Armstrong Cork Co.

National Labor Relations Board - Board Decisions

Jan 8, 1941

28 N.L.R.B. 950 (N.L.R.B. 1941)

In the Matter of ARMSTRONG CORK CO. (WHITALL-TATUM DIVISION AT
MILLVILLE, NEW JERSEY) and GLASS PACKERS & SORTERS UNION
LOCAL #69 OF FEDERATION OF GLASS, CERAMICS & SILICA SAND
WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS
In the Matter of ARMSTRONG CORK COMPANY WHITALL-TATUM DIVI-
SION and GLASS BOTTLE BLOWERS ASSOCIATION OF UNITED STATES &
CANADA, AFFILIATED WITH THE A. F. OF L.
Cases Nos. R-2121. and R-2122.-Decided January 8, 1941
Jurisdiction : container manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives; elections necessary.
Units Appropriate for Collective Bargaining : where factors are such that
either separate units composed, respectively, of packers and sorters and of
other miscellaneous employees or a single unit of all miscellaneous employees
including packers and sorters might be appropriate for collective bargaining
held the desires of the employees themselves will be determinative of the unit
or units appropriate for collective bargaining.
Starr, Summerill & Lloyd, by Mr. Alfred E. Driscoll, of Camden,
N. J., for the Company.
Mr. Samuel L. Rothbard, of Newark, N. J., and Mr. -William' T
Lewis, of Columbus, Ohio, for the C. I. O.
Mr. Lewis R. Linet; of Philadelphia, Pa., for the A. F. of L.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On September 25, 1940, Glass Packers & Sorters Union Local #69
of Federation of Glass, Ceramics & Silica Sand Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
the C. I. 0., filed a petition with the Regional Director for the Fourth
Region (Philadelphia, Pennsylvania), alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Armstrong Cork Company, Whitall-Tatum Division at Millville,
28 N. L . R. B., No. 146.
950
ARMSTRONG CORK CO. 951
New Jersey,' herein called the Company, and requesting,an investi-
gation and certification of representatives, pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein` called the
Act. On October 15, 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-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 October 18, 1940, Glass
Bottle Blowers Association of United States & Canada, affiliated
with the American Federation of Labor, herein called the A. F. of L.,
filed a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of the Company and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the Act. On October 19, 1940, the Board, acting
pursuant to Section 9 (c) and Article III, Section 3 and Section 10
(c) (2), of the said Rules and Regulations, ordered an investigation
and a consolidation of the two cases and authorized the Regional
Director to conduct such investigation and to provide for an appro-
priate hearing upon due notice.
On October 19, 1940, the Regional Director issued a notice of hear-
ing, copies of which, together with copies of the petitions, were duly
served upon the Company, upon the C. I. 0., and upon the A. F. of L.2
Pursuant to the notice, a hearing was held on October 29 and 30,
1940, at Millville, New Jersey, before Daniel House, the Trial Ex-
aminer duly designated by the Board. The Company, the C. I. 0.,
and the A. F. of L. appeared and were represented by counsel. All
parties 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 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 com-
mitted. The rulings are hereby affirmed.
.. Pursuant to their request the C. I. 0., the A. F. of L., and the
Company appeared and argued orally before the Board in Wash-
ington, D. C., on November 13, 1940. The A. F. of L. and the
Company have also filed briefs which have been given due consider-
ation by the Board.
1 The name of the Company is so given in a stipulation relating to the business of the
Company, which stipulation was entered into liy counsel for the Board and counsel for the
Company.
2 On October 24, 1940, the parties were served with notice of postponement of the
hearing from October 28, 1940, to October 29, 1940.
952 DECISIONS OF 'NATIONAL LABOR- RELATIONS BOARD
- On December 27, 1940, the A. F. of L. filed with the Board a mo-
tion entitled "Plea for Abatement of Decision," copies of which
motion the A. F. 'of L. states were served upon the Company and
the C. I. O. The motion requested- the Board to withhold its decision
in the present proceeding pending its disposition of a more recent
petition involving employees of the Company filed by the A. F. of L.
