M. H. Birge and Sons Co.

National Labor Relations Board - Board Decisions

Feb 15, 1938

5 N.L.R.B. 314 (N.L.R.B. 1938)

In the Matter of M. H. BIRGE AND SONS COMPANY and UNITED WALL
PAPER CRAFTSMEN AND WORKERS OF NORTH AMERICA
Case No. R-426.-Decided February 1.5, 1938
Wall Paper Manufacturing Industry-Investigation of Represcntato es: con-
troversy concerning representation of certain specific employees: rival organi-
zations; controversy between rival organizations as to appropriate bargaining
unit-Unit Appropriate for Collective Bargaining: proposal of petitioning union
to include hand printers , screen process printers , and the engraver in estab-
lished craft unit of skilled employees ; craft unit of skilled employees ; craft
unit held inappropriate for these employees ; wage differentials ; history of
collective bargaining relations in plant and industry-Order: dismissing petition.
Mr. Peter J. Crotty, for the Board.
Locke, Babcock, Hollister d Brown, by Mr. G. C. Lea, of Buffalo,
N. Y., for the Company.
Mr. Rudolph Heinl, of Chicago, Ill., for the United.
Mr. Hugh Thompson of Buffalo, N. Y., and Mr. Claude R. Kramer,
of Massillon, Ohio, for Local 138.
Mr. D. R. Dimick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 4, 1937, United Wall Paper Craftsmen and Workers
of North America, herein called the United, filed with the Regional
Director for the Third Region (Buffalo, New York) a petition al-
leging that a question affecting commerce had arisen concerning the
representation of employees of M. H. Birge and Sons Company,
Buffalo, New York, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On November 1, 1937, 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 1, as amended, ordered an investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice.
On November 5, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
314
DECISIONS AND ORDERS 315
the United, and upon the United Wall Paper Workers, Local 138,
affiliated with the Committee for Industrial Organization, herein
called Local 138, a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to the notice,
a hearing was held on November 22, 1937, at Buffalo, New York,
before George Bokat, the Trial Examiner duly designated by the
Board. The Board and the Company were represented by counsel,
the United by its business agent, and Local 138 by a regional director
of the Committee for Industrial Organization. All parties partici-
pated in the hearing. Full opportunity to be heard, to examine and
to cross-examine witnesses, and to introduce evidence bearing on the
issue 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. A motion was made that the petition
be amended to include one engraver. The Trial Examiner granted
the motion. The Board has reviewed the rulings of the Trial Exam-
iner and finds 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
1. ME BUSINESS OF THE COMPANY
Al. H. Birge and Sons Company is a New York corporation which
owns and operates at Buffalo, New York, a plant for the manufacture,
printing, sale and distribution of wall paper. The Company employs
approximately 293 employees of 'which about 245 are engaged in pro-
duction and maintenance. The others are salesmen, clerks, and super-
visory officials. Included among the 245 employees are approxi-
mately six hand printers, twelve screen process printers, and one
engraver.
The Company purchases from 40 to 60 per cent of its raw materials
outside of the State of New York. Clay, paper stock, glue, colors,
and materials for colors constitute the greater part of the raw mate-
rials used in the manufacturing of wall paper. Paper stock is largely
obtained in Massachusetts; the clay comes from Georgia; the glues
originally come from Illinois but are purchased through the local
house of Armour & Company. The Company ships to customers out-
side of the State of New York about 80 per cent of its finished
products.
Salesmen, 14 in number, are employed by the Company and travel
all over the country. They receive orders from customers in the field
and transmit the orders directly to the Buffalo plant. The Company
advertises in magazines and trade journals having a national
circulation.
316 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
United Wall Paper Craftsmen and Workers of North America, is
a labor organization affiliated with the American Federation of La-
bor, admitting to its membership all workers excluding clerical work-
ers and supervisory officials.
United Wall Paper Workers, Local 138, is a labor organization
affiliated with the Committee for Industrial Organization. 'The, rec-
ord is silent as to the classes of the Company's employees eligible for
membership in this organization.
I
III. THE APPROPRIATE UNIT
For approximately the past 40 years the United or its predecessors
has bargained exclusively with the Company for three crafts, namely,
machine printers, color mixers, and print cutters.' The Company's
employees in the three crafts total approximately 40 or 50. In a
Decision of the National Labor Relations Board dated May 14, 1936,
it was held that the employees of the Company in the three crafts
constitute a unit appropriate for the purpose of collective bargain-
ing.2 In the same Decision the United was designated as the ex-
clusive representative of all the employees in the unit. Until 1937,
the United did not solicit as members or seek to represent any em-
ployees of the Company other than those belonging to the three
crafts.
In October 1936, the Boards of the United had a meeting in New
York, and there decided on a policy of organizing all employees with
the exception of- clerical workers and supervisory employees in the
32 wall paper plants located in the United States. At the time of
the hearing the United had signed closed-shop agreements, identical
in their terms, covering the employees in 29 of the 32 plants. The
plant of the Company involved here was one of the three plants
which was not covered by such an agreement. Indeed, it was not
until about June 1937 that the United began its organization drive
at the Company's plant or sought membership among the employees
of the Company except in the three craft groups.
About three or four weeks prior to such organizational drive on
the part of the United, Local 138 began to organize employees of the
