Container Manufacturing Co.

In the Matter of CONTAINER MANUFACTURING Co11rANY and AMERICAN FEDERATION OF LABOR AND AFFILIATED INTERNATIONAL UNIONS Case No. 14-R-1409.-Decided July 26, 1946 Mr. Jack B. Schiff, of St. Louis, Mo., for the Company. Bartley ct Bartley, by Mr. William H. Bartley and Messrs. Ralph Schnebelin and Joseph Kirby, of St. Louis, Mo., for the Casket Workers. Margaret H. Patterson, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by the American Federation of Labor and affiliated International Unions, herein called the AFL, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Container Manufacturing Company, St. Louis, Missouri, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Harry G. Carlson, Trial Examiner. The hearing was held at St. Louis, Missouri, on May 17 and 18, 1946. On April 30, 1946, Casket Workers Local Union No. 187, affiliated with Upholsterers Inter- national Union of North America, AFL, herein called the Casket Workers, filed with the Regional Director a motion to intervence which was referred to the Trial Examiner for ruling. In a letter dated May 3, 1946, to the Regional Director of the Fourteenth Region, the AFL stated that it had no further interest in the case and desired to withdraw from the proceeding, allowing the Casket Workers to proceed upon the petition. The Regional Director, by issuing a notice of hearing on May 7, 1946, in effect granted this request.' The hearing was held at St. Louis, Missouri, on May 17 and 18, 1946. The Coin- ' The AFL did not appear at the hearing nor did it request withdrawal of its petition. At the hearing on May 17, the Trial Examiner formally granted the Casket Workers' motion to "intervene." 69 N. L. R. B., No. 119. 977 701592-47-vol. 69-63 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany and the Casket Workers appeared and participated.2 All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded full opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. TIIE BUSINESS OF THE COMPANY Container Manufacturing Corporation, St. Louis, Missouri, is en- gaged in the manufacture of paper punch boards. It maintains an office and place of business at 1825-1833 Chouteau Avenue, St. Louis, Missouri. Its principal raw material consists of paper board. A former shipping department employee 3 testified, and we credit his testimony, that the Company is currently producing about 3,000 punch boards daily of which about 90 percent is shipped to points outside the State of Missouri. This same witness testified that the shipping department foreman had stated that the sales for April 1946 amounted to $100,000. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. II. TILE ORGANIZATION INVOLVED Casket Workers Local Union No. 187, affiliated with Upholsterers International U;lion of North America, AFL, is a labor organization admitting to membership employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Casket Work- ers as exclusive bargaining representative of the employees involved herein. We find that a question affecting commerce has arisen concerning the representation of the employees of the Company, within the mean- ing of Section .9 (c) and Section 2 (6) and (7) of the Act. 9 The Company appeared specially to object to the hearing on the ground that it was entitled to official notice, prior to the hearing, of the withdrawal of the petitioner, but with- out altering its claim of special appearance, it participated in the bearing by making objec- tions to the evidence introduced by the Casket Workers, by extensive cross-examination of witnesses, by requesting continuance of the hearing, and by submitting evidence at the close of the Board's case. The Company's objection to the substitution of the Casket Workers for the AFL was properly overruled by the Trial Examiner. The Company was not prejudiced by proceeding to the hearing inasmuch as it had ample notice of the Casket Workers' motion to intervene and no new issues were raised by the failure of the AFL to appear. 3 This witness testified that he had left the Company's employ at 9: 30 of the morning of the hearing. Ile had worked for the Company for approximately 9 months. CONTAINER MANUFACTURING COMPANY IV. THE APPROPRIATE UNIT 979 The Casket Workers requests a unit of all production and mainte- nance employees of the Company except for clerical and office em- ployees and full-time supervisors with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action. The Company contends that the unit should include office and cleri- cal employees and all foremen and foreladies of the Company on the ground that all these employees participate in production. Office and clerical employees The Company's contention with respect to the inclusion of office and clerical employees is without merit. We shall accordingly ex- clude these employees, inasmuch as the Company has introduced no evidence warranting a departure from our usual policy of excluding such employees from production and maintenance units.' Foremen and foreladies The Company employs approximately eight foreladies and foremen. The Union contends that these supervisors are actually working super- visors spending a majority of their time in actual production and should accordingly be included in the production and maintenance unit. The Company contends that foremen and foreladies should be included regardless