Kimberly-Clark Corp.

National Labor Relations Board - Board Decisions

Nov 29, 1938

9 N.L.R.B. 1287 (N.L.R.B. 1938)

In the Matter of KIMBERLY-CLARK CORPORATION and WALL PAPER
WORKERS' UNION OF THE Fox RIVER VALLEY
Case No. RD51.Decided November 09,19008
Wall Paper 1lanufacturing Industry-Investigation of Representatives: contro-
versy concerning representation of employees : controversy concerning appropriate
-unit: rival organizations : employer 's refusal to recognize any labor organiza-
tion until certified by Board or State Board-Units Appropriate for Collective
Bargaining: '(1) color mixers and machine printers; (2) hourly paid employees:
desires of emploi ees-Representatives: proof of choice: union membership
cards-Certification of Representatives: upon proof of majority representation.
^tilr. William-R. Con sedine, Xfor,the,;Boal:d.
AS"haw. Muskat ce Paulson, by Mr. F. H. Prosser, of Milwaukee, Wis.,
for the Company.
Mr. George Ritten, of Appleton, Wis., for the Fox River Union.
Mr. Joseph M. Jacobs, by Mr. Harry V. Bernstein, of Chicago, Ill.,
for the United.
Mr. Roman Beck, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On March 30, 1938, Wall Paper Workers' Union of the Fox River
Valley, herein called the Fox River Union, filed with the Regional
Director for the- Twelfth Region (Milwaukee, Wisconsin) a petition
alleging that-a'question' afFecting-coninierce'had arisen con`cerni1rg the
representation of employees of Kimberly-Clark Corporation, Apple-
ton, Wisconsin, herein called the Company, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On April 20, 1938, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
9 N. L. R . B„ No. 120.
1287
1288 NATIONAL LA BOR RELATIONS BOARD
On June 13, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Fox River
Union, and upon United Wall Paper Craftsmen & Workers of North
America, herein called the United, a labor organization claiming to
represent employees directly affected by the investigation. Pursuant
to the notice, a hearing was held on June 20, 1938, at Appleton, Wis-
consin, before Charles W. Whittemore, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, and the United were
represented by counsel, and the Fox River Union was represented by
its president. All participated in the hearing. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the.
course of the hearing the Trial Examiner made several rulings on
motions and on objections, to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that na
prejudicial errors were committed. 'The rulings are hereby affirmed:
After the hearing, the United and the Company filed briefs with the
Board, which have been considered.
Upon the entn:e record in the case, the Board makes the following
FINDINGS OF FACT
T. THE BUSINESS OF TIIE COMPANY
Kimberly-Clark Corporation is a Delaware corporation engaged in,
the manufacture of paper and paper products. It has pulp and paper
mills at Kimberly and Niagara, Wisconsin ; a paper and crepe wadding
products unit at Niagara Falls, New York; a similar plant at Lake-
view, Wisconsin; and a wallpaper mill known as the Atlas Mill, at
Appleton, Wisconsin, which has a division in Neenah, Wisconsin,
known as the Kimlark mill. This proceeding concerns only the em-
ployees of the mills at Appleton and Neenah, Wisconsin,' known as the
Atlas-Kimlark wallpaper division of the Company. Although the
Atlas mill is 8 miles away from the Kimlark plant, both are operated
as one business unit. A subsidiary of the Company, the William
Boniface Lumber Company, operates lumber and logging camps in
iiorthern Michigan which supply raw material to these several mills.
Another subsidiary, Paper Patents Company, owns 81 patents and 35,
trade-marks. The Company maintains sales offices in New York City,
Chicago, Illinois, and Los Angeles, California. Its net sales for 1937
were $27,000.000. Tn all of its enterprises it employs about 4,000
people.
About 93 percent of the raw materials. used iii the Atlas=Kimlark
Division are shipped to it from points outside Wisconsin, and about 98•
per cent of its finished products are shipped to foreign countries
and to States other than Wisconsin.
