Standard Cap & Seal Company

National Labor Relations Board - Board Decisions

Dec 10, 1938

10 N.L.R.B. 466 (N.L.R.B. 1938)

In the Matter Of STANDARD CAP & SEAL COMPANY and LODGE„304,
INTERNATIONAL ASSOCIATION OF MACHINISTS
In the Matter of STANDARD CAP & SEAL COMPANY; FARGO CAP
CORPORATION and LODGE 304, INTERNATIONAL ASSOCIATION- OF
MACHINISTS
Cases Nos. R-842 and R-1133, respectively.-Decided
December 10, 1938
Dfilk Bottle Cap Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees : controversy concerning
appropriate unit; rival organizations-Contract : no bar to determination of
representatives-Unit Appropriate for Collective Bargaining : machinists and
set-up men of both Companies ; craft ; skill ; occupational differences ; desires of
employees , as evidenced by membership in craft union , continuous protest against
inclusion in industrial unit-Representatives : proof of choice : comparison of
pay roll with union dues books and signed authorizations-Certification of Repre-
sentatives : upon proof of majority representation.
Mr. Albert Ornstein, for the Board.
Mr. David Clydesdale, of Washington, D C., for the I. A. M.
Mr. Samuel L. Rothbard, of Newark, N. J., for the United.
Mr. Francis V. Paone, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On December 13, 1937, Lodge No. 304, International Association of
Machinists, herein called the I. A. M., filed with the Regional Director
for the Second Region (New York City) a petition alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of Standard Cap and Seal Corporation, Jersey City,
New Jersey, herein called the Standard, and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On May 13, 1938, 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 investigation and authorized the
10 N. L. R B., No. 33.
466
DECISIONS AND ORDERS 467
Regional Director to conduct it and to provide for an appropriate
hearing upon due'notice.' -
On May 20, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Standard, the I. A. M.,
and the Committee for Industrial Organization, herein called the
C. I. 0., a labor organization claiming to represent employees di-
rectly affected by the investigation. Pursuant to notice, a hearing
was held on June 16, 1938, at New York City, before James C. Para-
dise, the Trial Examiner duly designated by the Board . The Board
and the United Hood and Seal Workers Local Industrial Union No.
682, herein called the United, were represented by counsel; the
I. A. M. was represented by its officers; and all participated in the
hearing. Full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties . Upon motion made at the commencement of the hearing,
the United was permitted to intervene. During the hearing the Trial
Examiner, over the objection of the United, permitted the I. A. M.
to amend its petition to include within the alleged appropriate unit
the machinists and set-up men of Fargo Cap Corporation, herein
called the Fargo, a wholly owned subsidiary of the Standard. When
referred to collectively, the Standard and the Fargo are herein called
the Companies. During the course of the hearing the Trial Examiner
made several rulings on other motions and on objections to the ad-
mission of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On November 21, 1938, the I. A. M. filed with the Regional Di-
rector a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the Standard and
the Fargo and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the Act. On November 22,
1938, the Board ordered an investigation and authorized the Re-
gional Director to conduct it and to provide for an appropriate hear-
ing upon due notice. On November 22, 1938, there was filed with
the Board a stipulation in which the I. A. M., the United, the Stand-
ard, and the Fargo waived notice of hearing and agreed that the
entire record in Case No. R-842 may be incorporated in Case No.
R-1133 by the Board "with the same full force and effect as if said
record in Case No. R-842 had been specifically repeated, heard, and
taken under hearings duly held and determined" under the petition
filed in Case No. R-1133, and "that said record may be used by" the
Board "to determine the issues arising out of said petition" in Case
No. R-1133. On November 28, 1938, the Board, acting pursuant to
Article III, Section 10 (c) (1), of the Rules and Regulations, ordered
the proceeding transferred to and continued before it.
468 NATIONAL LABOR RELATIONS BOARD
The Board hereby approves the stipulation and orders that the
record in Case No. R-842 be , and it hereby is, incorporated and
made part of the record in Case No. R-1133.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Standard Cap and Seal Corporation is a Virginia corporation en-
gaged in the manufacture and sale of milk-bottle hoods. It main-
tains manufacturing plants in Jersey City, New Jersey, and Chi-
cago, Illinois. Its wholly owned subsidiary, Fargo Cap Corporation,
is a Delaware corporation engaged in the manufacture and sale of
milk-bottle discs. The Companies occupy the fifth and sixth floors
in a loft building at 150 Bay Street, Jersey City, New Jersey. There
is no physical separation of space between the two Companies, but
their production operations are conducted in separate portions of the
lofts. The shipping and general labor employees work for both
Companies. A single plant manager is the principal supervisory
employee for both Companies. The same persons hold directorships
in both Companies. This proceeding concerns employees of the
Companies at their plant in Jersey City, New Jersey.
