Standard Insulation Co., Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1940

22 N.L.R.B. 758 (N.L.R.B. 1940)

In the Matter of STANDARD INSULATION COMPANY, INC. and LOCAL
#21111, CHARTERED BY A. F. OF L.
Case No. B-1334.-Decided April 8, 1940
Varnish-Coated Paper and Fabric Manufacturing Industry-Procedure: with-
drawal of intervening union as a party from the case after hearing pursuant to
stipulation ; second hearing ordered to ascertain currency of strike and there-
fore whether strikers remain eligible to participate in selection of bargaining
representatives-Strike : after hearing and pending decision of the Board-
Current Labor Dispute: criteria of currency : filling of positions vacated by strik-
ers ; resumption of normal operations ; continuance of concerted strike activities ;
effect of continuance of union membership and of pendency of representation
proceeding before the Board upon ; found not to exist-Employee Status: loss of,
as to strikers upon strike ceasing to be current-Investigation of Representatives:
petition for dismissed where no credible showing that union represented any
employees.
Dlr. Richard J. Hickey, for the Board.
Lum, Tamblyn eC Fairlie, by Mr. John M. Leavens, of Newark,
N. J., and Mr. Thomas F. Frawley, Mr. H. R. Korey, and Mr. Bernard
K. Zimmerman, of New York City, for the Company.
Mr. Jacob Friedland and Mr. Irving Barist, of Jersey City, N. J.,
for Local 21111.
Donohue & Donohue, by Mr. Joseph, F. Donohue, of Nutley, N. J.,
for the Association.
Mr. Louis A. Roland, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On December 23, 1938, Local #21111, chartered by A. F. of L.,'
herein called Local 21111, filed with the Regional Director for the
Second Region (New York City) a petition alleging that a question
affecting commerce had arisen concerning the representation of
employees of Standard Insulation Company, Inc.,2 East Rutherford,
'Also designated in the record as Federal Labor Union, Local No 21111, American
Federation of Labor.
z Incorrectly designated in the petition and other formal papers as Standard Insulation
Co
22 N. L R B., No. 46.
758
STANDARD INSULATION COMPANY, INC. 759
New Jersey, herein called the Company, 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 February 1, 1939, 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 Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On March 3, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon Local
21111, and upon Employees Association of the Standard Insulation
Company,3 herein called the Association, a labor organization claim-
ing to represent employees directly affected by the investigation. Pur-
suant to the notice, a hearing was held on March 27, 28, and 29, 1939,
at Newark, New Jersey, before John T. Lindsay, the Trial Examiner
duly designated by the Board. The Board, the Company, Local 21111,
and the Association were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was af-
forded all parties. During the course of the hearing, the Trial Ex-
aminer made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
Pursuant to request therefor by the Company and notice duly served
upon all the parties, a hearing was had before the Board at Washing-
ton, D. C., on June 22, 1939, for the purpose of oral argument. The
Company and Local 21111 were represented by counsel and partici-
pated in the argument. The Company also filed a brief. Pursuant to
notice duly served upon all the parties, certain affidavits and docu-
ments submitted by the Company were, without objection, made part
of the record in this case by an order of the Board dated June 23, 1939.
By a stipulation entered into on July 21, 1939, between counsel for
the Association and counsel for the Board, the Association agreed that
it "be unconditionally disestablished as an agent for collective bargain-
ing purposes for the employees of Standard Insulation Co.; that said
Association of Standard Insulation Co. Employees withdraw as a_
party from . . . [the present] case and that its contentions set forth
in the hearing conducted before a Trial Examiner of the National
Labor Relations Board need not be considered by the National Labor
3 Also designated in the record as Association of Standard Insulation Co. Employees,
and Standard Insulation Employees Association.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board in determining the question affecting commerce con-
cerning the representation of employees of Standard Insulation Co."
At the oral argument held before the Board on June 22, 1939, counsel
for the Company stated that the Company had no interest in the
matter and was agreeable to the disestablishment of the Association.
The Board hereby approves the above stipulation and, in accordance
therewith, hereby permits the Association to withdraw as a party from
this case.
On July 10, 1939, prior to the execution of the above stipulation,
Local 21111 called a strike at the Company's plant. Charges of unfair
labor practices in connection with the strike were filed by Local 21111
on August 8, 1939; on November 8, 1939, the Regional Director, after
investigation, refused to issue a complaint on the basis of these charges.