DECISIONS AND ORDERS 1289,
II. TILE ORGANIZATIONS INVOLVED
Wall Paper llrorkers' Union of the Fox River Valley- is an,unaffili-
ated labor organization, admitting to membership all hourly paid,
employees in the Atlas-Kimlark Division of the Company.,
United Wall Paper Craftsmen and Workers of North' America is a,
labor organization affiliated with the American Federation of Labor,
admitting to its membership all color mixers, machine printers, and
print cutters, and also all other hourly paid workers of the Company,.
excluding foremen.
III. THE QUESTION CO_NCEPNINC REPRESENTATION
By letter dated December 19, 1937, the Fox River Union claimed
to,represent a majority of all hourly paid workers at the Atlas-Kimlark-
mills. and requested the Company to enter into collective bargaining
negotiations. The Company replied that it would not recognize any
labor organization until it had been certified either by the Wisconsin,
Labor Board or by the National Labor Relations Board. In February
1938, the United, clamming to represent a majority of the machine-
printers and color mixers in the Atlas-Kimlark mills, requested the,
Company'to bargain with it as the representative of such employees.
The Company adhered to its policy of requiring certification prior to.
recognition. I ' ,
We find that a question has arisen concerning representation of
employees of the Company.
IV THE EFFECT OF THE QUESTION CONCERNINC REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has arisen,
occurring iii connection with the operations of the Company described
in Section I above, has a close, intimate , and substantial relation to
trade, traffic , and commerce among ' the several States, and tends to,
lead to labor disputes burdening and ubsiructmng commerce and the
free flow of commerce.
V. THE APPROPRIATE UNIT
On June 20 , 1938 , there were 126 employees at the Company 's Atlas-
Kimlark mills . Of these employees 5 were -salaried color mixers,' 8,
hourly paid machine printers , and 85 other hourly paid workers.
Both the Company and the Fox River Union claim that all the
hourly paid workers and the color mixers constitute an appropriate
unit. The United contends that the color mixers and machine printers,
apart from the other employees , constitul e an appropriate unit. Thus
the question here is whether there should be one or hi-o bargaining
1 There is one junior and four journeymen color mixers in this group.
1290 -NATIONAL LABOR RELA'J'10_NS
units. The history of the United and the Fox River Union is impor-
tant in determining this question.
The, history of Tabor "relations in the wallpaper, industry and the
part played by the United and its predecessors for it period of at least
40 years is set forth in the Matter of H. H. Binge and Sons Company
and United Wallpaper Crafts of North America, 1 N. L. R. B. 731.
'That history shows that collective bargaining was uniformly carried
on upon a strictly craft basis. Throughout this 40-year period, the
color mixers and machine printers were organized in National Asso-
ciation of Color Mixers and Machine Printers of the United States,
which restricted its membership to those crafts. In July 1937, Na-
tional Association of Machine Printers and Color Mixers of the United
States and National Print Cutters Association of America, both Anieri-
-can Federation of Labor craft unions, amalgamated to form the
United,, and extended%% the+,liitter's `jui'i'sdiction to 'include the lesser
skilled artisans in the industry. The wages, hours, and working con-
,ditions of about 95 per cent of the workers in the wallpaper industry
are governed by a standard form contract which the United has
entered into with employers in the industry.
An examination of this agreement shows that the craft interests of
the color mixers, machine printers, and print cutters 2 receive special
'consideration; for example, the apprenticeship rules apply only to
them, and their wage scales are about twice as high as those of the
'highest paid other workers. The evidence discloses that the Inter-
national Executive Board of the United determines in each case
whether it is feasible to attempt organization of all the workers in a
plant or to limit its organizational efforts to these traditional craft
groups. Prior to June 1937, an official of the United explored the
possibilities of organizing all the production employees at the Atlas-
Ximlark mills, and determined to restrict its efforts to the color mixers
and machine printers; and the United soon represented a majority
.of these craftsmen.
