National Lead Co.

In the Matter of NATIONAL LEAD COMPANY and NATIONAL COUNCIL OF GAS, COKE & CHEMICAL WORKERS In the Matter of NATIONAL LEAD COMPANY TITANIUM DIVISION and NATIONAL COUNCIL OF GAS, COKE & CHEMICAL WORKERS In the Matter of NATIONAL LEAD COMPANY (DE LORE DIVISION) and NATIONAL COUNCIL OF GAS, COKE & CHEMICAL WORKERS Cases Nos. R-1,168, R-4169, and R-4170, respectively.Decided October 30, 1940 Jurisdiction : pigment manufacturing industry. Investigation and Certification of Representatives : existence of questions: re- fusal to accord petitioner recognition until certified by the Board ; contracts held no bar in view of shift in affiliation of members of contracting union ; elections necessary. Units Appropriate for Collective Bargaining : separate bargaining unit at each of three of Company's plants ; stipulation as to. Mr. Charles K. Hackler, for the Board. Mr. Harry O. Smith, of St. Louis, Mo., for the Company. Mr. Victor B. Harris, of St. Louis, Mo., for the National Council: Mr. L. C. Dyer and Mr. Neil Beam, of St. Louis, Mo., for District 50. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by National Council of Gas, Coke & Chemical Workers, herein called the National Council, alleging that questions' affecting commerce had arisen concerning the represen- tation of employees of Lead and Oil Works, the Titanium Division and the De Lore Division, respectively, of the National-Lead Com- pany, of St. Louis, Missouri, herein called the Company, the National Labor Relations Board provided for ' an appropriate hearing upon due notice before Charles E. Persons, Trial Examiner. Said hearing 45 N. L. R. B., No. 33 182 • NATIONAL LEAD COMPANY 183 was held at St. Louis, Missouri, on August 17, 1942. On,October 3, 1942, pursuant to an order of the' Board reopening the record, a further hearing upon due notice was held at St. Louis, Missouri, before Charles K. Hackler, Trial Examiner. At both hearings the Company, ,the National Council, and District 50, United Mine Workers of America, herein called District 50, appeared, partici- pated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiners' rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in the cage, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY National Lead Company, a New Jersey corporation , maintains plants, offices, and warehouses throughout the United States. We are here concerned only with its plants designated as the Lead and Oil Works located at St. Louis, Missouri, the Titanium Division located at Carondelet, Missouri, and the De Lore Division located at the junction of the Mississippi and Des Peres rivers. At the Lead and Oil Works, the Company is engaged in the manufacture of both red and white lead pigments. The raw -ma- terials used consist mainly' of fuel, pig lead, and processing ma- terial. In the calendar year 1941 there was transported to the plant in excess of $100,000 worth of raw materials and there was sold and distributed from the plant in excels of $100,000 worth of finished products. More than 50 percent of the raw materials and more than 50 percent of the manufactured products sold and deliv- ered either came to the plant from points outside of the State of Missouri, or was shipped from the plant to points outside of the State of Missouri. , At the Titanium Division, the Company is engaged in the manu- facture of titanium, barium pigment, and titanium calcium pig- ment. The raw materials used are principally coal, sulphur, pyrites, barytes, lime, and ilmenite. During the calendar year 1941 the Company used more than $500,000 worth of raw materials at the Titanium Division; in excess of 40 percent of which was shipped to the plant from points outside the State of Missouri. During, the same period the aggregate value of the finished products of the Company was over $1,000,000 and in excess of 90 percent of such products was shipped by the Company to points outside the State, of Missouri. At the De Lore Division the Company is engaged-in the manu- facture of whitings. The chief raw materials consist of barium, 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sulphate,, and crushed limestone. During the calendar year 1941 there was shipped into the plant in excess of $100,000 worth of raw materials. 50 percent of which was shipped to the plant from 'points outside the State of Missouri. In excess of 50 percent of the fin- ished products was shipped from the plant to points outside the -State of Missouri. The Company admits it is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED National Council of Gas, Coke & Chemical Workers is a labor organization. It admits to membership employees of the Company. District '50, United Mine Workers of America is a labor organiza- tion. It admits to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION By letters dated June 19, 1942, the National Council advised the Company that it represented a majority of the Company's employees in each of the plants involved herein. The Company refused to recog- nize the National Council unless and until it had been certified by the Board. A statement by the Regional Director, introduced into evidence at the hearing, indicates that the National Council represents a substan- tial number of employees in each of the Company's three plants in- volved herein. - i The statement of the Regional Director shows that the National Council submitted to him: (a) In support of its allegation that it. represented a substantial number of em- ployees in the Lead and Oil Works, 116 cards, each of-which bears the statement that the signer had withdrawn from membership in and affiliation with Distract 50 and did thereby apply for membership in the National Council Of the 116 cards sub- mitted, 115 bear apparently genuine original signatures of persons whose names appear on the Company 's' pay roll of Tune 20 . 