Kellburn Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 2, 1942

45 N.L.R.B. 322 (N.L.R.B. 1942)

In the Matter of KELLBURN MANUFACTURING COMPANY, INC. and HUD-
SON VALLEY DISTRICT, INTERNATIONAL LADIES' GARMENT WORKERS'
UNION, A. F. OF L.
Case "No. R-436K5.Decided November 2, 194.
Jurisdiction : canvas products manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition -, striking employees held eligible to vote ;
persons hired between date of strike and unconditional offer of striking em-
ployees to return to work held eligible to vote, but their ballots impounded;
persons hired.after date of unconditional offer of striking employees to-return
to work 'held ineligible to vote; discharged employees on whose behalf 8 (3)
charges were, pending held eligible to vote, but their ballots impounded ; election
,necessary.
`Unit' Appropriate for Collective Bargaining : all employees, excluding non-work-
ing supervisors and office and- management employees.
Mr. Leo. E. Sherman, of New York City, for the Company.
Isserman, Isierman & Kapelsoh'n, by Mr. Sol. D. Kapelsohn, of
Newark, N. J., for the Union.
Mr. Joseph E. Gubbins, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Hudson Valley District, International
Ladies' Garment Workers' Union, affiliated with the A. F. of L., herein
called the Union, alleging that a question affecting commerce had
arisen concerning the representation of employees of Kellburn Manu-
facturing Company, Inc., Saugerties, New York, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice, before James C. Paradise, Trial
Examiner. Said hearing was held at Kingston, New York, on October
5,1942. The Company and the Union appeared, participated, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues. At the
hearing the Company moved to dismiss the petition, on the ground
45 N L R B., No 51
322
1
'KELLBURN MANUFACTURING COMPANY; INC. ' 323
that the, Company.is not engaged in commerce within the meaning
of the Act. The Trial Examiner reserved ruling for the Board. The
motion, is hereby denied. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby aflirined. -
Upon the entire record in the case, the Board, makes the followin
FINDINGS or FACT
I. THE BUSINESS OF THE COMPANY
Kellburn Manufacturing Company, Inc., is a New York corporation
acid' has` its 'principal office and place of business at Saugerties, New
York. 'The Compaiiy•is engaged in the manufacture of canvas prod-
ucts, namely, "tents, pistol belts, pontoon case's, haversacks, and field
bags for the United States Government: Most of the raw material
used in manufacturing the above-named"products is furnished by the
United States Government, and is shipped 'to the Company's plant
from depots outside the State of New York. 'The'finished products
are shipped to "various points iii the United States, mostly out of the
'Strife 6f Ne«'York, on Government bills of lading. During the past
6 months, shipments of raw materidl"aiid of finished'products, respec-
tively, exceeded in value $25,000.1
We find that the Company, contrary to its contention, is engaged in
conne'ce within the,meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Hudson Valley District, International Ladies' Garment Workers'
Union, is a labor organization affiliated with the American Federation
"of Labor, admitting= to ineinbership employees of the Company:
III. THE QUESTION CONCERNING REPRESENTATION
The Uniou`began-organizing about'August'25; 1942. • "On August 28
and 29, 1942, 8 employees of the Company, who were members of the
`Unlon's'organ'izing committee or active-in the Union's campaign, were
'discharged. Jacob' Schneider, disfrict organizer of the Union, on
`August 29 requested a• conference with Verne 'Ra,thburn; president of
the Company, to.discuss collective bargaining and the reinstatement-of
the discharged,eniploy'ees. Schneider met Rathburn on August 31
,and requested reinstatement of the discharged employees and recogni'-
'tion of the Union as the bargaining agent, for the employees of the
Company. Rathlurn declined .both requests, asserting that the dis-
charged employees"were released' for incompetency and that he d6ubtedl
' The president of the Company refused to divulge, any figures or estimates of the volume
of the Company's business other than those set forth above.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's majority status. On September 4, 4 more employees were
discharged and on about September 17, another. On September 18,
1942, about 80 employees went on strike as a result, according to un-
contradicted testimony, of the discharge of union members. The strike
was not authorized by the Union. On September 26, the employees
on strike voted unanimously to return to work unconditionally, pend-
ing settlement of the dispute by the appropriate governmental agen-
cies. Later that day representatives of the Union, the United States
Conciliation Service, and the War Production Board met with Presi-
dent Rathburn of the Company and informed him of the employees'
offer to return to work immediately and unconditionally. Rathburn
declined to give any answer or to iiidicate when the employees should
return to work. The Company contends that the strikers quit their
employment by engaging in the walkout.
