Kimberly-Clark Corp.

In the Matter Of KIMBERLY-CLARK CORPORATION and, INTERNATIONAL BROTHERHOOD OF PAPER MAKERS, A. F. OF L., AND INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPFzR MILL WORKERS, A. F. OF L. Case No. 18-R-1115.-Decided March 28, 1945 Mr. S. N. Moe, of Menasha, Wis., and Mr. M. H. Kettenho f en, of Neenah, Wis., for the Company. Messrs. Arthur E. Pinten and Elmer P. Heinz, of Appleton, Wis., for the A. F. of L. Mr. Donald F. Cameron, of Milwaukee, Wis., for the Independent. Mr. Ernest W. Erb, of Milwaukee, Wis., for the C. I. O. Miss Ruth Busch, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a petition jointly filed by International Brotherhood of Paper Makers, A. F. of L., and International Brotherhood of Pulp,.Sulphite and Paper Mill Workers, A. F. of L., herein called the A. F. of L., alleging that a question affecting commerce had arisen concerning the representation of employees of Kimberly-Clark Corporation, Niagara, Wisconsin, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Stephen M. Reynolds, Trial Examiner. Said hearing was held at Niagara, Wisconsin, on October 26, 1944. The Company, the A. F. of L., Niagara Paper Mill Workers' Union, herein called the Independent, and Paper Workers Organizing Committee, C. I. 0., herein called the C. I. 0., appeared and participated.' All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the Company moved to dismiss the A. F. of L.'s I At the beginning of the hearing, the Trial Examiner granted motions to intervene made by the Independent and the C. I. O. The Independent was also granted a motion correct- ing its name as set forth above on all formal papers. 61 N. L. R. B., No. 8. 90 KIMBERLY-CLARK CORPORATION 91 petition on the ground that the Board's certification was less than a year old at the time the petition was filed. The Trial Examiner reserved ruling on the Company's motion for the Board's determina- tion. For reasons stated in Section III, infra, the Company's motion is hereby granted. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company is a Delaware corporation which operates paper mills in the States of Wisconsin and New York. Its Niagara, Wisconsin, plant is the only plant involved in this proceeding. The Company is engaged in the manufacture of wood pulp, paper, and paper special- ties. Each month the Company purchases raw materials amounting to more than $200,000 in value, of which 85 percent is shipped from sources outside the State of Wisconsin. For the same period, the Company sells finished products amounting to more than $420,000 in value, of which 65 percent is shipped to points outside the State of Wisconsin. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED International Brotherhood of Paper Makers and International Brotherhood of Pulp, Sulphite and Paper Mill Workers are labor or- ganizations affiliated with the American Federation of Labor, admit- ting to membership employees of the Company. Niagara Paper Mill Workers' Union is a labor organization, ad- mitting to membership employees of the Company. Paper Workers Organizing Committee is a labor organization affili- ated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE ALLEGE15 QUESTION CONCERNING REPRESENTATION By letter to the Company dated August 16, 1944, the A. F. of L. requested recognition as the statutory' bargaining representative of the Company's employees. The Company declined to accede to this request on the ground that the Independent was the certified bargain; ing agent of its employees. The A. F. of L. filed its petition herein on September 14, 1944, 0 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 21, 1944, as a result of proceedings theretofore insti- tuted by the C. I. 0., and after a hearing and Board-directed election,' the Independent was certified as the statutory bargaining agent of the Company's employees herein involved. Prior to the petition which instituted that proceeding, but after the petitioner therein had asserted its claim for recognition, the Company and the Independent executed a closed-shop collective bargaining contract dated September 22, 1943, to become effective on October 1, 1943 3 The contract was for a term of 1 year, automatically renewable for like periods in the absence of notice to terminate given by either party to the other on or before Sep- tember 1 of any contract year. This contract, which the Board found to be no bar to the election conducted in the prior proceedings just referred to, remained in effect on the date of the Independent's certi- fication and did not expire until a little more than 7 months thereafter. On September 1, 1944, 2 weeks after the A. F. of L.'s request for recog- nition above noted, the contract was automatically renewed for an- other year, as between the parties thereto, since neither the Company nor the Independent served notice of a desire to terminate it. These parties now contend that the renewed contract, despite the timely claim of the A. F. of L., operates to bar a determination of representa- tives in this proceeding by virtue of the fact that the Independent's certification was only a little over 6 months old at the time when the automatic renewal clause became operative. We find merit in this contention. It is clear that the renewed contract, standing alone, would not bar a present investigation of representatives, because the petitioner's claim for recognition was asserted' prior to the renewal date. Another principle comes into play in this case, however. We have consistently held, both in unfair labor practice cases involving Section 8 (5) of the Act, and in cases arising under Section 9 (c), that a Board election and certification must be treated as identifying the statutory bargaining agent with certainty and finality for a reasonable period of time-about a year, under ordinary circumstances 4 This policy serves the dual purpose of en- couraging the execution of collective bargaining contracts and of dis- couraging "raiding" and too frequent elections. It means, in opera- tion, that a demand for recognition, or petition for investigation of 2 Matter of Kimberly-Clark Corporation, 54 N L R B. 601. 