National Chemical & Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 14, 1951

94 N.L.R.B. 1190 (N.L.R.B. 1951)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are two laborers attached to the warehouse department.
Their duties include unloading rail cars and moving materials.
While the record is not clear on this point, it is presumed that these
two laborers are the "warehousemen" whom the Employer seeks to
include in the same unit with the truck drivers. These two laborers
and the three truck drivers in the warehouse department are under the
same immediate supervision, and are all paid on an hourly basis.
However, in view of the difference between the skills, and. interests
of the truck drivers and the laborers, we will exclude the latter from
the proposed unit.
Under these circumstances, we find that a unit of truck drivers, at the
Employer's Atlanta, Georgia, plant, excluding outside salesmen,
laborers, office and clerical employees, engineers, professional employ-
ees, guards, and supervisors 4 as defined in the Act is appropriate for
collective bargaining purposes within the meaning of Section 9 (b) of
the Act.
In Case No. 1O-RM-71, the Employer requests a separate unit of
"laborers," excluding salesmen, clerks, warehousemen, truck drivers,
engineers, professional employees, guards, and supervisors. The la-
borers referred to in this petition, approximately 12 in number, are
employed in the mixing department together with 4 mixer operators,
and 2 mechanics, who are not included in either of the instant peti-
tions. As these yard laborers constitute only an arbitrary segment of
the Employer's production and maintenance employees, we find that
this unit would not be appropriate for bargaining purposes.
Order
IT IS HEREBY ORDERED that the petition in Case No. 10-RM-71 be, and
it hereby is, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
4 As the warehouse foreman has the authority to hire and discharge employees under
his supervision , we exclude him from the unit as a supervisor.
NATIONAL CHEMICAL .& MANUFACTURING COMPANY and DISTRICT 65,
DISTRIBUTIVE, PROCESSING AND OFFICE WORKERS OF AMERICA,
PETITIONER. Case No. 9i-RC-3217. June 14, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Thomas A. Ricci,
94 NLRB No. 180.
NATIONAL CHEMICAL & MANUFACTURING COMPANY 1191
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. The Em-
ployer moved to dismiss the petition on the ground that it was not
timely filed. The Intervenor, A. F. of L.,' moved to dismiss the
petition on the ground that a current contract between the Employer
and Local 1478, Marine Warehousemen of New Jersey, ILA, A. F. of
L., constitutes a bar to a present determination of representatives.
We deny both motions for reasons hereinafter set forth. .
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
Up9n the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. The chronology of events which occasioned the instant proceeding
is as follows :
On December 16, 1949, the Employer entered into a contract with
Local 121, United Chemical Workers of America, Independent, cover-
ing its plant then located in Brooklyn, New York, effective for .1 year
and automatically renewable unless notice to terminate or modify
was given at least 60 days before its expiration date. The contract-
was thereafter applied to the Employer's operations involved herein 2
and was administered by the Petitioner as successor to Local 121,
United Chemical Workers of America, Independent 3 On September
29, 1950, a date prior to the automatic renewal date of the contract,,
the Petitioner, acting as the successor to. the contracting union, noti-
fied the Employer by registered mail of its intention to negotiate-
a new contract. The first meeting between the Employer and the
Petitioner took place on November 2, 1950. No agreement was
reached; but the parties agreed to meet at a subsequent date to con-
tinue negotiations . There is evidence that the Petitioner sought
I The contract between the Employer and Local 1478, Marine Warehousemen of New
Jersey, ILA, A. F. of L., was negotiated on or about December 20, 1950, by an A. F. of L.
organizer acting in behalf of the afore-mentioned local . The A. F. of L., which appears
as a cosignatory of this contract, was permitted to intervene at the hearing. See Electric
Products Company, 89 NLRB 218.
2 During the month of October 1950 the Employer moved its Brooklyn plant to Newark,.
New Jersey. There is no contention that the employees now working at the Newark,.
New Jersey, plant are not the same employees who worked at the Brooklyn , New York,
plant.
