Celluloid Corp.

In the Matter of CELLULOID CORPORATION and LOCAL 277, TEXTILE WORKERS UNION OF AMERICA Case No. R-1889.-Decided July 19, 1940 Jurisdiction : plastic manufacturing industry. Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union; contract extended and expressly subject to Board action, no bar to ; election necessary. Employees in the appropriate unit who have been laid off not more than 1 year and are subject to reemployment in the order-of their seniority held eligible to vote since the record discloses that such ,employees'have a sub- stantial interest in the outcome of the election. Requests of intervenor, acceded to by a federal local union also party to the proceeding, both affiliated with the A. if. of L., that they be jointly designated on the ballot as A. F. of L. granted over objection of petitioning union. Unit Appropriate for Collective Bargaining : all employees of the Company at one of its plants, exclusive of office and clerical employees, outside salesmen, salaried executive employees, and those eligible for membership in specified craft unions. Practice and Procedure: Since unit found appropriate is broader than that requested by petition- ing union, and since rival union desires dismissal of petition, petition will be dismissed if petitioner files notice within 5 days of receipt of Direction of Election that it does not desire to proceed with an election. Mr. Martin I. Rose and Mr. Christopher W. Hoey, for the Board., Mr. John E. Dwyer, of Washington, D. C., for the Company. Isserman, .Isserm"a"n; ,&, Kapelsohn,'of Newark, N. J. by Mr. Sol D. Kapelsohn, for the T., W. U. A. Mr. Kermit L. Parsonnet and Mr. Thaddeus J. Burns, of Newark, N. J. for Local •21907. Mr. David Clydesdale, of Newark, N. J. and Mr. Paul Hutch- ings, of Washington, D. C., for the I. A. M. Mr. Edward Scheunemann, of counsel to the Board. 25 N, L. R. B , No. 77. 711 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF, ELECTION STATEMENT OF, THE CASE On February 1, 1940, Local 277, Textile Workers Union of Amer- ica, herein called the T. W. U. A., filed with the Regional Director for the Second Region (New York City), a petition alleging that a -question affecting commerce had arisen concerning the representa- tion •of employees of Celluloid Corporation, Newark,.•New Jersey, herein called the Company, and requesting an investigation and cer- ,tification of representatives pursuant to Section '9, (c)' of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act.- On April 16, 1940, the National Labor Relations Board, herein called the Board, issued an order dismissing the petition. On May 1, 1940, the Board issued an order revoking the order dismissing the .petition, and, acting pursuant to Section 9 • (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, ordered an investigation, and authorized ,the Regional Director to conduct it and to provide for an appropri- ate hearing upon due notice. On May 13, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, Cellulose Workers of America, Local Union No. 21907, A. F. of L., herein called Local 21907, and the T. W. U. A. Pursuant to the notice, a ,hearing was held' on'May; 24'and' 31,`and June 13, 1940, at Newark, New Jersey, ` before C. V. 'W6•ittemo°re, .,the Trial Examiner duly designated by the Board. On May 31, 1940, International Associa- tion of Machinists, herein called the I. A. M., claiming an interest in the'proceeding,.petitioned for,permission.to intervene. The^.Trial Examiner granted the petition. The Board, the Company, the T., W. U. A. and Local 21907 were, represented by counsel, 'and the I. A. M. by a union official. All participated, in- the hearing and were afforded full opportunity to" be heard, to examine and cross- examine witnesses, and to, introduce evidence bearing on the issues. During the course of the he siring,; the, Trial. Examiner ,made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings' of'the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 27, 1940, the Company and Local 21907 filed briefs with the Board. On July 2, 19,40, pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral arau- CELLULOID CORPORATION 713 ment. All parties were represented by counsel and presented argu- ment. Upon the entire record in the case,-the Board makes the following : FINDINGS of FACT 1. THE BUSINESS OF TIE COMPANY Celluloid Corporation, a New Jersey corporation with its princi- tpal offices in Newark, New Jersey, is engaged in the manufacture and sale of plastics, such as celluloid, cellulose acetate sheets, rods, tubes, molding powder, films, foils, and related products. The Company maintains sales offices in New York City; Chicago, Illinois; Detroit, Michigan; Leominster, Massachusetts; Los Angeles and San Fran- cisco, California; and St. Louis, Missouri. The Company employs approximately 1,512 persons in its Newark, New Jersey, plant. During the year 1939, the Company purchased materials valued in