Wilson Packing and Rubber Co.

National Labor Relations Board - Board Decisions

Jul 30, 1943

51 N.L.R.B. 910 (N.L.R.B. 1943)

In the Matter Of WILSON PACKING AND RUBBER COMPANY and UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. B-5677.-Decided July 30, 1943
Mr. Leonard W. Simonet , of Minneapolis , Minn., for the Company.
Messrs. Douglas Hall and R. A. Carlson , of Minneapolis , Minn., for
the C. I. O.
Mr. Roy Vier, of Minneapolis , Minn ., for Local 58.
Mr. Arthur Leff, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Electrical, Radio & Machine
Workers of America, C. I. 0., herein called the C. I. 0., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Wilson Packing and Rubber Company, St. Louis
Park, Minnesota, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before Clarence A. Meter, Trial Examiner. Said hearing was held
at Minneapolis, Minnesota, on July 13, 1943. The Company, the C.
I. 0., and Leather, Luggage and Novelty Workers Local Union No. 58,
herein referred to as Local 58, 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 prej-
udicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
'A representative of Local 58, which was duly served with notice of the hearing, ap-
peared at the hearing , stated that his union did not desire to intervene , and after making
a statement for the record which is referred to in Section III, below , asked to be excused
and did not thereafter participate in the hearing.
51 N. L. It. B., No. 143.
910
WILSON PACKING AND RUBBER COMPANY 911
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Wilson Packing and Rubber Company is a copartnership engaged
in the fabrication and molding of rubber products and having its
principal office and place of business at St. Louis Park, Minnesota.
The products manufactured by the Company consist principally of
parts which are used by other manufacturing companies. For use
in its manufacturing process, the Company during the past 6 months
purchased approximately $60,000 worth of raw materials consisting
principally of rubber compounds. Almost all of the raw materials
originally came from points outside the State of Minnesota. Dur-
ing the same period, the finished products of the Company amounted
in value to approximately $150,000, of which approximately 10 per-
cent was shipped directly to points outside the State of Minnesota.
Approximately 90 percent of the Company's finished products are
sold to local equipment manufacturers in Minnesota. The finished
products sold to such local equipment manufacturers are in turn
assembled by such manufacturers and the assembled products are
then shipped to points outside the State of Minnesota.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
On or about June 8, 1943 , the C. I. O. requested recognition as the
exclusive bargaining representative for production and maintenance
employees of the Company. The Company, however , declined to
recognize the C . I. O. It claimed that it had a contract with Local
58 covering such employees for a term expiring on July 31, 1944.
Following a cross check conducted under the supervision of the
Board , ,the Company and Local 58 on August 1, 1942 , entered into
a l1year contract containing an automatic renewal clause under which
the contract was renewable for yearly terms, subject to defeasance
upon written notice given by either party at least 60 days prior to
the expiration of any yearly term. No notice of intention to ter-
minate or modify the contract was given by either party prior to June
1, 1943 . While in normal circumstances the failure to give such
notice; coupled with the fact that the C. I. O. did not assert its
912 DECISIONS OF NATIONAL LABOR REIDATIONS BOARD
representation claim until June 8, 1943, would, under the principle
established by us in the Mill B case,2 operate as a bar to a deter-
mination of representatives during the period of the renewed term,
the facts of this case are such as to clearly take it outside the application
of that principle.
In this case the uncontradicted evidence shows that, long prior
to June 1, 1943, Local 59 ceased to act as a bargaining representative
for employees under the contract. From the time of the signing of
the contract on or about August 1, 1942, until June 8, 1943, when
the Company, on its own initiative, discussed with Local 58 the filing
of the petition in the instant proceeding's Local 58 had,no contact
whatsoever with the Company. During that period Local 58 held
no membership meetings, took up no grievances with the Company,
set up no employee committees, arranged no meetings with the Com-
pany, and otherwise took no steps toward administering its contract.
In short, it was completely inactive as a functioning bargaining
representative. The representative of Local 58, who appeared at
the hearing stated that his organization no longer had any member-
ship among employees of the Company and that he did not con-
tend that the contract between Local 58 and the Company constituted
a bar to a present determination of the question concerning repre-
sentation. As contrasted to the absence of employee membership in
Local 58, a report of the Regional Director, introduced in evidence
at the hearing, and., supplemented by a statement on the record made
