Calcasieu Paper Co., Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1954

109 N.L.R.B. 1186 (N.L.R.B. 1954)

1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. As indicated above, the Employer operates 2 plants, 1 in Man-
hattan and 1 in Brooklyn. The Petitioner originally requested a unit
of all unrepresented employees at the Brooklyn plant. At the hear-
ing, the Petitioner amended its petition to request as alternate units
(1) all employees at both plants of the Employer; (2) all unrepre-
sented employees at both plants; or (3) all packaging employees at
one or-both plants.
Employees at both plants are engaged in military packing and
packaging and transfers are made between the two plants. One office
located in Brooklyn handles the administration of both plants, and all
hiring is done there except in emergencies. Although the Manhattan
plant has its separate foreman, he is immediately supervised by the
general manager of both plants who directs the plant operations of the
Brooklyn plant. -
It appears from the circumstances of this case, that the skills and
duties of all employees are similar and that employees of both plants
have interests in common. We find, therefore, that the appropriate
unit should include all employees at both plants.
We find that all employees at the Employer's operations located at
315 West 12th Street (Manhattan) and 73 Rutledge Street (Brook-
lyn), New York City, excluding all office clericals, guards and super-
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and RODGERS took no part in the consideration of
the above Decision and Direction of Election.
CALCASIEU PAPER COMPANY, INC. AND SOUTHERN INDUSTRIES COM-
PANY, PETITIONER and INTERNATIONAL BROTHERHOOD OF PAPER
MAKERS, AFL AND INTERNATIONAL BROTHERHOOD OF PULP, SUL-
PHITE AND PAPER MILL WORKERS, AFL. Case No. 15-RM-65.
September 7,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Paul A. Cassady, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
109 NLRB No. 168.
CALCASIEU PAPER COMPANY, INC. 1187
2. The labor organizations involved, hereafter referred to as the
Internationals, claim to represent certain employees of the Employer.
3. The Internationals were certified by the Board as the collective-
bargaining representatives for the Employer's employees on May 29,
1952, after winning a Board-directed election. Thereafter, the Em-
ployer and the Internationals entered into bargaining negotiations, but
never reached any agreement. The last bargaining negotiations were
held in July 1953. In September 1953, the Internationals called a
strike, which was still current at the time of the hearing in the present
case.
At the hearing, the Internationals moved to dismiss the petition on
the grounds that (1) no statement is made in the petition that the In-
ternationals are claiming to represent the Employer's employees; (2)
the petition is actually a decertification petition, which may not be
filed by an Employer, in that it is based on a Board certification of the
Internationals and not on a claim of representation made to the Em-
ployer; and (3) the petition is defective in that it names only the In-
ternationals which were certified by the Board and does not name the
three local unions which were established subsequent to the Board cer-
tification.) The Internationals contend that all claims for representa-
tion have been made by these local unions, that the present picketing
is being conducted by the locals, and that the Employer has knowledge
of the existence of these local unions and has been bargaining with
them. The Employer asserts that there never has been any recogni-
tion or negotiations with any local unions as representatives of the
employees involved. The Employer stated at the hearing, however,
that it has no objection to the local unions being made parties to this
proceeding.
We find the Internationals' contentions to be without merit. (1)
The failure of an employer's petition to allege a claim of representa-
tion by the union is not a jurisdictional defect.2 Moreover, there is
an entry on the petition which was intended to show that the Interna-
tionals claim to represent the Employer's employees. (2) In view of
the Internationals' request for a contract, and the additional fact that
the Internationals were actively picketing the Employer's plant as of
the time of the hearing, we are persuaded that the Internationals were
claiming recognition at the time of the hearing.3 The Act, as amended,
provides in Section 9 (c) (1) (B) a method whereby an employer when
confronted with a claim for recognition, may have the issue resolved
I These local unions are Local 555 of the International Brotherhood of Paper Makers,
AFL, and Locals 590 and 746 of the International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, AFL.
2 Busch & Sons , Inc, 98 NLRB 809; Advance Pattern Company, 80 NLRB 29; Grinnell
Pajama Corp , 108 NLRB 289.
8 Petrtie's, an Operatting Division of Red Robin Stores, Inc., 108 NLRB 1318; Phtila-
delphia Electric Company, 95 NLRB 71.
334811-55-vol 109-78
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by filing a petition. The Act imposes no limitation with respect to
whether the union had, at some previous time, been certified by the
Board. (3) The Internationals do not claim any legal prejudice
from the omission of the names of the locals on the petition as they had
knowledge of, and were represented by counsel at the hearing.4
As we have found that the Internationals are claiming recognition,
and as the Employer is entitled under the Act to file a petition, we find
a question affecting commerce exists concerning the representation of
employees of the Employer within the meaning of Section 9 (c) (1)
(B) and Section 2 (6) and (7) of the Act.