excess of $1,000,000 and obtained approximately 90 per cent in value of such materials' from States other than New Jersey. During the same period it sold finished products valued in excess of $3,000,000 and it shipped approximately 90 per cent in value of such products outside the State of New Jersey. The Company admits that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act and that it is subject to the jurisdiction of the Board. IT. THE ORGANIZATIONS INVOLVED Local 277, Textile Workers Union of America is a labor organiza- tion affiliated with the Congress ,of Industrial Organizations. It admits to membership production employees of the Company. Cellulose Workers of America, Local Union, No. 21907, is a labor organization affiliated 'With the American Federation of Labor. It admits to' Inembership'employees,of the;Company.. International Association of Machinists is a labor organiz ation' affiliated with the American Federation of Labor. It admits to membership maintenance employees of the Company. III.' THE QUESTION CONCERNING REPRESENTATION In December 1939, and in January 1940, the T. W. U. A. sought to bargain collectively with the Company on behalf of the production' workers.. ,The Company refused to bargain with the T. W. U. A. because it had a contract with Local, 21907 which did not expire until May 14, 1940. The contract has now expired and has been extended , "on a weekly basis . . . pending a final determination by the Board of the present representation case." 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company, on April 28, 1940, employed approximately 1,120 employees in the unit found below to be appropriate. There was introduced in evidence at the hearing an analysis made by the Re- gional Director showing that the T. W. U. A. had submitted to her 309 authorization cards, of which 163 were signed between October and December 1939, and 142 between January- and May 1940,' and that all bore apparently genuine signatures of persons on the l:om- pany's pay roll of -April 28, 1940. -Thhe -analysis -of the' Regional = Director shows further -that Local 21907-had -submitted- to her 718 applications for membership, of which 601 were signed between Jan- nary and March 1939,'35 between April and June 1939, 12 between July and September 1939, and 46 between October and December 1939,2 and that all of them bore apparently genuine signatures of persons on the Company's pay roll of April 28, 1940. We find that a question has arisen concerning the, representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The T. W. U. A. contends that the production and shipping de- partment employees, excluding foremen, assistant foremen, super- visory employees, clerical and office workers, salaried employees,, timekeepers, janitors, watchmen, teamsters and chauffeurs, garage mechanics and helpers, safety inspectors, storeroom employees, elec- tricians, carpenters, pipe fitters, plumbers, painters, riggers, masons, welders, powerhouse engineers and firemen, checkers, development and research employees, sales force, lead burners, maintenance men, employees in the S. R. S. department, and-all construction and other employees engaged for present building operations, constitute an appropriate unit. Local 21907 contends that all employees except office and clerical help, outside salesmen, employees eligible for mem- bership in the International Brotherhood of Teamsters, Chauffeurs, Stablemen, and Helpers, the International Union of Operating Engi- 1 4 were undated. • 24 were undated. CELLULOID CORPORATION 715- neers, or the International Brotherhood of Firemen, Oilers, and Helpers, and executive salaried employees should be included in an appropriate unit.3 In February 1939 the T. W. U. A., and Local 21907, agreed to a consent election to be conducted by the Regional Director. The un- ions were not in. agreement concerning the employees who should be eligible to vote, `but agreed to abide by the determination of the Regional Director. She decided that the employees eligible to vote should be substantially those who, the T. W. U. A. now contends, constitute an appropriate unit. Local 21907 received a majority of the valid votes cast in the election and on May 10, 1939, entered into a collective bargaining contract with the Company covering-all the employees who, Local 21907, now contends, jonstitute an appropriate unit. The contract expired May 14, 1940, and has been extended as- heretofore noted. Local 21907 has bargained concerning wagger, hours, and conditions of employment for the employees whom the T. W. U. A. would ex- clude from the unit, has presented grievances to the management on, their behalf, and has submitted cards to the Regional Director show- ing substantial membership among those employees. The T. W. U. A. contends that the watchmen, checkers, mainte- nance men, and others whom it would exclude perform a type of- work different from that of the production employees