On December 31, 1940, the C. I. O. filed its opposition to the motion.
The Board has considered the motion and it is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Armstrong Cork Company, Whitall-Tatum Division at Millville,
New Jersey, is a division of the Armstrong Cork Company, a Penn-
sylvania corporation, which has branches in all principal cities of the
United States. The Company miinufactures glass food containers,
beverage bottles, liquor bottles, medicinal and "toilet bottles, and gen-
eral glass containers for glues, inks, and oil.
- During the calendar year 1939 the Company used raw materials
consisting of sand, soda ash, lime, feldspar, borax, and barytes, sub-
stantial portions of which were obtained from States other than the
State of New Jersey. During the calendar year 1939 the Company
produced 44,539 packed tons of glass, the value of which amounted
to $3,065,666. Eighty-two per cent of such finished products were
shipped into and through States other than the State of New Jersey.
On the pay roll of the Company for the period ending September
21, 1940, there were 980 employees.
The Company stipulated with the Board that it is engaged in inter-
state commerce, within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Glass Packers & Sorters Union Local #69 of Federation of Glass,
Ceramics & Silica Sand Workers of America, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Company who are employed as packers
and sorters.
Glass Bottle Blowers' Association of United States & Canada, affili-
ated with the American Federation of Labor, is a labor organization
which admits to membership all the miscellaneous employees of the
Company. -
ARMSTRONG CORK CO. 953
III. THE QUESTION CONCERNING REPRESENTATION
In 1889 the glass packers and sorters employed at the plant here
involved and at one or more nearby glass manufacturing plants, or-
ganized a union which was affiliated with the American Federation
of Labor. After 7 or 8 years this organization withdrew from the
American Federation of Labor and continued to exist as an unaffili-
ated labor union. In 1918 it was incorporated under the laws of the
State of New Jersey as Glass Packers and Sorters Union No. 1, of
Millville, New Jersey, herein called the Independent. Membership
in the organization has always been limited to' packers and sorters.
At the time the Independent was founded, and until June 1938, the
plant here involved was owned and operated by the Whitall-Tatum
Company and representatives of the Independent negotiated with
that company at regular intervals concerning wages and working
conditions of the packers and sorters. These negotiations resulted
during the earlier years in written contracts and during the later
years in annual oral contracts. In June 1938 the Armstrong Cork
Company acquired the plant and the contractual relations between
the Company and the Independent were continued. In August 1939
the Company met with representatives of the Independent and agreed
orally on a wage scale for the ensuing year.3 In August 1940 the
Company submitted to the Independent a - proposal to substitute,
gradually, female packers and sorters at a lower wage scale 'and to
transfer or dismiss the presently employed packers and- sorters.
After three bargaining conferences during the month of August the
packers and sorters refused to agree to the Company's proposal and
the Independent voted to affiliate with the C. I. O. On September
16 the C. I. O. chartered the Independent as Glass Packers and Sort-
ers Union Local #69.
The C. I. 0., by letter dated September 16, 1940, notified the Com-
pany that the Independent had become affiliated with the C. I. O.
and by telegram on September 23, 1940, stated to the Company that
it represented a majority of the packers and sorters and requested a
bargaining conference. On September 19, 1940, the A. F. of L.
stated in a telephone conversation with the acting plant manager
that it was the bargaining agent -of "quite a number" of `- miscella-
neous" employees 4 of_ the Company and requested a conference. By
letters dated September 19 and September 24 the Company, in reply
to the requests of the C. I. 0., stated that another, organization had
requested recognition as exclusive bargaining agent and that "this
8 This oral agreement apparently expired in September 1940.
* The record discloses that the A F. of L. contended that the "miscellaneous" employees
including packers and sorters, constitute an appropriate bargaining unit.
