Robert L. Nelson Co., Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1942

39 N.L.R.B. 1168 (N.L.R.B. 1942)

In the Matter of ROBERT L . NELSON CO., INC. and UNITED PAPER
WORKERS UNION, LOCAL 292 , C. I. O.
Case No. R-3509.-Decided March 26, 1942
Jurisdiction : paper and paper products processing and manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to,accord union recognition; conflicting claims of rival representatives;
strike for recognition ; closed-shop contract entered into after filing of petition
and notice of claim of rival organization, no bar to ; employees named on prefer-
ential hiring list, made in settlement of strike and charges of unfair labor
practices,' held to have a reasonable expectation of reemployment and to be
eligible to vote despite Company's contention that several had been' discharged
prior to strike and settlement agreement, and remainder probably would not
be rehired because of current material shortage and future company policy of
hiring only skilled workers in which class Company contends these employees
would not fall ; eligibility to be determined by a pay roll preceding execution
of closed-shop contract; election necessary
Unit Appropriate for Collective Bargaining :. all production employees, exclud-
ing office and clerical employees, supervisory employees having the right to
hire and discharge, and truck drivers ; stipulation as to.
Mr. Drexel A. Sprecher, for the Board.
Mr. Samuel R. Rudey, of New York City, for the Company.
Mr. Sidney Weinstein, of New York City, for the C. I. O.
Mr. Frank K. Schemer, of New York City, for the A. F. of L.
Cllr. Robert R. Hendricks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 5, 1941, United Paper Workers Union, Local 292, af-
filiated with the Congress of Industrial Organizations, herein called
the C. I. 0., filed with the Regional Director for the Second Region
(New York City) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of Rob-
ert L. Nelson Co., Inc.,' New York City, herein called the Company,
I Incorrectly named in the petition and other formal papers as Robert Nelson Co. At
the hearing, the petition and other formal papers were amended to designate the Company
as Robeit L Nelson Co , Inc
39 N. L. R. B., No. 216.
1168
ROBE'WP L. NIELS!oN CO., INC. 1169
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 January 21, 1942, 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 Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it ,and
to provide for an appropriate hearing upon due notice.
On January 23, 1942, the Regional Director issued a notice of hear-
ing, copies of which were duly served' upon the Company, the C. I. 0.,
and Paper Workers and Distributing Trades Union No. 447, of Inter,-
national Printing Pressmen's and Assistants' Union, American Fed-
eration of Labor, herein called the A. F. of L., a labor organization
claiming to represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on February 4, 1942, at New
York City, before William E. Spencer, the Trial Examiner duly desig-
nated by the Chief Trial Examiner.
The Company, the C. I. 0., and the A. F. of L. were represented
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. At the hearing the A. F.
of L. moved that the petition be dismissed on the ground that no ques-
tion concerning representation had arisen. The Trial Examiner re-
served ruling on the motion. For reasons stated below,2 the motion is
hereby denied. During the course of the hearing, the Trial Examiner
made various rulings on other motions and on the admission of evi-
dence. 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
1. THE BUSINESS OF THE COMPANY
Robert L. Nelson Co., Inc., a New York corporation with its prin-
cipal office and place of business in New York City, is engaged in paper
mill converting and in the manufacture and processing of paper and
paper products.
In the course of operating its plant during the last 6 months of
1941, the Company purchased raw materials, valued at approxi-
mately $60,000, of which approximately 30 percent was obtained from
points outside the State of New York. During the same period the
Company sold finished products valued at approximately $50,000, of
8 See Section III, infra.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which approximately 20 percent was sold and transported to pur-
chasers outside the State of New York.
II. THE ORGANIZATIONS INVOLVED
United Paper Workers Union, Local 292, is a labor organization
affiliated with the Congress of Industrial Organizations.