Local 21111 did not request the Board to review the Regional Director's
action. On December 21, 1939, the Board, having been informed of
the strike by its Regional Director, issued and duly served upon the
Company and Local 21111 a notice of intention to dismiss the petition
for investigation and certification of representatives unless sufficient
cause to the contrary was presented. Thereafter Local 21111 filed
objection to a dismissal of its petition, claiming that employees were
still striking, and the Board, on January 10, 1940, ordered that the
record in this proceeding be reopened primarily for the purpose of
taking evidence as to whether or not the strike called on July 10, 1939,
is still a "current labor dispute" within the meaning of Section 2 (3)
of the Act.
On January 31, 1940, the Regional Director issued a notice of
hearing, and on February 7 and 14, 1940, amended notices of hear-
ing, copies of which were duly served upon the Company and Local
21111. Pursuant to the notices, a second hearing was held on Feb-
ruary 13, 19, 20, 21, and 23, 1940, at New York City and Newark,
New Jersey, before Mapes Davidson, the Trial Examiner duly des-
ignated by the Board. The Board, the Company, and Local 21111
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made rulings
on motions and on objections to the admission of evidence. Subse-
quently, the Company and Local 21111 filed briefs with the Board,
and the Company filed a request for oral argument before the Board.
This request was denied. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
STANDARD INSULATION COMPANY, INC.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
761
Standard Insulation Company, Inc., is a New Jersey corporation
engaged in the manufacture and sale of varnish-coated paper, cam-
bric, and silk. Its main offices and only plant are in East Ruther-
ford, New Jersey. During the period between July 1, 1938, and
December 31, 1938, the value of the raw materials purchased by the
Company from places outside the State of New Jersey amounted to
approximately $60,000, which represented 75 per cent of the value
of its total raw materials purchased during that period. During this
same period, the Company shipped to places outside the State of
New Jersey finished products of the value of approximately $200,000,
which represented about 85 per cent of the value of its total finished
products shipped during that period. The Company advertises its
products in a magazine distributed throughout the United States and
in one distributed in Europe, employs salesmen who travel through
and solicit orders in the various States of the United States, and
maintains a sales office in Chicago, Illinois. In March 1939 approxi-
mately 60 employees were listed on the pay roll of the Company's
plant.
The Company concedes that it is engaged in interstate commerce
and is subject to the jurisdiction of the Board.
II. THE ORGANIZATION INVOLVED
Local #21111, chartered by A. F. of L., is a labor organization
affiliated with the American Federation of Labor. It admits to its
membership only production employees of the Company , excluding
supervisory and clerical employees and employees eligible to member-
ship in other labor unions affiliated with the American Federation
of Labor.
III. THE QUESTION CONCERNING REPRESENTATION
Local 21111 began to organize employees of the Company in
August 1937. Soon thereafter, the Company discharged the presi-
dent and about 14 members of Local 21111. As a result of a settle-
ment of this matter, the Company reinstated some of the employees,
and, after a charge alleging violation of the Act by the Company
had been filed by Local 21111 with the Board, the Company, upon
withdrawal of this charge, entered into a stipulation on August 16,
1938, whereby it agreed to grant back pay to three other members
of Local 21111, including its president, to reinstate two of these mem-
bers, and to post a notice stating that the company would not in-
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terfere with, restrain, or coerce its employees in the exercise of their
rights under the Act.
Following the execution of the above stipulation, Local 21111
again became active in organizing the Company's employees, and
on October 18, 1938, submitted to the Company a proposed contract,
covering wages, hours, and conditions of employment, by which it
sought recognition as exclusive bargaining representative of specified
employees of the Company. Such recognition was not granted, and
in November and December 1938, Local 21111 called strikes in the
plant to enforce its demands.
At the first hearing, all the parties stipulated that a question con-
cerning the representation of employees of the Company had arisen
in that the Company refused to recognize Local 21111 as the exclusive
bargaining agent for employees in the unit claimed by Local 21111
to be appropriate. As stated above, however, a strike was called by
Local 21111 after this hearing and prior to the issuance of a decision
by the Board. After the Regional Director refused to issue a com-
plaint on the basis of charges of unfair labor practices in connection
with this strike, Local 21111 contended that the strike was still in
existence and constituted a current labor dispute. We turn now to
the consideration of this contention.
