Kimberly-Clark Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1945

61 N.L.R.B. 90 (N.L.R.B. 1945)

In the Matter Of KIMBERLY-CLARK CORPORATION and, INTERNATIONAL
BROTHERHOOD OF PAPER MAKERS, A. F. OF L., AND INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPFzR MILL WORKERS,
A. F. OF L.
Case No. 18-R-1115.-Decided March 28, 1945
Mr. S. N. Moe, of Menasha, Wis., and Mr. M. H. Kettenho f en, of
Neenah, Wis., for the Company.
Messrs. Arthur E. Pinten and Elmer P. Heinz, of Appleton, Wis.,
for the A. F. of L.
Mr. Donald F. Cameron, of Milwaukee, Wis., for the Independent.
Mr. Ernest W. Erb, of Milwaukee, Wis., for the C. I. O.
Miss Ruth Busch, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition jointly filed by International Brotherhood of Paper
Makers, A. F. of L., and International Brotherhood of Pulp,.Sulphite
and Paper Mill Workers, A. F. of L., herein called the A. F. of L.,
alleging that a question affecting commerce had arisen concerning
the representation of employees of Kimberly-Clark Corporation,
Niagara, Wisconsin, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Stephen M. Reynolds, Trial Examiner. Said hearing was held
at Niagara, Wisconsin, on October 26, 1944. The Company, the
A. F. of L., Niagara Paper Mill Workers' Union, herein called the
Independent, and Paper Workers Organizing Committee, C. I. 0.,
herein called the C. I. 0., 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.
At the hearing, the Company moved to dismiss the A. F. of L.'s
I At the beginning of the hearing , the Trial Examiner granted motions to intervene made
by the Independent and the C. I. O. The Independent was also granted a motion correct-
ing its name as set forth above on all formal papers.
61 N. L. R. B., No. 8.
90
KIMBERLY-CLARK CORPORATION 91
petition on the ground that the Board's certification was less than a
year old at the time the petition was filed. The Trial Examiner
reserved ruling on the Company's motion for the Board's determina-
tion. For reasons stated in Section III, infra, the Company's motion
is hereby granted. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. All parties
were afforded 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
The Company is a Delaware corporation which operates paper mills
in the States of Wisconsin and New York. Its Niagara, Wisconsin,
plant is the only plant involved in this proceeding. The Company is
engaged in the manufacture of wood pulp, paper, and paper special-
ties. Each month the Company purchases raw materials amounting
to more than $200,000 in value, of which 85 percent is shipped from
sources outside the State of Wisconsin. For the same period, the
Company sells finished products amounting to more than $420,000 in
value, of which 65 percent is shipped to points outside the State of
Wisconsin.
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 are labor or-
ganizations affiliated with the American Federation of Labor, admit-
ting to membership employees of the Company.
Niagara Paper Mill Workers' Union is a labor organization, ad-
mitting to membership employees of the Company.
Paper Workers Organizing Committee is a labor organization affili-
ated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
III. THE ALLEGE15 QUESTION CONCERNING REPRESENTATION
By letter to the Company dated August 16, 1944, the A. F. of L.
requested recognition as the statutory' bargaining representative of
the Company's employees. The Company declined to accede to this
request on the ground that the Independent was the certified bargain;
ing agent of its employees. The A. F. of L. filed its petition herein
on September 14, 1944,
0
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 21, 1944, as a result of proceedings theretofore insti-
tuted by the C. I. 0., and after a hearing and Board-directed election,'
the Independent was certified as the statutory bargaining agent of the
Company's employees herein involved. Prior to the petition which
instituted that proceeding, but after the petitioner therein had asserted
its claim for recognition, the Company and the Independent executed
a closed-shop collective bargaining contract dated September 22, 1943,
to become effective on October 1, 1943 3 The contract was for a term
of 1 year, automatically renewable for like periods in the absence of
notice to terminate given by either party to the other on or before Sep-
tember 1 of any contract year. This contract, which the Board found
to be no bar to the election conducted in the prior proceedings just
referred to, remained in effect on the date of the Independent's certi-
fication and did not expire until a little more than 7 months thereafter.