8 The Independent has been the bargaining representative of the Company 's employees since 1941 . The contract of September 22, 1943, succeeded a prior contract made in December 1942, effective until October 1, 1943. 4 Matter of Monarch Aluminum Mfg Co., 41 N L. R. B. 1 ; Matter of Beatty Logging Co , 55 N. L R. B. 810 ; Matter of Bohn Aluminum and Brass Corporation, 57 N. L. R. B. 1684, Matter of Aluminum Company of America , Newark Works, 57 N L. R. B. 913 ; Matter of Whittier Mills Company, 1 5 N L R. B. 457 , enf'd 111 F. ( 2d) 474 ( C. C. A. 5 ) ; Matter of Botany Worsted Mills, 41 N. L R. B 218 , enf'd 133 F. (2d) 876 ( C. C A. 3 ), cert. den 319 U S 751 ; Matter of Century Oxford Mfg Corp , 47 N. L. R. B. 835, enf'd 140 F (2d) 541 (C. C A 2) , Matter of Motor Valve and Mfg Co., 58 N. L. R B. 1057; N L R B Ninth Annual Report, p 25 Cf Matter of Westinghouse Electric it Mfg . Co , 38 N. L. R. B. 404. 0 KIMBERLY-CLARK CORPORATION 93 representatives, filed unseasonably early in the year following a cer- tification will be ineffective to raise a question concerning representa- tion, for the certification is deemed to foreclose any such question for a reasonable time.6 The question in the present case is whether the fact that the certified union held a contract expiring 7 months after its certification warrants the granting of a petition for an election which would otherwise be dismissed as premature." We think not. The existence of the Independent's antecedent contract does not alter the fact that only 6 months before the A. F. of L.'s demand for recog- nition the Independent had won an election and received our certifica- tion as the statutory bargaining agent of the Company's employees. That fact is decisive. We hold that, as of the date of the A. F. of L.'s demand and petition, the Independent was still presumptively the chosen representative of a majority of the employees, and entitled to undisturbed enjoyment of its certified status as such. Accordingly, no valid question concerning representation was raised by the A. F. of L.'s petition and the request for recognition on which it was predi- cated. It follows that the Independent's contract, renewed on Sep- tember 1, 1944, now operates to bar a new investigation of representa- tives until the 1945 renewal date approaches.? To hold otherwise would be to accord less efficacy to our certification of a union which intervenes in representation proceedings urging its current contract as a bar thereto, than to our certification of the petitioner, if the latter happens to win the election and thereafter, as usually happens, experiences some delay in negotiating its first contract. The reasons underlying our so-called one year rule are equally applicable in both situations, and we are persuaded that the operation of the rule should be the same in both.8 We agree with the observation of the dissenting opinion that the issue in the prior election was which of three competing unions 9 the See Matter of Soss Mfg Co., 56 N. L R. B. 348, where we said : A certification of labor organization as the exclusive representative of employees under Section 9 of the Act, on the basis of an election , is customarily valid for at least 1 year. It is calculated to stabilize industrial relations by foreclosing any ques- tion of representation, and thus clearly defining the duty of the employer during that period. . . . s See Matter of Bohn Aluminum and Brass Corporation, Matter of Aluminum Company of America, Newark Works, supra. 7 Matter of North Range Mining Co., 47 N L. R. B 1306. 8 We adhere to our rulings in Matter of Thompson Products, 47 N. L. R B. 619, and Matter of Trackson Company, 56 N. L. R. B. 917, but we distinguish those cases from the one before us. In each of the cited cases the employer and the intervening union renewed a 1-year contract during the interval, which happened to be abnormally long, which occurred between a Board election and the ultimate certification of the contracting union. In each case we directed a new election upon the petition of another union filed near the end of the contract term, although the certification was then less than a year old. In those cases, however, the elections on which the certifications were predicated , had been held nearly a year prior to the institution of the proceedings wherein the new elections were directed. See Matter of Aluminum Company of America, Newark Works, 57 N L R. B' 913, ftn. 3 on p. 915. B The A. F. of L. intervened in that proceeding and was accorded a place on the ballot. 639678-45-vol. 61-8 '94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's employees then desired as bargaining representative. However, we think there is no more warrant for implying that the employee voters desired that one of those organizations, if elected, should serve only for the balance of its contract term, than that said organization, no less than its competitors, should be entitled to exclu- sive recognition as the statutory bargaining agent, if its status as such was established by the election, for the period ordinarily prescribed as reasonable by this Board. The petition herein will, accordingly, be dismissed. ORDER The National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives of employees of Kimberly-Clark Corporation, Niagara, Wisconsin, filed by Inter- national Brotherhood of Paper Makers, A. F. of L., and International Brotherhood of Pulp, Sulphite and Paper Mill Workers, A. F. of L., be, and it hereby is, dismissed. MR. GERARD D . REILLY, dissenting : While the issue presented by this case does not seem to be one of major importance, the danger of introducing an element of uncer- tainty into what has hereto been considered settled law in represen- tation cases compels me to state my grounds for concluding that this petition should be granted and an election directed. Reduced to its essentials, the facts are these : In the face of an assertion by a C. I. O. union that it was the bar- gaining (i. e., majority) representative of the workers, the Company executed a collective agreement for 1 year with an independent union containing an automatic renewal clause subject to a 30-day notice provision. The C. I. O. union thereupon filed a petition for an elec- tion which was opposed by the Company and the independent union on the ground that the written agreement was a bar. The Board, applying its familiar principle that no collective agreement made in the face of a claim of a competing union which represents a substan- tial number of employees can be deemed a bar to an investigation of a question of representation, ordered an election 10 The C. 1. 