A. Sartorius & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1938

10 N.L.R.B. 493 (N.L.R.B. 1938)

In the Matter of A . SARTORIUS & CO., INC. and UNITED MINE WORKERS
OF AMERICA, DISTRICT 50, LOCAL 12090
Case No. R-995
Cosmetics Manufacturing Industry-Representatives: eligibility to participate
in choice : individuals who took jobs vacated by striking employees-Cert2/%ca-
Lion of Representatives : upon proof of majority representation.
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
December 12, 1038
On October 4, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and -Direction of Election 1 in
the above-entitled proceeding. The Direction of Election directs
that an election by secret ballot be conducted among all the produc-
tion and maintenance employees and shipping clerks who were em-
ployed by A. Sartorius & Co., Inc., herein called the Company, during
the pay-roll period next preceding June 24, 1938, and those who were
employed during the pay-roll period next preceding the, date of the
hearing, August 18, 1938, but excluding clerical and supervisory em-
ployees, and those who have quit or been discharged since June 24,
1938, to determine whether or not they desire to be represented by
United Mine Workers of America, District 50, Local 12090, herein
called the Union, for the purposes of collective bargaining. The
Decision and Direction of Election make individuals hired during
the strike, which began on July 18, 1938, and was still in progress
at the time of the hearing, eligible to vote in the election. By a let-
ter dated October 6, 1938, the Union protested to the Board against
the participation of such individuals in the election and requested
that the Board reconsider the matter. On October 13,1938, the Board
issued an Amendment to Direction of Election 2 postponing the elec-
tion pending the determination of the Union's request. On October
14, 1938, the Board issued a Notice of Right to File Briefs on the
issues raised by the Union. On October 15, 1938, the Company filed
19 N. L . R. B. 19.
29 N L . R B. 24.
10 N. L. R. B., No. 37.
493
494 NATIONAL LABOR RELATIONS BOARD
exceptions to the Decision and Direction of Election. On October
26, 1938, the Union filed its brief with the Board and on October 27,
1938, the Company filed a brief in support of its exceptions.
We have reconsidered our ruling that individuals taking jobs made
vacant by a current strike may participate in the selection of the
bargaining representative of the employees in the appropriate unit,
and conclude that it is erroneous.
We held that the employees who went on strike were eligible
to participate in, the selection of the bargaining representative of
the employees in the appropriate unit because, their status as em-
ployees for the purposes of the Act is expressly preserved by Section
2 (3) of the Act, which provides that the term "employee," when
used in the Act, shall include any individual whose work has ceased
"as a consequence of, or in connection with any current labor dis-
pute." The strike began on July 18, 1938, and was current at the
time of the- hearing. But by holding that individuals, who took
jobs vacated by striking employees, also were eligible to participate
in the selection of the, bargaining representative of the employees
in the appropriate unit, there resulted a situation where two indi-
viduals, with interests diametrically opposed, were, by virtue of one
and the same job, entitled to participate in the selection of the bar-
gaining representative. If those who have, during the currency of
the strike, replaced the strikers are permitted to vote, and the strikers
are also permitted to vote, possibly twice as many as can be employed
may participate in the election. This was not the intent of Congress.
Yet the intent that strikers should remain employees for the pur-
poses of the Act is clear. By preserving to employees who go on
strike their status as employees and the rights guaranteed by the
Act, the At contemplates that during the currency of a strike, the
employer and the striking employees may settle the strike, with the
striking employees returning to their former jobs, displacing indi-
viduals hired- to fill those jobs. during the strike. Strikes are com-
monly settled in this manner.3 The hold of individuals who, during
the currency of a strike, occupy positions vacated by striking em-
8 See, for example, the account of the settlement of the strike in 1934 of longshoremen on
the West Coast in Yellen, American Labor Struggles, p. 355, where it is said :
After its success in getting itself recognized as mediator by both longshore strikers
and employers, three problems still faced the National Longshoremen's Board : what
to do with the strike-breakers, how to settle the grievances of the marine workers,
and how to return the longshoremen to work. But all three were soon solved On
July 27 the Waterfront Employers' Union agreed to discharge all men hired since the
inception of the strike and not to discriminate against any worker for union affiliation
or for strike activity ; the seamen voted on July 30 for arbitration, as did the other
maritime crafts ; and it was agreed that, pending the arbitration proceedings, both
the National Longshoremen's Board and the I. L A. were to have observers in the
hiring halls to see that the employment of longshoremen was fair and without
discrimination
=^• DECISIONS AND ORDERS 495
ployees is notably tenuous.4 To accord such individuals, while the
strike is sti ' Curren,a vo ce in the selection of the bargaining rep-
resentative of the employees in the appropriate unit would be con-
trary to the purposes of the Act and the ends contemplated by it,
since it might effectively foreclose the possibility of the settlement
of the labor dispute, whether by the return of the striking employees
to their jobs and the displacement of the individuals occupying those
jobs during the strike, or by some other settlement agreement, a pos-
sibility which the Act contemplates should not be foreclosed during
the currency of the strike. Accordingly we hold that such individ-
uals are not eligible to participate in the selection of the bargaining
representative of the employees in the appropriate unit.