On September 1, 1944, 2 weeks after the A. F. of L.'s request for recog-
nition above noted, the contract was automatically renewed for an-
other year, as between the parties thereto, since neither the Company
nor the Independent served notice of a desire to terminate it. These
parties now contend that the renewed contract, despite the timely
claim of the A. F. of L., operates to bar a determination of representa-
tives in this proceeding by virtue of the fact that the Independent's
certification was only a little over 6 months old at the time when the
automatic renewal clause became operative.
We find merit in this contention. It is clear that the renewed
contract, standing alone, would not bar a present investigation of
representatives, because the petitioner's claim for recognition was
asserted' prior to the renewal date. Another principle comes into play
in this case, however. We have consistently held, both in unfair labor
practice cases involving Section 8 (5) of the Act, and in cases arising
under Section 9 (c), that a Board election and certification must be
treated as identifying the statutory bargaining agent with certainty
and finality for a reasonable period of time-about a year, under
ordinary circumstances 4 This policy serves the dual purpose of en-
couraging the execution of collective bargaining contracts and of dis-
couraging "raiding" and too frequent elections. It means, in opera-
tion, that a demand for recognition, or petition for investigation of
2 Matter of Kimberly - Clark Corporation , 54 N L R B. 601.
8 The Independent has been the bargaining representative of the Company ' s employees
since 1941 . The contract of September 22, 1943, succeeded a prior contract made in
December 1942, effective until October 1, 1943.
4 Matter of Monarch Aluminum Mfg Co ., 41 N L . R. B. 1 ; Matter of Beatty Logging Co ,
55 N. L R . B. 810 ; Matter of Bohn Aluminum and Brass Corporation , 57 N. L. R. B. 1684,
Matter of Aluminum Company of America , Newark Works , 57 N L. R. B. 913 ; Matter of
Whittier Mills Company, 1 5 N L R. B. 457 , enf'd 111 F . ( 2d) 474 ( C. C. A. 5 ) ; Matter of
Botany Worsted Mills, 41 N . L R. B 218 , enf'd 133 F. (2d) 876 ( C. C A. 3 ), cert. den
319 U S 751 ; Matter of Century Oxford Mfg Corp , 47 N. L. R. B. 835, enf ' d 140 F (2d)
541 (C. C A 2) , Matter of Motor Valve and Mfg Co., 58 N. L. R B. 1057; N L R B
Ninth Annual Report, p 25 Cf Matter of Westinghouse Electric it Mfg . Co , 38 N. L. R. B.
404.
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KIMBERLY-CLARK CORPORATION 93
representatives, filed unseasonably early in the year following a cer-
tification will be ineffective to raise a question concerning representa-
tion, for the certification is deemed to foreclose any such question for
a reasonable time.6 The question in the present case is whether the
fact that the certified union held a contract expiring 7 months after
its certification warrants the granting of a petition for an election
which would otherwise be dismissed as premature." We think not.
The existence of the Independent's antecedent contract does not alter
the fact that only 6 months before the A. F. of L.'s demand for recog-
nition the Independent had won an election and received our certifica-
tion as the statutory bargaining agent of the Company's employees.
