Brightwater Paper Co.

National Labor Relations Board - Board Decisions

Feb 5, 1944

54 N.L.R.B. 1102 (N.L.R.B. 1944)

In the Matter of BRIGHTWATER PAPER COMPANY and UNITED MINE
WORKERS OF AMERIOA, DISTRICT 50, LOCAL #12796
Case No. 1-R-1704.Decided February 5, 1944
Mr. Walter J. Donovan, of Adams, Mass., and Mr. L. Hamilton
Garner, of New York City, for the Company.
Grant & Angoff, by Mr. Samuel E. Angoff, of Boston, Mass., and
Mrs. Geneva Kleiner, of Adams, Mass., for Local #12796.
Mr. John N. Alberti, of North Adams, Mass., and ' Mrs: Mildred
Burnett, of Adams, Mass., for the IPWU.
Mr. William Feldesman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by the United Mine Workers of America,
District 50, Local #12796, herein called Local #12796, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Brightwater Paper Company, Adams, Massa-
chusetts, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before,
John W. Coddaire, Jr., Trial Examiner. Said hearing was held at
Adams, Massachusetts, on December 29 and 30, 1943. The Company,
Local #12796, and Independent Paper Workers Union No. 1, herein
called the IPWU, appeared, participated, and were afforded full
opportunity to be heard, to examine ,and cross-examine witnesses, and
to introduce evidence bearing on the issues. During the hearing the
IPWU moved to dismiss the petition. Subsequent to the hearing the
I1'WU made application to amend its motion to dismiss. The appli-
cation to amend the motion is granted, but, for reasons stated in Sec-
tion III, below, the motion to dismiss is denied. Also following the
hearing the IPWU moved to correct the record in minor respects.
None of the other parties has opposed the motion to correct the record,
and it is accordingly granted. The Trial Examiner 's rulings made at
the hearing are, free from prejudicial error and are hereby affirmed.
All parties were afforded and availed themselves of the opportunity
to file briefs with the Board. Inasmuch as the briefs adequately
54 N. L. R. B., No. 165.
1102
BRIGHTWATER PAPER COMPANY 1103
discuss the issues, the requests of the Company and the IPWU for
oral argument are denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Brightwater Paper Company, a Delaware corporation having a
sales office in New York City, is engaged at its plant in Adams, Massa-
chusetts, in the manufacture of fine writing paper. Its annual busi-
ness is in excess of $1,500,000. Approximately 90 percent of the raw
materials it utilizes in its operations comes from outside the Common-
wealth of Massachusetts, and.about 60 percent of its finished products
is shipped to points outside the Commonwealth of Massachusetts.
The Company admits that it is engaged in commerce, within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America. District 50, Local #12796, and
Independent Paper Workers Union No. 1, are labor organizations ad-
mitting to membership employees-of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 20, 1941, the Company entered into a collective bar-
gaining agreement with an unaffiliated labor organization of its em-
ployees, herein called the Independent,' cancelable on and after June 1,
1942, upon 90 days' notice by either party. A contract containing de-
tailed seniority provisions was executed by the same parties on Sep-
tember 12, 1942, as a supplement to their 1941 agreement. According
to its terms, the supplemental contract was terminable during its first
90 days upon immediate notice by either party, and thereafter on 90
days' notice given by either of the parties. It also provided that in
the event of its termination, no other agreement between the parties
was to be affected. In connection with a consent election which was
subsequently held, the Company, the Independent, and United Mine
Workers of America, District 50, herein called District 50, agreed in
writing on August 23, 1943, that the existing contract was to remain
in force "with the exception of the bargaining agency if [District
50 won] the election, until such time as a new agreement is exe-
cuted . . ." The consent election was held under the auspices, of the
Board's Regional Director on September 2, 1943. Both District 50 and
the Independent appeared on the ballot. On September 8 the Regional
Director reported that the Independent had received 119 votes, Dis-
trict 50 98, and "neither" 3. In his report, the Regional Director cer-
' The Independent 's full title is identical with that of the IPWU.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
tified that the Independent had been "designated and selected by a
majority of the employees in the agreed unit as the exclusive bargain-
ing representative of the employees within the unit."
At a meeting of the Independent on September 26, new officers were
elected. On October 31 another meeting of the Independent was held,
and a committee was appointed to revise its bylaws. Almost since
its inception in 1937 or 1938, the Independent utilized a set of bylaws
in the conduct of its affairs, although it is not entirely clear from the
record that they were ever formally adopted. These bylaws` con-
tained no provision for merger or affiliation with another organization,
and they read that the Independent "cannot be disbanded as long as
20 members wish to carry it on." Following the meeting of October
31, an official of District 30 assisted in the preparation of new bylaws.
Thereafter, on November 15 notices were posted throughout the plant
announcing a "Very Important Meeting" of the Independent to be
held November 21. As announced, a meeting was held on November
21 with 42 members present.2 Except for a few changes, the bylaws
which had been prepared were adopted. Provision was made in the
adopted bylaws for the Independent's dissolution "by a vote of two-
thirds of the dues paying members present at a regular meeting," and
for its affiliation with another labor organization "by consent of two-
thirds vote of the members present at a regular meeting." At the
same meeting, almost immediately after the acceptance of the bylaws,
a proposal was made for affiliation with District 50. A vote was taken
on the proposal, and 38 voted for, and 4 against, affiliation. It was
then determined to appropriate the sum of $20 for a charter from
District 50.
The succeeding day, a committee of employees conferred with Henry
J. Guild, the Company's president. Guild was given a letter dated
that day which read as follows :
At the regular meeting of the Independent Paper Workers
Union #1 held in the Zylonite Boys Club, Sunday, November 21,
