The National Plastic Products Co.

In the Matter of THE NATIONAL PLASTIC PRODUCTS COMPANY and INTERNATIONAL CHEMICAL WORKERS UNION, A. F. OF L. Case No. 5-R-2312.-Decided July 3. 1.946 Messrs. Jacob Blum and Jacob S. New, both of Baltimore, Md., and Mr. Raymond D. Zimmerman, of Odenton, Md., for the Company. ,Messrs. John A. Lewis and Henry A. McFarland, both of Balti- more, Md., for the Union. Mr. Jerome J. Dick, of counsel to the Board. DECISION AND DIRECTION STATEMENT OF THE CASE Upon a petition duly filed by International Chemical Workers Union, A. F. of L., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of The National Plastic Products Company, Odenton, Maryland, herein called the Company, the National Labor Relations Board on April 18, 1946, conducted a pre-hearing election pur.,uaut to Article III, Section 3, of the Board's Rules and Regulatiolls,' among employees of the Company in the alleged appropriate 11111t. to determine whether or not they desire to be represented by the Union for the purposes of collective bargaining. At the close of the election, a Tally of Ballots was furnished the parties. The Tally shows that there were approximately 227 eligible voters and that 206 of these voters cast ballots, of which 90 were cast for the Union, 78 against the Union, and 38 were challenged. Thereafter, pursuant to Article III, Section 10, of the Rules and Regulations,' the Board provided for an appropriate hearing, upon due notice before Sidney J. Barban, Trial Examiner. The hearing was held at Baltimore, Maryland, on May 9, 1946. The Company and the Union appeared and participated. All parties were afforded ' By amendment of November 27, 1945, this Section of the Rules now permits the conduct of a secret ballot of employ ees pixor to hearing m cases which present no substantial issues e As amended November 27, 1945, this Section provides that where the initial hearing is held after the election, all issues including issues with respect to the conduct of the election or conduct affecting the election results and issues raised by challenged ballots, shall be heard at such hearing 69 N. L. R. B., No 35. 288 THE NATIONAL PLASTIC PRODUCTS COMPANY 289 full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the parties agreed that 21 of the challenged ballots might be counted. These ballots were opened and counted at the hearing, in the presence of the parties. The Revised Tally of Ballots shows that 95 ballots were cast for the Union, 94 against the Union, and 17 still remain challenged. Also, at the hearing, the Company moved to set aside the election on various grounds. For reasons set forth in Section V, infra, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed.3 All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The National Plastic Products Company, a Maryland corporation with its principal office and plant located at Odenton, Maryland, is engaged in the manufacture of plastic products. The Company an- nually uses at its Odenton plant raw materials exceeding $100,000 in value, of which approximately 35 percent is received from points out- side the State of Maryland. The Company annually produces at its Odenton plant finished products exceeding $100,000 in value, of which approximately 35 percent is shipped to points outside the State of Maryland. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED International Chemical Workers Union is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its employees, until the Union has been certified by the Board in an appropriate unit. 3 The Company contends that the Trial Examiner 's denial of the Company's request lot an adjournment of the hearing , so that a formal Notice of Hearing could have been served on an affiliate of the C I 0., whose name is not disclosed by the record, was error It appears that the C I. O. affiliate had distributed circulars among the Company's employees, stating that the Company was discriminating against the C I 0 , and "playing ball" with the F of L We find the Company 's contention to be without merit , for the record discloses that the Regional Director spoke with representatives of the C I. 0 affiliate. who stated hat they had no interest in the proceeding. 701592-47-{ of 69--20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 1V. THE APPROPRIATE UNIT We find, in accordance with the agreement of the parties, that all production and maintenance employees at the Company's Odenton, Maryland, plant, excluding office clericals and all supervisory em- ployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend such action, 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 The Company objects to the election and seeks to have it set aside on the grounds that (1) the election was at variance with the Act inasmuch as it was held prior to the hearing over the Company's ob- jection; ( 2) selection of the pay roll of April 2, 1946, to determine eligibility was improper; and (3) by allowing the Union's organizer to drive them to the plant in his automobile, the Board' s representa- tives who conducted the election may have influenced the employees to vote for the Union. In addition, the Company questions the eligibility of 17 persons who cast votes under challenge. The objections to the election (1) In the recent Squibb cases we considered and rejected the contention that the holding of an election before a hearing over the employer's objection is repugnant to the Act. Accordingly, for the reasons indicated in that case, we overrule the Company's first objection herein. (2) In connection with its second objection, the Company stresses that, on April 9, 1946, when the question of eligibility was discussed, it informed a Board agent that a number of its maintenance workers were to be discharged before the day of the election upon the com- pletion of a building construction project. It argues that, inasmuch as the April 2, 1946, pay roll contained the names of these employees, it was improper for the Board agent to utilize this pay roll for the purpose of determining eligibility to vote. 4 These individuals were challenged by the Board's agent because of the Company 's posi- tion concerning them They are Walter Gilbert, Preston Downs, Howard Millard , Willard Odenbeck , Frank Satulla , Stanley Wilhelm , Charles Danza. Bandy Lanko . Joseph Ragman, George Leancie , John R. Schnurr, Jr, Ray Schrader, Charles McGill, Paul H Wockenfuss, Melvin Ziegler , Clyde Morton and Hebert M Triplett ( challenged as Herman Triplett, however , it is clear that Herman Triplett and Herbert M Triplett are the same person) 5 Matter of E. R Squibb & Sons , 67 N. L