1942 , in the Lead and Oil Works, which pay roll contains 131 names of persons in the alleged appropriate unit. All of the 116 cards submitted are dated the latter part of June and the first part of July 1942. (b) In support of its allegation that it represents a substantial number of employees in the Titanium Division , 528 cards in the identical form as those mentioned above, of which 523 bear apparently genuine signatures and the remaining 5 cards show printed names All 528 bear the names of persons appearing on the Company's pay roll of June 14 to 20, 1942, in the Titanium Division, which pay roll contains names of 698 persons in the alleged appropriate unit All of the 528 cards are dated during the latter part of June and the first part of July 1942, with the exception of 3 cards which are undated (c) In support of its allegation that it represents a substantial number of em- ployees in the De Lore Division , 42 cards similar in form to those above mentioned, all of which bear apparently genuine original signatures of persons whose names appear on the Company's pay roll of June 14 to 20, 1942,' in the De Lore Division, which pay roll contains the names of 45 persons in the alleged appropriate unit. All the cards are dated the latter pact of June and the first ,part of July 1942 The Regional Director 'further stated in his report that District 50 relies on the three contracts involved in this proceeding to substantiate its claim of representation. NATIONAL LEAD COMPANY 185 District 50 rnaintains ' that it has a collective bargaining contract with each of the Company 's three plants involved herein. The Na- tional Coulicil maintains that each of said contracts is with a local union which, at the time the contract was signed , was affiliated with District 50 but which has since, by resolution , unanimously voted, severed its connection with District 50 and affiliated with the National Council. There are three contracts involved herein. The contract for the 'Lead and Oil Works is between the Company and the National Lead Workers Union, Local No. 12152, affiliated with the United Mine Workers of America, District 50; it was executed on November. 28, 1941 , effective October 1, 1941, and provides that it shall expire on March 30, 1943. The other two contracts are between the Company and Local 12212, affiliated with'the United Mine Workers of America, District 50, and cover the Titanium Division and the De Lore Division, respectively . The contract for the Titanium Division was executed November 18, 1941 , effective September 14,, 1941 , and expires March 13, 1943. The De Lore Division contract was executed December 1, 1941 , effective September 14, 1941, and expires March 13, 1943. Each contract contains a maintenance of membership clause and provides, for dues check-off upon individual authorization. In the early part of June 1942 representatives of the two local unions herein` involved, met in Washington, D. C., with representa- tives of numerous other District 50 locals At this meeting it-wtis, decided that a new International Union designated as National Coun- cil of Gas, Coke & Chemical Workers should be formed and an appeal was made to the executive board of the C I. O. for a charter. Na- tionalCouncil granted charters to various local unions including the two local unions involved herein. Thereafter, on June 8, 1942, Local 12152, which represented the employees of the Lead and Oil Works of the Company , held a special mass meeting at which the local union unanimously adopted a resolution to sever its relationship with and surrender its charter to District 50 and further authorized its officers to make immediate application for charter of affiliation with Na- tional Council and in other respects continue in the same manner as it had, theretofore operated. Local 12212, which represented the em- ployees of the Titanium Division and De Lore Division of the Company, held a similar meeting on June 8 at which an identical resolution was unanimously adopted. Since the action of the locals in severing their affiliation with District 50, the latter organization has not attempted to form new locals at the plants involved . No effort has been made to elect new officers to replace those who participated in the shift to the National Council , and per capita dues are not paid to District 50. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District 50, relying on the'afore-mentioned contracts, contends that no question concerning representation has arisen and that the at- tempt at secession made by the two local unions was illegal, irregular, and effectuated only a resignation from a local union office and Dis- trict 50 membership by officers participating therein. For these rea- sons it contends that- the contracts are a.bar to this proceeding. The National Council, on the other hand, contends that the action of the membership of the locals effectively severed relations with District 50 and that 'the employees were free to affiliate with the National' Council. The Board, as a general rule, will not proceed with an investiga- •tion as to representation where a- valid contract urged as a bar by a party exists. In certain circumstances, however, the Board has found that a contract is not a bar to'a.determination of representa- tives. Thus, where a contract has already been iri effect for a reason- able period,2 or where it is about to expire,3 the Board has proceeded with its representation investigation. The Board, has also found the contract not to be a bar where there exists substantial doubt as to the identity of the labor organization that claims to be the party to 'the contract,' or where substantially the entire membership of the con- tracting union in the affected bargaining unit has shifted to another organization.5 As stated above, the membership of the District 50 locals in the