That fact is decisive. We hold that, as of the date of the A. F. of L.'s
demand and petition, the Independent was still presumptively the
chosen representative of a majority of the employees, and entitled to
undisturbed enjoyment of its certified status as such. Accordingly,
no valid question concerning representation was raised by the A. F. of
L.'s petition and the request for recognition on which it was predi-
cated. It follows that the Independent's contract, renewed on Sep-
tember 1, 1944, now operates to bar a new investigation of representa-
tives until the 1945 renewal date approaches.? To hold otherwise
would be to accord less efficacy to our certification of a union which
intervenes in representation proceedings urging its current contract
as a bar thereto, than to our certification of the petitioner, if the latter
happens to win the election and thereafter, as usually happens,
experiences some delay in negotiating its first contract. The reasons
underlying our so-called one year rule are equally applicable in both
situations, and we are persuaded that the operation of the rule should
be the same in both.8
We agree with the observation of the dissenting opinion that the
issue in the prior election was which of three competing unions 9 the
See Matter of Soss Mfg Co., 56 N. L R. B. 348, where we said :
A certification of labor organization as the exclusive representative of employees
under Section 9 of the Act, on the basis of an election , is customarily valid for at
least 1 year. It is calculated to stabilize industrial relations by foreclosing any ques-
tion of representation, and thus clearly defining the duty of the employer during that
period. . . .
s See Matter of Bohn Aluminum and Brass Corporation, Matter of Aluminum Company of
America, Newark Works, supra.
7 Matter of North Range Mining Co ., 47 N L. R. B 1306.
8 We adhere to our rulings in Matter of Thompson Products , 47 N. L. R B. 619, and
Matter of Trackson Company, 56 N. L. R. B. 917, but we distinguish those cases from the
one before us. In each of the cited cases the employer and the intervening union renewed
a 1-year contract during the interval , which happened to be abnormally long, which
occurred between a Board election and the ultimate certification of the contracting union.
In each case we directed a new election upon the petition of another union filed near the
end of the contract term, although the certification was then less than a year old. In
those cases, however, the elections on which the certifications were predicated , had been
held nearly a year prior to the institution of the proceedings wherein the new elections
were directed. See Matter of Aluminum Company of America, Newark Works, 57
N L R. B' 913, ftn. 3 on p. 915.
B The A. F. of L. intervened in that proceeding and was accorded a place on the ballot.
639678-45-vol. 61-8
'94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's employees then desired as bargaining representative.
However, we think there is no more warrant for implying that the
employee voters desired that one of those organizations, if elected,
should serve only for the balance of its contract term, than that said
organization, no less than its competitors, should be entitled to exclu-
sive recognition as the statutory bargaining agent, if its status as such
was established by the election, for the period ordinarily prescribed as
reasonable by this Board. The petition herein will, accordingly, be
dismissed.
ORDER
The National Labor Relations Board hereby orders that the peti-
tion for investigation and certification of representatives of employees
of Kimberly-Clark Corporation, Niagara, Wisconsin, filed by Inter-
national Brotherhood of Paper Makers, A. F. of L., and International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, A. F. of L.,
be, and it hereby is, dismissed.
MR. GERARD D . REILLY, dissenting :
While the issue presented by this case does not seem to be one of
major importance, the danger of introducing an element of uncer-
tainty into what has hereto been considered settled law in represen-
tation cases compels me to state my grounds for concluding that this
petition should be granted and an election directed. Reduced to its
essentials, the facts are these :