954 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
Company -cannot safely bargain collectively with either group until
one of them has been duly certified as a bargaining agency." There-
after, on September 25, 1940, the C. I. O. filed its petition for certifi-
cation as the exclusive bargaining representative of the packers and
sorters employed by the Company. On October 5, 1940, the Com-
pany's packers and sorters went on strike, which strike was settled
after a week by agreement between the Company and the C. I. 0.,
under which the packers and sorters were to return to work pending
determination of the appropriate unit by the Board: On October
18, 1940, the A. F. of L. filed its petition requesting certification as
the exclusive bargaining agent for all miscellaneous employees in-
cluding packers and sorters.
There was introduced in evidence at the hearing a report prepared
by the Regional Director showing that the C. I. O. represents a sub-
stantial number of the packers and sorters at the plant and that the
A. F. of L.- represents a substantial number of the miscellaneous
employees at the plant.b
We find that a question has arisen concerning 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 OR UNITS
The principal controversy in these proceedings concerns the unit
appropriate for collective bargaining purposes under the Act. The
' The Regional Director reported that the C . I. O. submitted to him 141 application and
authorization cards, 139 of which-bore signatures , appearing to be genuine original signa-
tures , and were names of persons on the pay roll of the Company for October 5, 1940.
The record indicates that on the pay roll on that date there were approximately 195
packers and sorters , which is the unit claimed by the C. I . O. to be appropriate It was
further reported by the Regional Director that the A. F . of L. had submitted 430 applica-
tion cards , all bearing signatures , appearing to be genuine original signatures Of these,
404 bore the names of persons on the Company ' s pay roll for October 5, 1949 The record
discloses-that there were at that time some 750 to 800 miscellaneous employees , including
packers and sorters, which is the unit the A. F. of L . contends is appropriate for collective
bargaining purposes.
At the hearing , the C I O. Introduced in evidence a total of approximately 200 designa-
tion cards. Some 50 to 60 of these cards purported to bear names of employees in the
miscellaneous group exclusive of packers and sorters . The remainder purported to bear
names of persons employed as packers and sorters . The A . F. of L introduced 440 cards
in evidence, purporting to bear the names of miscellaneous employees of the Company.
'ARMSTRONG CORK CO. 955
'C. I. O. contends that the packers and sorters in the' employ of the
Company constitute such a unit. The A. F. of L. takes the position
that the appropriate bargaining unit should be composed of all mis-
cellaneous employees including the packers and sorters.-
The packers and sorters inspect the glassware as it comes from the
mold and lehr for approximately 60 defects which they detect by
measurement, by handling and by visual inspection, and report on
form slips the defects found. They separate the approved from the
rejected glassware, and then pack the acceptable glassware in paste-
board cartons divided into ready-made compartments. Occasionally,
they perform miscellaneous duties, around the plant. They are paid
671/2 cents per hour, which is less than other recognized craft em-
ployees receive at this plant but approximately 15 cents more per
hour than general miscellaneous labor receives.
The packers and' sorters employed by the Company, as heretofore
pointed out, have had a separate organization for 51 years which has
had written and oral collective agreements with the Company cover-
ing all persons employed as packers and sorters. Until very recently,
all other miscellaneous employees at the plant have remained unor-
ganized and there has been no past collective bargaining on a plant-
wide basis.
