Elk Tanning Co.

In : the' Matter ; of ELK TANNING : COMPANY and INTERNATIONAL 'FUR AND LEATHER WORKERS' UNION, AFFILIATED WITH C. I. O. Case 90. R=19I^1.-Decided August 19"1940 Jurisdiction : tanning industry. Investigation and Certification of -Representatives : existence of question: con- flicting claims of rival representatives; .contract entered into after notice of union's claim but prior to 'filing of petition," nor bar to; election necessary. Unit Appropriate for Collective Bargaining : hourly production and maintenance employees, excluding clerical and supervisory employees. Pitney, Hardin & Skinner, by Mr. William J. Brennan, Jr., of Newark, N. J., and Barbour & Pontzer; by .Mn. Robert F. Pontzer, of Ridgway, Pa., for the Company. Mr. Victor Hirshfield, of New York City, for the International. Mr. Herbert P. Sorg, of St. ,Marys,, Pa., for the T., W. U. Mrs. Augusta Spaulding; ;of counsel to the Board. 'DECISION + AND DIRECTION OF ELECTION STATEMENT OF THE CASE On, April,13, 1940,? International Fur and Leather Workers' Union, herein called the international, filed,with the' Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a question, affecting commerce had arisen concerning representation of employees' of Elk Tanning Company, Ridgway., Pennsylvania, herein called the Company, and requesting an investigation and'certi- fication of 'representatives pursuant to Section .9 (c) of the National Labor Relations Act,. 49- Stat.. 449; 'herein'called the Act. On June 26, 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 Regu- lations-Series 2,'as amended,' ordered'an investigation and authorized the Regidnal'Director to''conduct it and•to provide for an' appropriate hearing upon due notice. On June 29, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Inter- i The International placed the petition, duly verified , in the hands of a Field Examiner assigned to the Sixth Regional Office at Ridgway, Pennsylvania , on April 11, 1940 26 N. L. R. B., No. 79. 740 'ELK TANNING COMPANY 741 national, and Tannery Workers' Union, herein called the T. W.' U., 'a labor organization claiming to represent employees directly affected by the investigation. Pursuant; to the notice,' a hearing was held on July 8, 9, and 10, 1940, at Ridgway, Pennsylvania, before Robert H. Kleeb, the Trial Examiner 'duly designated by the, Board. ' 'The Company'and the unions were represented-by counsel and all partici- pated in the hearing. The 'T. W. U. filed a motion'to'intervene in this proceeding. The Trial Examiner granted-! this motion. ; Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the hearing the, Company 'and the, T. W., U. moved to dismiss the proceedings on the ground that no question con- cerning representation had arisen and that a contract entered into, on April 11, 1940, between the Company and the T. W. U. was a bar to the present proceeding. The Trial Examiner did, not rule, on this motion. For the, reasons set forth in Section Al, below,, the motion is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other 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 com- mitted. • The rulings are hereby affirmed. ' • On July 30, 1940, a hearing was held before the'Board at Washing- ton, D. C.; for the purpose of oral argument. ' The Company' and the T. W. U. appeared and presented their 'arguments. The Inter- national did not appear.2 `The Company, the International, and the T. W. U. filed briefs which the Board has considered. Upon the entire record in the 'case, the Board makes the following: FINDINGS' OF FACT 1. THE BUSINESS OF THE COMPANY Elk Tanning Company is a Pennsylvania corporation having sits principal office in New York City. It is, a wholly owned subsidiary of United States Leather Company, a, New Jersey corporation.,,, The Company owns two subsidiaries: Northeastern: Coal Company and Standard Hide Powder, Manufacturing Companyi1:both located in Pennsylvania. • The Company owns and operates tanneries at Clear- field, Wilcox, Salamanca, Coudersport; Emporium, and, Ridgway, Pennsylvania. Its tannery at Ridgway, known as, the Eagle, Valley Tannery and herein called the Tannery, is the only plant involved in this proceeding. Notice of the hearing for the purpose of oral argument was duly served upon the Company and the T. W. U. Notice addressed to the International , however, was misdirected and was not received. In view of our conclusion in Section III, below, regarding the issue argued in the brief tiled by the International we are of the opinion that the International was not prejudiced by its failure to receive notice of the oral argument. 