National Container Corp.

in the Matter of NATIONAL CONTAINER CORPORATION' and WHOLESALE & WAREHOUSE WORKERS UNION, LOCAL 65, CIO Case No. 2-R-5196.-Decided .June 2, 1945 Davies, Auerbach, Cornell & Hardy, by Mr. Christopher W. Hoey, of New York City; and Saul and Marshall M. Bernstein, by Mr. Marshall Al. Bernstein, of New York City, for the Company. "Mr. Robert Burke, of New York City, for the CIO. Ashe and Riskin, by Mr. David I. Ashe, of New York City; and Mr. Raymond Leon, of Long Island City, New York, for the AFL. Mr. Samuel G. Hamilton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Wholesale & W arehouse Workers Union, Local 65, CIO, herein called the CIO, alleging that a question affecting commerce had arisen concerning the representation of employees of Na- tional Container Corporation, Lou- Island City, New York, herein called the Company, the National Labor Relations Board provided for an appro- priate hearing upon clue notice before David H. Werther , Trial Examiner. Said hearing was held at New York City, on March 26, 1945. At the hearing the Trial Examiner granted a motion to intervene made by U. S. Corrugated Workers Union, Local 444, International Brotherhood of Pulp, Sulphite & Paper IVlill Workers, A. F of L., herein 'called the AFL. The Company, the CIO, and the AFL 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 and the AFL separately moved to dismiss the petition. Rul- ings on the motions were reserved for the Board. For the reasons stated in Section III, infra, the motions are hereby denied. The Trial Examiner's I Name as amended at the hearing 62 N. L. R. B., No. 8. 48 0 NATIONAL CONTAINER CORPORATION 49 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 National Container Corporation is a Delaware corporation which oper- ates a plant, involved in this proceeding, at 30-01 Review Avenue, Long Island City, New York. It is there engaged in the manufacture of fibre and corrugated boxes or cartons. During the last 12 months raw materials val- ued in excess of $100,000 were purchased by the Company for use at its Long Island City plant, approximately 90 percent of which was shipped to that plant from points outside the State of New York. During the same period the Company shipped from its Long Island City plant finished prod- ucts valued in excess of $100,000, approximately 75 percent of which was shipped to points outside the State. The Company admits that it is engaged iii commerce within the meaning of the National Labor Relations Act. 4 11. THE ORGANIZATIONS INVOLVED Wholesale & Warehouse Workers Union, Local 65, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. U. S. Corrugated Workers Union, Local 444, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with the American Fed- eration of Labor, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On September 24, 1941, the Company and the AFL entered into a closed- shop contract, effective October 1, 1941, which provided, in part, as follows : This agreement shall be effective from October 1st, 1941 to December 31, 1942 and from year to year, thereafter, subject to termination by either party on any anniversary date, on thirty (30) days written notice, given ib the other party prior to such anniversary date. In January 1943, an application was filed with the National War Labor Board for approval of a wage increase agreed upon between the Company and the AFL in September 1942, prior to the effective date of the Stabiliza- tion Act of 1942.2 The National War Labor Board did not rule on the application until about December 15, 1943, when it decided that its approval was not needed if the increase was made retroactive to October 1, 1942. At 2 Act of October 2, 1942, 56 Stat 765 r50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the suggestion of the National War Labor Board, the application was then withdrawn. Thereafter, the Company granted the wage increase, retroactive to October 1, 1942. On November 21, 1944, the AFL, by its president, addressed a letter to the Company stating that the AFL "desires to amend for the ensuing year the current collective agreement between the parties " On November 22, 1944, the CIO filed its petition herein. On November 28, 1944, the C10 advised the Company by letter of its action, this letter was received by the Company the following day.' Subsequently, the Company and the AFL entered into a new closed-shop contract dated November 29, 1944,' but effective as of January 1, 1945, to run for a term of 1 year, and automatically renewable for yearly periods thereafter, in the absence of written notice of termination given by either party 30 days prior to an', anniversary date. The AFL contends that the agreements dated September 24, 1941, and November 29, 1944, bar this proceeding. We do not agree. Insofar as the agreement dated September 24. 1941, is concerned, not only did the CIO file its petition anti .specifically apprise the Company of its claim to repre- sentation prior to the 1944 operative date of the automatic renewal clause, but the Company and the AFI , by entering into the contract dated Novem- ber 29, 1944, thereby supplanted the 1941 agreement.' And as respects the 1944 agreement, it did not become effective, and was not in fact executed by both parties, until after the Company n a's informed of the CIO's claim to representation." In addition, the AFL claims that from January 1941 until July 1944, it was restricted in its activities by a pending unfair labor practice proceeding initiated against the Company by the CIO.' It asserts, therefore, that "as a matter of equity, the [1944] contract between the intervenor and the com- pany should be held to be a bar to any investigation of representatives at the present time." Specifically, it states that the National War Labor Board refused to act upon the application for a wage increase, which is referred to above, until the unfair labor practice proceeding was terminated Apart from the question of the wage increase it cannot be gainsaid that the AFL acted