Columbia Protektosite Co., Inc.

In the Matter Of COLUMBIA PROTEKTOSITE CO., INC. and AMERICAN FEDERATION OF LABOR Case No. R-5834.-Decided September 14, 1943 0lcott, Havens, Wandless cC Stitt, by Mr. Herbert A . Tighe, of New York City , for the Company. Mr. Samuel R. Isard, of Newark, N. J., for the A. F. of L. Messrs. Samuel L. Rothbard and John, Baldante, of Newark, N. J., for the C. I. O. Miss Frances Lopinsky, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon amended petition duly filed by American Federation of Labor, herein called the A. F. of L., alleging that a question affecting commerce had arisen concerning the representation of employees of Columbia Protektosite Co., Inc., Carlstadt, New Jersey, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Martin I. Rose, Trial Examiner. Said hearing was held at Lyndhurst, New Jersey, on August 10, 1943. The Company, the A. F. of L., and the United Rubber Workers of America, C. • I. 0., herein called the C. I. O., appeared, -participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to file briefs with the Board. During the course of the hearing the C. I. O. moved to dismiss the petition on the grounds that the unit requested by the A. F. of L. is inap- propriate and that a contract between the C. I. 0. and the Company constitutes a bar to this proceeding. For reasons appearing in Sec- tions III and IV, below, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 52 N. L. R. B., No. 101. 549875-44-vol. 52-39 595 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Columbia Protektosite Co., Inc., a New Jersey corporation, is en- gaged in the manufacture, sale, and distribution of sun glasses, combs, cosmetic containers, and eyeshields. It maintains two plants in Carl- stadt, New Jersey, hereih referred to as the Main Plant and the Eye- shield Division respectively, and also a place of business in New York City. The principal raw materials used by the Company at its Carlstadt plants are plastics, glass, and metals. During the past year, the Company purchased raw materials of a value in excess of $500,000 for the Main Plant and in excess of $100,000 for the Eye- shield Division, 50 percent of all of which was shipped to the respective plants from points outside the State of New Jersey. During the same period the Main Plant produced products of a value in excess of $500,000 and the Eyeshield Division 'produced products of a value in excess of $100,000, 75 percent of all of which was shipped to points outside the State of New Jersey. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED American Federation of Labor is a labor organization admitting to membership employees of the Company through its duly chartered Federal Labor Union No. 23301. United Rubber Workers of America is a labor organization affiliated with the Congress of Industrial Organizations admitting to mem- bership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On July 21 and 22, 1942, a strike occurred at the Company's Main Plant. It was settled by an agreement which was executed July 22, 1942, between the Company and the C. I. O. The agreement pro- vided for a cross-check of • C. I. O. membership cards and company records by the Board, and for recognition of the C. I. O. as exclusive bargaining representative of the Company's employees should the cross-check indicate that the C. I. O. represented a majority of the of the Company's employees. On July 23, 1942, the strikers returned to work and the C. I. O. filed a petition with the Board to determine an appropriate bargaining unit.' This question was compromised 1 Regional Case No. 2-R-3340. COLUMBIA PROTEKTOSITE CO., INC. 597 in an agreement dated July 27, 1942, which stated that the employees at the Main Plant and the Sterling Division 2 excluding those of the Eyeshield Division, constitute a unit appropriate for the purposes of collective bargaining. The Regional Director conducted the cross- check and on July 30, 1942, designated the C. I. O. as the exclusive bargaining representative of the Company's employees 3 Thereafter the Company and the C. I. O. began negotiations for a contract and Meld many meetings for that purpose. On August 24, 1942, an independent union filed a petition, alleging that it represented a majority of the Company's employees 4 On September 18, 1942, the A. F. of L. filed a petition making a similar allegation, and request- ing as unit of all three plants.-5 On the same day the Company filed a petition alleging that both C. I. O. and A. F. of L. claimed to repre- sent a majority of its employees.6 Thereupon the Company refused to, bargain with the C. I. O. until the petitions had been passed upon by the Board. On October 16, 1942, all three petitions were dismissedi by the Board and the Company resumed negotiations with the C. 1. 