0. lost to the Independent and the latter union was certified as the bargaining representative. This proceeding, being a contested one, took more than 4 months. As a result, the contract of the Independent had only about 7 months to run after the certification. Prior to its expiration, a third labor organization, an A. F. L. union, representing a substan- tial number of employees, notified the Company of its claim to be the bargaining representative and when this claim was denied filed 20 Matter of Kimberly-Clark Corporation, 54 N L. R. B. 601. KIMBERLY-CLARK CORPORATION 95 this petition with the Board Under the Mill B rule,11 this claim was timely since made prior to the 30-day notice period and had the effect of staying the automatic renewal of the contract of the independent union. Therefore, it is conceded that the contention that the renewal contract is a bar is not well taken. Nevertheless, the petition for an election is being denied on the ground that "a Board election and_ cer- tification must be treated as identifying the statutory bargaining agent with certainty and finality for a reasonable length of time-about one year under ordinary circumstances." 12 I agree with this statement of principle as a general rule, but. I think that its application to a case where it collides with an equally well-established principle (viz. :-that the expiration date of a contract is an appropriate time to raise a question of representation) is one of dubious validity. From a purely legal standpoint, it is obvious from the text of the decision in the earlier case that what the Board was doing there was directing an election to determine which of the competing unions was presently the bargaining representative- rather than which union the employees wished to designate as their bargaining agent at the end of the contract term. Had the proceeding been conducted for the latter purpose, it would have been unnecessary for the Board to pass upon the question that the current contract was a bar. Moreover, while there is some equity in the notion that a union which has just been defeated, in an election which it had instigated should not be permitted to cloud the status of the current bargaining" agent by a rapid succession of counter-claims and petitions, this con- sideration is not present here since the petitioner in the instant case is not the labor organization which was the petitioner in the original proceeding. Therefore, the practical effect of dismissing this petition is to give the certification not merely prospective validity for a period of 1 year but for a period of a year and 8 months, since by dismissing this petition as premature we have indirectly given the renewed con- tract effect until the end of its term, although, as has been pointed out, the automatic operation of the renewal clause would seem to have been stayed under the Mill B rule. It seems to me that such a decision en- courages the undesirable practice of having an employer sign up with one of two competing organizations in the face of an unresolved ques- tion of representation. Our decisions in complaint cases have indicated that such disparate treatment is evidence of illegal assistance, and in one case where the contract was prematurely executed and contained compulsory membership features we held that any' discharges under 11 Matter of Mill B, Inc., 40 N. L. R B. 346. 12 It is noted that this "certainty and finality" deemed to be so desirable is somewhat illusory as evidenced by the conclusion reached in Matter of J. M. Portela & Company, Inc., 61 N. L. R. B. 64. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such a contract were a violation of Section 8 (3), if it should ultimately develop that the contracting union was not the majority union.13 As a, result of these decisions, a general practice has grown up in industry among careful employers of refraining from signing any contracts when confronted with claims by competing unions until the question of representation has been settled authoritatively by the Board. I assume that had a consent election been held in this case (a proceeding which ordinarily does not take more than 2 or 3 weeks), the majority would not have dismissed this petition merely because the contract had only about 11 months to run after the contracting union was certified. I do not understand why there should be any different rule in a con- tested representation case since under normal circumstances approxi- mately 4 months elapse between the date of the petition and a formal certification. It would seem that in this case both the A. F. L. and employees are being penalized by the fact that a union not involved in this proceed- ing made a ,claim approximately, 18 months prior to the date of this decision which a subsequent election proved to be unfounded. I there- fore feel that the Board should direct an election to determine whether the employees desire to be represented by the Independent and, hence, bound by the contract renewed between that organization and the Company on September 1, 1944, or whether they desire the petitioner to represent them for the purpose of entering into a new collective bargaining relationship.14' 's Matter of Garod Radio Company, 47 N. L. R. B. 677 "See Matter of Thompson Products, 47 N. L. R. B 619, and Matter of Trackson Com- pany, 56 N. L. R. B 917. Although I do not agree that the distinction made in the majority opinion between these cases and the instant case is valid , it should be noted that here too more than a year has elapsed since the certification of the Independent.