and.have inter- ests in wages, hours, and working conditions divergent from those of the production employees. Both groups are essential to the pro-- duction process. The employees whom the T. W. U. A. would in- clude do not constitute a clearly defined craft group separate and apart from those whom it would exclude. There are some differ- ences in wage differentials, bonus payments, and working conditions- between the two groups. Generally, however, the same working- conditions obtain, and there- is no proof that the differences existing- between the employees whom the T. W. U. A. would exclude and those that it would include constitute an obstacle to successful col- lective bargaining, or that the bargaining which,has proceeded on- the basis of the broader unit requested by Local 21907 has been. ,ineffective .4 The contention of the T. W. U. A. is based further upon the as- serted fact that.it does not admit to membership the employees whom- ' At the hearing the I. A M. contended, in opposition to Local 21907, that the main- tenance employees constituted an. appropriate unit and should be separated from a unit- composed of production employees . In oral argument before the Board , the attorney for- the I. A. M.-stated, in substance , that for purposes of this proceeding, it would take no position with respect to the appropriate unit ' See Matter of, Hat Corp. of Amer. and United Hatters, Cap, and Millinery Workers Int'l Union, 11 N, L. R. B. 1206 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it seeks to exclude." Were it the only labor organization seeking to represent the employees herein, its contention would have merit. It is undisputed, however, that Local 21907 has organized and repre- sented employees whom the T. W. U. A. would exclude. We conclude on the basis of the bargaining history in the plant, the essential similarity of hours, wages,., and, conditions of..employ- ment among the employees in the broader unit, and the opportunity for representation of more employees which it affords, that the broader unit for which Local 21907 contends is appropriate, and that sought by the T. W. U. A. is not appropriate. We find that all employees of the Company in its Newark, 'New Jersey, plant, exclusive of office and clerical employees, outside sales-' men, salaried executive employees, and those eligible for membership in the International Brotherhood of Teamsters, Chauffeurs, Stable- men and Helpers, the International Union of Operating Engineers, or the International Brotherhood of Firemen, Oilers, and Helpers constitute a unit appropriate for purposes of collective bargaining, and that such unit will insure to the employees' of the Company.-the- full benefit of their right to self organization and to collective bar- gaining and otherwise effectuate the,policies of the Act. VI. THE DETERMINATION OF 'REPRESENTATIVES We find that the question which has arisen concerning representa- tion can best be resolved by the holding of an election by secret bal- lot. We shall, accordingly, direct an election among the employees in the unit which we have found to be appropriate. Since such unit, however, is broader than that requested by the petitioning union, the T. W. U. A., and since Local 21907 desires the dismissal of the peti- tion, we shall dismiss the petition if the T. W. U. A. files with the Board within 5 days from the receipt of this Decision and Direction of Election-notice that it does not desire to proceed with an election among the employees in the unit herein found to be appropriate. In oral argument before the Board, the I. A. M. requested that in the event of an election the name "American Federation of Labor," rather than that of its affiliates, the I. A. M. and Local 21907, be placed on the ballot. The T. W. U. A. does, and Local 21907 does not, oppose this request. The request is based on the existence of a jurisdictional dispute between Local 21907 and the I. A. M. concern- ing representation of the maintenance employees of the Company. 'Should the broad designation "American Federation of Labor" be placed on the ballot and win the election, the I. A. M. could, within the American Federation of Labor, pursue its claim to jurisdiction 5 The T. W. U. A. contended that it restricted its membership by virtue of an oral :agreement'with,c -ertain organizations of America Federation of Labor craft unions .. Neither, :Local 21907 nor the I A . M. were parties to the agreement. I CELLULOID CORPORATION 717 of the maintenance employees either in opposition to, or by consent of, Local 21907, which is also affiliated with the American Federation of Labor. Since both unions affiliated with the American Federa- tion of Labor are agreeable to the designation suggested by the I. A. M., we shall grant its request. Local 21907.requested.,that 'eligibility to vote in the election should- be determined by one of the January 1940 pay rolls of the Company. The T. W. U. A. requested that