Celluloid Corp.

National Labor Relations Board - Board Decisions

Jul 19, 1940

25 N.L.R.B. 711 (N.L.R.B. 1940)

In the Matter o f CELLULOID CORPORATION and LOCAL 277, TEXTILE
WORKERS UNION OF AMERICA
Case No. R-1889.-Decided July 19, 1940
Jurisdiction : plastic manufacturing industry.
Investigation and Certification of Representatives : existence of question where
employer refuses to accord full recognition to union; contract extended and
expressly subject to Board action, no bar to ; election necessary.
Employees in the appropriate unit who have been laid off not more than
1 year and are subject to reemployment in the order-of their seniority held
eligible to vote since the record discloses that such ,employees'have a sub-
stantial interest in the outcome of the election.
Requests of intervenor, acceded to by a federal local union also party
to the proceeding, both affiliated with the A. if. of L., that they be jointly
designated on the ballot as A. F. of L. granted over objection of petitioning
union.
Unit Appropriate for Collective Bargaining : all employees of the Company at
one of its plants, exclusive of office and clerical employees, outside salesmen,
salaried executive employees, and those eligible for membership in specified
craft unions.
Practice and Procedure:
Since unit found appropriate is broader than that requested by petition-
ing union, and since rival union desires dismissal of petition, petition will
be dismissed if petitioner files notice within 5 days of receipt of Direction
of Election that it does not desire to proceed with an election.
Mr. Martin I. Rose and Mr. Christopher W. Hoey, for the Board.,
Mr. John E. Dwyer, of Washington, D. C., for the Company.
Isserman, .Isserm"a"n; ,& , Kapelsohn,'of Newark, N. J. by Mr. Sol D.
Kapelsohn, for the T., W. U. A.
Mr. Kermit L. Parsonnet and Mr. Thaddeus J. Burns, of Newark,
N. J. for Local •21907.
Mr. David Clydesdale, of Newark, N. J. and Mr. Paul Hutch-
ings, of Washington, D. C., for the I. A. M.
Mr. Edward Scheunemann, of counsel to the Board.
25 N, L. R. B , No. 77.
711
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
DIRECTION OF, ELECTION
STATEMENT OF, THE CASE
On February 1, 1940, Local 277, Textile Workers Union of Amer-
ica, herein called the T. W. U. A., filed with the Regional Director
for the Second Region (New York City), a petition alleging that a
-question affecting commerce had arisen concerning the representa-
tion •of employees of Celluloid Corporation, Newark,.•New Jersey,
herein called the Company, and requesting an investigation and cer-
,tification of representatives pursuant to Section '9, (c)' of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.- On
April 16, 1940, the National Labor Relations Board, herein called the
Board, issued an order dismissing the petition. On May 1, 1940, the
Board issued an order revoking the order dismissing the .petition,
and, acting pursuant to Section 9 • (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered an investigation, and authorized
,the Regional Director to conduct it and to provide for an appropri-
ate hearing upon due notice.
On May 13, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, Cellulose
Workers of America, Local Union No. 21907, A. F. of L., herein
called Local 21907, and the T. W. U. A. Pursuant to the notice, a
,hearing was held' on'May; 24'and' 31,`and June 13, 1940, at Newark,
New Jersey, ` before C. V. 'W6•ittemo°re, .,the Trial Examiner duly
designated by the Board. On May 31, 1940, International Associa-
tion of Machinists, herein called the I. A. M., claiming an interest
in the'proceeding,.petitioned for,permission.to intervene. The^.Trial
Examiner granted the petition. The Board, the Company, the
T., W. U. A. and Local 21907 were, represented by counsel, 'and the
I. A. M. by a union official. All 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 he siring,; 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.
On June 27, 1940, the Company and Local 21907 filed briefs with
the Board. On July 2, 19,40, pursuant to notice, a hearing was held
before the Board in Washington, D. C., for the purpose of oral arau-
CELLULOID CORPORATION 713
ment. All parties were represented by counsel and presented argu-
ment.