In the face of an assertion by a C. I. O. union that it was the bar-
gaining (i. e., majority) representative of the workers, the Company
executed a collective agreement for 1 year with an independent union
containing an automatic renewal clause subject to a 30-day notice
provision. The C. I. O. union thereupon filed a petition for an elec-
tion which was opposed by the Company and the independent union
on the ground that the written agreement was a bar. The Board,
applying its familiar principle that no collective agreement made in
the face of a claim of a competing union which represents a substan-
tial number of employees can be deemed a bar to an investigation of
a question of representation, ordered an election 10 The C. 1. 0. lost to
the Independent and the latter union was certified as the bargaining
representative. This proceeding, being a contested one, took more
than 4 months. As a result, the contract of the Independent had only
about 7 months to run after the certification. Prior to its expiration,
a third labor organization, an A. F. L. union, representing a substan-
tial number of employees, notified the Company of its claim to be
the bargaining representative and when this claim was denied filed
20 Matter of Kimberly-Clark Corporation, 54 N L. R. B. 601.
KIMBERLY-CLARK CORPORATION 95
this petition with the Board Under the Mill B rule,11 this claim was
timely since made prior to the 30-day notice period and had the effect
of staying the automatic renewal of the contract of the independent
union. Therefore, it is conceded that the contention that the renewal
contract is a bar is not well taken. Nevertheless, the petition for an
election is being denied on the ground that "a Board election and_ cer-
tification must be treated as identifying the statutory bargaining agent
with certainty and finality for a reasonable length of time-about one
year under ordinary circumstances." 12
I agree with this statement of principle as a general rule, but. I
think that its application to a case where it collides with an equally
well-established principle (viz. :-that the expiration date of a contract
is an appropriate time to raise a question of representation) is one
of dubious validity. From a purely legal standpoint, it is obvious
from the text of the decision in the earlier case that what the Board
was doing there was directing an election to determine which of the
competing unions was presently the bargaining representative-
rather than which union the employees wished to designate as their
bargaining agent at the end of the contract term. Had the proceeding
been conducted for the latter purpose, it would have been unnecessary
for the Board to pass upon the question that the current contract was
a bar.
Moreover, while there is some equity in the notion that a union
which has just been defeated, in an election which it had instigated
should not be permitted to cloud the status of the current bargaining"
agent by a rapid succession of counter-claims and petitions, this con-
sideration is not present here since the petitioner in the instant case is
not the labor organization which was the petitioner in the original
proceeding. Therefore, the practical effect of dismissing this petition
is to give the certification not merely prospective validity for a period
of 1 year but for a period of a year and 8 months, since by dismissing
this petition as premature we have indirectly given the renewed con-
tract effect until the end of its term, although, as has been pointed out,
the automatic operation of the renewal clause would seem to have been
stayed under the Mill B rule. It seems to me that such a decision en-
courages the undesirable practice of having an employer sign up with
one of two competing organizations in the face of an unresolved ques-
tion of representation. Our decisions in complaint cases have indicated
that such disparate treatment is evidence of illegal assistance, and in
one case where the contract was prematurely executed and contained
compulsory membership features we held that any' discharges under
11 Matter of Mill B, Inc., 40 N. L. R B. 346.
12 It is noted that this "certainty and finality" deemed to be so desirable is somewhat
illusory as evidenced by the conclusion reached in Matter of J. M. Portela & Company, Inc.,
61 N. L. R. B. 64.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a contract were a violation of Section 8 (3), if it should ultimately
develop that the contracting union was not the majority union.13 As a,
result of these decisions, a general practice has grown up in industry
among careful employers of refraining from signing any contracts
when confronted with claims by competing unions until the question
of representation has been settled authoritatively by the Board. I
assume that had a consent election been held in this case (a proceeding
which ordinarily does not take more than 2 or 3 weeks), the majority
would not have dismissed this petition merely because the contract had
only about 11 months to run after the contracting union was certified.
I do not understand why there should be any different rule in a con-
tested representation case since under normal circumstances approxi-
mately 4 months elapse between the date of the petition and a formal
certification.
It would seem that in this case both the A. F. L. and employees are
being penalized by the fact that a union not involved in this proceed-
ing made a ,claim approximately, 18 months prior to the date of this
decision which a subsequent election proved to be unfounded. I there-
fore feel that the Board should direct an election to determine whether
the employees desire to be represented by the Independent and, hence,
bound by the contract renewed between that organization and the
Company on September 1, 1944, or whether they desire the petitioner
to represent them for the purpose of entering into a new collective
bargaining relationship.14'
's Matter of Garod Radio Company, 47 N. L. R. B. 677
"See Matter of Thompson Products , 47 N. L . R. B 619, and Matter of Trackson Com-
pany, 56 N. L. R. B 917. Although I do not agree that the distinction made in the
majority opinion between these cases and the instant case is valid , it should be noted
that here too more than a year has elapsed since the certification of the Independent.