The National Plastic Products Co.

National Labor Relations Board - Board Decisions

Jul 3, 1946

69 N.L.R.B. 288 (N.L.R.B. 1946)

In the Matter of THE NATIONAL PLASTIC PRODUCTS COMPANY and
INTERNATIONAL CHEMICAL WORKERS UNION, A. F. OF L.
Case No. 5-R-2312.-Decided July 3. 1.946
Messrs. Jacob Blum and Jacob S. New, both of Baltimore, Md., and
Mr. Raymond D. Zimmerman, of Odenton, Md., for the Company.
,Messrs. John A. Lewis and Henry A. McFarland, both of Balti-
more, Md., for the Union.
Mr. Jerome J. Dick, of counsel to the Board.
DECISION
AND
DIRECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Chemical Workers
Union, A. F. of L., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of
employees of The National Plastic Products Company, Odenton,
Maryland, herein called the Company, the National Labor Relations
Board on April 18, 1946, conducted a pre-hearing election pur.,uaut
to Article III, Section 3, of the Board's Rules and Regulatiolls,'
among employees of the Company in the alleged appropriate 11111t. to
determine whether or not they desire to be represented by the Union
for the purposes of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that there were approximately 227 eligible
voters and that 206 of these voters cast ballots, of which 90 were cast
for the Union, 78 against the Union, and 38 were challenged.
Thereafter, pursuant to Article III, Section 10, of the Rules and
Regulations,' the Board provided for an appropriate hearing, upon
due notice before Sidney J. Barban, Trial Examiner. The hearing
was held at Baltimore, Maryland, on May 9, 1946. The Company
and the Union appeared and participated. All parties were afforded
' By amendment of November 27, 1945, this Section of the Rules now permits the conduct
of a secret ballot of employ ees pixor to hearing m cases which present no substantial issues
e As amended November 27, 1945, this Section provides that where the initial hearing is
held after the election, all issues including issues with respect to the conduct of the election
or conduct affecting the election results and issues raised by challenged ballots, shall be
heard at such hearing
69 N. L. R. B., No 35.
288
THE NATIONAL PLASTIC PRODUCTS COMPANY 289
full opportunity to be heard, to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues.
At the hearing, the parties agreed that 21 of the challenged ballots
might be counted. These ballots were opened and counted at the
hearing, in the presence of the parties. The Revised Tally of Ballots
shows that 95 ballots were cast for the Union, 94 against the Union,
and 17 still remain challenged.
Also, at the hearing, the Company moved to set aside the election
on various grounds. For reasons set forth in Section V, infra, the
motion is denied.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.3 All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The National Plastic Products Company, a Maryland corporation
with its principal office and plant located at Odenton, Maryland, is
engaged in the manufacture of plastic products. The Company an-
nually uses at its Odenton plant raw materials exceeding $100,000 in
value, of which approximately 35 percent is received from points out-
side the State of Maryland. The Company annually produces at its
Odenton plant finished products exceeding $100,000 in value, of which
approximately 35 percent is shipped to points outside the State of
Maryland.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Chemical Workers Union is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of its employees, until the Union
has been certified by the Board in an appropriate unit.
3 The Company contends that the Trial Examiner ' s denial of the Company's request lot
an adjournment of the hearing , so that a formal Notice of Hearing could have been served on
an affiliate of the C I 0 ., whose name is not disclosed by the record, was error It appears
that the C I. O. affiliate had distributed circulars among the Company's employees, stating
that the Company was discriminating against the C I 0 , and "playing ball" with the
F of L We find the Company ' s contention to be without merit , for the record discloses
that the Regional Director spoke with representatives of the C I. 0 affiliate. who stated
hat they had no interest in the proceeding.
701592-47-{ of 69--20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
1V. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all
production and maintenance employees at the Company's Odenton,
Maryland, plant, excluding office clericals and all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Company objects to the election and seeks to have it set aside
on the grounds that (1) the election was at variance with the Act
inasmuch as it was held prior to the hearing over the Company's ob-
jection; ( 2) selection of the pay roll of April 2, 1946, to determine
eligibility was improper; and (3) by allowing the Union's organizer
to drive them to the plant in his automobile, the Board' s representa-
tives who conducted the election may have influenced the employees
to vote for the Union. In addition, the Company questions the
eligibility of 17 persons who cast votes under challenge.
The objections to the election
(1) In the recent Squibb cases we considered and rejected the
contention that the holding of an election before a hearing over the
employer's objection is repugnant to the Act. Accordingly, for the
reasons indicated in that case, we overrule the Company's first
objection herein.
(2) In connection with its second objection, the Company stresses
that, on April 9, 1946, when the question of eligibility was discussed,
it informed a Board agent that a number of its maintenance workers
were to be discharged before the day of the election upon the com-
pletion of a building construction project. It argues that, inasmuch
as the April 2, 1946, pay roll contained the names of these employees,
it was improper for the Board agent to utilize this pay roll for the
purpose of determining eligibility to vote.
4 These individuals were challenged by the Board's agent because of the Company 's posi-
tion concerning them They are Walter Gilbert , Preston Downs, Howard Millard , Willard
Odenbeck , Frank Satulla , Stanley Wilhelm , Charles Danza. Bandy Lanko . Joseph Ragman,
George Leancie , John R. Schnurr , Jr, Ray Schrader , Charles McGill , Paul H Wockenfuss,
Melvin Ziegler , Clyde Morton and Hebert M Triplett ( challenged as Herman Triplett,
however , it is clear that Herman Triplett and Herbert M Triplett are the same person)
5 Matter of E. R Squibb & Sons , 67 N. L R. B 557.
THE NATIONAL PLASTIC PRODUCTS COMPANY 291