0', On October 21, 1942, the A. F. of L. telegraphed the United States Conciliation Service, stating that A. F. of L. members at the Com- pany's plant contemplated a strike and asking the conciliator to intervene. By November 6, 1942, the Company and the C. I. O. had come to an agreement on all questions to be covered by the con- tract with the exception of three. On that day, they' agreed in writing to submit their differences to a decision of the War Labor Board. On the same day, the Company and the A. F. of L. executed a contract covering employees in the Eyeshield Division. On March 8, 19,43, the War Labor Board referee issued his recommendations to' which the Company filed objections which are now pending before the War Labor Board. No contract has ever been signed between. the C. I. O. and the Company. The C. I. O. contends that an election and determination of repre- sentatives should not be held at this time, but that the C. I. O. should' be given the opportunity to complete its negotiations in accordance, with the War Labor Board's decision when it shall have been made, stating that any other course would penalize it for delay in executing a contract caused by its abiding by its no-strike pledge. We find no The Sterling Division was discontinued by the Company early in November, 1942. $ The C. I. 0. submitted to the Regional Director 234 union cards. One hundred and' ninety-eight of these checked exactly with signatures on canceled pay checks of the Com- pany's employees ; 4 were doubtful . One hundred and sixty-one of the cards bore names appearing on the Company's undated pay roll which contained 240 names in the unit agreed: upon by the parties. 4 Regional Case No 2-R-3427. s Regional Case No. 2-R-3490. 6 Regional Case No 2-RE-48. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merit in the contention. The petitions filed in August and Sep- tember and the A. F. of L. threat of strike in October prove that the employees' dissatisfaction with the C. I. O.' preceded and was not caused by the C. I. O.'s submission to the orderly procedures of the Government. The facts here are not comparable to those in the Allis Chalmers case." No stabilized contractual relations have been es- tablished between the C. I. O. and the Company, no writing has been executed defining their obligations, one to the other; they are not bound by any directive order of a government agency to adhere to any bargaining contract. Upon the entire record of the case, we find that no circumstances exist which warrant our departing from our usual practice of finding that a question of representation exists in a situation wherein a chal- lenging union representing a substantial number of the Company's employees, gives notice of its demand for recognition before the nego- tiating union and the employer have executed a contract.' A statement of the Regional Director, introduced into evidence, indicates that the A. F. of L. represents a substantial number of the Company's employees in the unit it claims to be appropriate.10 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 UN^T j THE DETERMINATION OF REPRESENTATIVES The A. F. of L. and the Company contend for a unit consisting of both Main Plant and Eyeshield employees. The C. I. O. contends for a unit consisting of only employees of the Main Plant. The parties agree upon exclusions. ' This dissatisfaction was admitted by the C. I O. in the hearing , before the War Labor Board's referee See Referee's report Columbia Protektosite Company, Inc , Case No AR-268, C. I. O.'s Exh #k7. 8 Matter of Allis Chalmers, 50 N. L. R B 306 In that case the parties executed a writing binding themselves to execute an agreement in accordance with a direction of the War Labor Board During the time that the War Labor Board had the matter under edviscment, the petitioning union obtained a following in the plant and requested recog- nition before the contract in its final form had been executed . The Board found that the writing which preceded the demand for recognition , plus the fact that the delay In execution of the contract was occasioned by the pendency of the matter before the War Labor Board , were sufficient to take the case out of the operation of the rule of Matter of Eicor, Inc., 46 N L R. B. 1035. 9 See Matter of Leonard-Burke Company, 51, N L R B 1315 ; Matter of Daniel Burkhartsmeier Cooperage Co , 49 N. L R. B. 428; Matter of Eicor, Inc., supra. io The Company's pay roll for June 10, 1943, which excludes names of persons excluded from the units herein found to be possible appropriate units contains names of 218 Main Plant employees and 75 Eyeshield Division employees . The A . F of L. submitted to the Regional Director a petition containing 210 apparently gynuine original signatures, 145 of which were names of Main Plant employees and 59 were names of Eyeshield Division employees listed on the said pay roll. COLUMBIA PROTEKTOSITE CO., INC. 599 The Main Plant and the Eyeshield Division are half a mile apart. Employees at both plants are semi-skilled