The W. H. Kistler Stationery Co.

National Labor Relations Board - Board Decisions

Jul 31, 1943

51 N.L.R.B. 978 (N.L.R.B. 1943)

11
In the Matter of THE W. H . KISTLER STATIONERY COMPANY and
AMALGAMATED LITHOGRAPHERS OF AMERICA
Case No. R-5156.-Decided July. 31, 1943
Lewis ct Grant, by Mr. Stephen H. Hart, of Denver, Colo., for the
Company.
Mr. Fred W. Rose, of St. Louis, Mo., and Mr. J. A. Work, of Denver,
Colo., for the Amalgamated.
Mr. S. Wesley Johnson, of Denver, Colo., for Union No. 40.
Miss Melvern R. IKrelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Amalgamated Lithographers of Amer-
ica, herein called the Amalgamated, alleging that a question affecting
commerce had arisen concerning the representation of employees of
The W. H. Kistler Stationery Company, Denver, Colorado, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Elmer L. Hunt,
Trial Examiner. Said hearing was held at Denver, Colorado, on April,
8, 1943. The Company, the Amalgamated, and Denver Printing
Pressmen and Assistants Union No. 40, herein called Union No. 40,
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the commencement of the hearing, the
Company moved to dismiss the petition, in which motion Union No.
40 joined, on the partial ground that this proceeding is res adjudicata.1
The Trial Examiner reserved ruling. The motion is hereby denied.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
1 See Matter of The W. H. Kistler Stationery Company , 18 N. L. R. B 948.
51 N. L. R. B., No. 153.
978
THE W. H. KISTLER STATIONERY COMPANY 979
On April 19, 1943, a stipulation to correct the transcript of record,
entered into between the parties, was filed with the Board. The
stipulation is hereby made a part of the record.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The W. H. Kistler Stationery Company is a Colorado corporation
having its principal office and place of business in Denver, Colorado,
where it is engaged in the furniture, mimeograph and stationery
manufacturing business. The Company purchases annually raw
materials used in the manufacturing or printing department, valued
at approximately $125,000, approximately 90 percent of which is pur-
chased from companies located in the State of Colorado. Also ap-
proximately 95 percent of the products purchased by the Company
and used in the operation of its furniture, stationery, and mimeograph
departments is shipped to the Company from points outside the State
of Colorado. During 1942, the Company's gross sales amounted to
approximately $1,650,000, approximately 28 percent of which was de-
rived from its manufacturing department. During the same period,
the Company shipped approximately 11.7 per of its manufactured
products directly out of the State of Colorado, and delivered the same
percentage of its manufactured products to companies directly en-
gaged in interstate commerce. Some of the items delivered to these
companies were in turn sent out of the State of Colorado by the com-
panies to their branch offices. ,The Company derives approxi-
mately 72 percent of its total annual income from the furniture, sta-
tionery and mimeograph departments, of which approximately, 28
percent is derived from the manufacturing or printing department.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Lithographers of America and Denver Printing
Pressmen and Assistants Union No. 40 are labor organizations affili-
ated with the American Federation of Labor, admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about January 23, 1943, the Amalgamated notified the Com-
pany that it represented a majority of the employees in the unit the
Amalgamated seeks to establish, and requested the Company to recog-
nize it as the exclusive bargaining representatives of said employees.
The Company refused to recognize the Amalgamated.2
2 On December 29, 1939 , the Board directed an election in the Matter of W. H. Kistler
Stationery Company, ( footnote 1, supra ) in a unit, agreed upon between the Company and
540612-44-vol. 51--63
980 DIECISIONS OF NATIONAL LABOR RE,LA.TIIONIS BOARD
The record indicates that although in 1916 the American Federation
of Labor, with which both the Amalgamated and Union No. 40 are
affiliated, in settlement of a long-standing jurisdictional dispute be;
tween the Amalgamated and International Printing Pressmen and
Assistants Union of North America," herein called the Pressmen, con-
cerning offset press operators, awarded jurisdiction over them to the
Pressmen, the matter is the subject of current consideration and appeal.
In the past the Board has, as a matter of policy, refused to permit
rival unions affiliated with the same parent organization to resort to
the administrative processes of the National Labor Relations Act for
settlement of their representation disputes where adequate and appro-
priate machinery were available to them under the procedures of the
parent organization.4 It is apparent here, however, that effective
resolution of-the existing conflict cannot be had without resort to the
administrative processes of the Act.5
A statement of the Regional Director introduced in evidence at the
hearing indicates that the Amalgamated represents'a substantial num-
ber of employees in the unit claimed appropriate by it.6
Local No. 40, consisting of "all printing pressmen and assistants in the offset , job, and
cylinder departments of the Company , including foremen and employees classed as feeders
by the Company" Pursuant to the Direction , an election was conducted on January 18,
1940, as a result of which Union No 40 was certified. On February 23, 1940, a charge
of refusal to bargain was filed by Union No . 40. A hearing was held, and on June 24, 1940,
the Board issued a Decision and Order in which it ordered the Company to bargain col-
lectively with Union No 40 as the exclusive bargaining representative of the employees
in the unit hereinabove set forth. On October 10, 1941 , the Board ' s order was afaimed
