Gelatin Products Co.

.1n ,the Matter Of ROBERT P. SCHERER AND MARGARET L. SCHERER AND MARGARET L. SCHERER AS TRUSTEE FOR JOSEPHINE L. SCHERER, ROBERT P. SCHERER, JR., KARLA SCHERER, AND JOHN STEPHEN SCHERER, CO- PARTNERS . DOING BUSINESS AS GELATIN PRODUCTS COMPANY and UNITED GAS, COKE &- CHEMICAL WORKS OF AMERICA, AFFILIATED WITH THE C. 1. 0., 1 Case No. R-4920.-Decided April 27, 1943 Mr. Nickolas J. Roth,, of Detroit, Mich., for the C. I. O. Mr. Alfred Kamin, of Washington, D. C., for District 50. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Gas, Coke & Chemical Workers of America, affiliated with the C. I. O., herein called the C. I. 0., alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of Robert P. Scherer and Margaret L. Scherer and Margaret L. Scherer as trustee for Josephine L. Scherer, Robert P. Scherer, Jr., Karla Scherer, and John Stephen Scherer,,co-partners, "doing business as Gelatin Products Company, herein called the Com- pany,•the National Labor Relations Board provided for an appropriate hearing upon due notice before Henry J. Kent, Trial Examiner. Said hearing was held at Detroit, Michigan, on February 18, 1943. The C. I. O. and District 50, United Mine Workers of America, herein called District 50, appeared and participated; 1 all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing District 50 made a motion to dismiss the petition on the ground that no question concerning representation existed. For reasons ap- pearing below, this motion is denied. On April 6, 1943, pursuant to an order of the Board a further hear- ing upon due notice was held at Detroit, Michigan, before Robert J. I The Company, although duly notified thereof, did not appear at the hearing, stating in a letter to the Boaid that it desired to remain neutral. 49 N. L. R. B. No. 23. 173 I 174 DEIC'ISION9' OF NATIONAL LABOR RELATIONS BOARD Wiener, Trial Examiner. The C. I. O. and District 50 appeared and participated; 2 all parties were afforded full opportunity to be heard, to examine- and cross-examine witnesses, and to introduce evidence bearing on the present organizational status and membership of Dis- trict 50. The C. I. O. renewed a motion, which had been denied by .the Board on March 26, 1943, to introduce additional evidence as to its present organizational status, which motion was referred by the Trial Examiner to the Board. This motion is hereby denied inasmuch as the C. I. O. has already demonstrated a substantial interest in the present proceeding.3 The Trial Examiners' rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Robert P. Scherer and Margaret L: Scherer and Margaret L. Scherer as trustee for Josephine L. Scherer, Robert P. Scherer, Jr., Karla Scherer, and John Stephen Scherer, constitute a co-partnership doing business as Gelatin Products Company. The Company operates a plant at Detroit, Michigan, where it is- engaged in the manufacture of gelatin capsules, tubes, and enclosures. During the year 1942, the Company purchased raw materials for use at its Detroit plant valued in excess of $1,000,000, of which more than 50 percent was shipped to the Company front points outside the State of Michigan. Within the same period, the sales of the Company amounted to more than $2,- 000,000, of which more tlian 60 percent was shipped to points outside the State of Michigan. We find that the Company is engaged in com- merce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED District 50, United Mine Workers of America, is a labor organiza- Dion admitting to membership employees of the Company. United Gas, Coke & Chemical Workers of America, Local 155, is a labor organization affiliated with the Congress of Industrial Organiza- tions, admitting to membership employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION On January 7, 1943, the C. I. O. filed a petition in the instant case alleging that the Company is under an agreement with District 50, whereas most of its employees desire to be represented by the C. 1. 0. 2 The Company, although duly notified , did not appear, taking the same position it had assumed at the first bearing. 8 See footnote 4, infra. GELATIN PRODUCTS COMPANY 175, District 50 maintains that it has a collective bargaining agreement contract with the Company dated November 10, 1942, and expiring November 10, 1944; it contends that this contract constitutes a bar to a present determination of representatives. The C. I. O., in sub- stance, contends that the contract is not a bar because the employees concerned have, since the execution of the contract, voted to sever their affiliation with District 50 and to affiliate with the Congress of Industrial Organizations. District 50 commenced negotiations with the Company early in 1942 as, the bargaining representative of its employees. At that time Dis- trict 50 was affiliated with the Congress of Industrial Organizations. In October 1942, District 50 withdrew from the Congress of Industrial Organizations; meanwhile, negotiations with the Company continued, which resulted in an agreement which was ratified by