Wagner Folding Box Corp.

In the Matter of WAGNER FOLDING Box CORPORATION and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, NIAGARA LODGE # 330, DISTRICT #76, A. F. OF L. Case No. R-5140.Decided April 30, 1943 Messrs. I. Setel and Victor Wagner; of Buffalo, N. Y., for the Company. Messrs. Reginald D. Newell and Walter Nawotka, of Buffalo, N. Y., for the Machinists. Mr. Claude R. Kramer, of Buffalo, N. Y., for the C. I. O. 'Mr. William R. Cameron; of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by International Association of Machinists, Niagara Lodge #330, District #76, affiliated with the A. F. of L., herein called the Machinists; alleging that, a question affecting com- merce had arisen concerning the representation of employees of the Wagner Folding Box Corporation, Buffalo, New York, herein called the Company, the National Labor Relations. Board provided for an appropriate hearing upon due notice before Peter' J. Crotty, Trial Examiner. Said hearing was held at Buffalo, New York, on April 5, 1943. The Company, the Machinists, and United Paper, Novelty and Toy Workers International Union, affiliated with the C. I. O., herein called the C. I. O., ,appeared, participated, and were' afforded full, opportunity to be heard, to examine and cross-examine witnesses, and'to introduce evidence bearing on the, issues. The Trial Exam- iner's rulings made at the hearing are free from prejudicial error and. are hereby affirmed. Upon the entire record in the case, the Board makes the following: 49 N. L. R. B., No. 41. 346 WAGNEDR FOLDING BOX CORPORATION FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 347 Wagner Folding Box Corporation, a New York corporation, is engaged in the manufacture of paper boxes at its plant which is located in Buffalo, New York. During the year 1942 the Company used raw materials amounting in value to over $100,000, of which approximately 5 ,percent was shipped from points outside the State of New York. During the year 1942 the Company's finished products amounted in value to over $200,000, of which approximately 50 percent was shipped to points outside the State. The Company employs approximately 65, employees. The Company concedes that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED International Association of Machinists, Niagara Lodge #330, Dis- trict #76, affiliated with the American Federation of Labor, is a labor, organization admitting to membership employees of the Company. United Paper, Novelty and Toy Workers International Union, affili- ` ated with the Congress of Industrial Organizations, is a labor organi- zation admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On May 1, 1942, Independent Folding Box Union of America, Local No. 1, herein called the Independent, as collective bargaining repre- sentative of the employees, entered into a contract with the Company for a term extending to April 1, 1943, with provision for automatic' renewal for yearly periods thereafter, unless written notice of termi- nation was given by either party to the other 30 days prior to the expiration date: At a meeting held early in February 1943, the Inde- pendent voted to disband and to reorganize and affiliate with the Machinists. By letter dated March 12, 1943, signed by the former officers of the dissolved Independent, the Company was notified of such dissolution and was informed that the Independent could no longer represent the Company's employees, and that representation asked for by any other union would not be contested by any of the former officials of the Independent. Some time in March 1943 the Machinists' field representative re- quested recognition by the Company of the Machinists as bargaining representative of the employees, but was refused by. virtue of the fact that a claim to representation had been presented by the C. I. O. At the hearing the Company stated its position to be that it would not 348 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD negotiate with either organization until the question concerning repre- sentation had been resolved by the Board. It does not appear that any of the parties contend that the contract between the now dissolved Independent and the Company is a bar to a determination of representatives, though notice of termination was not given by either party 30 or more days prior to its expiration date. The Board has previously found that a contract is not a bar when the union, party to the contract, has dissolved or become inactive and no longer represents the employees.' Under the circumstances of this case, we hold that the contract does not constitute a bar to a present determina- tion of representatives. A statement of the Field Examiner, introduced in evidence at the hearing, indicates that the Machinists and the C. 1. 0. each represents a substantial number of employees in the unit hereinafter found to be appropriate.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Machinists seeks a unit consisting of all production and mainte- nance employees of the Company, excluding clerical, office and super- visory employees and employees having the right to hire or discharge. Question arose at the hearing concerning one maintenance man; the Machinists and the C. I. 0. would include him, whereas the Company desires that he be excluded. It is, his duty to repair break-downs when' they occur, unless they are too serious, in which event assistance is obtained from outside the plant. This employee also sets up certain machinery which is-run only part of the time each year and instructs the new crew on its operation. It appears that, although his work is different from that of the other employees, he has no supervisory duties, aside from his duty in instructing a new crew, and does not have the right to hire or discharge. We find that he is a maintenance I See Matter of United Stove Company and International Union, United Automobile Workers of America, affiliated with the Congress of Industrial Organizations, 30 N L. R. B. 305; Matter of Food Machinery Corporation, Amphibian Tractor Division and International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, affiliated with the A F. of L., 36 N. L R. B. 491; Matter of Godchaux Sugars, Inc, and United Sugar Workers, Local 1124, affiliated with Congress of Industrial Organizations, 36 N. L R. B. 926. 