Race Brothers

In the Matter - of HERMAN RACE, Louis RACE, JACK RACE, AND-HFZMN RACE, INDIVIDUALLY AND AS COPARTNERS, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF RACE BROTHERS and INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, LOCAL 286 Case No. R-1797-Decided May 16, 1940 Paper Box Manufacturing Industry-Jurisdiction: controversy as to; held, Act is applicable to Company-Investigation of Representatives : controversy concern- ing representation of employees : rival unions ; contract , where Company informed of membership claims of rival union prior to period prescribed for notice of termination, no bar to-Unit Appropriate for Collective Bargaining : regular production and maintenance employees excluding supervisory employees ; four persons excluded as temporary employees-Representatives : eligibility, to partici- pate in choice : employee as to whom there is reason to presume will be reem- ployed when his services are required-Election Ordered: eligibility to vote determined as of pay roll immediately preceding date of Direction of Election. Mr. Jerome I. Macht, for the Board. Mr. Edward Unterberger, of Philadelphia, Pa., for the Company. Mr. Louis H. Wilderman, of Philadelphia, Pa., for the A. F. of L. Mr. Nathan Ziserman, of Philadelphia, Pa., for the C.. I. O. Miss Margaret Holmes, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 19, 1940, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local 286, affiliated with the American Federation of Labor, herein called the A. F. of L., filed with the Re- gional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition, and on March 25, 1940, an amended petition, alleging that a question affecting commerce had arisen concerning the representation of employees of Herman Race, Louis Race, Jack Race, and Helen Race, individually and as copartners, doing business under the firm name and style of Race Brothers, herein called the Company, and requesting an investigation and certification of representatives pur- 23 N. L. R. B., No. 92. 868 HERMAN RACE 869 suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 28, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) -of the Act and Article III, Section 3, of National Labor Relations Board- Rules, and', Regulations-Sorios', 2; 'as amended, ordered an in- vestigation and directed the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On March 30, 1940, the Regional, Director issued a notice of hear- ing, copies of which were duly served upon the Company, the A. F. of L., and United Paper Workers of America, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., a labor organization claiming to represent employees directly affected by the investigation. On April 3, 1940, the Regional Director issued an order denying a motion by the C. I. O. to postpone the hearing, without prejudice to renewal of such motion before the Trial Examiner. Pursuant to the- notice, a--hearing:-was held on April, 8, 15, 16,- and 17, 1940, at Philadelphia, Pennsylvania, before P. H. McNally, the Trial Examiner duly designated by the Board. The C. I. O. filed a petition to intervene which was granted by the Trial Examiner. The Board, the Company, the A. F. of L., and the C. I. O. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. -Att-the commencement of the hearing=the C. I. O. renewed. its mo- tion, previously made to and denied by the Regional Director, for a continuance of the hearing.- The Company joined in this motion. The, Trial Examiner denied the motion and his ruling is hereby affirmed. The Trial Examiner admitted in evidence an answer to the petition offered by the Company. During the course of the hear- ing the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed.. The Com- pany, the A. F. of L., and the C. I. O. filed- briefs with the 1 Board, which have been fully considered. Upon the entire record in the case, the Board makes 'the following : 1 The motion for a continuance was made on the grounds previously urged before the Regional Director , which do not appear in the record, and on the further ground that additional time might result in a settlement of,the dispute. 283034-41-vol 23-56 870 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a copartnership composed of Herman Race, Louis Race, Jack Race, and Helen Race, who do business under the name and style of Race Brothers. It is engaged in the manufacture, sale, and distribution of folding paper boxes at a place of business located in Philadelphia, Pennsylvania. In 1939 and during the first 3 months of 1940, the Company pur- chased $51,420.40 worth of raw materials, consisting principally of paperboard. Of this amount, approximately 12 per cent was pur- chased and shipped to the Company from mills located outside the State of Pennsylvania.2 During the same period the Company man- ufactured and sold about seven million boxes, its total sales amount- ing to $47,698.60. Of these sales, from 1 to 2 per cent were made to customers located in States other than Pennsylvania and the boxes sold were shipped to the out-of-State purchasers from the Company's plant. ' The business described above constituted about one-third of the total operations of the Company. The principal portion of the Company's business consists of the processing of paperboard and the manufacture of boxes therefrom, for and on behalf of David Back, a Philadelphia box broker. In 1939 and during the first 3 months of 1940, two-thirds of the total operations of the Company constituted boxes made for and on behalf of Back. During this period, Back purchased 1,200 tons of paperboard, amounting to an expenditure of $54,223.78. Twenty per cent of this expenditure represented pur- chases of board from mills located outside the State of Pennsylvania, principally in New Jersey. All of the board, including that pur- chased outside the State, was shipped to the company plant direct from, the mills and was unloaded and stored by the Company on its premises. During this period Back sold $13,050.87 worth of the board so purchased, the Company buying $12,001.75 worth of the board for the manufacture of boxes on its own account, and other concerns in Philadelphia buying '$1,049.12 worth of the board. The remaining $31,172.91 worth of board was processed and manufactured into 12,797,931 boxes by the Company on the order of Back. Back paid the,Company about $18,000 for such processing. Back sold ap- 2 The Company purchased $39,418.65 worth of raw materials directly from various paper mills ; $3,800 worth of these came from mills, outside Pennsylvania. In addition, the Company purchased $12,001.75 worth of paperboard from David Back, a box broker who purchases and imports about 20 per cent of his yearly supply of paperboard from mills located outside Pennsylvania. HERMAN, RACE 871 proximately $72,000- worth of the boxes thus manufactured by the Company; about 28 per cent of his sales were made to concerns lo- cated outside the State of Pennsylvania.3 These boxes were packed by company employees and either delivered to Back's customers in company trucks, or picked up at the Company's plant by Back's customers. Shipments from the Company's plant occurred on the average of every 3 or 4 days. In the conduct of all its operations, the Company employs about 20 employees. The Company contends that it is not engaged in interstate com- merce within the meaning of the Act. We disagree with this con- tention. There exists a substantial flow of raw materials over State lines to the Company's plant, and a similar flow of finished products from the Company's plant to destinations outside the State. It is immaterial that title to a portion of both the raw materials and the finished products resides in Back. We find that the Act is applicable to the Company.' II. THE ORGANIZATIONS INVOLVED Internatiolial Brotherhood of Pulp, Sulphite and Paper Mill Workers is a labor organization chartered by the American Federa- tion of Labor. It admits to membership persons engaged as produc- tion and maintenance employees by the Company, exclusive of super- visory officials. United Paper Workers of America is a labor organization char- tered by the Congress of Industrial Organizations. It admits to membership persons employed by the Company as production and maintenance workers, exclusive of supervisory officials. M. THE QUESTION CONCERNING REPRESENTATION On April 27, 1939, the Board issued a Decision and Order 5 in which it ordered, among other things, that the Company, upon request, bargain collectively with the C. I. O. Thereafter, the com- pany and the C. I. O. entered into an agreement covering wages, hours, and conditions of work for the employees of the Company." $ Back's total sales, including board and boxes, amounted to $84,945.51 . Back testified that 28 per cent of these were made and shipped to out-of-State concerns . Inasmuch as all the board sold by Back was purchased by Philadelphia customers , the 28 per cent of interstate sales and shipments obviously refers to boxes made by the Company for and on behalf of Back. 4 See National Labor Relations Board v. Fainblatt , 306 U. S. 606; National Labo, Relations Board v. Sunshine Mining Company, 110 F. ( 2d) 780 (C. C. A. 9). See also Section IV, below. 5 Matter of Herman Race, Louis Race, Jack Race, and Helen Race, individually and as copartners doing business under the firm name and style of Race Brothers and United Paper Workers of America, C. I. 0., 12 N. L. R. B 538. $ The agreement was entered into on or about April 30. 1949 However, it bears the date of March 28, 1939. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The agreement also provided fora closed shop and the check-off of C. I. O. dues. The expiration date of the agreement was March 28, 1940. On February 7, 1940, representatives of the A. F. of L., together with one Ash, a field organizer for the C. I. 0., informed the Com- pany that 16 employees of the Company had joined the A. F. of L.; which was authorized to collect the dues of the employees in the future. On March 4 Henry Segal, secretary of the A. F. of L., telephoned the Company and arranged a conference for March 7 to negotiate an agreement. The conference was held on March 7 in the offices of David Back. The A. F. of L. presented •a proposed agreement to the Company and Back, and there followed a general discussion of working conditions. A serious dispute occurred over a wage increase requested by the A. F. of L. No agreement was concluded at this conference. On March 8, 1940, the company bookkeeper sent the A. F. of L. a check to cover the dues of the employees. On March 11, 1940, the Company informed the A. F. of L. that it was precluded from con- tinuing negotiations for an agreement because its contract with the C. I. O. was still in force. No further negotiations were had be- tween the Company and the A. F. of L. The Company and the C. I. O. maintain that there is a contract existing between them covering conditions of work for the Com- pany's employees which constitutes a bar to an investigation of representatives. The 1939 contract contained a provision, for auto- matic renewal in the event that neither party thereto terminated it by notice in writing at least 30 days before March 28, 1940. Neither the Company nor the C. I. O. has given such written notice. How- ever, the A. F. of L. notified the Company of its membership claims more than 30 days before the expiration date of the contract between the ' Company and the C. 1. O. The Company apparently ' credited the assertion of the A. F. of L. representatives that the A. F. of L. had 16' members since its bookkeeper checked, off dues- for the em- ployees to the A. F. of L. for the month of March 1940, and since the Company conducted negotiations with a view toward ekecnti'ng a contract with the A. F. of L. on March 7, 1940. We find that the Company had notice that the A. F. of L. claimed to represent its employees before and on the date it claims its 'contract with the C. I. O. was renewed. We therefore find that the contract constitutes no bar to an investigation of representatives.? We find that a question has arisen concerning the representation of the employees of the Company. T See Matter of Colonie Fibre Company, Inc and Cohoes Knit Goods Workers Unton No. 21514, A. F. of L., 9 N. L. R B. 658. , , BERMAN RACE 873 IR.