We note that on April 9, 1946, the Company refused to indicate what
in its opinion should be the governing pay roll, although requested to
do o by the Board agent. Furthermore, the ballots of all maintenance
workers were challenged at the election by a Board representative.'
In fact, the challenged ballots remaining for disposition were cast by
17 of these employees.7 Since the maintenance employees voted under
challenge and the issue of the validity of their ballots was thereby
raised for the Board's determination, we fail to perceive in what man-
ner any prejudice resulted from the Board agent's selection of the April
2, 1946, pay roll to govern voting eligibility. We are persuaded by
the entire record, furthermore, that the April 2, 1946, pay roll was in
all respects a proper basis for determining eligibility to vote. Conse-
quently, we overrule the Company's second objection.
(3) We are also of the opinion that the Company's third objection
lacks merit. The election was conducted in the morning and after-
noon of April 18, 1946. The Board representatives who conducted
the election drove with the Union's organizer in his automobile from
the Odenton station to the plant for the morning session, and had
difhculty entering the plant because there were no employees present.
It is clear from the uncontradicted testimony of one of the Board
representatives that, in the morning, no employee entitled to vote
observed that the Board representatives drove to the plant with the
Union's organizer. After the close of the morning balloting, counsel
for the Company himself offered the Board representatives transpor-
tation to Baltimore in his car, but they had to refuse this offer because
they had previously made similar arrangements with the Union's
organizer. One hour and 20 minutes before the change of shifts, the
Board representatives returned to the plant with the Union's organizer
in hi, automobile for the afternoon session. The Company's treasurer
testified that, from his office at the plant, he saw the Board represen-
tatives return with the Union's organizer. However, he stated that
he did not know of his own knowledge whether or not any employee
eligible to vote say what had occurred. One of the Board representa-
tives testified, moreover, that he did not see a single employee outside
the plant when he arrived at the plant that afternoon. It is apparent
from the above facts that, there is no evidence to show that any eligible
employees observed at any time that the Board representatives drove
to the plant with the Union's organizer. We, therefore, overrule the
Company's third objection, but note the fact that had there been sub-
stantial evidence to that effect, we might well have decided other-
° No maintenance emplo} ees were dismissed by the Company prior to the (late of the
election
4 A total of 38 maintenance uoricers -,oted and, as indicated, a Board representative chal-
lenged the ballots of all Pursuant to the agreement of the parties, 21 of such ballots
were opened and counted as valid during the course of the hearing These 21 challenged
ballots are the ones referred to in the Statement of the Case, supra
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise. We regard the practice engaged in by our representatives as
undesirable.
The challenged ballots
As already indicated, the Company questions the eligibility of the
17 maintenance workers mentioned above, claiming that they were
temporary employees. These 17 workers had been employed by the
Company for a considerable period before the election, some as long
as 2 years. They were in the Company's employ on the eligibility date
and on the day of the election. The only basis for the Company's
contention that they were ineligible lies in the fact that it claims it
had decided to discharge them before the election, and that it com-
municated to the Board agent at the conference of April 9, 1946, an
intention to separate some maintenance employees prior to the elec-
tion. But no maintenance employees were dismissed by the Company
until April 30, 1946, long after the holding of the elections It is the
Company's position that it would have discharged them before the
date of the election were it not for the fact that it was advised by
counsel that such action on its part might leave it open to charges of
unfair labor practices." Discharges for cause are not proscribed by
the Act, however. Furthermore, the evidence clearly shows that after
the Company had informed the Board agent at the conference of April
9, 1946, that a number of maintenance workers were to be discharged
before the election, it agreed with the Union not to separate any of
these employees before the election was conducted. From these cir-
cunistances, we conclude that the 17 maintenance workers were eligible
voters, and we hereby overrule the challenges to their ballots'0
We shall direct that the ballots of Walter Gilbert, Preston Downs,
Howard Miller, Willard Odenbeck, Frank Satulla, Stanley Wilheim,
Charles Danza. Kandy Lanko, Joseph Rayman, George Leancie, John
R. Schnurr, Jr., Ray Schrader, Charles McGill, Paul H. Wockenfuss,
Melvin Zeigler, Clyde Morton, and Herbert M. Triplett, hereinabove
found to be valid, be opened and counted.
DIRECTION
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 3, as amended, it is hereby
8 On April 30, the Company dischaiged 15 maintenance employee,, and 2 quit of their own
volition , 1 of the 2 maintenance workers who voluntarily left the Company's employ was
paid until April 30, although he ceased working on April 27. The ballots of these 17
employees aie the challenged votes under consideration
I The Union filed its petition herein on March 29, 1946.
10 We observe in passing that , had we reached a contrary conclusion , as requested by the
company, the Union would have been entitled to certification without further ado
THE NATIONAL PLASTIC PRODUCTS COMPANY 293
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The National
Plastic Products Company, Odenton, Maryland, the Regional Director
for the Fifth Region shall, pursuant to said Rules and Regulations,
within ten (10) days from the date of this Direction, open and count
the challenged ballots of Walter Gilbert, Preston Downs, Howard
Miller, Willard Odenbeck, Frank Satulla, Stanley Wilheim, Charles
Danza, Kandy Lanko, Joseph Rayman, George Leancie, John R.
Schnurr. Jr., Ray Schrader, Charles McGill, Paul H. Wockenfuss,
Melvin Ziegler, Clyde Morton, and Herbert M. Tripplett, and shall
thereafter prepare and cause to be served upon the parties a Supple-
mental Tally of Ballots, including therein the count of these challenged
ballots.