Kimberly-Clark Corp.

National Labor Relations Board - Board Decisions

Nov 27, 1944

59 N.L.R.B. 568 (N.L.R.B. 1944)

In the Matter of KIMBERLY-CLARK CORPORATION and INTERNATIONAL
BROTHERHOOD OF PAPER MAKERS, A. F. L., AND INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, A. F. L.
Case No. S-R-885.Decided November 07, 194
Messrs. S. N. Moe and M. H. Kettenhofen, of Neenah, Wis., for the
Company.
Mr. J. Griffin McKiernan, of Albany, N. Y., and Mr. W. J. Cwnning-
ham, of Buffalo, N. Y., for the A. F. L.
Mr. Stanley Kulak, of Niagara Falls, N. Y.,.for the Independent. -
Mr. Rinaldo Cappellini, of Niagara Falls, N. Y., for District 50.
Mr. Jack Mantel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a joint petition duly filed by International Brotherhood of
Paper Makers, and International Brotherhood of Pulp, Sulphite and
Paper Mill Workers, both affiliated with the American Federation of
Labor, herein jointly called the A. F. L., alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Kimberly-Clark Corporation, Niagara Falls, New York, herein
called the Company, the National Labor Relations Board provided for
an appropriate hearing upon due notice before Peter J. Crotty, Trial
Examiner . Said hearing was held at Niagara Falls, New York, on
November 2,1944. The Company, the A. F. L., Paper Mill & Sulphite
Specialties Workers' Union, herein called the Independent, and District
50, United Mine Workers of America, herein called District 50, ap-
peared 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. At the hearing, the Trial Examiner
reserved ruling upon the Company and Independent's motions to dis-
miss the petition, on the grounds, (1) that their contract is a bar to a
present determination of representatives, and (2) that the A. F. L.
had not made a sufficient showing of interest in the proceeding. For
reasons hereinafter stated, we hereby deny the respective motions to
59 N. L . It. B.. No. 110.
568 -
KIMBERLY-CLARK CORPORATION 569
dismiss. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were af-
forded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kimberly-Clark Corporation, a Delaware corporation, is engaged
at' its plant in Niagara Falls, New York in the manufacture of paper
and paper specialties. During the month of September 1944, the
Company used at its Niagara Falls plant raw materials valued in excess
of $717,242, of which in excess of 93 percent represents shipments
made to the Company's plant at Niagara Falls from points outside
the State of New York. During the same period, the Company
manufactured finished products valued in excess of $1,250,299, of
which more than 92 percent represents shipments to points outside the
State of New York.
The Company admits that it' is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Paper Makers, and International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, both affiliated'
with the American Federation of Labor, are labor organizations
admitting to membership employees of the Company.
District 50, United Mine Workers of America, is a labor organiza-
tion admitting to membership employees of the Company.
Paper Mills & Sulphite Specialties Workers' Union, is a labor organ-
ization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 6, 1943, the Company and the Independent entered
into a closed-shop contract for a 1-year period. In September 1944,
negotiations for a new contract were held, culminating in the ex-
ecution of a new closed-shop contract on October 2,1944. The A. F. L.,
on September 18, 1944, requested the company to refrain from re-
newing its contract with the Independent. At a meeting held on
September 21, 1944, between the Company and the A. F. L. the Com-
pany stated that it would not recognize the A. F. L. as bargaining
agent for its employees, until the representation question was de-
termined by the Board. Thereafter, on September 28, 1944, the
A. F. L. filed its petition herein. The Company and the Independent
contend in support of their motions to dismiss the petition, that the
570 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
,new contract of October 2, 1944, constitutes a bar to this proceeding.
Since the Company had notice of the A. F. L.'s representation claim
and request for recognition prior to the date on which the contract
of October 2, 1944, was executed, we find that said contract with the
Independent cannot operate as a bar to an immediate determination
of representatives.'
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the A. F. L. represents a substantial number
of employees in the unit hereinafter found to be 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 are in general agreement that all hourly paid produc-
tion and maintenance employees at the Company's No. 1 and No. 2
plants, excluding office, clerical, and all supervisory employees con-
stitute an appropriate bargaining unit. They are in dispute, how-
ever, concerning tour foremen, whom the Company, District 50, and
the Independent would exclude from the unit and the A. F. L. would
include.
The record discloses that tour foremen are paid on a salary basis
and spend practically all of their time in supervising other employees.
They perform no manual work, except in emergency situations, which
consumes approximately 3 percent of their time. Tour foremen have
the authority effectively to recommend the hire and discharge of em-
ployees, and are consulted on promotions and transfers. We find
that tour foremen are supervisory employees within our customary
definition, and we shall therefore exclude them from the unit.
We find that all hourly paid production and maintenance employees
at the Company's No. 1 and No. 2 plants at Niagara Falls, New York,
1 See Matter of Kimberly -Clark Corporation, 54 N. L R. B. 601.
2 The Board agent reported that the A . F. L. submitted 268 authorization cards ; that
the names of 213 persons appearing on the cards were listed on the Company 's pay roll
of September 31, 1944 ; that 87 of the cards were dated between October 1943 and September
1944, 118 being dated October 1944 ; and that 8 were undated . The pay roll contained the
names of approximately 1,000 employees in the appropriate unit. The Company and the
Independent moved to dismiss the petition on the ground that the A. F. L.'s interest was
insufficient 1Zowever, in view of the series of closed-shop contracts between the Com-
pany and the Independent since September 1941, we are of the opinion that the A F. L.
has submitted a sufficient showing of membership to warrant the holding of an election
in the unit herein found appropriate. See Matter of Chicago Molded Products Corporation,
49 N. L. R 13 756 see toetnote 1, supra
The Board agent fuwtber, reported that District 50 submitted 137 authorization cards,
and that the names of 117 persons appearing on the cards were listed on the aforesaid pay
roll. Although this showing is insubstantial , since we are directing an election , we shall
follow our usual practice and accord District 50 a place on the ballot. The Independent
relies on its contract for its interest in the proceeding.
8 See Matter of Kimberly Clart Corporation, 54 N. L. R. B. 601 , and 55 N. L. R. B. 521.
KIMBERLY-CLARK CORPORATION 571
excluding tour foremen, office and clerical employees, and all other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees,
or 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
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 during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 Kimberly-Clark
Corporation, Niagara Falls, New York 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 Third Region, acting in this
matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among the 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 the said pay-roll period because they were ill or on vaca-
tion 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 International Brotherhood of Paper Makers and International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, jointly,
affiliated with the American Federation of Labor, by District 50,
United Mine Workers of America, or by Paper Mill & Sulphite
Specialties Workers' Union, for the purposes of collective bargaining,
or by none of these organizations.