From 1920 to 1937, the Company maintained an Employees' Repre-
sentation Council Plan, under which a local council was established
for each of its mills, and a general council for all of the plants. The
general council was a delegate body made up of representatives elected
by the employees of each of the mills, and included an equal number
.of appointive management representatives. The general council con-
cerned itself with matters of major corporation policy, such as wages,
hours, and general working conditions; and the local council limited
its activities to questions of interest only to its particular mill. After
the Supreme Court had sustained the' constitutionality of the Act, the
'Company terminated the Council Plan.
z The Company does not employ any print cutters
DECISIONS AND ORDERS 1291
Shortly thereafter an Employees Independent Union was formed
which entered into two contracts with the Company, the first recog-
nizing it Otis the exchisive- b:iigainin agency of the Company's em
ployees, and the other defining the wages, hours, and working condi-
tions of these employees. In October 1937 these contracts were can-
celed, and the Employees Independent Union was dissolved. The•
Company stated the reason for its action in a notice as follows :
In'the events leading up to that contract, certain technical (but
unintentional) violations of the Wagner Act occurred.
Soon thereafter the Fox River Union was organized:
An argument of the Company and of the Fox River Union for one•
unit is the 17 years' history of a plant-wide electorate in the selection
of delegates to the Council. We do not regard the 17 years' history
of a plant-wide electorate under the Council Plan as of any relevance-
to the unit issue, since it was the choice of the Company, intended to
serve its purposes, and was not a voluntary form of organization of
its employees for the purposes of collective bargaining. Disregard-
ing entirely this past history, the recent developments in the industry
show that a plant-wide unit may be appropriate. On the other hand,.
the 40 years' history of successful collective bargaining by color
mixers and machine printers as a traditional craft group shows that
such a craft unit also may be appropriate. Accordingly, we will fol-
low our usual rule in such cases that the determining factor shall be
the desires of the employees themselves.3
As found below, a majority of the traditional craft group of color
mixers and machine printers have expressed their desire to bargain as
a separate unit. With respect to the remaining employees, the evi-
dence establishes that they are transferred from one department to
another and from, one job to another within departments; that they are,
intimately associated with each other in their work, and have common
interests. None of the parties questioned the propriety of combining
these workers in a single unit, and we see no objection to such a unit.
We find that the color mixers and machine printers of the Atlas-Kim-
lark Division of the Company constitute a unit appropriate for the
purposes of collective bargaining, herein called the first unit; that all
hourly paid workers of the Company at its Atlas-Kimlark Division,.
exclusive of color mixers and machine printers, constitute a unit ap-
propriate for the purposes of collective bargaining, herein called the-
second unit, and that said units will insure to employees of the Com--
pany the full benefit of their right to self-organization and to collec-
tive bargaining and otherwise effectuate the policies of the Aet.
3Mattei of The Globe Machine and Stamping co and Metal Polishes s Union 8 N L R B,_
294
1292 NATION A L LA1-lOll RELA TIONS 110ARD
VI. THE DETERMINATION OF REPRESENTATIVES
There are four color mixers 4 and eight machine printers in the first
unit. The United introduced in evidence the ` membership cards' of
nine of these persons, of whom one had also joined the Independent.
-The authenticity of the signatures was not questioned at the hearing,
and uncontradicted testimony established that these United members
had recently reaffirmed their desire to be represented by it. Thus, 8
-out of 12, a majority of the employees in the first unit, have designated
the United as their representative for the purposes of collective bar-
gaining. It is, therefore, the exclusive representative of all the em-
-ployees in such unit for the purposes of collective bargaining, and we
will so certify.
There are 85 persons in the second unit. The Fox River Union pro-
duced 113 membership cards which were examined at the hearing, by
.counsel for all parties. The following statement by counsel for the
Board was agreed by all parties to be a correct summary of the result
.of a comparison of such cards with the Company pay rolls of March
.25, 1938, and June 20, 1938:
An examination of the membership cards produced by the wit-
ness indicates that six of the individuals who affixed their signa-
tures to such cards do not appear on either the March 25th or June
20th payrolls that are Board's Exhibits 2 and 3; twenty-four of
the individuals executing these cards appear on the March 25th
payroll but do not appear oil the June 20th payroll ; eighty-three
individuals who executed membership cards in the Wall Paper
Workers Union appear on both the March 26th and the June 20th
payrolls.
