Capitol Automatic Music Company, Inc. And United Coin Machine Employees Union, Local 254, U. R. & W. E. Of America, C. I. O., 23 (1939)

In the Matter of CAPITOL AUTOMATIC MUSIC COMPANY, INC. and UNITED COIN MACHINE EMPLOYEES UNION, LOCAL 254, U. R. &

W. E. OF AMERICA, C. I. O.

Case No. R-1592.-Decided December 1, 1939 Coin-operated Automatic Electrical Phonograph Industry-Investigation of Representatives: controversy concerning representation of employees: employer refuses to recognize union until certified by the Board-Unit Appropriate for Collective Bargaining: repairmen, collectors, deliverymen, and helpers, exclusive of office and clerical employees, solicitors, and supervisory employees, but including working foremen; agreement as to-Representatives: proof of choice: membership cards-Certification of Representatives: upon proof of majority representation.

Mr. D. R. Dimick, for the Board.

Mr. Ivan E. Maginn and Mr. Charles V. Talley, Jr., of New York City, for the Company.

Mr. Murray Monness, of New York City, for the United.

Mr. Samuel Mezansky, of New York City, for the I. B. E. W.

Mr. William Logan Donnel, of counsel to the Board.

DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On June 12, 1939, United Coin Machine Employees Union, Local 254, U. R. & W. E. of America, C. I. O., herein called the United, 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 Capitol Automatic Music Company, Inc., New York City, 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 October 4, 1939, 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, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice.

On October 17, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the United, and upon International Brotherhood of Electrical Workers, Local 786,

A. F. of L., herein called the I. B. E. W. Pursuant to the notice, a hearing was held on October 30, 1939, at New York City before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board, the Company, the United, and the I. B. E. W. were represented by counsel, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the 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 Capitol Automatic Music Company, Inc., is a New York corporation having its principal office and place of business in New York City. The Company leases, rents, and sells coin-operated automatic electrical phonographs to places of public resort in New York, New Jersey, and Connecticut. The Company services the phonographs leased, rented, and sold in these three States. About 150 of its 800 phonographs have been shipped to and are stationed in New Jersey, 2 in Stamford, Connecticut, and the remainder are in New York.

The Company also sells phonographs to purchasers located outside the area in which servicing is practicable. It has sold and shipped phonographs to purchasers in Puerto Rico, Mexico, Hawaii, Florida, and Pennsylvania.

About 2 years prior to the hearing the Company owned about 1,000 phonographs. During the 2 years preceding the date of the hearing the Company purchased from 100 to 150 phonographs from sources in Tonawanda, New York, and in Chicago, Illinois. At the time of the hearing, the Company owned and operated on lease or rented approximately 800 phonographs, having sold a considerable number of phonographs during the 2 years preceding the date of the hearing.

The Company purchases phonograph records, principally from manufacturers in New York and New Jersey, but an undisclosed amount also are sent to the Company from California and from foreign countries. After they have been used, the records are sold locally.

The Company's annual income averages from $150,000 to $160,000, of which amount...