Industrial Paper Stock Co.

National Labor Relations Board - Board Decisions

Mar 26, 1946

66 N.L.R.B. 1185 (N.L.R.B. 1946)

In the Matter Of INDUSTRIAL PAPER STOCK COMPANY and UNITED
SALVAGE EMPLOYEES, AFFILIATED WITH THE UNITED RETAIL, WHOLE-
SALE AND DEPARTMENT STORE EMPLOYEES, C. I. O.
Case No. 17-R-1.0 89.-Decided March 26, 1946
Mr. George J. Winger, of Kansas City, Mo., for the Company.
Mr. Edward Chevlin, of Kansas City, Mo., for the United.
Messrs. John J. Manning and Carl Paddock, of Kansas City, Mo.,
for Local 8-B.
Mr. Elmer P. Freischlag, of counsel for the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Salvage Employees , affiliated
with the United Retail , Wholesale and Department Store Employees,
C. I. 0., herein called the United, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Industrial Paper Stock Company, Kansas City, Missouri , herein
called the Company , the National Labor Relations Board provided
for an appropriate hearing upon due notice before Harry L. Browne,
Trial Examiner. The hearing was held at Kansas City, Missouri, on
January 3, 1946 . At the commencement of the hearing , the Trial
Examiner granted a motion of Truck Drivers ' Local Union No. 8-B,
A. F. of L., herein called Local 8-B, to intervene . The Company,
the United, and Local 8-B appeared and participated .' All parties
were afforded full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed . All parties were afforded
opportunity to file briefs with the Board.
t The United has filed a waiver of any right to object to any election which may be
held in the instant proceeding on the basis of any of the acts alleged as unfair labor
practices in Case No. 17-C-1363.
66 N. L. R. B., No. 144.
118-5
686573---46-78
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Industrial Paper Stock Company, a Missouri corporation with its
office and principal place of business in Kansas City, Missouri, is
engaged in the scrap paper business. During the year 1945, the
Company purchased raw materials consisting principally of waste
paper of a value in excess of $800,000, of which about 25 percent was
purchased and shipped to the Company from points outside the State
of Missouri. During the same period, the Company sold finished
products consisting primarily of graded and baled paper of a value
in excess of $900,000, of which about 50 percent was sold and shipped
to destinations outside the State of Missouri.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Salvage Employees is a labor organization affiliated with
the United Retail, Wholesale and Department Store Employees
which, in turn, is affiliated with the Congress of Industrial Organiza-
tions, admitting to membership employees of the Company.
Truck Drivers' Local Union No. 8-B is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated November 1, 1945, the United advised the Com-
pany that it represented a majority of the Company's employees and
requested the commencement of negotiations for a collective bargain-
ing agreement. At a conference on November 5, 1945, the Com-
pany stated that it had previously signed a collective bargaining
agreement with Local 8-B, and refused to negotiate. At the hearing
Local 8-B contended that the contract was still in effect and
constituted a bar to this proceeding.
The agreement referred to was executed by the Company and
Local 8-B on November 6, 1941. It provided for an initial period
ending November 1, 1942, and for its automatic renewal thereafter
from year to year, in the absence of written notice to terminate by
either party 30 days before the expiration date of any yearly period?
No such notice to terminate has been given by either party.
2 The contract had no maintenance of membership or closed -shop provision.
INDUSTRIAL PAPER STOCK COMPANY 11 87
Local 8-B is a consolidated local, admitting to membership em-
ployees of other companies besides those of the Company, and is
presently functioning as a labor organization. The record estab-
lishes, however, that the contract in question has not been admin-
istered by Local 8-B for a long time and, in fact, that Local 8-B has
ceased acting as a representative of the employees of the Company.
Thus, at least since October 1943, no dues have been collected by
Local 8-B from the employees of the Company nor have attempts
been made to collect dues. Nor has Local 8-B handled any grievances
or conducted collective bargaining conferences on behalf of the em-
ployees of the Company since that date. According to the testimony
of the Company's president, the Company, about a year after the
contract was signed, endeavored, due to the shortage of help caused
by the war, to secure some truck drivers from Local 8-B, but was
told by the business representative, "Well, I can't get you any, so I
suggest you get anybody that you can get, and we will forget this
union until after the war is over." The business representative of
Local 8-B testified in this connection that he did not think that any
employees of the Company had ever attended any of the regular
meetings of Local 8-B, that he did not know whether any employees
of the Company are presently members of Local 8-B, and that there