Hence, a majority of the employees in the second unit have desig-
nated the Fox River Union as their representative for the purposes of
collective bargaining. It is, therefore, the exclusive representative of
all the employees in such unit for the purposes of collective bargaining,
and we will so certify.
Upon the basis of the above findings of fact and upon the entire
xecord in the case, the Board makes the following:
CONCLUSIONS or LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Kimberly-Clark Corporation, Appleton,
Wisconsin, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
4 The first unit includes only journeymen color mixers and journeymen machine printers.
Although the United admitted Orson Kranzusch to its "membership , we find that-he Is a
color mixer helper, and therefore is to be excluded from the first unit
DECISIONS AND ORDERS 1293
2. The,color mixers and machine printers employed by the Company
in its Atlas-Kimlark Division constitute a unit appropriate for the
purposes of collective bargaining , within the'meaningof Section 9 (b)
of the National Labor Relations Act.
3. United Wall Paper Craftsmen & Workers of North America is
,the exclusive representative of all the employees in such unit for the
purposes of collective bargaining , within the meaning , of Section 9 (a)
,of the National Labor Relations Act.
4. The hourly paid employees of the Company in its Atlas-Kimlark
Division , exclusive of color mixers and machine printers , constitute a
unit appropriate for the purposes of collective bargaining , within
the meaning,of Section 9 (b) of the National Labor Relations Act.
5. Wahl Paper Workers' Union of the Fox River Valley is the
exclusive representative of all employees in such unit for the purposes
•of collective bargaining , within the meaning of Section 9 (a) of the
National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National Labor
1.elations Board by Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY 'CERTIFIED that United Wall Paper Craftsmen & Work-
ers of North America has been designated and selected by a majority
of the color mixers and machine printers employed by Kimberly-
'Clark Corporation, Appleton, Wisconsin, in its Atlas-Kimlark Divi-
sion, as their representative for the purposes of collective bargaining
and that, pursuant to the provisions of Section 9 (a) of the Act,
United Wall Paper Craftsmen & Workers of North America is the
exclusive representative of all such employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment; and
IT IS HEREBY CERTIFIED that Wall Paper Workers' Union of the Fox
River Valley has been designated and selected by a majority of the
hourly paid employees of Kimberly-Clark Corporation, Appleton,
Wisconsin, at its Atlas-Kimlark Division, exclusive of color mixers
and machine printers, as their representative for the purposes of
collective bargaining and that, pursuant to the provisions of Section
'9 (a) of the Act, Wall Paper Workers' Union of the Fox River Valley
is the exclusive representative of all such employees for the purposes
,of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MR. EDWIN S. SMITH, dissenting :
While there is a suggestion in the record that the Fox River Union
may not be entirely free of company influence, the record before us
1294 NATIONAL L.ABOT: R ELATIONS J',OARD
is insufficient to show that that is the case. If I were satisfied on the
record that the Fox River Union was not the free representative of
employees which the Act contemplates, I would disregard its con-
tention that the color mixers and machine printers should be merged
in a larger bargaining unit.' But on the record before us its conten-
tion must be seriously examined. The unit questions raised by the
record in this case do not differ materially from those considered by
the Board in a number of previous cases in which I have dissented.'
Under the circumstances of those cases I felt that to split off a minor-
ity group of skilled workers from the general body of production
workers, although possibly constituting an advantage to a small num-
ber of workers, also constituted a threat to the collective bargaining
effectiveness of the rest of the workers. The same considerations are
applicable in the instant case. I would hold that a unit composed of
all hourly paid workers, including color mixers and machine printers,
is the appropriate, bargainiiig unit. The Fox River Union has been
designated by a majority of the employees in such unit as their repre-
sentative for the purposes of collective bargaining and the Board
should so certify it.
6 See my dissent in Matter of Paosfc Greyhound Lines and Brotheahood of Locomotive
Firemen and Engsnemen, 4 N. L R. B 520, 540
6 See, for example , Matter of Allis-Chalmers Manufactua ang Company and International
Union, United Automobile Workers of Amnei ica, Local 248, 4 N. L R B., No 159, 175 ;
Matter of Fat, banks, Morse and Company and Pattern Makezs Association of Aaaerica.
7 N L R B 229