Congoleum-Nairn, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1946

69 N.L.R.B. 1387 (N.L.R.B. 1946)

In the Matter of CONGOLEUM-NAIRN, INC., EMPLOYER and UNITE
RUBBER , CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO,
PETITIONER
Case No. 2-R-6631.-Decided August 12, 1946
Davis, Auerbach, Cornell and Hardy, by Mr. Christopher W. Hoey,
of New York City, and Messrs. Norman R. Abrams and William J.
Lohmann, both of Newark, N. J., for the Employer.
Messrs. Samuel L. Rothbard, Peter J. Flynn, Lyman 0. Covert, and
O. H. Bosley, all of Newark, N. J., and Mr. Hugh McCann, of Kearny,
N. J., for the Petitioner.
Brenner, Butler and McVeigh,, by Mr. Jo/tn J. Corrigan, of New
York City, and Messrs. Henry Kennedy and Andrew Graham, for the
Independent.
Mr. Sydney S. Asher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Newark,
New Jersey, on July 17, 1946, before George Turitz, Trial Examiner.
The Trial Examiner 's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a New York corporation carrying on its operations
in three plants. At its factory in Kearny, New Jersey, the only
plant here involved, the Employer is engaged in the manufacture and
sale of linoleum and related products, adhesives and waxes. During
the year immediately preceding the hearing the Employer used ap-
proximately $2,500,000 worth of raw materials, more than 95 percent
of which was purchased by the Employer outside the State of New
Jersey and shipped to the Kearny factory. During the same period
69 N. L. R. B., No. 179.
1387
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer's sales of finished products manufactured by it at the
Kearny factory amounted to in excess of $8,000,000, approximately
95 percent of which represented products sold and shipped by the
Employer to purchasers located outside the State of New Jersey.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress of
Industrial Organizations, claiming to represent employees of the
Employer.
Independent Linoleum Workers Union herein called the Independ-
ent, is an unaffiliated labor organization claiming to represent em-
ployees of the Employer.
For some time prior to May 27, 1.946, Congoleum-Nairn Employees'
Welfare Association, Kearny Plant, Inc., herein called the Welfare
Association, was an unaffiliated labor organization which represented
employees of the Employer.1
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
Following a victory in a Board-conducted consent election in 1937,
the Welfare Association was recognized by the Employer as the
exclusive bargaining agent for employees of the Kearny plant. The
Welfare Association and the Employer then entered into a series
of collective bargaining contracts, the last of which was dated Septem-
ber 15, 1945. This contract provided that it would remain in effect
for 1 year, and thereafter until terminated by either party giving to the
other 60 days' written notice of an intention to terminate. On July 13,
1946, the Welfare Association notified the Employer by registered
mail that it intended to terminate the agreement at. the end of the 1-
year term, and the Employer acknowledged receipt of the notice. The
contract will therefore expire on September 15, 1946.
On May 27, 1946, the Welfare Association held a membership meet-
ing which was attended by approximately 150 of its 450 to 500 mem-
bers. No prior notice had advised the members of the business to come
before the meeting. The members present voted "overwhelmingly" to
affiliate with the Petitioner. Shortly thereafter the Welfare Associa-
tion applied to the Petitioner fora charter. The Petitioner on May 29,
1 Since the Welfare Association is not a party to this proceeding, we do not deem It
necessary to decide herein whether or not the Welfare Association is presently a labor
organization.
CONGOLEUM-NAIRN, INC. 1389
1946, notified the Employer by letter of the action of the Welfare
Association, but the Welfare Association itself failed to do so. A few
days after the meeting described above, a group of former officers and
members of the Welfare Association formed the Independent, which
then requested the Employer to recognize it as the exclusive bargain-
ing agent of the employees here involved. This the Employer de-
clined to do.
Apparently there has been no collective bargaining of any sort at
the Kearny plant since the meeting of May 27, 1946. Some doubt has
been cast upon the legality of the motion which affiliated the Welfare
Association with the Petitioner, and there is also some question as to
whether or not the Welfare Association is still functioning. We do
not, however, deem it necessary to determine these issues at this time.
The present contract between the Employer and the Welfare Asso-
ciation, if it is now operative at all, will expire within 6 weeks from
the present date. Moreover, no party is now contending that the
contract is a bar to an election. Therefore, we find that the contract
does not constitute a bar to a present determination of representatives
to serve after the termination date of the contract.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
In accordance with a stipulation of all of the parties, we find that all
production and maintenance employees of the Employer employed
at its Kearny, New Jersey, plant, including inspectors, expediters,
shipping employees, checkers, yard men, yard truck drivers, guards,
watchmen, and group leaders, but excluding office employees, fac-
tory clerical employees, shipping clerks, salaried employees, superin-
tendents, foremen, assistant foremen, and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collec-
tive 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, subject to the
limitations and additions set forth in the Direction.
2 Matter of The Flintkote Company, 55 N. L. R. B. 1442 ; Matter of Green Bay Drop
Forge Company , 60 N. L . R. B. 334; Matter of Green Bay Drop Forge Company, 68
N. L. R. B. 656.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Welfare Association was served with a Notice of Hearing but
did not appear as such or take part in the proceeding .3 Under the
circumstances , we shall order that the Welfare Association's name be
omitted from the ballot.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Congoleum-Nairn, Inc., Kearny,
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, under the direction and supervision of the Regional Direc-
tor for the Second Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Sections 10
and 11, of National Labor Relations Board Rules and Regulations-
Series 3, as amended, among the employees in the unit found appro-
priate 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 those employees 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 Rubber, Cork, Linoleum and Plastic Workers
of America, CIO, or by Independent Linoleum Workers Union, for
the purposes of collective bargaining, or by neither.
3 Mr. McCann , who appeared for the Petitioner at the hearing , was designated on the
record as "President of the Congoleum -Nairn Employees Welfare Association , affiliated
with the United Rubber, Cork, Linoleum and Plastic Workers of America, CIO."