Paper Workers and Distributing Trades Union No. 447, -of Inter-
national Printing Pressmen's and Assistants' Union, is a labor organi-
zation affiliated with the American Federation of Labor. -
Both labor organizations admit to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about December 1, 1941, the C. I. 0. requested that the Com-
pany recognize it as exclusive bargaining agent of the Company's em-
ployees. The Company refused the request on the ground that it
doubted the C. I. O.'s majority claim. On December 3 or 4, 1941, a
strike was called by the C. J. 0.,3 and on December 5, 1941, the peti-
tion herein was filed. On the day following the filing of the petition,
the C. I. 0. filed a charge with the Regional Director, averring that
the Company was engaging in unfair labor practices by the discrimi-
natory discharge of certain employees.' On December 12, 1941, the
'unfair labor practice proceeding was settled by a written agreement
entered into by, the Company and the C. I. 0. The settlement agree-
ment provided that, in consideration of the termination of the strike
by the C. I. 0., the Company would place some 20 employees on a pref-
erential hiring list.5 The record indicates that at the time the C. I. 0.
and the Company were negotiating the settlement agreement, and sub-
sequent thereto, the A. F. of L. was attempting to organize the Com-
pany's employees and was negotiating with the Company for exclusive
recognition.b On January 15, 1942, while this proceeding was pend-
ing, the Company and the A. F. of L. entered into a contract granting
the A. F. of L. exclusive recognition and a closed shop.
At the hearing the A. F. of L. contended that the petition herein
should be dismissed on the ground that no question concerning repre-
sentation had arisen in that (1) the Company, in the contract of Janu-
ary 15, 1942, had granted exclusive recognition to the A. F. of L., and
(2) the C. I. 0. had failed to make a showing of substantial represen-
tation. -
3 Approximately one-half of the Company ' s employees engaged in the strike.
4 Case No. II-C-4262.
5 Under the agreement "the Company agrees to reemploy the persons on this preferential
list as the needs of business require. - The persons on the preferential list are to be engaged
before the firm employs new employees "
e It appears that on at least one occasion (December 12, 1941 ) representatives of both
unions conferred with the Company at a joint meeting, at which time a consent election
was considered but was subsequently abandoned.
fOSERT L. NELSON CO., WC. 1171
We find no merit in these contentions. The contract presents no
bar to an immediate determination of representatives, as it was entered
into after institution of this proceeding and after notice to the Com-
pany of the C. I. O.'s claim of majority representation.?
A statement of the Regional Director introduced into evidence at
the hearing discloses that both the C. 1. 0. and the A. F. of L. represent
a substantial number of employees in the unit alleged as appropriate."
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company and the C. I . O. stipulated at the hearing that all
production employees , excluding office and clerical employees , super-
visory employees having the right to hire and discharge , and -truck
drivers, constitute an appropriate unit. The A. F. of L. agreed that
the unit as stipulated "comprises exactly the unit" deemed by it to be
appropriate.9
We find that all production employees , excluding office and clerical
employees , supervisory employees having the right to hire and dis-
charge, and truck drivers , constitute a unit appropriate for the pur-
poses of collective bargaining , and that said unit will insure to
7 See Matter of Willamette Valley Lumber Company and Local # 5-92, International Wood-
workers of America, affiliated with C. 1 . 0., 35 N. L R B. 805 , and cases cited therein
8 The Regional Director reported that the C I. 0 submitted 26 application cards bearing
the apparently genuine signatures of persons whose names appeared either on the Company's
pay roll of December 18, 1941, or on the preferential reemployment list contained in the
settlement agreement ; and that the application cards bore dates ranging between November
12 and December 1, 1941. The Company's pay roll of December 18 , 1941 , contained 21
names.