Upon the entire record in the case,-the Board makes the following :
FINDINGS of FACT
1. THE BUSINESS OF TIE COMPANY
Celluloid Corporation, a New Jersey corporation with its princi-
tpal offices in Newark, New Jersey, is engaged in the manufacture and
sale of plastics, such as celluloid, cellulose acetate sheets, rods, tubes,
molding powder, films, foils, and related products. The Company
maintains sales offices in New York City; Chicago, Illinois; Detroit,
Michigan; Leominster, Massachusetts; Los Angeles and San Fran-
cisco, California; and St. Louis, Missouri. The Company employs
approximately 1,512 persons in its Newark, New Jersey, plant.
During the year 1939, the Company purchased materials valued in
excess of $1,000,000 and obtained approximately 90 per cent in value
of such materials' from States other than New Jersey. During the
same period it sold finished products valued in excess of $3,000,000
and it shipped approximately 90 per cent in value of such products
outside the State of New Jersey. The Company admits that it is
engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act and that it is subject to the jurisdiction of the Board.
IT. THE ORGANIZATIONS INVOLVED
Local 277, Textile Workers Union of America is a labor organiza-
tion affiliated with the Congress ,of Industrial Organizations. It
admits to membership production employees of the Company.
Cellulose Workers of America, Local Union, No. 21907, is a labor
organization affiliated 'With the American Federation of Labor. It
admits to' Inembership'employees,of the;Company..
International Association of Machinists is a labor organiz ation'
affiliated with the American Federation of Labor. It admits to
membership maintenance employees of the Company.
III.' THE QUESTION CONCERNING REPRESENTATION
In December 1939, and in January 1940, the T. W. U. A. sought to
bargain collectively with the Company on behalf of the production'
workers.. ,The Company refused to bargain with the T. W. U. A.
because it had a contract with Local, 21907 which did not expire until
May 14, 1940. The contract has now expired and has been extended ,
"on a weekly basis . . . pending a final determination by the Board
of the present representation case."
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company, on April 28, 1940, employed approximately 1,120
employees in the unit found below to be appropriate. There was
introduced in evidence at the hearing an analysis made by the Re-
gional Director showing that the T. W. U. A. had submitted to her
309 authorization cards, of which 163 were signed between October
and December 1939, and 142 between January- and May 1940,' and
that all bore apparently genuine signatures of persons on the l:om-
pany's pay roll of -April 28, 1940. -Thhe -analysis -of the' Regional =
Director shows further -that Local 21907-had -submitted- to her 718
applications for membership, of which 601 were signed between Jan-
nary and March 1939,'35 between April and June 1939, 12 between
July and September 1939, and 46 between October and December
1939,2 and that all of them bore apparently genuine signatures of
persons on the Company's pay roll of April 28, 1940.
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 T. W. U. A. contends that the production and shipping de-
partment employees, excluding foremen, assistant foremen, super-
visory employees, clerical and office workers, salaried employees,,
timekeepers, janitors, watchmen, teamsters and chauffeurs, garage
mechanics and helpers, safety inspectors, storeroom employees, elec-
tricians, carpenters, pipe fitters, plumbers, painters, riggers, masons,
welders, powerhouse engineers and firemen, checkers, development
and research employees, sales force, lead burners, maintenance men,
employees in the S. R. S. department, and-all construction and other
employees engaged for present building operations, constitute an
appropriate unit. Local 21907 contends that all employees except
office and clerical help, outside salesmen, employees eligible for mem-
bership in the International Brotherhood of Teamsters, Chauffeurs,
Stablemen, and Helpers, the International Union of Operating Engi-
1 4 were undated.
• 24 were undated.
CELLULOID CORPORATION 715-
neers, or the International Brotherhood of Firemen, Oilers, and
Helpers, and executive salaried employees should be included in an
appropriate unit.3
In February 1939 the T. W. U. A., and Local 21907, agreed to a
consent election to be conducted by the Regional Director. The un-
ions were not in. agreement concerning the employees who should be
eligible to vote, `but agreed to abide by the determination of the
Regional Director. She decided that the employees eligible to vote
should be substantially those who, the T. W. U. A. now contends,
constitute an appropriate unit. Local 21907 received a majority of
the valid votes cast in the election and on May 10, 1939, entered into
a collective bargaining contract with the Company covering-all the
employees who, Local 21907, now contends, jonstitute an appropriate
unit. The contract expired May 14, 1940, and has been extended as-
heretofore noted.