have been no stewards at the Company to handle grievances of em-
ployees since he became associated with Local 8-B in October, 1943.
Yet, according to the terms of the contract, stewards were to be desig-
nated by Local 8-B or selected by the membership for the purpose
of presenting grievances and other matters to the Company. In
addition, Local 8-B has apparently held no special meetings for the
employees of the Company since 1943. It further appears that no
changes have been made in the terms of the contract since its execu-
tion, notwithstanding the fact that there have been substantial
changes in employment conditions which rendered the terms of the
contract obsolete; that some employees did not know of the existence
of the contract until a short time before the hearing, and that others
were unaware of the existence of Local 8-B until shortly before the
filing of the petition herein. Although several wage increases were
granted to employees subsequent to the execution of the contract,
such increases were the result, not of action by Local 8-B, but of
individual or group action of the employees themselves. Indeed,
sometime before January 1943, the Company took unilateral action in
filing a petition with the National War Labor Board seeking approval
of a wage increase for its employees, and its application was subse-
quently granted.
The above facts establish that, while the contract of November 6,
1941, was renewable on its face in the absence of an overt act, Local
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8-B did not at the time of the operative date of the automatic renewal
clause in 1945 truly represent the Company's employees , inasmuch
as it had become defunct as to them. We are therefore of the opinion
that Local 8-B was incapable of renewing the contract on November
1, 1945, in their behalf. We find, therefore, that the November 6,
1941, contract is not a bar to a determination of representatives at
this time.3
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the United represents a substantial 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
The parties agree that all production and maintenance employees,
truck drivers, and helpers, excluding office employees, the receiving
clerk, and supervisory and management personnel, constitute an ap-
propriate unit .5 The sole dispute between the Company and the
United, Local 8-B taking no position, relates to the assistant fore-
man of the sorting department, whom the United would include in,
and the Company exclude from, the unit.
The assistant foreman in question supervises practically all opera-
tions on the third floor of the Company's place of business in Kansas
City, Missouri. He oversees the work of approximately 30 employees,
and spends about 80 percent of his time at this task. He has the
authority to discipline his subordinates, and recommends their promo-
tion and discharge. Under all the circumstances, we are of the opinion
that he is a supervisory employee without our usual definition of that
term. We shall therefore exclude the assistant foreman of the sorting
department from the unit .6
In accordance with the agreement of the parties and our foregoing
determination, we find that all production and maintenance employ-
ees of the Company, including truck drivers, and helpers, but exclud-
ing office employees, the receiving clerk,7 the assistant foreman of the
a See Matter of Aladdin Industries, Inc., 64 N. L. R. B. 76. Cf. Matter of Mission
Manufacturing Company, 64 N. L. R. B . 1289 ; and Matter of Olive & Myers Manufac-
turing Company, 59 N. L. R B. 650.
4 The Field Examiner reported that the United submitted 56 cards, 55 of which bore
the names of employees listed on the Company 's pay roll . There are approximately 69
employees in the appropriate unit.
Local 8-B has made no attempt to show any present membership among the employees
of the Company , but apparently relies on its November 6, 1941 , contract with the
Company.
s The United amended its petition at the hearing as appears above.
See Matter of Warner Electric Brake Company , 54 N. L. R. B. 547.
7 W. A. Haldeman.
INDUSTRIAL PAPER STOCK COMPANY 1189
sorting department, supervisory and management personnel, and all
or any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the unit who were employed during the pay-roll period immediate-
ly preceding the date of the Direction of Election 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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Industrial Paper
Stock Company, Kansas City, Missouri, 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 super-
vision of the Regional Director for the Seventeenth 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 Regula-
tions, among 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 vaca-
t ion 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 dis-
charged 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 Salvage Employees, affiliated with the United Retail,
Wholesale and Department Store Employees, C. I. 0.. or by Truck
Drivers' Local Union No. 8-B, A. F. of L., for the purposes of collec-
tive bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.