The Regional Director further reported that the A . F. of L. submitted 19 application
cards bearing the apparently genuine signatures of persons whose names appeared on the
Company 's pay roll of December 18, 1941 , , that these cards bore dates ranging between
December 21, 1941, and January 5 , 1942; and that 10 of the 26 names appearing on the
C. I. 0. application cards also appeared on the A F. of L application cards
8 The A. F. of L contended , without objection by the other parties, that , "for the sake
of clarity," the various types of employees to be included within the unit as "production
employees" should be set forth in detail as follows all of the Company 's employees "who
work as handlers of cases , rolls , bundles , cartons, etcetera ; packers, order pickers, order
fillers, stock men, shipping and receiving clerks , cutters, and sealers and wrappers of cut
stock "
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the Company the full benefit of their right to self-organi-
zation and-to collective bargaining , and otherwise will effectuate the
policies of the Act. -
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret ballot.
The C. I. 0. contends that all persons whose names , appear on the
preferential hiring list contained in the settlement agreement of
December 12, 1941, should be eligible to vote. The A. F. of L. and
the Company desire to have excluded as ineligible those appearing on
the preferential hiring list for the reason that several of them had been
discharged as "unsuitable" prior to the strike and the settlement agree-
ment, and that the remainder would probably not be reemployed be
cause of the current material shortage and a future company policy
of hiring only skilled 'workers.10
In making these contentions , the Company is, in effect, requesting
the Board to disregard the agreement , which it made 3 months ago in
settlement of the unfair labor practice charge hereinbefore discussed,"
to reemploy "persons on the preferential' list . . . before the firm
employs new employees ." We believe that in view of the settlement
agreement the employees named on the preferential hiring list still
have a reasonable expectation of reemployment and an interest in the
terms and conditions of employment at the Company's plant. We
shall provide , therefore , that they shall be eligible to vote in the elec-
tion.
It is contended by the C. I. 0. that a pay-roll date preceding the
date of the strike should be used to determine eligibility to vote in
the election .12 The A. F. of L . and the Company seek a current pay-
roll date. Since the contract between the Company and the A. F. of
L. provides for a closed shop, we shall direct that the employees of
the Company eligible to vote in the election shall be those in the ap-
propriate unit who were employed during the pay-roll period imme-
diately preceding January 15 , 1942, the date on which the contract
was executed, together with those employees whose names appear on
the preferential hiring , list contained in the agreement of December
12, 1941 , subject to the limitations and additions set forth in the Direc-
tion of Election herein.
10 The Company's president testified , in effect, that the persons named on the preferential
hiring list could not be classified as skilled or experienced paper workers.
ss Section III, supra.
The record does not clearly indicate whether all those whose names appear on the
preferential hiring list -are also listed on the pay roll immediately preceding the strike.
ROBERT L. N'E'LSON CO., TNC. 1173
On the basis of the above findings of fact and upon the entire record
in the case, the Board makes the following:
CoNCLusIoNs of LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Robert'L . Nelson Co., Inc., New York City,
within the meaning of Section 9 (c) and Section 2"(6) and `(7) of
the Act.
2. All production employees , excluding office and clerical employees,
supervisory employees having the right to hire and discharge, and
truck drivers , constitute a unit appropriate for the purposes of col-
lective bargain, within the meaning of Section 9,(b) of the Act;
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) -'of the National Labor Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules' and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Robert L. Nelson Co., Inc., New York City, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction of Election, under the
direction and supervision of the Regional Director for the Second'
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of'said Rules and
Regulations, among all production employees of Robert L. Nelson Co.,
Inc., New York City, who were°employed during the pay-roll period
immediately preceding January 15, 1942, including those employees
whose names appear on the preferential hiring list set forth in the
settlement agreement of December 12, 1941, and employees who did
not work during such pay-roll 'period because they were ill or on
vaction or in the active military -service or training of the -United
States, or temporarily laid off, but excluding office and clerical em-
ployees, supervisory employees having the right to hire and discharge,
truck. drivers,, and those employees who have since-quit or been dis-
charged for cause, to determine whether they desire to be represented
by United Paper Workers Union, Local 292, C. I. O., or Paper Workers
and Distributing Trades Union No. 447, of International Printing
Pressmen's and Assistants' Union, A. F. of L., for the purposes of
collective bargaining, or by neither.,