-,THE EFFECT OF THE QUESTION , CONCERNING REPRESENTATION ON COMMERCE, We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- Inerce and the free flow of commerce. V. THE APPROPRIATE UNIT All parties agree that the unit appropriate for the purposes of collective bargaining should consist of the Company's regular pro- duction and maintenance employees, exclusive of supervisory officials. The A. F. of L., however, contends that five persons should be ex- cluded from the unit because they are extra or temporary employees. The Company and the C. I. O. dispute the claim that these persons are temporary employees and insist on their inclusion in the unit. All ,paaGies».agree•.that Gertrude-Race, the.-Company's bookkeeper, should be excluded from the unit. The five persons whose status is disputed were hired about March 14, 1940, as a night shift. They worked for 2 weeks and were then laid off by the Company. The occasion for their employment is contested in the record. The Company asserts that a machine broke clown and consequently it was necessary to work a night crew until the machine was repaired." The A. F. of L. claims that the Com- pany employed extra help for 2 weeks to enable it to enlarge its stock in expectation of a labor dispute among the employees. With- out determining the validity of either contention, we find that the employment of these persons was temporary. The record shows that four' of the five persons hired on March 14, 1940, namely, James Crawford, Arthur Ott, Edward Sparks, and Frank Sparks, have little, if any, expectancy of reemployment. Crawford and Ott, although they had worked for the Company in 1938, received no employment during the year 1939 and were hired for only 2 weeks in the first 3 months of 1940. Edward Sparks and Frank Sparks had never worked for the Company prior to the 2 weeks' employment they received in 1940. The parties stipulated that 19 other employees whose names appeared on the pay roll of February 28, 1940, are regular production and maintenance em- ployees. The record does not show that any of these received as little as 2 weeks' employment in 1939 and 1940. We therefore find 8 The record shows, however, that the machine in question was repaired prior to the employment of these persons. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that James Crawford, Arthur Ott, Edward Sparks, and- Frank Sparks are temporary employees who, should be excluded from the unit. The fifth person hired on March 14, 1940, was Edward Cullen. He had worked for the Company about 5 years on the following basis : Each October Cullen quits the Company's employ to take a position with a lithographing plant which pays him a higher salary than he receives from the Company. This position expires after Christmas of each year, and thereafter the Company hires him when there is work available. Although Cullen worked only 2 weeks dur- ing the first 3 months of 1940, in view of his past relationship with the Company there is reason to presume that he will be reemployed when his services are required by the Company: We therefore find that Edward Cullen should be included in the unit. We find that all regular production and maintenance employees of the Company, exclusive of supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Both the A. F. of L. and the C. I. O. claim to represent a majority of the employees in the appropriate unit. A check by the Regional Director of their membership claims indicates that both unions have a substantial following among the Company's employees. We find that an election by secret ballot is necessary to determine the proper representative for collective bargaining and thus resolve the question concerning representation. We shall direct that the employees in the appropriate unit who were employed during the pay-roll period last preceding the date of our Direction of Election, including the employees who did not work during such pay-roll period because they were ill or on vaca- tion, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote in the election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Herman Race, Louis Race, Jack Race, and Helen Race, individually and as copartners, doing business under the firm name and style of Race Brothers, Philadelphia, Peimsylvania, HERMAN RACE 875 within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the regular production and maintenance employees of the Company, exclusive of supervisory officials, constitute a unit appro- priate for the purposes of collective -bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Herman Race, Louis Race, Jack Race, and Helen Race; indi- vidually and as copartners, doing business under the firm name and style of Race Brothers, Philadelphia, Pennsylvania, 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 Fourth Region, acting in this matter as agent for the National Labor Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all regular production and maintenance em- ployees of the Company, who were employed by the Company during the.pay; roll period last preceding the date of this Direction, including employees who did not work during such period because they were ill or on vacation and those who were then or have since been tem- porarily laid off, but excluding supervisory officials and those who have since quit or been discharged for cause, to determine whether they desire to be represented by International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local 286, affiliated "with the American Federation of Labor, or by United Paper. Workers of America, affiliated with the Congress of Industrial Organizations, or by neither.