International Envelope Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1277 (N.L.R.B. 1941)

In the Matter Of INTERNATIONAL ENVELOPE, CORPORATION and CLAR-
ENCE SCHWAB, ELWOOD POFFENBERGER 1 AND KENNETH HALEY 2
Case No. C-1672.Decided August 06, 1941
Jurisdiction : stamped envelope manufacturing industry.
Unfair Labor Practices
Interference, Restraint , and Coercion-Dtiscrimination : charges of , dismissed.
Where a dissident minority group within a union takes action contrary
to the terms of an existing exclusive bargaining contract between the em-
ployer and the union and contrary to the wishes of the duly designated
representative chosen by the majority of the employees , disciplinary action
by the employer with the acquiescence of the union does not constitute
discrimination within the meaning of Section 8 (3).
Practice and Procedure : complaint dismissed.
Miss Mary Telker, for the Board.
Messrs. Byron B. Harlan and Thomas E. Marshall, of Dayton,
Ohio, for the respondent.
Mr. Gerald -Office, of Dayton, Ohio, for Poffenberger and Schwab.
Mr. Seymour D. Ramby, of Dayton, Ohio, for Haley.
Messrs. T. N. Taylor, of Terre Haute, Ind., Hugh. Gormley, of Indi-
anapolis , Ind., and Herbert Thatcher, of Washington, D. C., for the
Union.
Mr. Sidney L. Davis, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Clarence Schwab
and Elwood Poffenberger,3 the National Labor Relations Board,
herein called the Board, by the Regional Director for the Ninth
Region (Cincinnati, Ohio), issued its complaint, dated May 8, 1940,
against International Envelope Corporation, Dayton, Ohio, herein
called the respondent, alleging that the respondent had engaged in
1 Poffenberger died on May 21, 1940.
2 The name of Kenneth Haley was added to the caption by motion duly made at the
hearing.
8 Kenneth Haley also filed charges which are dated June 10, 1940
34 N. L. R. B., No 122.
1277
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and' (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing thereon,
were duly served upon the respondent, upon Envelope Makers Fed-
eral Union No. 20311, herein called the Union, and upon Clarence
Schwab, Elwood Poffenberger, and Kenneth Haley, herein collec-
tively called the discharged employees.
With respect to the unfair labor practices, the complaint, as amended
at the hearing, alleged in substance (1) that the respondent terminated
the employment of Schwab, Poffenberger, and Haley on April 22,
1938, and thereafter failed and refused to reinstate them, because
they had engaged in concerted activities with other of the respondent's
employees for the purpose of collective bargaining and other mutual
aid and protection; and (2) that by the above acts and by other acts,
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer on May 15, 1940, admitting certain
allegations of the complaint concerning the nature of its business,
but denying that it had engaged in the alleged unfair labor practices.
On May 10, 1940, the Union, representing that it had a contract with
the respondent, filed a petition with the Regional Director request-
ing leave to intervene in the proceedings. This request was granted
by the Regional Director on May 15, 1940.
Pursuant to notice, a hearing was held on June 13 and 14, 1940,
at Dayton, Ohio, before Charles E. Persons, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and the discharged employees were represented by counsel, and the
Union by its representative; all participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was' afforded all parties.
At the beginning of the hearing, counsel for the discharged employees
moved to exclude witnesses from the hearing room. This motion
was granted by the Trial Examiner. Also, at the beginning of the
hearing, counsel for the Board moved to amend the complaint to
include therein the name of Kenneth Haley, both in the caption of
the complaint and in each paragraph of the complaint in which the
names of the other two discharged employees appeared. The motion
was granted by the Trial Examiner without objection by the re-
spondent, with the understanding that in case the respondent desired
additional time to prepare its defense with respect to Haley, a recess
would be taken for that purpose at the close of the Board's case. The
respondent stated at the close of the Board's presentations that no
such recess was needed. At the close of the hearing, counsel for the
INTERNATIONAL ENVELOPE CORPORATION 1279
Board moved to conform the complaint to the proof. This motion
was granted by the Trial Examiner. During the course of the hear-
ing the Trial Examiner made various rulings on other motions and
on objections to the admission of evidence. The Board has reviewed
all the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On August 10, 1940, in accordance with a stipulation entered into
by and among counsel for the Board, for the respondent and for the
discharged employees, and the representative of the Union, the Trial
Examiner issued an order directing the correction of certain typo-
graphical errors in the transcript of the hearing.