1943, the union voted to affiliate with District #50 United Mine
Workers of America. -
Therefore, this is to notify you that of this date wer (sic) are
cancelling our present contract with you and according to same
we are giving you this ninety day notice of cancellation.
Very truly yours,
GENEVA [KLEINER], See.
GENEVA [KLEINER], '
Former Secretary of Independent Paper Workers Union #1
Present Secretary to United Mine Workers of America
District #50, Local 12796
2 Several witnesses estimated the Independent 's membership at this time . The lowest
estimate was 70 and the highest 150.
BRIGHTWATER PAPER COMPANY 1105
Guild then inquired if the committee represented "District 50 of the
United Mine Workers of America." Upon receiving an affirmative
reply he informed those present that he could not "meet with them,"
inasmuch as the Independent was the legally designated bargaining-
representative of the employees. Later that day members of the com-
mittee again conversed with Guild, insisting that he treat with them
since they had merely voted to affiliate with District 50 and had not as
yet received a charter. Guild told them that he would advise them
later concerning his position in the matter.
On December 5, 20 employees withdrew from a meeting held by the
group favoring affiliation with District 50. The 20 dissenters, claim-
ing to be members of the Independent, held a meeting of their own
that day and proceeded to elect officers.
By means of a printed announcement dated December 9, the Com-
pany apprised its employees that it "must continue to recognize only
the Independent Paper Workers Union No. 1" as their representative
for the purposes of collective bargaining. On December 11 the
Regional Director met with representatives of the Company, the group
favoring affiliation with District 50, or Local #12796,3 and the group
opposed to such affiliation, or the IPWU. All parties agreed that the
Company would deal with each group's grievance committee until a
solution to the problem was found.
Since December 11 the IPWU has held two meetings, one having
been attended by 38 members and the other by 22, and its grievance
committee has frequently met with the Company's representatives.'
About December 20 several adherents of the IPWU, as representatives
of its entire membership, filed a bill in equity in the Superior Court
of the Commonwealth of Massachusetts. The bill named as parties
defendant a banking institution and certain members of Local #12796,
alleged, inter alia, unlawful conspiracy of the individual defendants,
and prayed, among other things, the return of certain assets and an
adjudication of the rights of the IPWU's members.
Asserting that the act of affiliation with District 50 was illegal and
that it is the Independent, the IPWU raises the Regional Director's
certification of September 8, 1943, and the contract of October 20,
1941,5 as bars to a present determination of representatives, and asks
for the dismissal of the petition. The Company's position is similar
to the IPWU's. But Local #12796, arguing that affiliation with Dis-
trict 50 was lawfully accomplished, insists that the IPWU is not the
Independent. It requests the direction of an election.
' Local # 12796 accepted its charter from District 50 the following day.
' The IPWU claims that 74 of the Independent 's members as of November 21 are its
members in good standing.
s Together with the supplement of September 12, 1942, and the understanding of August
23, 1943.
567900-44-vol. 54-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is readily apparent that establishment of the Independent's iden-
tity is dependent upon the legality of the act of affiliation with District
50, an issue which we do not consider our function to determine.6
While the contract, even if deemed to be unaffected by the purported
notice of cancellation, is not a bar, for the reason that it is of indefinite
'duration ,7 the Regional Director's recent certification of the Inde-
pendent, under other circumstances,- would foreclose these proceed-
ings. However, there is a substantial, unresolved doubt regarding the
identity of the certified labor organization. In these circumstances,
we are constrained to conclude that the certification does not operate
as a bar.8
A statement of the Acting Regional Director, introduced into evi-
dence at the hearing, indicates that Local #12796 represents a sub-
stantial -number of employees in the unit hereinafter found
appropriate." ,
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
In substantial accordance with the stipulation of the parties, we
find that all employees of the Company engaged in all its production,
maintenance , and power departments , excluding office and clerical em-
ployees, executives , superintendents, foremen, and other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees , or effectively rec-
ommend such action, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
Act.-
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
9 See Matter of Federal Iron t Metal Co., 46 N. L. R B. .597; and Matter of Professional
Building Corporation , etc., 45 N. L. R B 42.
7 See Matter of General Electric Company, 48 N. L. R. B. 1044 ; and Matter of Carrier
Corporation , 46 N. L. R. B. 1319.
8 See Matter of Edwin Bell Company, 46 N. L. R. B. 619; and Matter of American Agri-
cultural Chemical Company, 46 N. L. R. B. 684.
9 The Acting Regional Director reported that Local # 12796 submitted 154 membership
cards bearing apparently genuine original signatures of persons listed on the Company's
pay roll for the week ending December 4, 1943, containing the names of 274 employees in
the unit alleged to be appropriate in the petition.
10 This, in substance , was the unit agreed upon by the parties who were involved in the
consent election of September 2, 1943.
BRIGHTWATER PAPER COMPANY 1107
herein, subject to the limitations and additions set forth in the
Direction.
• 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 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIm c'rED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Brightwater Paper
Company, Adams, Massachusetts, 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 First Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding any who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, to determine whether
they desire to be represented by United Mine Workers of America,
District 50, Local #12796, or by Independent Paper Workers Union
No. 1, for the purposes of collective bargaining, or by neither.