At nearly all other plants in the United States, including the Dun-
kirk, Indiana, plant of the Company, the A. F. of L. has bargained
collectively for all employees, exclusive of the two recognized crafts-
(1) the glass blowers and (2) the moldmakers and allied workers-
as a single group of miscellaneous employees, which group includes
the packers and sorters.7
Thus, it is clear that up to September and October 1940, when
the question arose' concerning representation of employees of the
Company, the form of self-organization of packers and sorters of the
Company was essentially different from that of packers and sorters
employed elsewhere in the industry. When the Independent affiliated
9 The Company employs approximately 980 employees in its manufacturing operations,
consisting of about 100 glass blowers (machine operators), 110 moldmakers, machinists,
stopple grinders, and pressers, 195 packers and sorters and 575 other employees. For
many years the glass blowers have had a separate craft union at the Company's plant,
chartered by the A F. of L The moldmakers and allied workers have had a craft union
chartered by the American Flint Glass Workers Union, affiliated with the American Fed-
eration of Labor. These two craft unions have contracts with the Company governing
the wages, hours, and working conditions of the employees engaged in those crafts. The
A. F. of L. meets annually with the 45 glass blottle manufacturers in the United States
and negotiates with them on a nation-wide basis on behalf of glass blowers Neither
labor organization here involved proposes the inclusion of these separate craft groups
'in *either unit here sought.
The A . F of L . has made efforts to bargain for miscellaneous employees on a nation-
wide basis , but has not succeeded in obtaining such an agreement , although the separate
agreements with individual employers are substantially similar.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the C. I. O. in September 1940, a substantial number of the
packers and sorters in the employ of the Company, as stated above,
transferred their membership to the C. I. O. At the same time the
C. I. O. accepted applications of some 50 or 60 other miscellaneous
employees for membership in the C. I. O. but did not assign them to
membership in the packers and sorters local. So far as the record
indicates the line of demarcation between packers and sorters and
other miscellaneous employees is being preserved by the C. I. O. and
that organization has taken no steps toward establishing a semi-
industrial unit of all miscellaneous employees.
In our opinion the record discloses that either separate units com-
posed, respectively, of packers and sorters and of other miscellaneous
employees or a single unit of all miscellaneous employees including
packers and sorters might be appropriate for collective bargaining.
Where the considerations are so evenly balanced, as here, the desires
of the employees themselves will be determinative of the unit, or
units appropriate for collective bargaining. We shall direct that
two separate elections be conducted, one among the packers and sort-
ers of the Company, the other among the miscellaneous -employees of
the Company exclusive of packers and sorters. On the ballots for
each election will be placed the names of the A. F. of L. and-the
.C. I. 0.8 If either A. F. of L. or the C. I. O. receives the majority
of the votes cast by employees in both of the separate elections, a
single bargaining unit' consisting of all miscellaneous employees in-
cluding packers and sorters will "be established as appropriate. If
either the A. F. of L. or C. I. O. receives a majority of the votes
cast in only one of the two elections, separate bargaining units will be
established for the two groups of employees.
In the election to be held among packers and sorters, apprentices
and checkers will be included among those eligible to cast ballots, but
executives, superintendents, and foremen with the right to hire and
discharge employees will be excluded. Included among other mis-
cellaneous employees eligible to vote will be factory clerks directly
involved in the production process; excluded will be executives, su-
perintendents, foremen with the right to hire and discharge, office
and clerical workers, and outside truck drivers."
8 At the hearing the C. I. 0 stated that it desired to appear on both ballots if the
Board should direct two separate elections The A F of L. reserved the right to notify
the Board at a later time in that regard At the oral argument on November 13, 1940,
in reply to questions of the Board, counsel for the A F. of L. stated that the A F of L.
desired its name on both ballots if the Board should direct two separate elections:
9 Although outside truck drivers were mentioned in the A. F of L's original petition
as an excluded group , the A. F. of L . amended its petition at the hearing to eliminate any
mention of such employees , since they were not involved in the proceeding.
ARMSTRONG - CORK- CO.
VI. THE DETERMINATION OF REPRESENTATIVES
957
Although the A. F. of L. has requested the Board. to certify it as
the exclusive bargaining 'representative of the miscellaneous em-'
ployees. of the Company, we find that elections by secret ballot can
best resolve the question concerning representation. Therefore, as
we, have heretofore indicated, we shall direct two elections, upon the
outcome of which shall depend the appropriate unit or units and the
exclusive bargaining representative or representatives of the em-
ployees of the Company.
