National Fireproofing Corp.

National Labor Relations Board - Board Decisions

Jul 24, 1946

69 N.L.R.B. 873 (N.L.R.B. 1946)

In the Matter of NATIONAL FIREPROOFING CORPORATION and UNITED
GAS, COKE AND CHEMICAL WORKERS OF AMERICA, C. I. O.
Case No.4 R-2069.-Decided July 24, 19416
Cllr. F. G. Th.o apsoi , of Pittsburgh, Pa., and Mr. A. R. Trace, of
South River, N. J., for the Company.
Mr. David Handel, of Perth Amboy, N. J., and Messrs. Gerard
Mullica and Andrew S. York, of Newark, N. J., for the C. 1. 0.
Messrs. Samuel V. Convery, Rocco Faliero, Nathan Duff, and Car-
mine Santo, of Perth Amboy, N. J., for the A. F. of L.
Mr. Elmer P. Freiseldag, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by United Gas, Coke and Chemical Work-
ers of America, C. I. 0., herein called the C. I. O., alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of National Fireproofing Corporation, Pittsburgh, Penn-
sylvania, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Helen F. Humphrey, Trial Examiner. The hearing was held at New
Brunswick, New Jersey, on May 23, 1946. The Company, the C. I. O.,
and United Brick and Clay Workers of America and District Coun-
cil No. 12, A . F. of L ., herein called the A . F. of L., appeared and par-
ticipated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. 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.
69 N. L. R . B., No. 106.
873
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Fireproofing Corporation, a Pennsylvania corporation,
with plants in various parts of the United States, is engaged in the
manufacture of bricks of Sayreville, New Jersey, the sole plant in-
volved herein. All the raw materials used by the Company at this
plant are shipped from points within the State of New Jersey. The
finished products manufactured at this plant amount in value to over
$500,000 annually, more than 50 percent of which is shipped to points
outside the State.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Gas, Coke and Chemical Workers of America is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
United Brick and Clay Workers of America and District Council
No. 12 is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees of the Company.
111. THE QUESTION CONCERNING REPRESENTATION
On the morning of March 25, 1946, the C. I. O. requested recognition
of the Company as the exclusive collective bargaining representative
of its employees at the Sayreville plant. The Company ignored this
request. At the hearing, the Company indicated that it would not
recognize the C. I. O. unless and until it was certified by the Board.
In the early part of 1942, as the result of a cross-check conducted
by the Board pursuant to an agreement between the Company and
the A. F. of L., the A. F. of L. was designated as bargaining repre-
sentative of the Company's production employees' The Company
and the A. F. of L. thereupon entered into a collective bargaining con-
tract on August 13, 1942, to continue until December 31, 1944. Due
to a labor shortage, however, the Company was forced to cease opera-
tions and close its plant in November 1943. The plant reopened again
about the first week in February 1946, at which time rehabilitation
operations began. Shortly thereafter, the Company and the A. F. of
L. entered into negotiations for a collective bargaining contract and,
' This description would appear to include all employees at the plant except office and
supervisory employees.
NATIONAL FIREPROOFING CORPORATION 875
on March 13, 1946, a memorandum was signed by the Company and
the A. F. of L. The memorandum provided for an increase in rates
of pay, over the rates fixed in the 1942 contract, contingent upon ap-
proval by the Wage Stabilization Board and upon the granting by the
Office of Price Administration of a price increase; for the preparation
and immediate execution of a contract similar in form to a contract in
effect at another plant of the Company; and for the submission of the
memorandum to a plant committee for approval. Pursuant to this
memorandum, a contract, dated March 13, 1946, was executed by the
parties on the afternoon of March 25, 1946, for an initial period ending
December 31, 1946, and subject to a 1-year renewal thereafter. This
agreeinent, which covered the employees in the designated unit, em-
bodied the provisions in the memorandum and included, inter alia,
clauses providing for maintenance-of-membership and check-off of
dues. As indicated above, the C. I. O.'s request for recognition was
made on the morning of March 25, 1946, before the execution of the
contract.2 The C. I. O.'s petition was filed on April 1, 1946.
The A. F. of L. contends that its status as a Board designated bar-
gaining agent of the Company's employees has remained unimpaired
since 1942,3 and that the 1946 memorandum and the subsequent con-
tract between it and the Company are therefore valid and effective in-
struments which constitute a bar to a present determination of repre-
sentatives. The Company agrees with the A. F. of L. in its contention
that the contract is -a bar to this proceeding. The C. I. 0., however,
maintains that neither the memorandum nor the subsequent contract
constitutes a, bar. With respect to the contract itself, it argues (1)
that it was signed after the Company and the A. F. of L. had been put
on notice that a valid question concerning representation existed; (2)