and do similar work in some respects. There is a single pay roll for both plants and calculation of overhead is bulked for the two. However, for purposes of cost ac- counting, cost of labor and materials used by the two plants is calcu- lated separately. The products of the two plants differ, although manufacture on some products of Eyeshield is begun or completed at the Main Plant and vice versa. Hiring is done at both plants. There is a steady interchange of labor between the plants but the identity of the workers as employees of Eyeshield or Main Plant is retained. The C. I. O. has at all times contended that the Eyeshield Division cannot properly bargain in conjunction with the Main Plant, and has not attempted to organize Eyeshield. The Eyeshield Division has, in fact, been organized as a separate unit and has bargained success- fully with the Company. In view of the bargaining history of the two plants, their physical separateness, and their clear-cut identities for many other purposes, we find that separate plant units would be appropriate. On the other hand, in view of the close interrelation between the plants, the inter- change of employees, and the similarities in the nature of the work done and in the skills of the employees of both plants, we find that a unit composed of employees of both plants may be appropriate for the pur- poses of collective bargaining. We shall, therefore, allow the employ- ees themselves to elect whether they shall be represented in separate units or in one unit. All parties agree that whatever unit is selected shall include all pro- duction employees, maintenance employees, and shipping employees and shall exclude all office employees, supervisors of the rank of assist- ant foreman or above, and executives. We find that either of the units herein discussed, as defined above, with the added exclusion of all other supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effec- tively recommend such action may constitute a unit apropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Accordingly, we shall direct separate elections among the production; maintenance, and shipping employees of the Company in the Main Plant, and in the Eyeshield Division respectively, excluding all office employees, executives, supervisors of the rank of assistant foreman and' above, and all other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. The employees of the Main Plant will indicate whether they desire to be represented by the A. F. of L. or by the C. I. O. for the purposes 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining, or by neither; the employees of the Eyeshield Division will indicate whether or not they desire to be represented by the A. F. of L. If employees of both plants designate the A. F. of L. as their bargaining representative, the A. F. of L. will be certified as the exclusive representative of employees in both plants. If not, the unions designated, if any, will be certified each in the unit in which it polled a majority of the votes cast. We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot among the employees in the voting groups above defined, who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations set forth in the Direction. DIRECTION OF ELECTIONS 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 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 Columbia Protek- tosite Co., Inc., Carlstadt, New Jersey, elections 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 and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the em- ployees within the groups described below 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 be- cause they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present them- selves in person at the polls, but excluding those employees who have since quit or been discharged for cause : 1. All production, maintenance, and shipping employees of the Com- pany's Main Plant, excluding all office employees, executives, supervi- sors of the rank of assistant foreman and above, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively rec- ommend such action, to determine whether they desire to be repre- sented by the American Federation of Labor or by United Rubber Workers of America affiliated with the Congress of Industrial Or- ganizations, for the purposes of collective bargaining or by neither. 2. All production, maintenance, and shipping employees of the Company's Eyeshield Division excluding all office employees, execu- COLUMBIA PROTEKTOSITE CO., INC. 601 tives, supervisors of the rank of. assistant foreman and above, and all supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effec- tively recommend such action, to determine whether or not they desire to be represented by the American Federation of Labor for the pur- poses of collective bargaining. CHAIRMAN MILL IS took no part in the consideration of the above Decision and Direction of Elections.