Section 2 (3) of the Act provides that "The term `employee' shall
include any employee . . . and shall include any individual whose
work has ceased as a consequence of, or in connection with any cur-
rent labor dispute . . ." Construing this Section of the Act, we have
held that strikers, and not persons taking jobs vacated by strikers,
are eligible to participate in the selection of bargaining representa-
tives during the currency of the labor dispute in connection with
which the work of the strikers ceased.4 Consequently, in the instant
case, we ordered a second hearing to be held in order to ascertain
whether the strike is still current and therefore whether the strikers
remain employees eligible to participate in the selection of bargain-
ing representatives.
Evidence as to certain of the facts sought to be proved at the
second hearing is in conflict. The following facts, however, are
substantially uncontroverted. At a meeting of Local 21111 on July 8,
1939, the members decided, in view of the absence of a decision from
this Board,5 "to take matters in their own hands." A committee
empowered to act for the union met on July 10 with Thomas F.
Frawley, vice president of the Company, and submitted to him a pro-
4 Matter o f A Sai torius it Co . Inc and United Mine Workers of America, District 50,
Local 12090, 10 N L R. B. 493 See also Matter of Johnson-Carper Furniture Co., Inc.
and Local 283, United Furniture Workers of America, 14 N L R B. 1030; Matter of
Easton Publishing Co. and Easton Typogi aphieal Union No 258, affiliated with International
Typographical Union, 19 N L R B 389
5 At this time steps were being taken to secure the disestablishment of the Association
and its withdrawal as a party from this proceeding.
STANDARD INSULATION COMPANY, INC. 763
posed contract to be in effect pending a decision from the Board.
Frawley refused to bargain with Local 21111 until the Board issued
its decision and as a result the union committee called a strike
effective at 3: 30 p. m., July 10, 1939. Within a few days, about 50
employees, out of the approximately 65 non-supervisory employees
then on the Company pay roll, joined the strike.
On July 13 the Company mailed to each of the strikers a letter
requesting "that you return to work no later than Saturday, July 15,
1939, otherwise much against our will, we will be compelled to hire
such new employees as may be necessary to replace the men not re-
porting." None of the strikers having returned to work, the Company
engaged 7 new employees on July 19, and 29 more on July 26. There-
after the coating machines, which had been shut down on the first day
of the strike, resumed operation. All departments were in operation
at the end of July.' By August 15 production became normal. Sales
and shipments were also normal by August 15, except that until about
November 15, shipments were made by railroad instead of by the
trucks which had been customarily employed.' The orders of only
two customers were canceled; no cancelations occurred after July, the
Company being able satisfactorily to fulfill all subsequent orders. In-
creased business occasioned by war orders led to the hiring of addi-
tional men; by February 19, 1940, the Company's pay roll showed 43
new employees who were first hired some time after the beginning of
the strike.
In the latter part of September 1939, a resolution was passed at a
meeting of Local 21111 whereby the strikers agreed to terminate the
strike and return to work at the Company under the same conditions
existing prior to the strike provided that all strikers were reinstated.
Accordingly, on September 25, counsel for Local 21111 dispatched the
following letter which was delivered to the Company on the same day :
STANDARD INSULATION CO.,
74 Paterson Avenue, East Rutherford, N. J.
GENTLEMEN : This is to give you notice that all of the employees
who went on strike on July 10th, 1939 have expressed their will-
ingness to return to work pending a decision by the National
Labor Relations Board.
They have requested me to write you and inform you of their
desire to go back to work and the purpose of this letter is to re-
quest reinstatement.
6 Most of the strikers applied for and received unemployment compensation benefits.
In a decision rendered by the Unemployment Compensation Commission of New Jersey
on November 2, 1939, it was held that the strikers were disqualified for benefits under a
New Jersey statute during the period from July 10 to July 25, 1939, because their unem-
ployment during that time was due to a stoppage of work which existed because of a
labor dispute at the factory at which they were last employed "
7 The trucking situation faced by the Company is discussed further below.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Will you be kind enough to inform me when you want the men
to return to work and I will in turn notify all of your employees
to that effect.
Very truly yours,
/S/ JACOB FRIEDLAND.
Within a few days, Frawley telephoned to Friedland, requested
that he inform five named strikers to return to the plant, and stated,
in response to Friedland's inquiry, that more strikers would be re-
employed as they were needed. There was no compliance with this
request. Nevertheless, 12 strikers were reemployed by the Company :
one had previously returned on September 1, six returned on Sep-
tember 29, and five returned thereafter. Moreover, during October
about seven other strikers applied unsuccessfully for reinstatement to
their former positions with the Company. Several of these strikers
testified that they asked the advice of Bernard A. Love, Jr., president
of Local 21111 and in general supervision of strike activities, before
making application with the Company. At no time did Love offer
any objection; he merely replied it would be "all right" or "suit
yourself."