the pay roll following the last day of the hearing be used. The record discloses that the number of employees fluctuates from a peak employment of approximately 1,800W persons employed in the fall to approximately 1,600 persons em- ployed from April to July, and counsel for the Company stated in oral argilment before the Board that the number of persons employed is now increasing. Under the circumstances, we believe that a cur- rent hay roll should be used. In accordance with our usual practice- we shall direct that the pay roll date immediately preceding the date of the Direction of Election be used to determine the eligibility of employees to vote in the election. Employees who have been laid off not more than 1 year are subject to reemployment in the order of their seniority.° Since the record discloses that the employees in the appropriate unit, who are on the 1-year list, have a substantial interest in the outcome of the election,- we shall direct that they be eligible to vote. We find that those eligible to vote in, the election shall be em- ployees in.the appropriate unit who were employed during the pay- roll period immediately preceding the date of our Direction of Elec- tion, including employees who had been -]aid off during the year immediately preceding said pay-roll period, those who did not work during said pay-roll period because they were ill or on vacation, and_ employees who were then or have since been temporarily laid. off, but excluding those employees who have since quit or been discharged for- cause. 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 Celluloid Corporation, Newark, New Jer- sey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 6 Such employees must make application through the , personnel department if they- have been, laid off for a period of more-than- 6 weeks ; those who have been laid -off for- a period of less than 6 weeks are carried on the pay roll and are subject to recall by their foremanAn the orders of seniority. 7 See Matte) of Federal Screw iVorks and Local 171,, etc, 21 N L R R 100. 718 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD 2. All the employees of the Company in its Newark , New Jersey, plant, excluding office and clerical employees , outside salesmen, sal- aried executive employees , and those eligible for membership in the International Brotherhood of Teamsters , Chauffeurs , Stablemen, and Helpers, the International Union of Operating Engineers , or the In- ternational Brotherhood of Firemen , Oilers, and Helpers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (c) 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Celluloid Corporation, Newark, New Jersey, an'electioii by-se-" cret 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, act- ing in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, -among all the employees of the Company in_ its Newark , New Jersey, plant, who were employed during the pay-roll period immediately preceding the date of this Direction , including those who have been -laid off during the year immediately preceding said pay -roll period, those who did not work during said pay-roll period because they were ill or on vacation , and -those who were then or have since been -temporarily laid off, but excluding office and clerical employees, out-' -side salesmen, salaried executive employees , employees eligible for -membership in the International Brotherhood of Teamster's'; `Chatif- feurs, Stablemen , and Helpers , the International Union of Operat- ing Engineers, or the International Brotherhood of Firemen , Oilers, and Helpers, and employees who have since quit or been discharged for cause , to determine whether they desire to be represented by Lo- cal 277, Textile Workers Union of America , or by American Federa- tion of Labor, for the purposes of collective bargaining, or by neither. MR. WIIS.IAII M . LEISERSON took no part in the consideration of the above Decision and' Direction of Election. CELLULOID CORPORATION 719 [SAME TITLEJ AMENDMENT TO DECISION AND DIRECTION OF ELECTION July 07, 1940 On July 19, 1940, the National Labor Relations Board, herein ,called the Board , issued a Decision and Direction of Election in the above-entitled proceeding . The Board stated therein that it would "dismiss the petition if the T. W. U. A. files with the Board within 5 days from the receipt of this Decision and Direction of Election notice that it does not desire to proceed with an election among the .employees in the unit herein found to be appropriate." The Board hereby amends its Decision and Direction of Election by striking therefrom the words "within 5 days from the receipt of this Decision and Direction'of Election" and substituting therefor the words "within 8 days from the receipt of this Decision and Di- rection of Election." M. WILLIAM M. LEISERSON took no part in the consideration of the above amendment to Decision and Direction of Election. 25 N. L. R. B., No. 77a.