In our Decision we found that there were 30 eligible employees in
the appropriate unit on July 18, 1938, when the strike began. By
July 21, 1938, the Company had hired six individuals to fill places
left vacant as a result of the strike. Since these individuals were
not eligible to participate in the selection of the bargaining represen-
tative, there were still 30 eligible employees in the appropriate unit
on July 21, 1938. At least 18 of these 30 employees have designated
the Union to represent them for the purposes of collective bargaining.
We find that the Union has been designated and selected by a
majority of the employees in the appropriate unit as their represen-
tative for the purposes of collective bargaining. It is, therefore,
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
United Mine Workers of America, District 50, Local 12090, is
the exclusive representative of all the employees in the appropriate
unit for the purposes of collective bargaining, within the meaning
of Section 9 (a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that United Mine Workers of America, Dis-
trict 50, Local 12090, has been designated and selected by a majority
See National Labor Relations Board v. Reintington Rand, Inc., (C C. A. 2nd, 1938) 94
F. (2d) 862, 871 ,.where the court said , ". . . and, indeed , it is probably true today that
most men taking jobs so made vacant , realize from the outset how tenuous is their hold."
496 NATIONAL LABOR RELATIONS BOARD
of all the production and maintenance employees and shipping clerks
of A. Sartorius- & Co., Inc., New York City, excluding. clerical and
supervisory employees, as their representative for the purposes of
collective bargaining and that, pursuant to the provisions of Section
9 (a) of the Act, United Mine Workers of America, District 50, Local
12090, is the exclusive representative of all such employees for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
[ SAME TITLE
SECOND SUPPLEMENTAL DECISION
January '5, 1939
On October 4, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in
the above-entitled proceeding. On October 13, 1938, the Board issued
an Amendment to Direction of Election postponing the election until
such time as the Board might in the future direct. On Decem-
ber 12, 1938, the Board issued a Supplemental Decision and Certifica-
tion of Representatives, in which it found that United Mine Workers
of America, District 50, Local 12090, herein called the Union, had
been, designated by a majority of the employees, in, the appropriate
unit as their representative for the purposes of collective bargaining
and, without conducting an election, certified the Union as the exclu-
sive bargaining- representative of the employees in the. appropriate
unit. On December 15, 1938, the Company filed an application
requesting that the Board reconsider its Supplemental Decision and
Certification of Representatives and, after stating various grounds,
concluding with a prayer that the Board direct an election among
the employees in the appropriate unit to determine whether or not
they desired to be represented by the Union as their bargaining
representative.
The Company, in its application, lists the names of four persons,
who were counted by the Board as employees in the appropriate unit,
and states that they have left the Company's employment. The
names of three of these persons appear on 'the membership-applica-
tioi1 cards introduced in evidence by the Union. Only two of these
three, however, were counted by the Board as having designated the
Union as their bargaining representative. The third was not counted
because he did not go out on strike. Thus, assuming that the four
persons listed by the Company have left the Company's employment,
there would be 26 employees in the appropriate unit, of whom-
16, a majority, have designated the Union as their bargaining
representative.
DECISIONS AND ORDERS 497
In its application'the Company points out that the record showed
that a number of strikers returned to work during the strike, but
did not show whether or not, some of them were members of the
Union. The Company states that some of them- may have been
members of the Union and that they repudiated their membership
by returning to work during the strike. On December 20, 1938, at
the Board's request, the Company furnished the Board with a list
of, the employees who either did not go out on strike or returned to
-work during the strike. This list is hereby incorporated and made
part of the record in this proceeding. The name of only one of the
-employees on this list appears on a membership-application card
introduced in evidence by the Union. This employee did not go out
on strike. This fact appeared in the record and he was not counted
by the Board as having designated the Union as his bargaining rep-
resentative. Thus it is clear that 18 of the 30 employees in the ap-
propriate unit on July 21, 1938, have designated the Union as their
bargaining representative.'
The Board has considered all the other matters presented by the
,Company in its application; and sees no reason for setting aside its
'Certification of Representatives and directing an election to deter-
mine whether or not the employees desire to be represented by the
Union for the-purposes of collective bargaining.
* Or, as stated above, assuming that the four persons named by the Company had left
the Company ' s employment , 16 of the 26 employees in the appropriate unit have designated
the Union as their bargaining representative
10 N. L. R. B, No. 37a