R. B 557. THE NATIONAL PLASTIC PRODUCTS COMPANY 291 We note that on April 9, 1946, the Company refused to indicate what in its opinion should be the governing pay roll, although requested to do o by the Board agent. Furthermore, the ballots of all maintenance workers were challenged at the election by a Board representative.' In fact, the challenged ballots remaining for disposition were cast by 17 of these employees.7 Since the maintenance employees voted under challenge and the issue of the validity of their ballots was thereby raised for the Board's determination, we fail to perceive in what man- ner any prejudice resulted from the Board agent's selection of the April 2, 1946, pay roll to govern voting eligibility. We are persuaded by the entire record, furthermore, that the April 2, 1946, pay roll was in all respects a proper basis for determining eligibility to vote. Conse- quently, we overrule the Company's second objection. (3) We are also of the opinion that the Company's third objection lacks merit. The election was conducted in the morning and after- noon of April 18, 1946. The Board representatives who conducted the election drove with the Union's organizer in his automobile from the Odenton station to the plant for the morning session, and had difhculty entering the plant because there were no employees present. It is clear from the uncontradicted testimony of one of the Board representatives that, in the morning, no employee entitled to vote observed that the Board representatives drove to the plant with the Union's organizer. After the close of the morning balloting, counsel for the Company himself offered the Board representatives transpor- tation to Baltimore in his car, but they had to refuse this offer because they had previously made similar arrangements with the Union's organizer. One hour and 20 minutes before the change of shifts, the Board representatives returned to the plant with the Union's organizer in hi, automobile for the afternoon session. The Company's treasurer testified that, from his office at the plant, he saw the Board represen- tatives return with the Union's organizer. However, he stated that he did not know of his own knowledge whether or not any employee eligible to vote say what had occurred. One of the Board representa- tives testified, moreover, that he did not see a single employee outside the plant when he arrived at the plant that afternoon. It is apparent from the above facts that, there is no evidence to show that any eligible employees observed at any time that the Board representatives drove to the plant with the Union's organizer. We, therefore, overrule the Company's third objection, but note the fact that had there been sub- stantial evidence to that effect, we might well have decided other- ° No maintenance emplo} ees were dismissed by the Company prior to the (late of the election 4 A total of 38 maintenance uoricers -,oted and, as indicated, a Board representative chal- lenged the ballots of all Pursuant to the agreement of the parties, 21 of such ballots were opened and counted as valid during the course of the hearing These 21 challenged ballots are the ones referred to in the Statement of the Case, supra 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise. We regard the practice engaged in by our representatives as undesirable. The challenged ballots As already indicated, the Company questions the eligibility of the 17 maintenance workers mentioned above, claiming that they were temporary employees. These 17 workers had been employed by the Company for a considerable period before the election, some as long as 2 years. They were in the Company's employ on the eligibility date and on the day of the election. The only basis for the Company's contention that they were ineligible lies in the fact that it claims it had decided to discharge them before the election, and that it com- municated to the Board agent at the conference of April 9, 1946, an intention to separate some maintenance employees prior to the elec- tion. But no maintenance employees were dismissed by the Company until April 30, 1946, long after the holding of the elections It is the Company's position that it would have discharged them before the date of the election were it not for the fact that it was advised by counsel that such action on its part might leave it open to charges of unfair labor practices." Discharges for cause are not proscribed by the Act, however. Furthermore, the evidence clearly shows that after the Company had informed the Board agent at the conference of April 9, 1946, that a number of maintenance workers were to be discharged before the election, it agreed with the Union not to separate any of these employees before the election was conducted. From these cir- cunistances, we conclude that the 17 maintenance workers were eligible voters, and we hereby overrule the challenges to their ballots'0 We shall direct that the ballots of Walter Gilbert, Preston Downs, Howard Miller, Willard Odenbeck, Frank Satulla, Stanley Wilheim, Charles Danza. Kandy Lanko, Joseph Rayman, George Leancie, John R. Schnurr, Jr., Ray Schrader, Charles McGill, Paul H. Wockenfuss, Melvin Zeigler, Clyde Morton, and Herbert M. Triplett, hereinabove found to be valid, be opened and counted. DIRECTION 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 8 On April 30, the Company dischaiged 15 maintenance employee,, and 2 quit of their own volition , 1 of the 2 maintenance workers who voluntarily left the Company's employ was paid until April 30, although he ceased working on April 27. The ballots of these 17 employees aie the challenged votes under consideration I The Union filed its petition herein on March 29, 1946. 10 We observe in passing that , had we reached a contrary conclusion , as requested by the company, the Union would have been entitled to certification without further ado THE NATIONAL PLASTIC PRODUCTS COMPANY 293 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The National Plastic Products Company, Odenton, Maryland, the Regional Director for the Fifth Region shall, pursuant to said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the challenged ballots of Walter Gilbert, Preston Downs, Howard Miller, Willard Odenbeck, Frank Satulla, Stanley Wilheim, Charles Danza, Kandy Lanko, Joseph Rayman, George Leancie, John R. Schnurr. Jr., Ray Schrader, Charles McGill, Paul H. Wockenfuss, Melvin Ziegler, Clyde Morton, and Herbert M. Tripplett, and shall thereafter prepare and cause to be served upon the parties a Supple- mental Tally of Ballots, including therein the count of these challenged ballots.