A statement of the Acting Regional Director, introduced in evidence
at the hearing, indicates that the Union represents a substantial
,number of employees in the proposed appropriate unit.'
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 Union requests a unit composed of all employees of the Com-
pany, excluding non-working supervisors and office and management
employees. The Company takes no position as to the appropriate
unit.
We find that all employees of the Company, excluding non-work-
ing supervisors and office and management employees, constitute a
unit appr opriat& fbr the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. A problem
arises, however,- as to the persons who shall be eligible -to -vote. As
2 The Acting Regional Director 's statement , as supplemented by a statement of the
Trial Examiner , shows that the Union submitted 67 authorization cards, dated between
August 26 and 31 , 1942 ; all of the 67 signatures appear to be genuine , original signatures
and are names of persons whose names appear on the Company 's pay roll for August 31,
1942, which includes 114 names of employees within the alleged appropriate unit. We
find no merit in the Company 's contention that the petition should be dismissed because
the Acting Regional Director 's statement referred to the petition as having been filed by'
Local 165 of the International , whereas the petition herein was filed by Hudson Valley
District of the International. The authorization cards designate " International Ladies'
Garment Workers ' Union and its officers" as the representatives of the signer . The record
clearly shows that Hudson Valley District is a subordinate body of the International.
KELLBURN MANUFACTURING COMPANY, INC. 325
stated in Section III, above, 13 employees were discharged between
August 28 and September 18, 1942, and on September 18, approxi-,
mately 80 persons went on strike, in protest against the discharges,
which were claimed to have been effected because of the union activi-
ties of the employees discharged. As set forth above, the Company,
on September 26, 1942, refused to reinstate the strikers although they
offered to return to work immediately and unconditionally. On Oc-
tober 5, 1942, Local 165 of the Union filed with the Regional Director
amended charges alleging that the Company had discriminatorily dis-
charged the 13 employees referred to above, and that on September
26 the Company refused to reinstate the employees who on that day
called off a strike caused by the Company's unfair labor practices and
offered unconditionally to return to work.3 Between September 18,
the date of the strike, and September 26, the date of the offer by the
strikers„ to. return to work, the Company employed. 7 persons as re-
placements for the strikers. The September a 30 pay roll, which was
the last pay-roll period preceding the hearing, lists as working 33
persons whose names appear on the September 16 pay roll, and 11
persons hired after the strike began; between September 30 and Oc-
tober 5, the date of the hearing, the Company hired 4 new employees.
The Union contends that eligibility to vote should be determined by
reference to the pay roll for the period preceding August 28, with
the result that the strikers and the 13 persons discharged would be
eligible, whereas all replacement employees would be ineligible. The
Company, on the other hand, desires use of a current pay roll, which
lists oniythe persons who did not goon strike and the replacement
employees; the Company contends that the discharges were-proper
and that the strikers quit their jobs and therefore both groups are no
longer employees.
With respect to the eligibility of the strikers, it is clear that their
work ceased as a result of a labor dispute which is still current, and
that they did not quit their employment. It follows, therefore, that
they are employees within the meaning of Section 2 (3) of the Act
and, under our established policy, are entitled to vote 4 As to the 13
employees whose discharges' are alleged in pending charges to have
been discriminatory, in the event the Company is hereafter found
to have engaged in unfair labor practices with respect to them and the
Board orders their reinstatement, their continuing employee status
a The original charges, docketed as Case No. II-C-4832, were filed on September 2, 1942,
and alleged violation of Section 8 (1), (3), and ( 5). The amended charges were filed on
October 5, the date of the hearing in this proceeding, and deleted the allegation as to the
8 (5) violation and added further names to the discriminatory discharge allegation. The
Union has waived the right to object to any election ordered herein on the basis of the
aforesaid charges.
* See Matter of the Rudolph Wurlitzer Company and Piano, Organ and Musical Instru'
ment Workers ' Union, Local No. 1190, 32 N. L. R. B. 163; Matter of Ideal Seating Company
and United Furniture Workers of America, C. I. 0.. 36 N. L. R. B. 166.