The Trial Examiner thereafter filed his Intermediate Report dated
September 12, 1940, copies of which were duly served upon the
parties. He found therein that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the Act and recommended that the respondent cease and desist
therefrom and take certain specified affirmative action deemed neces-
sary to effectuate the policies of the Act. On October 7 and 11, 1940,
respectively, the respondent and the Union filed exceptions to the
Intermediate Report and submitted briefs in support of such
exceptions.
Pursuant to notice duly served upon all the parties, a hearing for
the purpose of oral argument was held before the Board on November
7, 1940, in Washington, D. C. The respondent, the discharged em-
ployees, and the Union were represented by counsel and presented
argument. The Board has considered the exceptions to the Inter-
mediate Report and the briefs in support thereof and, save as the
exceptions are consistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
International Envelope Corporation, a Delaware' Corporation with
its principal office and factory at Dayton, Ohio, is engaged in manu-
facturing stamped envelopes for the United States under an exclusive
contract. The principal raw materials used by the respondent in
the manufacture of Government stamped envelopes are paper, gum,
and ink. During the year following May 1, 1939, the respondent
purchased approximately 480 carloads of paper, about two-thirds of
which, valued at approximately $1,083,800, was bought in States
other than Ohio and shipped from those States to the Dayton plant.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon completion of manufacture, stamped envelopes are delivered
to the United States Stamped Envelope Agent at a branch of the
United States Post Office Department located in the Dayton plant.
The agent thereafter ships the envelopes to post offices in each of the
48 States, as well as to Alaska, Hawaii, Puerto Rico, and the Virgin
Islands. The respondent admits that it is engaged in interstate
commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Envelope Makers Federal Union No. 20311 is a labor organization
affiliated with the American Federation of Labor, admitting to its
membership employees of the respondent, excluding clerical employ-
ees and supervisory employees with authority to hire and discharge.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In September 1936, the respondent's employees established the
Union and initiated an organizing campaign. Majority membership
was speedily attained and in December 1936 the leaders approached
the respondent and asked for a collective agreement. Thereafter on
January 28, 1937, a contract was negotiated and signed. By the
terms of this contract the respondent agreed inter alia, "to meet and
negotiate with representatives of the Union upon all matters pertain-
ing to rates of pay, hours of employment, or other matters affecting
all employees of the employer with the exception of office and clerical
help and superintendents." The agreement provided for its auto-
matic renewal from year to year and, with slight changes, it con
tinued in effect until the date of the hearing. Although the, contract
does not establish a closed shop, membership in the Union reached
100 per cent of the employees eligible shortly after the contract was
signed. Membership was maintained on that level until the date
of the hearing. The three discharged employees joined the Union
soon after its inception and were members at the time of their
discharge.
B. The alleged discriminatory discharges
In April 1938, a number of the respondent's supervisory employees
were receiving "straight time," i. e., they were paid for 40 hours
each week irrespective of the time worked. At that time the general
run of employees, as well as the. working foremen in the folding
department, were working only 35 hours a week and were paid on
an hourly basis. The supervisors receiving "straight time" were
nonworking foremen and had been employed on that basis prior to
INTERNATIONAL ENVELOPE CORPORATION 1281
the execution of the contract between the Union and the respondent
in 1937.
