'american Cystoscope Makers, Inc. And United Electrical, Radio & Machine Workers Of America, Local 1225, Cio, 1226 (1945)

In the Matter of 'AMERICAN CYSTOSCOPE MAKERS, INC. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL 1225,

CIO Case No. 2-R-5255.-Decided May 17, 1945 Satterlee J& Warfield, by Donald W. Smith, of New York City, for the Company.

Protter & Bagley, by Julius E. Bagley, of Brooklyn, N. Y., for the Union.

Mr. Paul Bisgyer, of counsel to the Board.

DECISION AND DIRECTION OF ELECTION STATEMENT OF TIIE CASE Upon a petition duly filed by United Electrical, Radio & Machine Workers of America, Local 1225, CIO, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of American Cystoscope Makers, Inc.,

New York City, herein called the Company, the National Labor Relatitons Board provided for an appropriate hearing upon due notice before Richard J. Hickey, Trial Examiner. Said hearing was held at New York City, on January 26, 1945. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the hearing, the Company moved to dismiss the petition herein and the motion was referred to the Board. For reasons hereinafter appearing, the motion is hereby denied. Subsequent to the hearing the Company moved to correct the record in certain respects. This motion is hereby granted.

The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. The Company's request for oral argument made at the hearing is hereby denied.

Upon the entire record in the case, the Board makes the following:

1226 1227 FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY American Cystoscope Makers, Inc., is a New York corporation having its principal office in New York City. The Company is engaged in the manufacture, sale, and distributiton of medical, optical and surgical instruments, aircraft reflector sights, torpedo directors, and Naval Ordnance fire control equipment. It operates plants in New York City, and a subsidiary corporation American Catheter Corp., in Portchester, New York. During 1944, the Company's purchases of raw materials exceeded $1,000,000 in value, of which approximately 90 percent was shipped to its New York City plants from points outside the State of New York. During the same period, products finished at its New York City plants exceeded $1,000,000 in value,of which approximately 90 percent was shipped to points outside the State.

The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act.

2. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America, Local 1225, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company.

3. THE QUESTION CONCERNING REPRESENTATION By letter dated December 12, 1944, the Union notified the Company that it represented a majority of the Company's guards and requested a conference for the purpose of collective bargaining. On December 16, 1944, the Company replied that, inasmuch as guards were specifically excluded from their existing contract covering production and maintenance employees, it would not recognize the Union.1 The Company reiterates its position, asserting that its contract with the Union estops the Union from representing the guards. In our opinion, however, the mere exclusion of these employees from the coverage of the contract does not constitute a waiver of the Union's right to represent them. Accordingly, we find that no bar exists to this proceeding.2 A statement of a Board Field Examiner, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.3 SAt the hearing the Company stated that its refusal to recognize the Union was further based upon the grounds discussed in Section IV, infra.

   2 Matter of Chrysler Corporation, New Castle Division, 3 The Field Examiner reported that the Union submitted 11 authorization cards, and that there were 14 employees in the alleged appropriate unit.

   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.

4. THE APPROPRIATE UNIT The Union seeks a unit of guards, excluding the captain, sergeants, and other supervisory employees. While...