the employees of the Company on November'8, 1942, and executed by the Company on November 10. On January 4, 1943, at a meeting 'attended by about 80 employees of the Company, the employees present unanimously voted to accept a charter from the C. I. O. Shortly thereafter, the C. I. O. chartered Local 155, which includes the employees of the Com- pany. All the officers and committeemen previously elected under the auspices of District 50 accepted office in the C. I. O. So far as appears, the employees are no longer active in District 50, and there is no evidence that the latter has continued to represent the employees or to administer the November 1942 contract. As stated on several occasions heretofore, the Board will not, as a general rule, proceed with an investigation if a valid contract urged as a bar by a party exists. However, the Board has found that a con- tract is not a bar to a. present determination of representatives where substantially the entire membership of the contracting union in the bargaining unit involved has repudiated that organization as its representative 4 Here the record indicates that there is doubt as, to whether District 50 continues to represent a substantial number of the employees. Accordingly, we find that the contract does not con- stitute a bar to a present determination of representatives.5 4 Matter of Sealed Power Corporation and the Accuralite Company 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 it Chemical Work- ers Local 1232;, 44 N. L. R. B 70. 5 Matter of United Stove Company and International Union, United Automobile Workers of America, affiliated with the C. 1. 0., 30 N. L. R. B. 305, Matter of National Lead Company and United Gas, Coke it Chemical Workers of America, 45 N. L. R. B. 182, and cases cited therein. i 176 DEIC'LSIONS OF -NATIONAL LABOR RELATIONS BOARD A statement of an agent of the Board indicates that the C. I. O. represents a substantial number of employees in the unit hereinafter found appropriate 6 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 In accordance with a stipulation of the parties, we find that all employees of the Company in the machine shop, and in the mainte- nance, capsulation, stock, gelatin, mixing, first aid and lunch room, finishing, shipping and receiving, washroom, and inspection depart- ments, but excluding executive or supervisory employees, sales de- partment employees, advertising department employees, sales and order department employees, office and clerical employees, laboratory employees, fine chemicals department employees, engineering depart- ment employees, department heads, foremen, assistant foremen, chief receiving clerk, forewomen, and chief boiler operator, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing 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- 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 Direction. 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, 6 A statement of a Field Examiner , introduced in evidence, discloses that the C. I. 0. submitted 247 authorization cards bearing appa"ently genuine original signatures and containing names appearing upon the Company's pay roll of February 16, 1943. This pay roll indicated that these were 365 employees in the appropriate unit on that date. All of the cards submitted were dated in 1943. - District 50 relies upon its contract to establish Its interest . In addition , the Trial Examiner conducting the first hearing reported that District 50 submited 261 auhoriza- tion cards , all dated in 1942. Upon the basis of a spot check , he stated that approxi- mately 40 percent of the names \ on these cards would appear on the above -mentioned pay roll. , The record discloses that several persons who signed designation cards for District 50 subsequently repudiated their signatures and signed designation cards for the C. I. 0. District 50, although given an opportunity to do so at the subsequent hearing, refused to present additional evidence as to its present representation status. 4 This is the same unit covered by the contract of November 10, 1942. GELATIN PRODUCTS COMPANY 177 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 representa- tives for the purposes of collective bargaining with Robert P. Scherer and Margaret L. Scherer and Margaret L. Scherer as trustee for Jose- phine L. Scherer, Robert P. Scherer, Jr., Karla Scherer, and John Stephen Scherer, co-partners, doing business as Gelatin Products Com- pany, Detroit, Michigan, 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 Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tion 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed dur- ing the pay-roll period immediately preceding the date of this Direc- tion, 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, to determine whether they desire to be represented by United Gas, Coke & Chemical Workers of America, Local 155, affiliated with the Congress of Industrial Or- ganizations, or by District 50, United Mine Workers of America, for the purposes of collective bargaining, or by neither.