4. We find that all production and maintenance employees at the
Southern Industries Company and Calcasieu Paper Company plants
at Elizabeth, Louisiana, including the adjusters on the first and second
shift of the bag production department, the head bundlers, the as-
sistant shipping clerk of the finishing room and shipping department,
and the head machinist at the Southern Industries Company, and the
lead millwrights, lead welder, the head machinist, the day locomotive
engineer, the car builder, the pulp mill cookroom foremen, recovery
room foremen, and caustic room operators, the paper mill machine
tenders, back tenders, and winder men, the finishing room cutter op-
erators, the boilerroom engineers and firemen, the No. 1 turbine op-
erators, and the lead electrician at the Calcasieu Paper Company, but
excluding office clerical employees, guards, professional employees,
and all supervisors constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act a
5. The Internationals contend that three local unions were estab-
lished to represent the Employer's employees subsequent to certifi-
cation of the Internationals by the Board. The Board's records show
that the compliance status of all three local unions lapsed prior to the
notice of representation hearing in this case .6 However, the Interna=
tionals, whom we have found to have made the claim for recognition,
have been in compliance at all relevant times. We shall, therefore,
resolve the representation question by conducting an election in
which the Internationals' names appear on the ballot. To hold other-
wise would encourage unions, who do not wish an election to be held
' Cf. ABC Vending Corporation and Dee-Lash Beverages, Inc., 107 NLRB 957.
8 This is the unit found appropriate by the Board in the prior proceeding , in accordance
with the stipulation of the parties . Among the excluded supervisors are the Southern
Industries Company general superintendent , assistant superintendent, the finishing room
foreman and head shipping clerk, the Calcasieu Paper Company general manager , the gen-
eral superintendent , the plant engineer , the mechanical superintendent , the assistant me-
chanical superintendent , the paper mill superintendent , the assistant paper mill superin-
tendents , the finishing room superintendent , the first assistant finishing room superintend-
ent, the second assistant finishing room superintendent , the steam superintendent, the
power plant superintendent , the chief electrician , the pulp mill general superintendent, the
pulp mill tour foremen , the town maintenance department superintendent , the labor fore-
man and shift foremen in the woodyard, and the shift foremen in the finishing room.
The expiration dates of the locals were : Local 555-December 27, 1953 ; Local 590-
December 31, 1953; Local 746-January 1, 1954.
CALCASIEU PAPER COMPANY, INC. 1189
-to test their majority status, to permit their compliance with the regis-
tration and filing requirements of the amended Act to lapse. Encour-
agement would thereby be given to noncompliance, contrary to the
congressional purpose in amending the Act. Under this policy, the
Internationals will be certified if they win the election, provided that
by the date of the election, and not later, all three local unions are in
full compliance with Section 9 (f), (g), and (h) of the Act. Absent
-such compliance, the Board will only certify the arithmetical results
-of the election.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCE , dissenting :
I would, by applying existing Board law, dismiss the Employer's
petition and take steps to revoke the Internationals' certificate be-
'cause of the Locals' noncompliance, rather than, as the majority does,
direct an election herein, thereby abandoning established principles
.and policies of the Board. Clearly, in a situation such as is presented
-here, the revocation procedure would more effectively accomplish the
result desired by the majority of discouraging noncompliance by
unions-an objective with which I am completely in accord-and
without doing violence to established principles.
Except in decertification cases, to be distinguished on special statu-
tory grounds, the Board has, until now, construed the compliance
provisions of the Act as preventing it from making available the
Board's election machinery to determine the majority status of non-
complying unions. The present majority holding, with respect to
cases involving representation petitions filed by employers, discards
this long-standing interpretation of Board powers-by directing a
certification type of election with the Internationals on the ballot,
though the employees are currently represented by three of its locals
which are not in compliance with the Act's filing requirements. While
it is true, as is sought to be emphasized by the majority, that the In-
ternationals themselves are in compliance, it is beyond any dispute
that the Internationals are acting on behalf of the noncomplying
-locals.8
See Harris Foundry & Machine Company, 76 NLRB 118.
e To keep the record straight and avoid any possible obfuscation of the clear issue in-
volved herein, it is pointed out that there is no evidential support for the majority "finding"
that the Internationals, rather than the locals, made the claim for recognition upon the
Employer. Even assuming that the Internationals did make the claim, such a fact would
not at all alter the overall noncompliance status of the Internationals in the circumstances.