The principal raw materials used by the Companies are paper,
wire, paraffin, packing materials, and ink. During 1937 the raw
materials purchased by the Companies amounted to approximately
$335,000 in value, of which approximately 95 per cent represented
raw materials shipped to the Jersey City plant from points outside
New Jersey.
During 1937 the Companies manufactured and sold finished prod-
ucts amounting approximately to $850,000 in value, of which about
80 per cent represented finished products shipped by the Companies
to points outside New Jersey.
The Companies normally employ about 64 production employees.
II. THE ORGANIZATIONS INVOLVED
Lodge No. 304, International Association of Machinists, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to its membership machinists and set-up men of the Com-
panies.
United Hood and Seal Workers Local Industrial Union No. 682
is a labor organization affiliated with the Committee for Industrial
Organization, admitting to membership all production and mainte-
nance employees of the Companies, including machinists and set-up
men.
DECISIONS AND ORDERS
III. THE QUESTION CONCERNING REPRESENTATION
469
On October 28, 1937, the United requested the plant manager of the
Companies to recognize it as the exclusive representative of all their
production and maintenance employees. On November 4, 1937, the
I. A. M. requested recognition as the exclusive representative of the
machinists and set-up men employed by. the Companies. On Decem-
ber 13, 1937, the I. A. M. filed its first petition in these proceedings.
On December 14, 1937, the Companies entered into a written agree-
ment with the United, recognizing the United as the exclusive repre-
sentative-of all the production and maintenance employees. Since
then the Companies,.Ihave been unwilling.to deal with the I. A. M.
unless and until the machinists and set-up men are found by the Board
to constitute a unit appropriate for the purposes of collective bar-
gaining.
The contract executed by the Companies and the United affords no
reason for not making a determination of representatives. It was
executed after the I. A. M. had made its claim known to the Companies
and after the I. A. M. had filed its original petition in these proceed-
ings, and, according to its terms, expired on November 15, 1938.
We find that a question has arisen concerning, representation of
employees of the Companies.
IV. THE EFFECT OF TIIE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Companies
described in Section I above, has a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several, States and tends
to lead and has led to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The I. A. M. claims that the machinists and the Fargo set-up men
constitute a unit appropriate for the purposes of collective bargaining.
On the other'hand , upon the ground that the coexistence of craft and
industrial unions in the same plant is not conducive to effective col-
lective bargaining , the United contends that all the production and
maintenance employees of the Companies , including the machinists
and set-up men, constitute a single unit appropriate for the purposes
of collective bargaining . In view of facts set forth in Section I above
colicerliirig the ownership , control , and operation , of the two Com-
panies, there can be no question regarding the -propriety of including
employees of both Companies in the same unit.
.147841-39-vol 10--31 -
470 NATIONAL LABOR RELATIONS BOARD
The United began organizing the employees of the Companies-in
October 1937. On October 28, 1937, a committee composed of em-
ployees who were members of the United presented a working agree-
ment to the plant manager of the Companies for acceptance. From
the outset the machinists and several set-up men refused to ally
themselves with the United and on or about October 30, 1937, a group
of six of them met at a hotel. One of the six was an old member of
the I. A. M. and the other five decided to affiliate with the I. A. M.
On November 3, 1937, these machinists and set-up men signed I. A. M.
membership cards. On November 4, 1937, a representative of the
I. A. M. submitted a proposed contract to the plant. manager of the
Companies. On November 8, 1937, the Companies posted and dis-
tributed to the employees a notice stating that they had received two
proposed contracts, one from the United and one from the I. A. M.,
and that the Companies were willing to bargain collectively with any
committee chosen by their employees, provided the committee repre-
sented a majority of the employees. The United insisted upon ex-
clusive bargaining rights for all the employees. Since the United
represented a majority of the employees, the Companies, in the mid-
dle of November, orally agreed to recognize it as the sole bargaining
representative. On December 3, 1937, the Companies posted a second
notice stating that they had recognized a committee composed of
employees who were members of the United as the exclusive repre-
sentative of all the Companies' employees. During this period the
I. A. M. was also negotiating with the Companies and continued to
ask for the right to bargain for the machinists and set-up men as a
separate unit. At no time did they acquiesce in the position taken
by the United. It appears that in the middle of November the Com-
panies and the I. A. M. reached a verbal understanding on some of
the terms of its proposed contract. The United requested the Com-
panies to sign the notice of December 3, 1937, but they refused to do
so. On or about December 6, 1937, the United called a strike for
the purpose of obtaining a written contract, which the Companies
had refused to grant prior thereto. Evidencing the solidarity of
their desire to be separately represented, the machinists and Fargo
set-up men refused to participate in the strike called by the United.