Company and the record indicates that a majority of the employees,
excluding those in the three crafts theretofore organized by the
United, had joined Local 138 by the time the United's organizational
drive began. Apparently Local 138 did not attempt to secure mem-
bers from the employees in the three crafts represented by the
11 N. L. R. B., 731, 735.
21 N. L. R. B., 731, 746.
8 So designated in the record.
DECISIONS AND ORDERS 317
United. As a result of negotiations between the Company and
Local 138, the Company agreed that, effective July 1, 1937, workers,
including the engraver, hand printers, and screen process printers,
should be given a 10-per cent increase. The agreement apparently
did not cover the employees belonging to the three crafts.
The record indicates that during July 1937 a majority of the hand
printers and screen process printers, together with the engraver,
became affiliated with the United.
It is under the foregoing circumstances that the United on Septem-
ber 4, 1937, filed its petition for investigation and certification of
representatives asking that it be designated the exclusive bargaining
representative for the hand printers, screen process printers, and
engraver. Notwithstanding the wording of the petition, the record
indicates that the United in fact sought to have hand printers, screen
process printers, and the engraver included as part of one unit made
up of such employees and the employees in the three crafts already
represented by the United.
About September 17, 1937, the Company signed an agreement rec-
ognizing Local 138 as the sole and exclusive collective bargaining
agency for all employees of the Company, exclusive of the employees
in the three crafts, and subject to any determination of the Board as
to the engraver, hand printers, and screen process printers. The
agreement, which is to remain in effect until September 1, 1938, fur-
ther provides for a wage schedule which sets forth base rates, hours,
and overtime.
A few days prior to the execution of the above agreement, the
Company and the United executed a contract wherein the United was
recognized as the sole and exclusive bargaining agency for the em-
ployees in the three crafts. The agreement also provided that it
should apply to the engraver, hand printers, and screen process
printers if the Board determined that the United was the proper
representative of such employees.
The United states in support of its contention that the engraver,
hand printers, and screen process printers should be represented by
the United and should not be included in an industrial unit as pro-
posed by Local 138, that all, or most of such employees, are members
of the United, and that they are skilled workers performing work
more closely related to the work done by the employees within the
three crafts of the Company.
Since the Company is apparently the only one of the 32 wall
paper manufacturing concerns in the United States which produces
an exclusive and expensive type of hand-blocked and hand-printed
wall paper, the hand printers and screen process printers engaged
in such production occupy a somewhat unique position in the wall
paper manufacturing industry. As is true of the employees in the
318 NATIONAL LABOR RELATIONS BOARD
three heretofore mentioned crafts, considerable skill is involved in
the performance of the work done by the hand printers, screen
process printers, and the engraver. However, the same may be said
regarding the work of other employees in the plant, such as stamp-
ers, engineers, and machinists, whom the United does not seek to
include within the bargaining unit. The workers in the three crafts,
as well as certain other employees of the Company, receive a sub-
stantially higher wage as a remuneration for their services than do
the employees in question.
Furthermore, as pointed out above, the United did not until July
1937 solicit as members or seek to represent any employees of the
Company other than those belonging to the three crafts. It began
to seek other employees of the Company only after Local 138 started
to organize the employees on an industrial basis. The general policy
adopted by the United in October 1936, did not contemplate the
organizing of wall paper manufacturing employees on the basis
here sought by the United. That policy called for organization
upon an industrial basis in each of the wall paper plants in the
United States. Thus, neither the former policy of the United nor
the policy invoked in October 1936 involve organization of the Com-
pany's employees upon the basis asked for in the Petition for
Investigation and Certification.
We feel that under all the circumstances the hand printers, screen
process printers, and the engraver should not be considered as a sep-
arate bargaining unit, or as a part of a bargaining unit composed of
such employees and the employees in the three crafts. We find, there-
fore, that the unit asked for by the United is not appropriate for
the purpose of collective bargaining.
IV. THE QUESTION CONCERNING REPRESENTATION
The petition of the United, as pointed out in Section III above,
relates solely to 19 specific employees, that is, the engraver, hand
printers and screen process printers. It has been determined that a
unit such as proposed does not constitute an appropriate unit for pur-
poses of collective bargaining. We find, therefore, that no question
has arisen concerning representation of the engraver, the hand print-
ers, and the screen process printers employed by the Company.
We do not at this time determine whether any question concerning
representation would arise if the Board were requested to certify the
representatives of the employees of the plant exclusive of the three
crafts represented by the United.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
DECISIONS AND ORDERS
CONCLUSION OF LAW
319
No question concerning representation of the engraver, the hand
printers, and the screen process printers, as employees of the Com-
pany exists within the meaning of Section 9 (c) of the National
Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law the National Labor Relations Board hereby dismisses the Petition
for Investigation and Certification filed by United Wall Paper
Craftsmen and Workers of North America.