The Eastern Box Co.

In the Matter of THE EASTERN Box COMPANY and BALTIMORE PAPER BOX AND MISCELLANEOUS WORKERS ' UNION, No. 481 (A. F. L.) • Case No. R-2362.-Decided March 29,19V Jurisdiction : box manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; eligibility to be determined by a pay roll which the parties had agreed to in a consent election agreement entered into prior to strike called by one of the unions involved ; election necessary. Unit Appropriate for Collective Bargaining : all employees excluding clerical and supervisory employees. Mr. Lester M. Levin and Mr. Herbert 0. Eby, for the Board. 'Aiken & Krieger, by Mr. G. Randolph Aiken and Mr. Zanvyl Krieger, of Baltimore, Md., and Brown & Brune, by Mr. Charles Ruzicka and Mr. Joseph T. Brennan, of Baltimore, Md., for the Company. Edelman c&.Ehudin, by Mr. Jacob J. Edelman, of Baltimore, Md., and Mr. Charles Ernest, of Baltimore, Md., for Local 481 and Local 355. Mr. Edward J. Brannan, of Baltimore, Md., for the Independent. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 30 1941, Baltimore Paper Box and Miscellaneous Work- ers' Union, No. 481 (A. F. L.), herein called Local 481, filed with the Regional Director for the Fifth Region (Baltimore; Maryland) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of The Eastern Box Company, Baltimore, Maryland, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section t (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 24, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the. Act 30 N. L. R. B., No. 104. 673 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduit it and to provide for an appropriate hearing upon due notice. - On February 24, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, Local 481, Truck Drivers & Helpers, Local 355, herein called Local 355, and The Eastern Box Workers' Union, herein called the Independent, labor organizations claiming to represent employees directly affected by -the investigation. Pursuant to notice, a hearing was held on February 28, 1941, at Baltimore,' Maryland, before' William R.. Ringer, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, Local 481, Local 355, and the Independ- ent were represented by counsel, and participated in the hearing. At the -commencement of the hearing, the Trial Examiner granted a motion to intervene filed by the Independent. Full opportunity to be heard, to examine and cross-examine ,witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing'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. Pursuant to notice duly served upon all the parties, a hearing was held for.the purpose of oral argument before the Board on March 18, 1941, in Washington, D. C. The Company, Local 481, Local 355, and the Independent were represented by counsel and participated in the argument. Upon the entire record in the case, the Board snakes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Eastern Box Company is a Maryland corporation with its principal office and plant at Baltimore, Maryland, where it is engaged in-the manufacture of corrugated and solid fibre boxes and shipping containers. All the raw materials used by the Company come from points outside the State of Maryland. During 1940 the Company sold finished products valued in excess of $1,000,000, approximately 25 per cent of which represented sales made by it to points outside the State of Maryland. The Company admits for the purpose of this proceeding that it is engaged in interstate commerce within the meaning of the Act. THE EASTERN BOX COMPANY II. THE ORGANIZATIONS INVOLVED 675 Baltimore Paper Box, and Miscellaneous Workers' Union, No. 481, is a labor organization chartered by International Printing Pressmen and Assistants Union of North America which in turn is affiliated with the American Federation of Labor. It admits to membership employees of the Company. , Truck Drivers-& Helpers Local 355 is a labor organization char- tered by International Brotherhood of Teamsters, .Chauffeurs, Stable- men and Helpers of America, which is affiliated. with the American Federation of Labor. It admits to membership truck drivers and their helpers employed by the Company. The Eastern Box Workers' Union is an unaffiliated labor or- ganization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 30, 1941, Local 481 and Local 355 requested the Com- pany to ,recognize them as the exclusive representative of its employ- ees. The Company refused to recognize Local 481 and Local 355 until such time as they were certified by the, Board. A statement of the Regional Director introduced in evidence at the hearing shows that Local 481, Local 355, and the Independent each represent a substantial number of employees.' 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, hhs a close, intimate , and substantial relation to'trade, traffic, and commerce ilmong-the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1 The Regional Director's statement shows that 131 employees whose names appear on the Company's pay roll of February 19, 1941, have signed membership application cards in Local 481 All of these cards are dated in January and February 1941. The Independent presented 62 applications for membership, all beating the signatures of employees whose names appear on the Company's pay roll of February 19, 1941 It does not appear when these applications were signed. There are approximately 188 employees on the February 19, 1941, pay roll The Regional Diiector further reported that eight employees whose names appear on the February 19, 1941, pay roll bade signed membership application cards in Local 3551 There are approximately 12 emplo3 ees eligible to Local 355. 