Lane-Wells Company, 77 NLRB 1051. The record does affirmatively show that at the hear-
ing the counsel for both the Internationals and the Locals made the statement, which
stands unrefuted, that the Locals made the representation claim on behalf of the em-
ployees at a series of conferences with the Employer over a period of about 1 year, and
indeed that the present picketing of the Employer's plant is being conducted by the locals,
as a separate entity.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Herman Loewenstein, Inc., 75 NLRB 377, the Board definitively
considered the essential issue herein. It then unanimously concluded,
(a) on the law, that the Amended Act provides that a noncomplying
union "shall not be the beneficiary of any Board investigation of a
question concerning representation," 9 and (b) on policy grounds,
"that the exclusion of noncomplying unions from the ballot in cases
where employers are the petitioners is more nearly consistent with the
supervening policy of denying the imprimatur of Government to such
labor organizations."
My colleagues regard as the overriding policy consideration the
need to discourage noncompliance. Concededly, this is a broad con-
gressional objective. On the other hand, the legislative history of the
amended Act also demonstrates strongly the congressional policy of
withholding the processes of the Act from noncomplying unions.10
If elections are now to be conducted upon employer petitions with
noncomplying unions on the ballot, as my colleagues would have it-
then contrary to congressional purpose, the Board's election machin-
ery is thereby made readily available to noncomplying unions that can
persuade employers, in the interest of industrial peace, to file the nec-
essary petition with the Board. Furthermore, even where it is the
employer who really wants the election, believing that the union will
lose, there is always the contingency that the union may win the elec-
tion. Merely by providing, as is done here, that no formal certifica-
tion will issue if the unions are not in compliance after winning the
election, my colleagues will not succeed in keeping these noncomplying
unions out nor in denying them substantial benefits from Board proc-
esses while they remain in a state of noncompliance. For even with-
out a formal Board certificate, a victory at the polls with a certifica-
tion of numerical results, showing in fact that a majority of employees
have selected the union in a secret ballot election conducted by this
Board-would obviously place in the hands of such noncomplying
unions a most powerful argument to compel recognition. That Con-
gress never intended to confer such an advantage or fashion such a
weapon for noncomplying unions, requires no argument at all. Thus,
I would in any event adhere to the construction in the Loewenstein
case that the supervening policy consideration is to withhold the
Board's processes from noncomplying unions.
In Lane-Wells Company, 77 NLRB 1051, the Board unanimously
refused to proceed with a certification election with the International
on the ballot, where it appeared, as it does here, that the local union
9 Section 9 (f) and (h) of the Act each contains the provision that "No investigation
shall be made by the Board of any question affecting commerce concerning the representa-
tion of employees , raised by a labor organization under subsection ( c) of this section,"-
unless that labor organization has complied with the specified filing requirements.
10 See e g., Supplementary Analysis of Labor Bill as Passed , by Senator Taft, 93 Cong.
Rec. 7002; 2 Leg. Hist. 1625.
BENEKE CORPORATION 1191
which would receive benefits and in whose behalf the International
was acting was not in compliance. However, in a later decision, Lane-
Wells Company, 79 NLRB 252, when it appeared that the local union
had achieved compliance, the Board 11 in directing an election pointed
out that its action in placing the International union alone on the
ballot, without joining the local, did not thereby afford the Inter-
national an opportunity to "front" for the local if the local later fell
out of compliance. The decision there adverted to "the simple fact
that the Board has the power to police its own certifications," and
through this medium can fully effectuate the policies of Section 9 (f),
(g), and (h) ; "If changing circumstances should give rise to a situ-
ation in which the Board for policy reasons would not issue a certifi-
cation in the first instance, it has the power, either on its own motion
or that of the Employer, to recall the certificate." (Emphasis
supplied.)
In moving to thwart the apparent purpose of the previously certi-
fied Internationals herein, and their locals, to escape from a test of
their continued majority status by permitting the locals' compliance
to lapse-I join wholeheartedly with my colleagues. However, the
method properly and effectively to accomplish this end, I submit, has
been set forth in the Lane-Wells case, supra. More than a reasonable
time has elapsed for the locals to have reinstated their compliance;
their failure to do so can only be construed as a deliberate effort to
defeat the Employer's petition. The Board would not in the first in-
stance issue certificates to the Internationals with these locals not in
compliance.
Accordingly, I would, on the Board's own motion, issue a notice to
show cause why the certification of the Internationals should not now
be recalled in view of the noncompliance status of the locals, instead
of directing an election.
u Members Reynolds and Gray dissenting.
BENEKE CORPORATION and INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL, PETITIONER . Case No. 15-RC-1119. September 8, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis S. Eberhardt, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
At the hearing the Petitioner objected to the intervention of the
United Brotherhood of Carpenters and Joiners of America, AFL,
herein called the Intervenor, on the ground that it had not made a sub-
109 NLRB No. 167.