Chal-Bro., Inc.

In the Matter of CHAL-BRO., INC. AND PuR-ALL PAINT PRODUCTS CO. and LOCAL 121, UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA Case No. R-4918.-Decided March 11, 1943. Jurisdiction : paint manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord petitioner recognition ; contract taken over by a parent organ- ization when it revoked the contracting union's charter, held no bar, when among other circumstances, the parent organization thereafter neither communicated with the company nor showed any further interest in the employees covered by the contract; election necessary. Unit Appropriate for Collective Bargaining : employees of parent and its sub- sidiary, although employees involved were employed at the subsidiary organization. Mr. Abraham, Chaleff, of New York City, for the Company. Mr. Alexander E. Racolin, of New York City, for the United. Miss Viola James, of counsel to the Board. DECISION AND DIRECTION OF ELECTION- STATEMENT OF THE CASE Upon petition duly filed by Local 121, United Gas, Coke & Chemical Workers of America, affiliated with the Congress of Indu'st'rial- Organ- izations, herein called the United, alleging that a question affecting commerce had arisen concerning- the representation of employees of Chal-Bro., Inc. and Pur-All Paint Products Co., New York City, herein called the Company, the National-Labor Relations Board pro- vided for an appropriate hearing upon due notice before Cyril W. O'Gorman, Trial Examiner. Said hearing was held at New York City on February 18, 1943. The Company and the United appeared, par- ticipated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues.' The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : 1 District 50, United Mine Workers of America, made no appearance, although served with notice. 48 N. L. It B., No. 3, 11 I 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Chal'-Bro., Inc., the parent organization, and Pur-All Paint Products Co., its ,subsidiary, are New York corporations located in New York City. The former is engaged in the sale and distribution in both the retail and wholesale trade of paints and allied products; the latter is engaged in the manufacture of paints which are distributed through the parent body. During the 6 months prior to February 1, 1943, the Company used raw materials consisting principally of pigments, gums, and various types of oils, valued at approximately $65,000, of which approxi- mately 35 percent was received from points outside the. State of New York. During the same period, the Company .shipped finished prod- ucts valued at approximately $80,000, of which approximately 20 percent was shipped to points outside the State of New York. The employees involved herein are employed at the subsidiary organiza- tion, herein called the Bronx plant. The. Company admits that it is 'engaged in commerce within the meaning.of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Local. 121, United Gas, Coke & Chemical Workers of America, affiliated with the Congress of Industrial Organizations, and District 50, United Mine Workers, of America, are labor organizations admit- ting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION ,On September 24, 1942, the, United notified the Company that its employees had designated the United as their sole collective bar- gaining agency, and requested a conference for they purpose of dis- cussing a collective bargaining agreement. The Company refused the request on the grounds that it was bound by an existing contract originally entered into with Local No. 12165, District 50, United Mine Workers of America, herein called Local No. 12165. The Regional Director's statement, introduced into evidence at the hearing, indicates that the United represents a substantial number of employees in the appropriate unit.2 The Company and Local No. 12165 entered into a bargaining con- tract to be effective from October 28, 1941, to October 21, 1942, and 2 The Regional Director reported that the United submitted a petition dated October 22, 1942, designating the United as the representative for collective bargaining; that the petition bore five signatures, all apparently genuine and original, and that the five signal tures are the names of persons listed on the Company s pay roll of November 27,'1942, within a claimed unit of approximately five employees. CHAL-BRO., INC. 13 from year to year thereafter unless either party desired a change, in which case a 30-day written notice was to be given before the expira- tion of the agreement or any renewal thereof. In March 1942, the charter of Local No. 12165 was revoked by its parent body, District 0, United'Mine Workers of America, herein called District 50, and sliortly'thereafter District 50 notified the Company that it had taken over the contract and that it considered the Company bound thereby. However, from the time of this notice until after the petition herein was filed ,3 District 50 neither communicated with the Company nor showed any further interest in the employees covered by the contract. Meanwhile, the employees who were members of Local No. 12165 joined the United, a fact which was adinittedly known by the presi- dent of the Company at least a week prior to the United's request for bargaining of September 24, 1942. In view of these circumstances, the contract is clearly not- a bar to the present proceedings, notwith- standing the fact that the Company and/or District 50 may consider that the contract was automatically renewed as of September 21, 1942.4 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 parties agree that all production employees at the Bronx plant, including the shipping clerk, but excluding the chemist and super- visory employees, constitute an appropriate unit. The shipping clerk, besides performing the usual services of a clerk, is also the assistant supervisor,of the plant, with the power0to hire and discharge employees. Although the parties apparently wish to include him in the unit, we find that the shipping clerk should be excluded, since he is a supervisory employee. The chemist, whom the parties agreed to exclude, is the head super- visor. We shall exclude the chemist. , We find that all production employees at the Bronx plant, excluding the shipping clerk, the chemist, and other supervisory employees, 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 the em- s The petition was filed on October 27, 1942. 4It does not appear that either pasty gale a 30-day notice of 'a desired change in the contract 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees 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 Direc- tion. Although we , find that the contract is not a bar , to an election, and although District 50 made no appearance at the hearing, we shall nevertheless accord District 50 a place on the ballot. 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 repre- sentatives for the purposes of collective bargaining with Chal-Bro., Inc. and Pur-All Paint Products Co., New York City, 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 Second Region, act- ing in this matter as agent for the National Labor Relations Board, and subject to Article III,.Section 10, of said Rules and Regulations, among the 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 vaca- tion 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 any who have since quit or been discharged for cause, to determine whether they desire to be represented by Local 121, United Gas, Coke Sc Chemical Workers of America, affiliated with the Congress of Industrial Organizations, or by District 50,' United Mine Workers of America, for the purposes of collective bargaining or by neither. .