with minor modifications by the United States Circuit Court of Appeals for the Tenth
Circuit. N. L. R B v. The W H . Kistler Stationery Company, 122 , F ( 2d) 989 (C. C. A.
10). Negotiations were commenced on December 3, 1941, and numerous conferences were
held theieafter No results were reached, and on December 10, 1942, a request was made
by Union No 40 to certify the matter to the War Labor Board On March 12, 1943, the
Ninth Region of the War Labor Board held a hearing, and on March 22, 1943, issued its
directive order which directed that an agreement therein defined be executed by the parties.
This agreement , at the time of the hearing , had not yet been consummated . It appears
that the employees in the unit sought to be established by the Amalgamated were not
considered by the War Labor Board, and were not covered by its directive order.
i Union No 40 is a local of International Printing Pressmen and Assistants Union of
North America I
4 Matter of The Axton-Fisher Tobacco Company, 1 N. L. R B 604; Matter of Standard
Oil Company of California, 1 N L. R B. 614; Matter of Aluminum Company of America,
1 N L R B, 530; Matter of Curtis Bay Towing' Company, 4 N. L. R. B. 360 ; Matter of
Weyerhaeuser Timber Company. 16 N 4 R B 902
5Matter of Interlake Iron Corporation , 2 N L. R. B 1036 ; Matter of Federal Knitting
Mills Company, 3 N L R. B 257.
The Regional Director reported that the Amalgamated submitted 4 authorization cards,
beaiing apparently genuine signatuies of persons whose names appear on the Company's
pay roll of April 8, 1943. There are eight employees in the unit alleged appropriate by
the Amalgamated
Union No 40 presented no evidence of representation, relying upon the Board's previous
cei tification
Counsel for the Company objected to the introduction of the Regional Director 's state-
ment in evidence on the grounds that it had no probative value and that the statements
therein contained were hearsay The Trial Examiner overruled the objection. We have
heretofore affirmed the rulings of the Trial Examiner and we find that the Company's
contention is without merit. See Matter of Interlake Iron Corporation, 38 N. L . R B. 1h.
THE W. H. KISTLER STATIONERY COMPANY 981
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 DETERMINATION OF REPRESENTATIVEa
The Amalgamated contends that all employees of the lithographic
or offset department, excluding supervisory employees constitute an
appropriate unit. The Company and Union No. 40 argue that' the
appropriate unit should consist of employees in the Company' s print-
ing operations, which include not only the offset, but the job, and
cylinder departments.
The Company employs eight persons in-the unit the Amalgamated
seeks to establish. Of these employees, three engage in producing all
types of lithographic work or material, by the operation of a press;
one, designated as a plate maker, prepares plates for the offset presses;
one strips, opaques, and files photographic film; one loads paper for
the offset presses, and oils the presses ; and one assists the plate maker.
It appears from the record that the duties, responsibilities, and func-
tions of these employees are principally confined to the offset depart-
ment, and that there is little interchange of employees between the.
offset department and the job and cylinder departments. Thus it
appears that the offset employees constitute a well-defined group who,
in themselves, may proper constitute an appropriate bargaining unit.
Under these circumstances, we are of the opinion that our determina-
tion of the unit issue with respect to the employees in question should
depend in part on the desires of the affected employees themselves,
to be expressed at the self-determination election hereinafter directed
among such employees.
We shall direct that an election by secret ballot shall be held among
all employees of the offset department of the Company, excluding all
supervisory employees with the authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action, who were employed by the Company
during the pay-roll period immediately preceding, the date of the Di-
rection of Election herein, subject to the limitations and additions set
forth in the Direction, to determine whether they desire to be repre-
sented by Amalgamated Lithographers of America, or by Denver
Printing Pressmen and Assistants Union No. 40, for the purposes of
collective bargaining, or by neither. As stated above upon the re-
sults of this election will depend in part our determination of the
appropriate unit. If a majority of these employees vote for the
Amalgamated, they will thereby have indicated their desire to con-
stitute an appropriate unit and to be represented by the Amalgamated;
otherwise the petition will be dismissed.
982 DECISIONS OF NATIONAL LABOR RKLATIONTIS BOARD
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 representa-
tives for the purposes of collective bargaining with The W. H. Kistler
Stationery Company, Denver, Colorado, 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 Seventeenth 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
all employees of the offset department who were employed during the
pay-roll period immediately preceding the date of this Direction, in-
cluding employees who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, and includ-
ing employees in the armed forces of the United States who present
themselves in person at the polls, but excluding all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recom-
mend such action, and excluding those employees who have since quit
or been discharged for cause, to determine whether they desire to be
represented by Amalgamated Lithographers of America, or by Den-
ver Printing Pressmen and Assistants Union No. 40, for the purposes
of collective bargaining, or by neither.
CHAIRMAN MILLIs took no part in the consideration of the above De-
cision and Direction of Election.