2 The Field Examiner reported that the Machinists had submitted 53 authorization cards, ,of which 49 appeared to bear the genuine original signatures of persons whose names appeared on the Company's pay roll of March 31, 1943, containing the names of 65 per- sons in the unit claimed appropriate Of the cards corresponding to the names on the pay roll, 3 were undated, 30 were dated in February 1943, and 20 in March 1943. , The Field Examiner reported that the C. I. 0. had submitted 23 membership applica- tion and authorization cards, of which 22 appeared to bear the genuine original signatures of persons whose names appeared on the Company 's pay roll above mentioned, all of said cards being dated in March 1943. WAGNER FOLDING BOX CORPORATION - 349 employee without sufficient supervisory authority to warrant his exclu- sion. We shall therefore include him in the unit. We find that all production ' and maintenance employees of the Company, exclusive of clerical and office employees, foremen, all super- visory employees, and those employees having the right to hire or discharge, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation' ,which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direc- tion. - At the hearing controversy developed with respect to the eligibility of certain part-time employees to vote at the election. 'It appears that the Company, due to the present shortage of labor, employs approxi- mately eight part-time workers, of whom two have other regular employment as city firemen, two are' boys still attending. high school, and the others are women employees who come at intervals to work in the evening. It was not indicated at the hearing how frequently or with what regularity any of these 'part-time workers are employed. The Machinists has not asked for exclusion of part-time employees, and the C. I. 0. contends that because they are employed by the Com- pany they should be entitled to vote in the election. The Company states its position to be neutral, although an opinion was expressed by the Company's representative that because the situation out of which their employment arises is only temporary they should be excluded. There is no indication in the evidence that these part-time employees work on any different basis than full-time employees as to rates of pay, duties, or other conditions of employment. The Board does not regard the regular employment of some of these part-time employees in other jobs for other employers as necessarily precluding their right to par- ticipate in the selection of representatives. Acting on the principle that employees who do sufficient work to give them an interest in the conditions of employment also have a sufficient interest in the out- come to entitle them to vote in an election, we have frequently in the past declared regular part-time employees eligible to vote.' We believe this principle to be no less applicable in the case of regular part-time 'See Matter of The New Britain Machine Company and United Electrical, Radio cb Machine Workers of America, (0. I. 0.), 48 N. L R. B., 263; Matter of Seattle Times Company and Seattle Newspaper Guild, Local 82, American Newspaper Guild, 47 N L R. B., 8; Matter of Elton R. Awrey, et at. and United Retail, Wholesale and Department Store Employees of America, 44 N. L. R. B 801 ; Matter of Htillsdale Screen Company and United Automobile Wormers of Amertiea , affiliated with the 0. I. 0., 29 N. L. R. B. 612. 350 DECISIONS OF NATIONAL ILABOIR RELATIONS BOARD employees who also happen to have regular employment elsewhere, for this circumstance, alone,' can neither destroy nor reduce the interest which such employees would otherwise have to participate in the selec- tion of a bargaining representative. This reasoning. however, does not apply with equal cogency to part-time employees whose employ- ment is only casual, for those whose employment is merely occasional, or intermittent, or for indefinite times and hours, do not, of necessity, have an equally substantial -interest in the conditions of employment as those whose employment, though part time, is regular. We there- fore find that all part-time employees regularly employed by the Company, but not including casual-employees, should be eligible to vote. 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 Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the- investigation to ascertain representa- tives for the purposes of collective bargaining with Wagner Folding Box Corporation, Buffalo, New York, 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, under the direction ae? supervision of the, Regional Director for the Third Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations , among the employees ,in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay- roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls , but excluding any who have since quit or been discharged for cause, to determine whether they desire to be represented by International Association of Machin- ists, Niagara Lodge #330, District #76, affiliated with the American Federation of Labor, or by United Paper , Novelty and Toy Workers International Union , affiliated with the Congress of Industrial Organ- izations, for the purposes of collective bargaining, or by neither.