It is likewise uncontroverted that concerted strike activities in
support of its demands were conducted by Local 21111 at least until
about the middle of November 1939. Beginning on July 10, Local
21111 "did everything in its power to stop the business of" the Com-
pany : a picket line under the direction and supervision of Love was
thrown about the plant for 24 hours a day; about 15 men picketed
at the front gate and 3 or 4 men at the back gate of the Company
with placards which called upon the truckmen's union to refuse to
deliver or pick up material ; as a result, practically all trucks except
those owned by the Company were kept out of the plant from July
10 to about November 15. Some doubt exists as to when these activ-
ities began to diminish in intensity. On the whole, we are satisfied
from the record that toward the end of September, when, as stated
above, several of the strikers returned to the Company's employ-
ment, the amount of picketing declined, pickets gradually ceased to
walk in front of the Company's gates and began instead to congre-
gate in groups across the street. It is undisputed that after about
November 15, the outside trucks, which had not gone through the
picket line since the beginning of the strike on July 10, were no
longer stopped and began freely to deliver and carry away material
for the Company. Witnesses for Local 21111 contended that after
a conference of a union committee with John Lange," a Company
executive, on about November 15, Local 21111 agreed to allow trucks
to enter the plant on Lange's promise that the strikers would be
8 Also referred to In the record as John Lang.
STANDARD INSULATION COMPANY, INC. 765
returned to their former positions if the Company's business were
not obstructed. The Company denies that such a promise could have
been made. In either event, it is clear that after November 15,
Local 21111 no longer prevented trucks from going into the plant,
although most of the drivers of these trucks belonged to a truck-
men's union affiliated with the A. F. of L. and would not ordinarily
pass through an A. F. of L. picket line.
While admitting a decline in strike activities after November 15,
Local 21111 contends that some degree of sporadic picketing con-
tinued thereafter until the time of the second hearing. Love, in
charge of the picketing, admitted that although picketing went on
for 24 hours a day from July 10 through part of October and he
was in constant touch with the pickets during that time, he had no
record as to the picketing done after October, that he himself had
picketed about 2 days in November, for a couple of hours on about
2 days in December, once in January, and once for a few hours in
February. Other strikers testified generally to similar effect as to
picketing after November 15, that they were not regularly assigned
to picket, that they went to the plant whenever they could, that on
the rare occasions when they did go to the plant, they wore no
placards, and in general stopped neither trucks nor persons going
into the plant.' Still other strikers who were witnesses for Local
21111 either were not questioned concerning their picketing after
November 15 or testified they did not picket after that date. On
the other hand, the Company introduced numerous witnesses who
testified that no picketing, congregating, or concerted activity oc-
curred at the plant at any time after November 15. Among these
witnesses were the Chief of Police of East Rutherford, New Jersey,
who had at the Company's request assigned a policeman to the
plant about July 10, had received 24-hour reports on activities at
the Company and had himself observed conditions at the plant; a
policeman who had been assigned to the plant during the strike and
who has passed the plant two or three times a day since October ;
two persons who live in close proximity to the Company and have
had occasion continuously to witness events in front of the plant ; a
salesman who has regularly visited the Company twice a week; as
well as present employees and officers of the Company who have been
present daily at the plant. In addition, one of the strikers and
witnesses for Local 21111, after testifying that he last picketed the
plant in November, and that he has since passed it to his nearby
home about once a week, stated, in response to the question whether
he had ever seen a single union member picketing in front of the
Characteristic of this testimony is that of one witness who testified that he picketed
the plant alone on the night of February 20, 1940, in a heavy rain from midnight to 2
a. m. while no one else was there.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant after' November 15, "To tell you the truth, no." Under all
the circumstances, we find that all concerted picketing and strike
activities at the plant ceased about November 15, 1939.
Among the criteria for determining whether a strike continues in
existence are the employer's filling of positions left vacant by the
strikers, his resumption of normal operations, and the continuance
of concerted strike activities by the workers.1' It is plain that under
all these criteria the strike called at the Company's plant completely
terminated about November 15, 1939, and was thereafter no longer
current.