440135-42-Vol 30-14 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT' The Company, Local 481, Local 355, and the Independent agreed at the, hearing that, all employees at the Baltimore plant of the Com- pany, excluding clerical and supervisory, employees, constitute an appropriate bargaining unit. We see no reason for departing from such unit. We find that all employees at the Baltimore plant of, the Company, excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and 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. VI. THE DETERMINATION OF REPRESENTATIVES Local 481 and Local 355 seek to be certified on the basis of the record. The Company stated that it desires that an election be held. Under these circumstances, wg find that the question concerning repre- sentation can best-be resolved by an election by secret ballot.2 On February 13, 1941, all the parties involved herein signed a stipu- lation-agreement for a consent election to be conducted on February 19, 1941. The Company's pay roll of February 12, 1941, was agreed upon as a basis for determining eligibility to vote. Thereafter, the Independent notified the Regional Director that it was withdrawing from the consent agreement and that it was not willing to proceed with the election. Thereafter, the Company stated that it was con- strained to withdraw its consent to the proposed election, or at least to suspend it, until such time as all the parties were in agreement again. On February 21, 1941, Local 481 and Local 355 called a strike, which is still in progress. The strike grew out of and is an integral part of the representation dispute which is before us for consideration. On the date of the commencement of the strike the Company employed about 188 employees. At the time of the hearing about 130 employees were on strike, and about 148 persons were at work, about 84 of whom had been hired since the strike began. There is no showing that the persons hired since the strike occupied positions which did, not exist prior thereto. Local 481 and Local 355 request the use of the Com- pany's pay roll of February 12,1941, the one agreed upon in the consent election agreement, as determinative of eligibility to participate in the election. The Independent urges that a current pay roll be used to determine eligibility,-and that the strikers also be allowed to par- 2 See Matter of Armour & Company and United. Packinghouse Workers, Local Industrial Union No 13 of Packinghouse Workers Organizing Committee, a/liliated with the CIO, 13 N. L. R. B. 567. THE EASTERN BOX COMPANY 677 ticipate in the election'. A representative of the Company testified that the Company will reinstate the striking employees in so far as possible on some impartial basis to be determined in the future. Under the circumstances of this case we shall direct the use of the pay roll of February 12, 1941, to determine eligibility, subject to the addi- tions and limitations set forth in our Direction. Local 481 and Local 355 stated that in the event the Board directs an election,,' they desire to appear-on the ballot, collectively as the American Federation of Labor. The request is hereby granted.3 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 The Eastern Box Company, Baltimore, Maryland, within the meaning of Section 9 (c) and Section 2 (6) and, (7) of the National Labor Relations Act. 2: All employees at the Baltimore plant of the Company, excluding clerical and supervisory employees, constitute a unit appropriate 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions 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 The Eastern Box Company, Baltimore, Maryland, 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 Fifth Region, acting 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 employees at the Baltimore plant. of the Company whose names appear on the Company's pay roll of February 12, 1941, including employees who did not work during such pay-roll period because they were ill or on vacation or absent because called for military service and employees who were then or have since been temporarily laid off, 8 Local-4S1 and Local 355 stated at the hearing that in the event,they received a majority of the votes cast in the election they deslied separate certifications At the oral argument in this proceeding, counsel for Local 481 and Local 355 stated that they were willing to_ recede from their former position requesting separate certifications. We hereby deny the requests of Local 481 and Local 355 for separate certifications. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'but excluding clerical' and supervisory' employees and employees who have since quit or. been discharged for cause, to determine whether then desire to be represented by American Federation of Labor, or by The Eastern Box Workers' Union, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, concurring : The facts of this case bring it squarely within, the principle estab- lished by, the Board in the Sartorius case.4 It was there held (1) that strikers whose work has ceased as a result of a "current labor dis- pute," as here, are employees-by the express mandate of Section 2 '(3) of the Act and are entitled to participate in the selection of bargaining representatives, and (2) that persons hired during a strike to replace striking employees may not participate in the selection of bargaining representatives. In reaching the latter conclusion the Board stated : By preserving to employees who go on strike their status as em- ployees and the rights guaranteed by the Act, the Act contem- plates that during the currency of a strike, the employer and the striking employees may settle the strike, with the striking em- ployees returning to their former jobs, displacing individuals hired to fill those jobs during the strike. Strikes are commonly settled in this manner. The hold of individuals who, during the currency of a strike, occupy positions vacated by striking em- ployees is notably tenuous. To accord such individuals, while the strike is still current, a voice in the selection of the bargaining representative of the employees in the appropriate unit would be contrary to the purposes of the Act and the ends contemplated by it, since it might effectively foreclose the possibility of the settle- ment of the labor dispute, whether by the return of the striking employees to their jobs and the displacement of the individuals occupying those jobs during the strike, or by some other settle- ment agreement, a possibility which the Act contemplates should not be foreclosed during the currency of the strike. Accordingly we hold that such individuals are not eligible to participate in the selection of the bargaining representative of the employees in the appropriate unit. For the reasons stated by the Board in the Sartorius case I agree with the majority of the Board in holding that eligibility to vote in the election directed herein shall be determined on the basis of a pre-strike pay roll. 'Matter of A Sartorius cf Co, Inc and United Mine Worke)s of America, District 50, Local 120 ' 0, 10 N L. R B. 493