323429-42-vol 26-48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . At the Tannery, the Company is engaged in the tanning of cattle hides' for sole leather. During 1939 all the raw materials'utilized, in the tanning process were sent into Pennsylvania from other States of the United States and foreign countries. In the same year, 78.33 per cent of the finished products of the Tannery were shipped by the Company to points outside the State. The Tannery comprises 43 buildings, covering approximately 34 acres. 3 The Company admits it is engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED International Fur and Leather Workers' Union is a labor organi- zation affiliated with the Congress of Industrial Organizations. 'It admits to membership production and maintenance employees of the Company. Tannery Workers' Union is an unaffiliated labor organization. It admits , to membership production and maintenance employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In the latter part of January 1940 the International began organiz- ing the employees of the Company at the Tannery. In early March employees at the Tannery organized a union restricting its member- ship to employees of the Company, which they called Tannery Workers' Union. On March 19, 1940, employees interested in the T. W. U. held an organization meeting at which they elected officers and ap- pointed committees to draft a constitution and bylaws and a proposed bargaining contract between the T. W. U. and the Company. On March 29, 1940, the T. W. U. held its second meeting, adopted the constitution and bylaws presented by its committee, and, approved the proposed bargaining contract. On March 30, 1940, the T. W. U. presented to the Company an affidavit of its president, which stated that the T. W. U. represented a majority 'of the Company's production and maintenance employees at the Tannery. The Company rejected the affidavit 'as inadequate proof of the T. W. U. majority. On April 3, 1940, two clergymen of Ridgway filed with the Company an affidavit stating, that, after checking the signatures on T. W. U. membership cards with signs= tures bn the Company's pay checks and insurance cards, they believed that `the T. W. U. cards bore genuine signatures of 138 employees A Because its competitors were not required to make public any statements revealing the amount of their business in dollars, volume , or tonnage accounts, the Company has pending before the Securities and Ex - change Commission an application to make such disclosures by it unnecessary. The Company was not required to disclose these figures in this proceeding in view of its admission of the interstate character of its business ELK TANNING COMPANY 743 I within the proposed unit. The total number of employees in the proposed unit was 210. On the following day, April 4, 1940, the Company recognized the' T. W. U. as sole bargaining agent of the employees within this unit.- The Company discussed the bargaining contract proposed by - the T.W. U. with its committee. No agreement was reached. A meeting was -arranged for April 11, 1940, to allow the Company -time to refer the matter to its New York office. On April 4, 1940, the day of its conference with the T. W. U. bargaining committee, the Company received a letter from the Inter- national, requesting a conference and stating that the International represented a large number of employees at the Tannery. The-Com- pany replied that it had recognized the T. W. U. as sole bargaining agent of its employees in that unit, but would confer with the Inter- national whenever it would arrange an appointment. The Inter- national did not communicate further with the Company. On April 11, 1940, as agreed, from 10 a. in. until 12:30 p. m:, the T. W. U. and the Company discussed the contract proposals of the T. W. U. and the counter proposals of the Company. At 12:30 the conference adjourned, subject to the call of the T. W. U. when a private conference among the committee members should.be concluded. At about 1:00 p. m. James C. Beech, a Field Examiner attached to the' Board's Sixth Regional office, arrived in Ridgway pursuant to a re- quest of the International. Beech conferred first with the organizer for the International and then with the Company. In response to his. suggestion of a consent election to determine the desire of employees at the Tannery for an exclusive bargaining agent, the Company stated that it would agree to a consent election if the T. W. U. would also consent. • The Company stated that it had recognized the T. W. U. a's sole bargaining agent in view of the proof made on April 3;1940, and' considered itself bound by this act. Beech then conferred at length with the T. W. U. committee concerning a consent election., The committee after consideration decided that it would not agree to a consent election or file a petition, but would continue its bar- gaining on the basis of the recognition already accorded to the T. W. U. by the Company. At 4:30 p. m. the International filed with Beech the petition in this proceeding. At a meeting between the Company and the T. W.' U., held, on : April•11 between 5:00 and 6:45 p. in., an agreement was reached on all terms of the contract. Under the T. W. U. constitution the contract had 'to be'submitted to the union membership for ratification. ' At a T. W. U. meeting held at 8:30 p. m., April 11, 1940, the International organizer was permitted to address the members. He informed the employees of the petition filed by the International. 