By that time, the places of all who had gone on strike and had
not returned to the Company had been filled, operations at the plant,
including sales and shipments, were normal, Local 21111 had at-
tempted unsuccessfully to restore the strikers to their former posi-
tions and had long given up all other demands, and picketing and
other concerted efforts to prevent normal operations of the Com-
pany had ceased completely. Moreover, Local 21111 made no attempt
to negotiate further with the Company after about November 20.
Local 21111, however, urges as further material considerations the
continuing existence in good standing of its charter and, despite
the general non-payment of dues, of its membership among most of
those who struck on July 10. Although possibly essential to the
continuance of concerted activities in this case, it is apparent that
these factors contribute little weight in support of the currency of
a labor dispute and, in the absence of other affirmative indications of
currency, cannot be determinative.
10 See Matte) o f Phelps Dodge Corporation , a Corpw ation , and International Union of
Mine, Mill and Smelter IVw kei s, Local No 30, 19 N L R B 547, Matter of Standard
Lime d Stone Co and Local #175, Quarry Workers Union, 17 N L R B 147 In
considering the definition of "employee," the Restatement of the Law of Torts (1939)
treats this problem as follows [ § 776, Comment b] :
. . . workers are employees in their relation to the employer against whom they
are on strike, or by whom they are locked out , so long as the stoke or lockout con-
tinues. This does not mean that they retain all their rights, powers, privileges and
duties as employees It does not mean that they axe entitled to wages, for example,
or that they have the power to subject the employer to liability to third persons
It means merely that so long as the stril _-: or lockout continues they retain the
privileges and liabilities of concerted action by employees For this purpose a strike
does not necessarily end when the employer fills the places left by the strikers The
strike continues so long as the workers have not abandoned it by taking permanent
employment elsewliere or otherwise , even though the employer has filled their places
and is operating at normal capacity When workers are still continuing their strike
activities and their efforts to prevent normal operations, their replacement cannot
be regarded as permanent It is probably true today that most men taking jobs so
made vacant realize fi om the outset how tenuous is their hold On the other hand,
the mere fact that a stiike or lockout has not been officially called off, as by a union
vote or other declaration , is not conclusive evidence of its continued existence It
may be abandoned without such official action. The issue is one of fact : in the case
of a strike , whether or not the employees are still seeking by concerted action to
return to their work and achieve some or all of their demands When the concerted
action has ceased , the individual action of workers who remain aggrieved is not
subject to the rules stated in this Chapter.
See also 38 Columbia Law Review, 676, 679 ( 1938).
STANDARD INSULATION COMPANY, INC. 767
In addition, Local 21111 contends that its dispute with the Com-
pany cannot be considered ended in view of the fact that since it
filed its petition in this proceeding it has pressed for and awaited a
decision from the Board. However, after this proceeding was insti-
tuted in December 1938 and prior to the issuance of a Board deci-
sion, Local 21111 undertook in July 1939 to resort to and rely upon
its own strength in the form of a strike to secure its demands. Their
positions with the Company having thereafter been filled by others,
their concerted strike activities having been abandoned and the strike
having been terminated by November 15, 1939, the strikers may no
longer claim to remain "employees" of the Company solely by rea-
son of the pendency of the present proceeding. Having, in the
absence of unfair labor practices, undertaken to exercise their right
to strike, they cannot escape the risks incident thereto. The labor
dispute, having assumed the form of a strike, ceased to be "current"
with the termination of the strike. The strikers who did not return
to employment with the Company consequently lost their status as
"employees" within the meaning of Section 2 (3) of the Act. The
charges of unfair labor practices in connection with the strike, filed
by Local 21111 on August 8, 1939, were dismissed by the Regional
Director on November 8, 1939, and, no appeal from the Regional
Director's action having been taken, cannot be said to have continued
the labor dispute beyond the date of termination of the strike.
Although Local 21111 claims that 11 of the 12 strikers who returned
to positions with the Company are still members of Local 21111,
the president of Local 21111 admitted that, in general, they did not
pay dues or attend union meetings after their return to the Company.
We find that there has been no credible showing that Local 21111
still represents any employees of the Company. Under the circum-
stances, we find that no question concerning the representation of
employees of the Company exists.
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
No question concerning the representation-of employees of Stand-
ard Insulation Company, Inc., exists within the meaning of Section
9 (c) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion
of law, the National Labor Relations Board orders that the petition
for investigation and certification filed by Local #21111, chartered
by A. F. of L., be, and it hereby is, dismissed.