Local 21907 has bargained concerning wagger, hours, and conditions
of employment for the employees whom the T. W. U. A. would ex-
clude from the unit, has presented grievances to the management on,
their behalf, and has submitted cards to the Regional Director show-
ing substantial membership among those employees.
The T. W. U. A. contends that the watchmen, checkers, mainte-
nance men, and others whom it would exclude perform a type of-
work different from that of the production employees and.have inter-
ests in wages, hours, and working conditions divergent from those
of the production employees. Both groups are essential to the pro--
duction process. The employees whom the T. W. U. A. would in-
clude do not constitute a clearly defined craft group separate and
apart from those whom it would exclude. There are some differ-
ences in wage differentials, bonus payments, and working conditions-
between the two groups. Generally, however, the same working-
conditions obtain, and there- is no proof that the differences existing-
between the employees whom the T. W. U. A. would exclude and
those that it would include constitute an obstacle to successful col-
lective bargaining, or that the bargaining which,has proceeded on-
the basis of the broader unit requested by Local 21907 has been.
,ineffective .4
The contention of the T. W. U. A. is based further upon the as-
serted fact that.it does not admit to membership the employees whom-
' At the hearing the I. A M. contended, in opposition to Local 21907, that the main-
tenance employees constituted an. appropriate unit and should be separated from a unit-
composed of production employees . In oral argument before the Board , the attorney for-
the I. A. M.-stated, in substance , that for purposes of this proceeding, it would take
no position with respect to the appropriate unit
' See Matter of, Hat Corp. of Amer. and United Hatters, Cap, and Millinery Workers
Int'l Union, 11 N, L. R. B. 1206
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it seeks to exclude." Were it the only labor organization seeking to
represent the employees herein, its contention would have merit. It
is undisputed, however, that Local 21907 has organized and repre-
sented employees whom the T. W. U. A. would exclude.
We conclude on the basis of the bargaining history in the plant,
the essential similarity of hours, wages,., and, conditions of..employ-
ment among the employees in the broader unit, and the opportunity
for representation of more employees which it affords, that the
broader unit for which Local 21907 contends is appropriate, and that
sought by the T. W. U. A. is not appropriate.
We find that all employees of the Company in its Newark, 'New
Jersey, plant, exclusive of office and clerical employees, outside sales-'
men, salaried executive employees, and those eligible for membership
in the International Brotherhood of Teamsters, Chauffeurs, Stable-
men and Helpers, the International Union of Operating Engineers,
or the International Brotherhood of Firemen, Oilers, and Helpers
constitute a unit appropriate for purposes of collective bargaining,
and that such unit will insure to the employees' of the Company.-the-
full benefit of their right to self organization and to collective bar-
gaining and otherwise effectuate the,policies of the Act.
VI. THE DETERMINATION OF 'REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion can best be resolved by the holding of an election by secret bal-
lot. We shall, accordingly, direct an election among the employees
in the unit which we have found to be appropriate. Since such unit,
however, is broader than that requested by the petitioning union, the
T. W. U. A., and since Local 21907 desires the dismissal of the peti-
tion, we shall dismiss the petition if the T. W. U. A. files with the
Board within 5 days from the receipt of this Decision and Direction
of Election-notice that it does not desire to proceed with an election
among the employees in the unit herein found to be appropriate.
In oral argument before the Board, the I. A. M. requested that in
the event of an election the name "American Federation of Labor,"
rather than that of its affiliates, the I. A. M. and Local 21907, be
placed on the ballot. The T. W. U. A. does, and Local 21907 does
not, oppose this request. The request is based on the existence of a
jurisdictional dispute between Local 21907 and the I. A. M. concern-
ing representation of the maintenance employees of the Company.
'Should the broad designation "American Federation of Labor" be
placed on the ballot and win the election, the I. A. M. could, within
the American Federation of Labor, pursue its claim to jurisdiction
5 The T. W. U. A. contended that it restricted its membership by virtue of an oral
:agreement'with,c -ertain organizations of America Federation of Labor craft unions .. Neither,
: Local 21907 nor the I A . M. were parties to the agreement.