of whether or not they are working supervisors. It appears that the foremen and foreladies do spend a major part of their time in actual production . On the other hand the record re- veals that these employees make effective recommendations to the plant superintendent concerning raises , transfers, and discharges. It fur- ther appears that the wages of these employees are substantially higher than that of other employees in their respective departments. We find that the foremen and foreladies are supervisory employees as usually defined and shall accordingly exclude them from the unit hereinafter found appropriate. Lead girls There are a number of so-called lead girls in several of the depart- ments. Although in the absence of the foremen or foreladies the lead girl is placed in charge of the department , her work generally is no different from that of other employees , she does not have the authority to make effective recommendations with respect to other employees, and she does not receive substantially higher wages . We shall include lead girls in the unit. ' Matter of Cushman Motor Works, 66 N. L. R . B. 1413 ; Matter of American Central Manufacturing Corporation . 65 N. L . R. B. 342. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all production and maintenance employees of the Com- pany including lead girls, but excluding office and clerical employees, foremen and foreladies, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend 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 We find that the question which has arisen concerning the represen- tation of employees of the Company can best be resolved by an elec- tion by secret ballot. On March 7, 1946, 40 employees of the Company struck in protest against the discharge of an employee who had recently become a member of the Casket Workers. The record discloses that 36 of these employees are still not working and that their jobs have been filled by replacements. A Board witness testified that the 36 employees had requested reinstatement and had been refused. On May 15, 1946, the Casket Workers filed with the Board a charge 5 alleging that the Company had violated Section 8 (1) and (3) of the Act in respect to these transactions. The Casket Workers contends that the strikers should be eligible to vote in the election but that the replacements should not be entitled to vote. The Company contends that the strikers quit voluntarily and should be ineligible to vote, whereas the replace- ments were hired in the normal course of business and should be eligible to vote. In accordance with our established custom, we shall allow those employees concerning whorl the 8 (3) charges are now pending, and any who are not working because of a current labor dispute, to partici- pate in the election, by casting separate sealed ballots to be opened and counted by the Regional Director only if determinative of the election results, in which latter event, the final disposition of the ilastant case will await the outcome of the unfair labor practice pro- ceedings 6 With respect to the replacements, we cannot now determine whether such employees were hired to replace workers out on strike or, if that be true, whether in view of the unfair labor practice charges now pending before the Board, they would constitute valid replace- ments with permanent employee status. We shall, therefore, direct an immediate election permitting all employees to participate who were employed during the pay-roll period immediately preceding the 'Case No. 14-C-1176. On the same day the Casket Workers filed with the Board's Regional Office a waiver agreeing not to object to the election on the basis of the acts and conduct alleged in the pending charge. 9 Matter of Rudolph Wurlitxer Company, 32 N. L. R. B. 167; Matter of Beckwith Ma- chinery Company, 60 N. L. it. B. 521 : Matter of Longhorn Roofing Products, !no., 87 N. L. it. B. 84; Matter of Columbia Pictures Corporation, 64 N. L. R. B. 490. CONTAINER MANUFACTLTRING COMPANY 981 date of this Direction. All persons hired since March 7, 1946, the date of the strike, will be presumptively eligible to vote subject to the right of challenge.' The AFL has indicated that it does not wish to participate in an election. 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 Re- lations Board Rules and Regulations-Series 3, as amended, it is hereby DiRE'crED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Container Manu- facturing Company, St. Louis, Missouri, 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 super- vision of the Regional Director for the Fourteenth Region, acting in this platter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, of said Rules aii.d Regulations, among 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 were on strike at that time, and any persons alleged to have been discriminatorily discharged, and 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 those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to de- termine whether or not they desire to be represented by Casket Work- ers Local Union No. 187, affiliated with the Upholsterers International Union of North America, AFL, for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election. * Matter of Columbia Pictures Corporation, 61 N. L. R. B. 1030, 64 N. L. R. B. 490; Matter of Longhorn Roofing Products , Inc., supra.