization affiliated with the Congress of Industrial
Organizations admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated at the hearing that a question concerning
representation has arisen in that the Union had asked for a conference
for the purpose of collective bargaining and the Company refused-
to recognize the Union as sole bargaining representative of its em-
ployees unless and until the Union is duly certified as such by the
Board.
A statement of the Regional Director, introduced in evidence at the
hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within-the meaninI
of Section 9 (c) and Section 2 (6) and (7) of the National Labor,
Relations Act.
i The Regional Director reported that the Union had submitted 200 applications of
which 139 , all bearing apparently genuine signatures dated from June to November 1942,
bore the names of persons on the Company ' s pay roll dated November 4 and 9, 1942,
(it is the practice of the Company to pay its employees in 2 groups , on different dates),
containing a total of 436 names within the appropriate unit.
1164 ' DECISIONS OF NATI'O1\71AL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The parties agreed at' the hearing as to the composition of the
appropriate, unit, as described more fully below, except that they
differed as to whether or not foremen should be included. The Com-,
pany desires ' that foremen be included, whereas the Union urges
that they be excluded.
It appears from the record that there are 13 foremen whose duties,
authority, and status vary. They fall into 2 distinct groups. There
are 8 departmental foremen who work directly under an officer of the
Company. Most of these departmental foremen spend the greater
,part of their" time in supervisory activities, although most of them
engage to some extent, in the actual work of production. Most of them
,are paid ona weekly basis and all of them have certain privileges, such
as freedom from lay-off in slack periods and greater freedom as to'
lunch periods and brief absences from work for personal reasons,
not enjoyed by non-supervisory employees. None of them' has
authority to hire or discharge employees, although they may recom-
mend such action and in most instances their recommendations are
given effect. They supervise the work of a.considerable number •of
employees. In -accordance with our usual policy we shall -exclude
these departmental foremen since they clearly belong to the supervisory
,personnel.
There are also 5 group foremen, who are subordinate to the depart-
mental foremen. They spend a major part of their time in actual
production work, usually 80 to 90 percent. They have no special
privileges. All of them are hourly paid and their remuneration is
not significantly higher than that of the 10 to 15 employees,who work
under them.' The most a group foreman may do in regard to hiring
,or discharging employees under him is to make a suggestion to his
departmental foreman, who has the power to recommend. These
group foremen do not differ from the working bosses, strawbosses or
leaders, whom we have often classified with the production employees.
We shall place them within the unit.,
We find that all, production, maintenance, and shipping employees
of the Company, including hourly paid group foremen, but excluding
-departmental foremen and all office, and supervisory personnel above
the rank of group foreman, constitute a unit appropriate for the pur-
poses 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-
H. HERTZBERG & SON, INC . 1165
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 Rela-
tions 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 H. Hertzberg K.
Son, Inc., New York City, an election by secret ballot 'shall be con-
ducted as early as possible, but not later than thirty (30) days from.
the date of this Direction of Election, ,under the direction and super-
vision of the Regional Director for the Second Region, acting in this•
matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Section 10, of said" Rules and Regulations, among
all, employees of the Company 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 em-
ployees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person,at the polls, but excluding any who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by United Paper, Novelty & Toy Workers Interna-
tional Union, Local 292, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining.
CHAIRMAN MiLLis took no part in the consideration of the above
Decision and Direction of Election.