that the contract is not effective, in that, as in the case of the memo-
randum, it was signed without the knowledge or authorization of the
employees involved; (3) that it has never been ratified by the member-
ship of the A. F. of L. at the plant; and (4) that it was attested to by
an employee of the Company at a time when he possessed a supervisory
status.
We are of the opinion that neither the memorandum, which was
in the nature of a preliminary understanding calling for the execution
2 The testimony is in dispute as to when the attesting signatures of two company em-
ployees were affixed. A company representative testified that they signed the contract with
the other signatories on March 25, 1946. However, an A. F. of L. representative testified
that these two men signed the contract in his office on March 15th. In view of the fact
that it is clearly established that the Company's representatives actually knew of the
C. I. O.'s claim before any of the parties signed the contract, it is unnecessary to resolve
this issue.
3In its brief the A. F. of L. argues in this connection, although there is no evidence in
the record to sustain it, that it orally agreed with the Company, prior to the cessation of
operations at the plant, to suspend the 1942 contract and reinstate it when operations
were resumed, subject to any modifications that might be negotiated before, after, or simul-
taneously with the resumption of operations.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a contract in the future, nor the contract itself, constitutes a bar
to this proceeding. Thus, with respect to the memorandum, it is
clear that, lacking a fixed term and substantive conditions concerning
wages, hours, and working conditions, the memorandum cannot, under-
well-established principles of the Board, prevent an election at this
time.4 Nor can the contract itself, which was executed by the Com-
pany with knowledge of the C. I. O.'s rival claim, and within the
7-day interval between the assertion of the claim and the filing of
the petition, stay an election.-, Moreover, even assuming that the
memorandum is an effective contract or that the subsequent contract
was executed before notice by the C. I. 0., these instruments would
nevertheless not be a bar because (1) contrary to the contention of the
A. F. of L. as to its unimpaired status as bargaining representative,
the A. F. of L. admittedly had no members at the Sayreville plant,
both when the memorandum was signed and when the contract was
executed, and virtually all the employees at that time had not been
employed previously by the Company; B and (2) the documents were
executed prior to the actual commencement of production operations
at the plant, at a time when the Company had not yet recruited its full
complement of employees.?
We find, therefore, that a question affecting commerce has arisen
concerning the representation of employes of the Company, within
the meaning of Section 9 (c) and Section 2 ((;) and (7) of the Act.
TV. THE APPROPRIATE UNIT
We find, !aibstantially in accordance with the agreement of the
parties, that all production employees of the Company at the Sayre-
ville, New Jersey, plant, excluding office employees, non-working
foremen, the superintendent, 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
4 See Matter of Bercut-Richards Packing Company, 64 N. L. R. B. 133 ; Matter of Stand-
ard Oil Company, 58 N. L. R. B. 560; Matteer of The Dopler Printing Press Company, 53
N. L. It. B. 503.
s See Matter of General Electric X-Ray Corporation, 67 N. L. It. B. 907: Hatter of
Corona Corporation, 66 N. L. It. B. 583; Matter of Binon Chocolates, Inc., 65 N. L. R. B.
591.
See Matter of The Narragansett Electric Company, 64 N. L. R. B. 1492 ; Matter of
United States Rubber Co., 62 N. L. It. B. 795.
7 See Matter of American Radiator and Standard Sanitary Corporation , 67 N. L. R. B.
1135.
In view of the. foregoing, we find it unnecessary to rule on the other contentions of the
C. I. O. Nor do we find it necessary, for purposes of this decision, to pass upon the A. F.
of L.'s contention in its brief that the C. I. O., by becoming a signatory to an agreement
dated April 22, 1946, which provided that the Company shall continue to honor the 1946
contract, recognized the validity of that contract and the A. F. of L.'s representative status.
NATIONAL FIREPROOFING CORPORATION 877
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 employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virture of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations 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 National Fire-
proofing Corporation , Pittsburgh, Pennsylvania , 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 supervision of the Regional Director for the Fourth Region, act-
ing in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among 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 said pay-roll period because they were ill or on vacation
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 discharged 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 United
Gas, Coke and Chemical Workers of America, C. I. 0., or by United
Brick and Clay Workers of America and District Council No. 12,
A. F. of L., for the purposes of collective bargaining , or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
s As already indicated , this is substantially the unit covered by the contract executed
March 25, 1946.