as the collective bargaining representative of the Company's employ- 3 Also on November 29, 1944, the CIO sent a telegram to the Company, which was received that day, apprising it of the CIO's claim to representation +'rhe record shows that, although the contract is dated November 29, 1944. it was not executed by both parties until later. All AFL representatives, except two, affixed their siglratures to the agreement on November 29, 1944 The next day, one of the remaining AFL representatives signed the agree. nrent and it was deliveied to the Company In turn, the Company mailed the contract for signature to Samuel Kipms, its president, who was then in Florida On or about December 4, 1945, the agreement, signed by Kipnis, was received from him by the Company It was on December 9, 1944, that the last AFL representative signed the contract 5 See Matter of Portland Lumber Mills, 56 N L R 13 1336, Matter of C, addock-Ter, r- Sloe Corp, 55 N L R B 1406, Matter of Purepac Corporation, et al, 55 NT L R B 1386; Matte, of Milwaukee Welded Products, Iiic, 55 N L R B 321 ° See Matter of Foster-Grant Co , Inc , 54 N L R B. 802. Matter of Eicor, Inc , 46 N L R B 1035. 1 See Matter of National Container to, poralron, 57 N. L R B 565 . NATIONAL CONTAINER CORPORATION 51 ees from 1941 to 1944, and obtained substantial benefits pursuant to the terms of its 1941 agreement Apparently there were no unsettled issues between the Company and the AFL for also 1 year after the effective date of their 1941 contract. It was not until September 1942, that they agreed upon the wage increase and sought to place it in operation. Moreover, the wage increase was ultimately granted and was applied retroactively. In these circumstances we fail to perceive any reason for delaying a determi- nation of representativesS A statement of a Board agent, introduced into evidence at the hearing, indicate,, that the CIO represents a substantial number of employees in the unit hereinafter found appropriate." We find that a question affecting commerce has arisen concerning the reliresentation of employees of the Company. within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ' IV. THE- APPROPRIATE' uNir We find, m accordance with the agreement of the parties, that all pro- duction and maintenance employees of the long Island City plant of the Company, including machinists. shipping department employees, truck drivers and helpers, lvatchmcn-porters, and working foremen,"' but exclud- ing office clerical employees, salesmen, assistant foremen, non-working foremen and all other supervisory employees with authority to here, pro- mote, discharge. discipline or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appro- s Cf, Matte, of Macdlatchic Manufoctut i,g Co , 53 N L R B 1268, platter of Lute, national Harvester Company, 55 N L R B 497, Mattes of the Regina Con pota/un, 57 N L R B 4 "'rhe Field Ex.m ,net reported that the CIO subnntted 186 authorization cards, that the uames of 56 person, appealing on the cards were fisted on the Company's payroll of December 4, 1944, which contained the names of 401 cmplovees in the alleged appropriate unit, that 1 of the card, was dated to J,muar3 1943, 1 in Dial 1943 and I in December 1943, that 4 of the cards were dated to December 1942, 7 in March 1943, 10 in April 1943, 4 in July 1943, 11 in August 1943, 3 in September 1943 7 in November 1944, 6 it Decemhet 1944, and that 3 were undated or incomplete The AFi. o elres upon its rout,acts as evidence of its interest The ALL attacks the showing of the CIO on the ground that the signatures of the "alleged raids" ooe,e not checked against actual signature, on the payroll of the Company However, authorization cards are required srmpiy to provide a reasonable safeguard against the indrscruuinate institution of i epr eseutation proceedings by labor or ganrz.u runs which night have little or no membership in the unit clamed to be appiopuate '['his safrgu.ud is adequately ptwrded by a statement of the Field Ex,mnner made on the bats of a payroll check tit which stgiatties on authorization cards are not conip.ned with the actual signatures of eniplo}ees, but with their names See Matter of Budd Wheel Company, 52 N F. R B. 666 The AFL further contends that the CIO's showing is insufficient to ,uppoit the petition In view of the fact th•rt the 1941 and 1944 contracts contained closed-shop provisions, we regard the CIO s showing as tibstantial See Matte, of Wilt's Overland Motors, Inc 55 N L. R B 376 The Company asks for a dismissal of the petition because no evidence was adduced at the hearing supporting the allegation that a question concerning representation has existed since 1941 We deem it sufficient that, as of the date of the hearing, the CIO's status as bargain,ng representative was disputed by the Comp,rny and that ,ecogn,tton depends upon our ecrtificatron See diafte, of Pacific Mills, 60 N L R 1i _90 toWoiking foremen are net supervisory employees within the meaning of the Bo,ud's customary definition 52 DECISIONS OF NATIONAL LABOR REI:ATIONS BOARD priate 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 employees in the appropriate unit who were employed during the pay-roll period imme- diately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction." 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with National Container Corpora- tion, Long Island City, 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 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 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 the 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 and have not been rehired or reinstated prior to the (late of the election, to determine whether they desire to be represented by Wholesale & Warehouse Workers Union, Local 65, CIO, or by U. S. Corrugated Workers Union, Local, 444, AFL, for the purposes of collective bargaining, or by neither. 11 The requests of the CIO and AFL to appear on the ballot as their names are set forth in the Direction are hereby granted.