326 DECISIONS OF NATION-AL-;LABOR RELATIONS" BOARD
,will have been established. We shall, therefore, in accordance with
our usual ,practice in this respect, permit-these 13 persons to vote ;
however, their ballots shall be impounded and we shall defer; passing
upon their validity, if it becomes necessary to do so, until the-unfair
labor practice charges have been resolved.,, Our decision permitting
these persons to vote is not to' be interpreted as in any way passing
upon the legality or illegality of their discharge.
. In prior cases involving a current strike,- not alleged to have been
caused by any unfair labor practices on the part of the employer, the
Board has determined eligibility to vote by reference to a current
pay roll, and has held that both strikers and replacement employees
are eligible to vote.,, We think that the situation presented in the
instant case is clearly distinguishable from the cases applying this
principle.. Here it cannot be assumed, as it was in the Wurlitzer case,
that the strike is an economic one and not caused by unfair labor
practices, since there is pending before the Board charges that the
strike, or walkout was caused by the unfair labor practices of the Com-
pany, and that the Company has refused to reinstate the strikers.. In
the event the Board hereafter finds that the strike was caused by unfair
labor practices, the Board normally would order the, Company to
offer reinstatement, .upon application, to the employees on strike,
discharging if necessary persons hired since the strike. Therefore, the
replacement employees are in substantially the same position, with
respect to their expectancy of continued employment, as the 13 dis-
charged employees : their status as employees remains to be determined.
We are constrained, moreover, to exclude from participation in the
election those replacement employees hired after September 26, the
date the strike was called off. When the strikers offered to return to
work immediately and. unconditionally, the right of the Company to
continue to replace them became vulnerable.? The Company continued
to operate throughout the strike, and there is no contention that when
application was made jobs were not available for any of them, either
by reason of their positions having been filled or because of lack of
work.e The only explanation advanced by the Company for its refusal
to reinstate the strikers pursuant to their application is the assertion
that' by engaging in the walkout they quit and thereby ceased to be
employees. As we have found, this contention is untenable. While
See Matter of Fred A . Snow Company and International Union. United Automobile,
Aircraft and Agricultural Implement Workers of America (U. A. W.-C. I. 0.), 40 N. L R. B.
400; Matter of Ford Motor Company, a Delaware corporation and International Union,
United Automobile Workers of America, af)iliated with the C. 1. 0., 30 N. L. R. B 985.
e See cases cited in footnote 4, supra.
' Black Diamond Steamship Corporation v. National Labor Relations Board, 94 F. (2d)
875 (C. C A. 2), cert. denied 304 U. S. 579; National Labor Relations Board V. Mackay
Radio & Telegraph Co., 304 U S 333.
8 Prior to the strike, the Company had not reached its full complement of employees, but
expected to expand operations The September .16' pay roll lists a total of 108 employees ;
on the September 23 pai roll there are 113.
KELLBURN MANUFACTURING COMPANY, INC. 327
we do not decide in this proceeding whether or not the Company
unlawfully refused to reinstate the strikers, the record persuades us
that the striking employee's, upon making an unconditional offer to
return to work, thereby acquired a right to available jobs which, for
the-purposes of determining eligibility to vote, is superior to the right
of employees hired after the unconditional offer. Accordingly, we
shall direct that eligibility to vote shall be determined by the pay roll
for the period immediately preceding-September 26, 1942, and that
persons hired thereafter shall not be eligible to participate in the
election. We shall permit employees hired between the date of the
strike and September 26, to vote, but their ballots shall be impounded
and, if necessary, their validity will be determined after the unfair
labor practice charges have been resolved.
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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represen-
tatives for the purposes of collective bargaining with Kellburn Man-
ufacturing Company, Inc., Saugerties, New York, an election 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,
acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 10, of said Rules and
Regulations, and subject to the provisions of Section V, above, among
the employees in the unit found appropriate in Section 'IV, above,
who were employed during the pay-roll period immediately preced-'
ing September 26, 1942, including employees who went on strike and
employees who did not work during said pay-roll period because
they were ill or on vacation or in the active military service or train-
ing of the United States, or temporarily laid off, but excluding em-
ployees hired since September 26, 1942, and those who have since
quit or been discharged for cause, to determine whether or not they de-
sire to be represented by Hudson Valley District, International La-
dies' Garment Workers' Union, for the purposes of collective bar-
gaining.
MR. WILLIAM M. LEISERSON, dissenting :
I am of the opinion that the charges of unfair labor practices
should be disposed of before an election is ordered.