The C. I. O. stated at the hearing that it desired the Board to
designate the Company's pay roll of September 8, 1940, as the proper
pay roll for determining the eligibility of employees to vote. How-
ever, no reasons have been advanced by any of ,the parties for de-
viating from our usual practice of adopting a current pay-roll
period. We shall therefore direct that the last pay roll of the Com-
pany prior to the date of the Direction of Elections be used in de-
termining the eligibility of employees to participate in the elections
to be directed.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represen-
tation of employees of Armstrong Cork Company, Whitall-Tatum
Division at Millville, New Jersey, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act.
DIRECTION OF ELECTIONS
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, 49 Stat. 449, 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 Armstrong 'Cork Company, Whitall-Tatum Division at Mill=
ville, New Jersey, elections 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 Relations Board, and subject to Article III-,
958 DECISIONS OF 'NATIONAL 'LABOR-RELATIONS BOARD
Section 9, of said Rules and Regulations, among the employees of
Armstrong Cork Company, Whitall-Tatum Division at Millville,
New Jersey, within the two groups described below who were em-
ployed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during such _
pay-roll period because they were ill or on vacation, and employees
who were then or have since been temporarily laid off, but excluding
employees who between such pay-roll date and the date of the election
shall have quit or been discharged for cause:
1. All packers and sorters of the Company including checkers and
apprentice packers and sorters, but excluding executives, superin-
tendents, and foremen with the right to hire and discharge employees,
to determine whether they, desire to be represented for the purposes
of collective bargaining by Glass Packers & Sorters Union Local #69
of Federation of Glass, Ceramics & Silica Sand Workers of America,
affiliated with- the Congress of Industrial Organizations, or by Glass
Bottle Blowers Association of United States & Canada, affiliated with
the American Federation of Labor, or by neither;
2. All miscellaneous employees of the Company including factory
clerks directly involved in the production process, but excluding
executives, superintendents, foremen with the right to hire and dis-
charge, office and clerical workers, outside truck drivers, and packers
and sorters, to determine whether they desire to be represented for
the purposes of collective bargaining by Glass Packers & Sorters
Union Local #69 of Federation of Glass, Ceramics & Silica Sand
Workers of America, affiliated with the Congress of Industrial Or-
ganizations, or by Glass Bottle Blowers Association of United States
& Canada, affiliated with the American Federation of Labor, or by
neither.
MR. EDWIN S. SMITH, dissenting :
I am unable to agree that separate elections should be held among
the packers and sorters and among other miscellaneous employees.
In a number of cases I have recognized that a substantial history of
collective bargaining by a well-defined group of employees entitles
that group to express itself on the question of whether it will con-
stitute a separate unit or be included in a broader industrial unit.
But in those cases the labor organization petitioning for a separate
unit has confined its organizational activities to the employees within
the well-defined group.10 In the present proceedings, both the
C. I. O. and the A. F. of L. desire to represent all the miscellaneous
11
10 See , for example, my concurring opinion in Matter of America Hardware Corporation
and United Electrical and Radio Workers of America, 4 N. L. R. B. 412, 422.
ARMSTRONG CORK CO. 959
employees including the packers and sorters. The C. I. 0., which
has petitioned for certification as the exclusive representative of the
packers and sorters, has already accepted applications from some 50
or 60 other miscellaneous employees and has expressed its willingness
to accept as members any of the other miscellaneous employees who
should apply. It is, therefore, in competition with the A. F. of L.
for the organization of all miscellaneous employees including packers
and sorters. Under these circumstances I do not believe that the
packers and sorters should be permitted to split themselves off from
a semi-industrial unit composed of miscellaneous employees of the
Company.':'
"See my dissenting opinion in Matter of Allis-Chalmers Manufacturing Company and
'International Union, United Automobile Workers of America, Local 248, 4 N. L. R B.
159, 175.