Early in April 1938, Poffenberger, a working foreman in the fold-
ing department, discussed with Charles Snyder, a fellow working
foreman, the possibility of inducing the respondent to grant the
working foremen straight time. Snyder agreed to take the matter
up with Walter Smith, business agent of the Union. Thereafter,
Snyder approached Smith and brought the matter to his attention,
stating that the folding-department foremen were dissatisfied with
the current arrangement. On or about April 18, 1938, Smith dis-
cussed the question with Albert Brannon, the respondent's superin-
tendent. Brannon informed Smith that the respondent would not
grant the demand of the folding-department foremen for straight
time. Shortly thereafter Smith reported the failure of his attempt
to Snyder, who, in turn, passed the information on to the other
folding-department foremen. Smith's action at this time was not
passed on by the Union, since he made no report of the matter either
to the general membership of the Union or to its executive board. At
the hearing he explained that he did not do so because he regarded
it as a matter of minor importance and not as a "matter of Union
activities."
Several working foremen were unwilling to accept Smith's report
as disposing of the matter and shortly thereafter 'determined to go
to the respondent's office in a body and present their case. They
arranged among themselves that a group of 7 working foremen, com-
prising the 3 discharged employees, Snyder, Arthur Getter, Herbert
A. Clarkson, and Robert Thomas, should go to Brannon's office at
3:30 o'clock in the afternoon of April 20 and present their demand
to the respondent. All 7 of these men were foremen in the folding
department and were paid on an hourly basis and all were members
of the Union. Getter and Clarkson were ill-informed as to the
purpose in view in approaching the respondent. They were told
simply of a meeting in Brannon's office and understood that it was
to be a foremen's meeting called by Brannon. No appointment was
arranged with Brannon, the 7 foremen merely proceeded to his office
at the agreed time and entered unannounced. In most cases they
did not inform their assistants of their, departure from their depart-
ment. Although Brannon at the hearing manifested some irritation
concerning this informal procedure, the record shows that individual
foremen were accustomed to going to his office on any matter of
company business, freely and without appointment. The conference
lasted about 5 minutes and concluded when Brannon told the group
he would not grant their request for straight time. All witnesses
testifying about the conference agreed that the demands of the fore-
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men were presented in a truculent manner by Poffenberger, Schwab,
and Haley, and that none of the other 4 foremen said anything.
The foremen then left Brannon's office, returned to their department,
and finished the day's work. Their absences from their posts of
duty could not have exceeded 15 minutes.
The participation of at least 2 of the group had been less than
enthusiastic. The day following the meeting Getter explained to
Brannon, who had summoned him to his office on another matter,
that he had attended under the misapprehension that Brannon had
sent for him and that he did not approve of the methods used in
bringing the matter to the respondent's attention. Robert Thomas
testified that he told Richard Moore, the assistant superintendent,
"Schwab made me go in and I went to see what it was all about,
what we could do about getting straight time."
On the following day, April 21, about 2:30 p. m., Brannon decided
to discharge Schwab, Poffenberger, and Haley. Brannon was the
official primarily responsible for the discharge of foremen and testi-
fied that he acted "entirely independent of O'Connell," the respond-
ent's general manager, although as appears in the record Brannon's
decision was approved by O'Connell. Brannon and a committee
representing the respondent then called in the Union's negotiating
committee and informed it of the proposed discharges. The minutes
of this meeting were introduced in evidence. They `show that "both
committees were in accord with the matter," and that the committee
members agreed that Schwab, Poffenberger, and Haley were the
instigators of the trouble. The minutes also show that, "both com-
mittees were of the opinion and it was agreed upon by them that
these 3 men . . . be discharged Friday evening, April 22, 1938."
In accordance with this action of the joint committee, Brannon, after
working hours on April 22, told Schwab, Poffenberger, and Haley
that they were discharged for insubordination.
We are of the opinion that the Trial Examiner erred in finding
that the discharge of Schwab, Poffenberger, and Haley discouraged
membership in the Union and thereby violated Section 8 (1) and
(3) of the Act. The respondent and the Union were operating
under a written contract. This contract provided orderly methods
for settling grievances and other disputes through duly designated
representatives of the employees. The three discharged men took
it upon themselves to make a demand upon the employer for straight-
time pay, which would change the terms of the existing contract.