744' DECISIONS OF NATIONAL LABOR RELATIONS BOARD The T. W. 'U., voted to ratify the proposed contract. During this evening the Company learned from Beech that the International had filed the petition in this proceeding. The contract was formally signed on, April 12, 1940, by the T. W. U. bargaining committee and the, Company. The, Company and the T. W. U. contend that the contract between the Company and the recognized agent of, its employees was sub- stantially complete before the petition of the International was known to, either of the . contracting parties. Assuming that this is true, the filing -of the petition and the International's claim of a substantial, membership among the employees concerned was known to both contracting parties before the contract was entered into. We find that the parties hurried to conclude a,contract during the uncertainty of, an organization period,,, at a time-when they knew a rival organiza- tion had a, substantial membership. We find that, under these cir- cumstances, the contract is not a bar to a determination and certifica- tion of representatives for collective bargaining.4 The International and the T. W. U. each claim to represent a majority of the production and maintenance employees of the Com- pany., , A statement of the Field Examiner, a check of signatures by the Trial Examiner; and other evidence indicate that each, union appears to have a substantial membership among such employees. We find, that a question has arisen concerning the representation of: employees of the Company at its Eagle Valley, Tannery. 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, parties agreed,, and we find, that all hourly production and maintenance employees of the Company, excluding clerical and super- visory employees, constitute a unit appropriate for the purposes 'of collective bargaining. We find, that said unit will insure to 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. 4 Cf. Matter of Colonic Fibre Company, Inc and Cohoes Knit Goods Workers' Union No. 215111, A. F. of L., 9 N. L R. B. 658; Matter of The Peoples Gas Light and Coke Corn pang and Chicago By-Product Coke Company and'United Mine Workers of America, District 60, affiliated ioith the Congress of Industnel Organizations, 15 N. 'L R' B. 1024 , Matter of Silorag Lighting , Inc. and Internation d Brotherhood of Electrical Workers Local Union No 3, 18, N L. R. B 719 ELK TANNING COMPANY 745 lrI. THE DETERMINATION OF REPRESENTATIVES We find that the ,question concerning iepresentation of employees of the Company at the Tannery can best be determined by an election by secret ballot. We shall direct that those eligible to, vote,in the election shall be the employees in the appropriate unit who were em- ployed during the pay-roll period immediately preceding the , date of our Direction of Election, including employees who did not work during that pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding any 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 Elk Tanning Company at its Eagle Valley Tannery at Ridgway, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All hourly production and maintenance employees of the Com- pany at its Eagle Valley Tannery, Ridgway, Pennsylvania, excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Elk Tanning Company, Ridgway, 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 of Election, under the direction and supervision of the Regional Director for the Sixth 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 hourly production and maintenance employees of the Company at its Eagle Valley Tannery, Ridgway, Pennsylvania, who were employed by it during the pay=roll period immediately preceding the date of this Direction of Election, including employees who did not work during that pay-roll period because they were ill 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or on vacation and employees who were then or have since been temporarily laid off, but excluding clerical and supervisory employees and any who have since quit or been discharged for cause, to deter- mine whether they desire to be represented by International Fur and Leather Workers' Union, affiliated with the Congress of Industrial Organizations, or by ' Tannery Workers' Union, for the purposes of collective bargaining, or by neither.