by the Trial Examiner following the inspection of additional mem-
bership cards, indicates that the C. I. 0. represents. a substantial
number of employees in the unit hereinafter found appropriate.4
Where, as here, a contracting labor organization has become defunct
and is no longer functioning as a representative of employees under
a contract, and it appears that substantially the entire membership
of the contracting union in the affected bargaining unit has shifted
to another organization, we hold that the contract is not a bar to
a determination of representatives .5 And that principle is particu-
larly applicable if, as in the instant case, it further appears that the
4 Matter of Mill B , Inc., 40 N. L R. B. 346.
8 At that time , Local 58 requested the Company to amend the contract so as to include a
closed -shop provision . The Company rejected the proposal , and Local 58 refrained from
further negotiations.
4 The report of the Regional Director , supplemented by the statement of the Trial Ex-
aminer, shows that the C. I. 0. submitted 75 membership application cards, all bearing
apparently genuine signatures . Of these, 73 bore the names of persons on the Company's
pay roll of June 16, 1943 , which contains the names of 86 persons within the unit here-
inafter found appropriate . All the cards were dated in June 1943
'Matter of Dominion Electrical Mfg Co ., Inc., 27 N. L. R . B. 722; Matter of S1o88-
Sheffield Steel & Iron Co, 37 N. L. R. B 134; Matter of E. T Fraim Lock Company, 39
N. L. R. B . 202; Matter of National Lead Company , 45 N. L. R. B. 182; Matter , of Mor-
ri8on Steel Products, Inc., 50 N. L. R. B. 72. -
WILSON PACKING AND RUBBER COMPANY 913
contracting union has in effect waived any right to represent the
employees."
The Company, while not insisting that the contract is a bar to the
present representation proceeding, contends, nevertheless, that the
Board should rule that, if the C. I. O. is designated as the bargaining
agent, its agency during the unexpired term of the contract, (claimed
by the Company to be still in effect through operation of the. auto-
matic renewal) should be limited to the administration of that
contract. We find no merit to this contention. Our only function in
a proceeding of this character is to ascertain and certify to the parties
the name of the bargaining representative, if any, that has been
designated by the employees in the appropriate unit; it is not our
function to direct, instruct, or limit that representative as to the man-
ner in which it is to exercise its bargaining agency. Moreover, it
is clear in this case that on /June 1, 1943, when the Company 'claims
its contract with Local 58 was renewed for an additional 1-year
term, Local 58 was no longer a functioning majority representative
of the employees, and the Company had knowledge of that fact.
Had the Company at that time and with such knowledge entered into
a new exclusive bargaining agreement with Local 58, the agreement
would not have been valid and binding upon a duly designated
representative of a majority of the employees. The same infirmity
attaches under like circumstances to an automatic renewal which is
brought about through the inaction rather than the action of the
parties.
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
In accordance with a stipulation of the parties we find that all pro-
duction and maintenance employees of the Company at its St. Louis
Park, Minnesota, plant, excluding the superintendent, foremen, fore-
ladies, office and clerical employees, and all supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise ef-
fect changes in the status of employees, br effectively recommend 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
At the time of the hearing, the Company was operating at about 50
percent of its usual capacity, and its normal complement of employees
°Matter of Continental Products Inc, 36 N. L. R. B. 527; Matter of Fruehauf Trailer
Company of California, 37 N. L R. B. 757.
914 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
had been reduced by approximately the same percentage since -Junb
16, 1943. The Company expects to secure new contracts which :will
require it to bring its employee complement up to normal and antici-
pates rehiring those employees whose names appeared on its June' 16,
1943, pay roll and who were since laid off. The parties stipulated
that June 16, 1943, be used as the pay-roll date for the purpose of
determining eligibility.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed on June 16, 1943,
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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Wilson Packing
and Rubber Company, St. Louis Park, Minnesota, 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 Director for the Eighteenth 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,
among the employees in the unit found appropriate in Section IV,
above, who were employed on June 16, 1943, including employees who
did not work during said pay-roll date because they were ill or on va-
cation 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, to determine whether or not they desire to be repre-
sented by United Electrical, Radio & Machine Workers of America
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.