The provisions of the contract with.repect to rates of pay, hours,
and -other conditions were equally applicable to the discharged em-
ployees as to other employees. The Union was not only the statu-
tory representative of the discharged employees by virtue of Section
INTERNATIONAL ENVELOPE CORPORATION 1283
9 (a) of the Act, but they, had themselves designated it as their
representative by becoming members. When the Union was unable
to effectuate their desires, the discharged employees decided to take
matters into their own hands. The Union, as the authorized repre-
sentative of all the employees, disapproved of the action of the
minority group by twice at regular meetings declining to support
complaints of the discharged men and by intervening in behalf of
the respondent in the present case. Under such circumstances, when
a dissident minority group takes action contrary to the terms of an
existing contract and contrary to the wishes of the duly designated
representative chosen by the majority, disciplinary action by the
employer and by the Union is clearly justified. To rule otherwise
would be to permit self-appointed dissenting groups within a union
to ignore or to defy the legally designated representative, to take
matters into their own hands, to destroy the collective agreements
negotiated by majority organizations, and to undermine the process
of collective bargaining itself. It is clear from the above that
Schwab, Poffenberger, and Haley were not discharged in order to
discourage membership or non-membership in a labor organization.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of Schwab, Poffenberger, and Haley,
and that it' has not interfered with, restrained, or coerced its em-
ployees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection. Inasmuch as we have found that none of the
allegations of the complaint, as amended, in regard to the commission
of unfair labor practices are supported by the record, we shall dis-
miss the complaint, as amended, against the respondent.
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. Envelope Makers Federal Union No. 20311, affiliated with the
American Federation of Labor, is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. The operation of the business of the respondent, International
Envelope Corporation, Dayton, Ohio, constitutes a continuous flow
of trade, traffic, and commerce among the several States and Terri-
tories of the United States, within the meaning of Section 2 (6) of
the Act.
3. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (1) and (3) of the Act.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
complaint, as amended, against International Envelope Corporation,
Dayton, Ohio, be, and it hereby is, dismissed.
MR. EDWIN S. SMITH, concurring in part and dissenting in part:
While I agree with the majority of the Board that the discharges
of Schwab, Poffenberger, and Haley were not calculated to dis-
courage membership in the Union and do not constitute a violation
of Section 8 (3) of the Act, I cannot concur in the conclusion that
the activities for which they were admittedly discharged are beyond
the protection of Sections 7 and 8 (1). The Board has had occasion
to point out that "in enacting these provisions [Sections 7 and 8 (1)]
it was the intent of the Congress that employees, irrespective of
whether they are or are not members of a labor organization, have
full freedom and liberty to enjoy the advantages of concerted action
lawfully designed and engaged in to advance their economic and other
interests as employees." 4
I am of the opinion that in presenting their request for straight
time the discharged employees were engaging in concerted activities
for their mutual aid and protection, within the meaning of Section 7
of the Act. While the respondent was under no duty to grant their
request, and it is questionable whether the respondent could legally
have granted such request in view of its contract with the Union,
nevertheless, in discharging the leaders of a group who were attempt-
ing to advance their economic interests, the respondent interfered
with, restrained, and coerced these employees in the exercise of their
aforementioned, right. The existence of a contract between the
respondent and the Union does not preclude the Board from finding
that the respondent has committed unfair labor practices.5 I 'could
therefore find that by discharging Schwab, Poffenberger, and Haley,
the respondent violated Section 8 (1) of the Act.
*Matter of Servel Inc., and United Electrical Radio & Machine Workers of America,
Local 1002 , 11 N. L. R. B. 1295 See also Matter of Pittsburgh Standard Envelope Com-
pany and Pittsburgh Printing Pressmen and Assistants Union, No. 64, 20 N. L R. B. 516;
Matter of Indianapolis Power it Light Company and Utility Workers Organizing Committee,
Local 120 , affiliated with the Congress of Industrial Organizations , 25 N L R B 193,
enf'd May 14, 1941 (C C. A. 7).
5 National Labor Relations Board v. Newai k Morning Ledger Co, 120 F. ( 2d) 266,
on rehearing , enf'g as mod 21 N. L. R B. 988