Marcalus Manufacturing Co., Inc.

In the Matter Of MARCALUS MANUFACTURING Co., INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. R.402.-Decided July 0, 1941 Jurisdiction : paper products manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition ; election necessary. Employees who have voluntarily' applied for and have been inducted into military training held eligible to vote. Unit Appropriate for Collective Bargaining : production, maintenance and ship- ping employees exclusive of clerical and supervisor employees. Wall, Haight, Carey, dl Hartpence, by Mr. Frederic W. Schumann, of Jersey City, N. J., for the Company. Mr. Alfred Udo ff , of New York City, for the Union. Mr. Philip Rubin, of Paterson, N. J., for the Association: Mr. Bonnell Phillips, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 22, 1941, Textile Workers Union of America, C. I. 0., herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Marcalus Manufacturing Co., Inc., East Paterson, New Jersey, herein called the Company, and requesting an investigation' and certification of representatives pursuant to Section 9 (c) of the National Labor Relations At, 49 Stat. 449, herein called the Act. On February 10, 1941, 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-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On February 13, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company; the 33 N. L. R. Ii., No. 23. 107 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, and upon Marcalus Employees Association, herein called the Association, a- labor organization claiming to' represent em- ployees directly affected by the investigation. After several post- ponements, a hearing was begun, pursuant to notice, on April 21, 1941, at New York City, before Richard J. Hickey, the Trial Examiner duly designated by the Chief Trial Examiner. Pursuant to requests by various counsel, the hearing was there- after adjourned without objection until April 29, 1941, when it was resumed, and terminated on April 30, 1941. The Company, the Union, and the Association 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. During the course of the hearing the Trial Examiner made 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 af- firmed. Pursuant to leave granted by the Board, briefs were filed by the Association, the Union, and the Company on May 15, 16, and 19, respectively, 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 . Marcalus .Manufacturing Co., Inc., a New Jersey corporation hav- ing its principal office and only plant at East Paterson, New Jersey, is engaged in the manufacture, sale, and distribution of paper nap- kins, wax paper, and other paper products. During the period from June 1, 1940, to December 31, 1940, the Company purchased approxi- mately 4,200 tons or 60 per cent of its raw material, namely, paper, from sources outside the State of New Jersey. During the same period the Company shipped over 60 per cent of its finished products, amounting. in value to over $50,000, to places outside the State of New Jersey. ' The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Textile Workers Union of America., affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. 0 Marcalus Employees Association is an unaffiliated labor organi- zation admitting to membership employees of the Company.' MARCALUS 1zANUFACTURIING CO., INC. 109 III. THE QUESTION CONCERNING REPRESENTATION On January 13, 1941, the Union, claiming to represent a majority of the Company's employees in .an appropriate unit, requested by letter that the Company afford, it recognition as the exclusive bar- gaining agent for all its employees in such unit. Although the Com- pany acknowledges receipt of this letter, no reply has been made to the Union. From a report prepared by the Regional Director it appears that both the Union and the Association represent substantial numbers of employees of the Company in the unit below found to be appropriate.) 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 Company, the Union and the Association. agree that a unit appropriate for the purposes of collective bargaining consists of all production, maintenance, and shipping employees of the Company exclusive of clerical and'supervisory employees. The Union and the Association are not agreed as to the classification of certain persons claimed- by the Union to be supervisors and hence not within the defined appropriate unit, but claimed by the Associa- tion to be regular production employees. The Company takes no position as to the persons in dispute. The Association relies in the main upon the testimony of Majuri, plant superintendent, who stated that, with the possible exception of Sam Spinelli, he alone exercises supervision over the Company's em-- ployees. Majuri testified that Spinelli is "in charge of the shipping department under me"; that although Spinelli has no power to hire or discharge, he reports to the superintendent concerning the perform- The Regional Director's report states that the Union submitted 60 application cards for membership in the Union , all but 7 being dated in the month of January 1941, of which 56 bear the signatures of persons on the Company's pay roll of January 3, 1941. The Association filed 71 undated authorization cards , of which 43 bear signatures of persons on the January 3, 1941 pay roll. Such pay roll lists the names of 125 employees. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ante of other employees in his department. The record shows that that Spinelli receives considerably higher wages than do other em- ployees of the Company. Unlike other employees who are paid on a piece work or hourly basis, Spinelli is a salaried employee, working a five day week. We find that Spinelli is a supervisory employee. The testimony of the Company's president, Marcalus, differed in considerable degree from that of Majuri. Marcalus, who is shown in the record to have hired and assigned duties to certain of the'persons referred to below, and who evinced thorough knowledge of the Com- pany's personnel, named some seven employees as supervisory assist- ants to Majuri. These persons, according to Marcalus, are "directly [responsible to obtain required production." Aathough these em- ployees, namely Barnes, Scharwath, Gustafson, Hurley, Morock,2 Frank Gaglione and DiChiara, are not vested with the power to hire or discharge employees, they recommend to Marcalus or to Majuri the taking of disciplinary action against employees when necessary. Asked whether it is known throughout the plant that these employees have supervisory powers, Marcalus replied, "Yes, there is no question about that." We • find that Barnes, Scharwath, Gustafson, Hurley, Morock, Frank Gaglione and DiChiara are supervisory employees and they will be excluded from the unit. We find that the production, maintenance and shipping employees of the Company, exclusive of 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 We find that the question which has arisen concerning the repre- sentation of the Company's employees can best be resolved by means of an election by • secret ballot. We shall direct that such an election be held. . At the hearing the, Association requested that eligibility to vote in the election should be determined on the basis of the Company's pay roll for April 4, 1941. The Union, however, requested that eligibility be determined on the basis of the Company's pay roll for January 3, 1941. The Company desires the use of a more recent pay roll for the determination of eligibility. We believe that the purposes of the Act will be best effectuated by determining eligibility as of the present date. We shall direct that all employees of the Company 2 Prior to the hearing, Morock had been inducted into the military training of the United States under the provisions of the Selective Training and Service Act of 1940, 54 Stat. 885. MARCALUS MANUFACTURING CO., PNC. 111 in the appropriate unit who were employed during the pay-roll period immediately preceding this Direction of Election, subject, to such limitations and additions as are set forth in the Direction 3 shall be eligible to vote. 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 Marcalus Manufacturing Co., Inc., East Paterson, New Jersey , within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production , maintenance , and shipping employees of the Company, exclusive of 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 Rela- tions 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 purpose of collective bargaining with Marcalus Manufacturing Co., Inc., East Paterson, New Jersey, 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 Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said In accordance with our practice we shall direct that employees not at work during said pay-roll period because they were ` in the active military service or training of the United States shall be eligible to vote. A question was raised at the hearing concerning . certain employees who voluntarily applied for and were inducted into military service or training under the provisions of the Selective Training and Service Act of 1940, 54 Stat. 588, 50 U. S. C. 'A. App. 70. Section 303 (a ) thereof provides that any person between certain age limits "shall be afforded an opportunity to volunteer for induction into the land or naval forces of the United States"-for the training and service prescribed in the Statute. Section 308 provides for the restoration of employment without loss of employment status, pay, or seniority to "any person inducted into the land or naval forces under the Act," provided a certificate of satisfactory service is obtained by such person , provided that he remains qualified to perform the duties of the position, and provided that "the employer's circumstances have [not] so changed as to make it impossible or unreasonable to do so." Thus the statute makes no distinction in its provisions relating to restoration of em- ployment between those persons who have volunteered for induction and those who have been Inducted by operation of the selective service machinery. We bold that the employees in question are within the contemplation of the Direction, and shall be eligible to vote. 112 DECISIONS OF NATIONAL. LABOR" RELATIONS BOARD Rules.and Regulations, among all'production, maintenance and ship- ping employees of the Company who were employed during the,pay- roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States,. or temporarily laid off, but excluding clerical and supervisory employees, and those who have since quit or been discharged for cause, to, determine whether they desire to be represented by Textile Workers Union of America, affil- iated with the Congress- of Industrial Organizations, or by Marcalus Employees Association, for the purposes of collective bargaining; or by neither. [SAME TITLE] ORDER VACATING AND SETTING ASIDE DECISION ANI) DIRECTION OF ELECTION, AND PERMITTING WITH- DRAWAL OF PETITION WITHOUT PREJUDICE August 5, 1941 The Board, on "July 23, 1941, having given due notice that oil August 4, 1941, or as soon thereafter as might be convenient, unless sufficient cause to be contrary should then appear, it would permit the withdrawal of the petition for investigation and certification of representatives filed herein and would vacate and set aside its Decision and Direction of Election, dated July 2, 1941. without prejudice to the rights of any of the parties to file a new petition should they so desire, and no objections having been filed with the Board, . . IT Is HEREBY ORDERED that the said Decision and Direction of Elec- tion, dated July 2, 1941, be, and it hereby is, vacated and set aside; and 'IT IS FURTHER ORDERED that the, request of the petitioner for permis- sion to withdraw its petition without prejudice be, and it hereby is, granted, and that the aforesaid case be, and it hereby is, closed. 33 N. L. R. B., No. 23a.