I
CELLULOID CORPORATION 717
of the maintenance employees either in opposition to, or by consent
of, Local 21907, which is also affiliated with the American Federation
of Labor. Since both unions affiliated with the American Federa-
tion of Labor are agreeable to the designation suggested by the
I. A. M., we shall grant its request.
Local 21907.requested.,that 'eligibility to vote in the election should-
be determined by one of the January 1940 pay rolls of the Company.
The T. W. U. A. requested that the pay roll following the last day
of the hearing be used. The record discloses that the number of
employees fluctuates from a peak employment of approximately 1,800W
persons employed in the fall to approximately 1,600 persons em-
ployed from April to July, and counsel for the Company stated in
oral argilment before the Board that the number of persons employed
is now increasing. Under the circumstances, we believe that a cur-
rent hay roll should be used. In accordance with our usual practice-
we shall direct that the pay roll date immediately preceding the date
of the Direction of Election be used to determine the eligibility of
employees to vote in the election.
Employees who have been laid off not more than 1 year are subject
to reemployment in the order of their seniority.° Since the record
discloses that the employees in the appropriate unit, who are on the
1-year list, have a substantial interest in the outcome of the election,-
we shall direct that they be eligible to vote.
We find that those eligible to vote in, the election shall be em-
ployees in.the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion, including employees who had been -]aid off during the year
immediately preceding said pay-roll period, those who did not work
during said pay-roll period because they were ill or on vacation, and_
employees who were then or have since been temporarily laid. off, but
excluding those employees 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 Celluloid Corporation, Newark, New Jer-
sey, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
6 Such employees must make application through the , personnel department if they-
have been, laid off for a period of more-than- 6 weeks ; those who have been laid -off for-
a period of less than 6 weeks are carried on the pay roll and are subject to recall by their
foremanAn the orders of seniority.
7 See Matte) of Federal Screw iVorks and Local 171,, etc, 21 N L R R 100.
718 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
2. All the employees of the Company in its Newark , New Jersey,
plant, excluding office and clerical employees , outside salesmen, sal-
aried executive employees , and those eligible for membership in the
International Brotherhood of Teamsters , Chauffeurs , Stablemen, and
Helpers, the International Union of Operating Engineers , or the In-
ternational Brotherhood of Firemen , Oilers, and Helpers, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (c) 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 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 authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Celluloid Corporation, Newark, New Jersey, an'electioii by-se-"
cret 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 Second Region, act-
ing 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 the employees of the Company in_ its Newark , New Jersey,
plant, who were employed during the pay-roll period immediately
preceding the date of this Direction , including those who have been
-laid off during the year immediately preceding said pay -roll period,
those who did not work during said pay-roll period because they
were ill or on vacation , and -those who were then or have since been
-temporarily laid off, but excluding office and clerical employees, out-'
-side salesmen , salaried executive employees , employees eligible for
-membership in the International Brotherhood of Teamster's'; `Chatif-
feurs, Stablemen , and Helpers , the International Union of Operat-
ing Engineers , or the International Brotherhood of Firemen , Oilers,
and Helpers , and employees who have since quit or been discharged
for cause , to determine whether they desire to be represented by Lo-
cal 277, Textile Workers Union of America , or by American Federa-
tion of Labor , for the purposes of collective bargaining, or by
neither.
MR. WIIS.IAII M . LEISERSON took no part in the consideration of the
above Decision and' Direction of Election.
CELLULOID CORPORATION 719
[SAME TITLEJ
AMENDMENT TO DECISION AND DIRECTION OF
ELECTION
July 07, 1940
On July 19, 1940 , the National Labor Relations Board, herein
,called the Board , issued a Decision and Direction of Election in the
above-entitled proceeding . The Board stated therein that it would
"dismiss the petition if the T. W. U. A. files with the Board within
5 days from the receipt of this Decision and Direction of Election
notice that it does not desire to proceed with an election among the
.employees in the unit herein found to be appropriate."
The Board hereby amends its Decision and Direction of Election
by striking therefrom the words "within 5 days from the receipt
of this Decision and Direction'of Election" and substituting therefor
the words "within 8 days from the receipt of this Decision and Di-
rection of Election."
M. WILLIAM M. LEISERSON took no part in the consideration of
the above amendment to Decision and Direction of Election.
25 N. L. R. B., No. 77a.