3 Local 121, United Chemical Workers. of America , Independent , merged into Local 65,
Wholesale and Warehouse Workers Union on or about July 1, 1950. There is uncon-
tradicted evidence that the Employer recognized Local 65 as a successor collective bar-
gaining representative , for the balance of the term of the unexpired contract. At a
convention held in New York City during October 6 and 7 , 1950, Local 65 changed ita
name to District 65,. Distributive , Processing and Office Workers of America.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other meetings with the Employer but was unsuccessful. The con-
tract expired on December 15, 1950. On December 18, 1950, the
Employer's employees signed a document purporting to authorize
the A. F. of L. representative to bargain for them 4 What are alleged
to be collective bargaining negotiations between the A. F. of L.
representative and the Employer followed and at some point there-
after the document urged as a bar to the present proceeding came
into existence.5 The Petitioner filed its petition herein on December
28, 1950.
The Employer seeks to invoke the principle of the General Electric
X-Ray case 6 contending that the Petitioner's demand of September
29, 1950, was vitiated by the late filing of the petition. We have held
in the past, however, that the ruling of that case is not applicable
to a situation where the claim to representation was not a mere naked
one but was substantial and had a recognizable foundation 7 The
Petitioner's claim herein cannot be said to have been a naked one
within the purview of the General Electric X-Ray case for the Peti-
tioner was recognized as the representative of the employees until
December 15, 1950. The Petitioner's active incumbency at the time
it asserted its claim to representation amply demonstrates the sub-
stantial nature of the claim. In view of all the facts we are persuaded
that the ruling of the General Electric X-Ray case is not applicable
to this proceeding, and that the alleged contract, between the Em-
ployer and Intervenor, is not a bar to a current determination of
representatives, having been made at a time when the Employer had
notice of the Petitioner's substantial claim.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find a unit composed of all production and maintenance
employees employed at the Employer's Newark, New Jersey; plant,
excluding all representatives of management, foremen, superintend-
ents, office clerical, technical, and professional employees, working
foremen, watchmen, firemen, salesmen, and all other supervisors as
4 At no time did the Petitioner herein disclaim its interest or intention to represent the
employees of the Employer. There is evidence that a committee of employees on or
about December 15, 1950, advised the Employer of their continued desire to be rep-
resented by the Petitioner herein for purposes of collective bargaining . On December 21,
1950, the employees who had authorized the A. F. of L. to bargain for them on December
18, withdrew their authorization.
5In view of our analysis of the issues of this case, it becomes unnecessary for us to
resolve the conflicting testimony regarding the negotiations of the contract between the
Employer and the A. F. of L. representative acting in behalf of Local 1478 . We therefore
assume, without deciding, that a contract was negotiated between the Employer and the
afore-mentioned local.' i
General Electric X-Ray Corporation, 67 NLRB 997.
° See, Chicago Bridge & Iron Company , 88 NLRB 402, and cases cited therein ; Bauer-
Schweitzer Hop & Malt Co ., et at ., 72 NLRB 1223.
MICAMOLD RADIO CORP. 1193
defined in the Act, to be appropriate for the purposes of collective
bargaining within the meaning of Section 0 (b) of the Act .8
[Text of Direction of Election omitted from publication in this
volume.]
8 The unit was agreed to by all the parties to this proceeding.
MICAMOLD RADIO CORP . and INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS , C10 , PETITIONER . Case No. 2-RUi--
3525. June 14, 1951
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before James V. Altieri, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to it three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. The Employer and the UE executed a contract on December 21,
1949. The contract was to be in effect until July 1, 1951, and provided
for an automatic yearly renewal subject to a 30-day written notice
of a desire to modify or terminate. The petition in the present pro-
ceeding was filed on April 3, 1951. As the petition was filed less than
2 months prior to the Mill B date,2 we find that the contract between
the Employer and the UE is not a bar to the present proceeding.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9' (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit composed of "all of the employees
of the Employer engaged in production, in the machine shop, in the
boiler room, in the receiving and shipping departments, inspectors
and porters excepting the heads of the stock room, receiving and ship-
'Permission to intervene was granted to Local 430, United Electrical , Radio and
Machine Workers of America , hereafter called the UE, and to Local 30-A, International
Union of Operating Engineers , AFL, hereafter : called Local 30-A, upon their showing
of a sufficient interest in the proceeding.
' International Harvester Company, Harvester Division , East Moline Works, 90 NLRB
1905.
94 NLRB No. 197.