plants here involved voted unanimously to sever their affiliation with District 50, to surrender the District 50 charters, and to affiliate with the National Council. So far as the record shows, there are no employees who desire to retain membership in District 50 and to be represented by that organization. Accordingly, we find that the contracts do not constitute a bar to a present 'determination of representatives. We find that questions affecting commerce have arisen concern- ing the representation of the employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ' See Matter of Wichita Union Stockyards Company and,Pacl, anghouse Workers Organ- izing Committee, Local No. 91/, affiliated with C. I. 0., 40 N. L. R. B. 369, and cases therein cited ' 3 See Matter of W. J. Voit Rubber Corporation and United Rubber Workers of America, Local 225, C I 0 , 41 N. L It . B 585 ; Matter of United States- Rubber Company, Indian- apolis Branch, Indianapolis, Indiana, and Local No. 110 of the United Rubber Workers of America (C 1 0 ), 41 N L R B 1005 - 4 See Matter of Brenizer Trucking Company, et al. and United Paving and Building Supply Workers, Local Industrial Union ##1221, C I. 0 , 44 N L - R B 810 ; Matter of Harbison-Walker Refractories Company and United Clay Products Workers Local In- dustrial Union ## 1205, etc, 44 N L R B 816. See Matter of Sealed Power Corporation and the Accuralite Co. and International Union, United Automobile, Aircraft &+Agricultural Implement Workers of America (UAW- CIO), affiliated with the C I 0., 41" N L. R B. 1225, and cases cited therein. Cf Matter of Great Lakes Carbon Corporation and National Council of Gas, Coke and Chemical Workers, Local 12327, 44 N L R B. 70. NATIONAL LEAD COMPANY IV. THE APPROPRIATE UNITS 187 We find, in accordance with a stipulation of the parties, that the following employees of the Company constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (1) All production acrd maintenance employees, excluding sal- aried employees, foremen, and watchmen, employed -by the Company at- its St. Louis Lead and Oil Works. (2) All employees of the Titanium Division of the Company, including the working foremen employed in the acid plant, but excluding executives, salaried foremen, watchmen, supervisory em- ployees, and all other salaried employees. (3) All production and maintenance employees employed in the De Lore Division of the Company, excluding office employees, fore- men, supervisory employees, technical men, or anyone who is not employed, directly in production or maintenance work of the plant .6 V: THE DETERMINATION OF REPRESENTATIVES We shall direct that the' questions concerning representation which have arisen be resolved by. elections by secret ballot among the em- ployees in the appropriate units who were employed during the pay-roll period immediately preceding the date of our Direction of Elections herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS By virtue 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 2,.as amended, it is hereby DIRECTED that, as part of the investigation to ascertain repre- sentatives for the purposes of collective bargaining with National Lead Company, St. Louis, Missouri, elections 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 'irection and supervision of the Regional Director fo`r the Fourteenth Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Section 10, of said Rules and Regulations, among the employees in the units found appropriate in Section IV, above, ° The units found above to be appropriate are, identical with the units covered in the contracts between the Company and District 50. 188 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD who were employed during the pay-roll period immediately preced- ing the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vaca- tion or in, the active military service or training of the United States, or temporarily laid off, but excluding employees who' have since quit or been discharged for cause, to determine whether they desire to be represented by National Council of Gas, Coke & Chemi- cal Workers or by District 50, United Mine Workers of America, for the purposes of collective bargaining, or by neither. 0 In the Matter of NATIONAL LEAD COMPANY and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA In the Matter of NATIONAL LEAD COMPANY (TITANIUM DIVISION and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA In the Matter of NATIONAL LEAD COMPANY and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA Cases Nos . R-4168, R-4169, and R-4170, respectively AMENDMENT TO DECISION AND DIRECTION OF ELECTIONS November 13, 1944 On October 30, 1942, the National Labor Relations Board issued a Decision and Direction of Elections in the above -entitled proceed- ing.' We shall, in accordance with a stipulation of the parties made at the hearing and inadvertently overlooked in our Decision, amend our Decision and Direction of Elections by substituting the name "United Gas , Coke & Chemical Workers of America " for the name "National Council of Gas, Coke & Chemical Workers" in the caption and Direction of Elections. By letter dated November 4, 1942, District 50, United Mine Work- ers of America , notified the Reginal Director for the Fourteenth Region that it did not desire to participate , in the elections. The Board, accordingly, further amends the aforesaid Direction of Elec- tions by striking therefrom the words "whether they desire to be represented by National Council of Gas, Coke & Chemical Workers or by District 50, United Mine Workers of America, for the purposes of collective bargaining, or by neither" and substituting therefor the words "whether or not they desire to be represented by United Gas, Coke & Chemical Workers of America for the purposes of collective bargaining." 145 N L. R. B. 182. 189 45 N. L. R. B., No. 33a.