On December 13, 1937, the I. A. M. filed its petition herein. As a
basis for settling the strike, the Companies issued a signed notice
on December 14, 1937, recognizing the United as the exclusive repre-
sentative of all the employees. On December 11, 1937, the I. A. M.,
in a letter to the Companies, protested the signing of any agreement
with the United while the question of appropriate bargaining unit
remained unsettled. Thereafter the I. A. M. consistently maintained
its position that the machinists and set-up men, constitute 'a distinct
DECISIONS AND ORDERS 471
appropriate unit and that the I. A. M. was entitled to represent them
in such a unit.
Machinists are a recognized craft of skilled employees. Their work
consists chiefly in making special parts and tools and is performed in
the machine shop, although their duties occasionally carry them
throughout the plant repairing and maintaining machines. They are
skilled employees and receive a much higher rate of pay than the
production employees.
The set-up men are engaged in repairing and setting up machines
throughout the plant. The set-up men are skilled mechanics and
receive a higher wage than the production employees. The Fargo
set-up men occasionally work in the machine shop, while the Standard
set-up men seldom do. The Fargo set-up men perform more skilled
work than the Standard set-up men. However, it is clear that both
groups of set-up men are skilled mechanics closely allied with the
machinists.
We are of the opinion the record shows that the machinists and
set-up men could satisfactorily function either as a separate unit or
as part of the larger industrial unit. This being true, the determin-
ing factor shall be the desires of the employees themselves., Here, as
found below in Section VI, a majority of the machinists and set-up
nien are included in the I. A. M. membership. This membership of
a majority in the I. A. M. is not the only indication of the desire of
the machinists and set-up men to constitute a separate bargaining
unit ; that desire is further evidenced by their continuous protest
against inclusion within the industrial unit and by their refusal to
participate in the strike called by the United.
We find that the machinists and set-up men employed by the Com-
panies at their plant in Jersey City, New Jersey, constitute a unit
appropriate for the purposes of collective bargaining, and that said
unit will insure to the employees, the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing, the Companies introduced in evidence pay-roll lists
of their employees, as of December 18, 1937. The pay-roll lists show
that there were on that date 10 employees in the unit which we have
found to be appropriate. The I. A. M. introduced in evidence dues
books and signed authorizations designating the I. A. M. as the col-
'Matter of The Globe Machine and Stamping Co. and Metal Polishers Union Local
No. 3; International Association of Machinists, Distract No 54; Federal Labor Union
IS788, and United Automobile Workers of America, 3 N. L. R. B. 294; Matter of Fair-
banks, Morse & Company and Pattern Makers Association of Beloit, 7 N. L R . B. 229.
472 NATIONAL LABOR RELATIONS BOARD
lective bargaining representative for the signers . No evidence was
introduced to contest the genuineness of the signatures . We have
checked the signatures against the pay-roll lists and find that 6 of the
10 employees in the appropriate unit have so designated the I. A. M.
We find that the I. A. M. has been designated and selected by a
majority of employees in the appropriate unit as their representative
for the purposes of collective bargaining . It is, therefore , the repre-
sentative 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 :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of- employees of Standard Cap and Seal Corporation,
Jersey City, New Jersey, and Fargo Cap Corporation, Jersey City,
New Jersey, at their Jersey City plant,. within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act.
2. The machinists and set-up men of the Companies at their Jer-
sey City plant constitute a single unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 ( b) of the
National Labor Relations Act.
3. Lodge 304, International Association of Machinists , is the ex-
clusive representative of all the employees in such unit for the pur-
poses 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 Re-
lations 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 Lodge 304 , International Association
of Machinists , has been designated and selected by a majority of the
machinists ' and set-up men of the Standard ' Cap and Seal Corpora-
tion, Jersey City, New Jersey , and Fargo Cap Corporation , Jersey
City, New Jersey, at their ' Jersey City plant, as their representative
for the purposes of collective bargaining and that, pursuant to the
provisions 'of Section 9 (a) of the Act, Lodge 304, International As-
sociation of Machinists , is the exclusive representative of all such em-
DECISIONS AND ORDERS 473
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment.
MR. EDWIN S. SMITH, dissenting :
For reasons similar to those given by me in other dissenting state-
ments 2 I believe that the Board should here find that the industrial
unit claimed by the United is the appropriate bargaining unit.
2 See, for example, Matter of Allis-Chalmers Manufacturing Company and Interna-
tional Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175;
Matter of Fairbanks, Morse d Company and Pattern Makers Association of Beloit, 7 N. L.
R, B. 229.