Olin Industries, Inc.

In the Matter of OLIN INDUSTRIES, INC. (WESTERN CARTRIDGE COM- PANY DIVISION, EAST ALTON, ILLINOIS) and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO Case No. 14-R-1298.Decided April 30, 194.6 Mr. R. H. McRoberts, of St. Louis, Mo., and Messrs. 0. W. Roberts and G. S. Hamill, both of East Alton, Ill., for the Company. Messrs. Wm. Sentner, R. Bergman, and Otto Maschoff, all of St_ Louis, Mo., for the CIO. Mr. W. C. Hambleton, of East Alton, Ill., Mr. W. C. Riley, of St. Louis, Mo., and Mr. Carl Hnhndorff, of Washington, D. C., for the A. F. L.-I. A. M. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Electrical, Radio & Machine Workers of America, CIO, herein called the CIO, alleging that a question affecting commerce had arisen concerning the representation of employees of Olin Industries, Inc. (Western Cartridge Company Division, East Alton, Illinois),1 herein called the Company, the Na- tional Labor Relations Board provided for an appropriate hearing upon due notice before Charles K. Hackler, Trial Examiner. The hearing was held at St. Louis, Missouri, on February 21 and 22, 1946. The Company, the CIO, and the American Federation of Labor and its affiliated organizations and International Association of Machin- ists, District No. 9, both herein collectively referred to as A. F. L.- I. A. M., appeared and participated. All parties 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. All parties were afforded opportunity to file briefs with the Board. ' Without objection by any of the parties, the Trial Examiner amended all papers in this proceeding at the hearing so as to reflect the true name of the employer concerned 67 N L. R B., No. 130. 1043 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 3,1946, oral argument was held before the Board in Wash- ington, D. C. The Company, the CIO, and the A. F. L.-I. A. M. ap- peared and participated. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Western Cartridge Company Division, an unincorporated operating division of Olin Industries, Inc., a Delaware corporation, operates a plant at East Alton, Illinois, where it is engaged in the manufacture, sale, and distribution of small arms, ammunition, explosives, and brass articles of various kinds. During the period between February 1, 1945, and February 1, 1946, the Company received raw materials valued at several million dollars, more than 50 percent of which was shipped to it from points located outside the State of Illinois. During the same period, the Company distributed products valued at several million dollars, more than 50 percent of which was shipped to points outside the State of Illinois. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations; American Federation of Labor and its affiliated organizations; and International Associa- tion of Machinists, District No. 9, are labor organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the CIO as the exclusive collective bargaining representative of certain of its employees, con- tending that to do so would be in contravention of its contractual obligations with the A. F. L.-I. A. M. On February 6, 1943, subsequent to a Board directed election 2 the A. F. L.-I. A. M. was certified as the representative of the Com- pany's production and maintenance employees. Thereafter, on July 28, 1943, the Company and the A. F. L.-I. A. M. executed a collective bargaining agreement covering these employees. This agreement provided for a 1-year term, and was automatically renewable for similar periods thereafter in the absence of notice by either party to the other of a desire to "change, amend or terminate" the agreement 2 Matter of Western Cartridge Company, 46 N. L. R. B. 948. OLIN INDUSTRIES, INC. 1045 given at least 30 and not more than 60 days before any anniversary date. In addition, the agreement contained a maintennce of member- ship clause. On August 28, 1944, these parties executed another collective bar- gaining agreement. This agreement also provided for a 1-year term, and contained substantially the same automatic renewal and mainte- nance of membership provisions as the 1943 contract. Thereafter various disputed matters between the Company and the A. F. L.-I. A. M. were submitted to the Regional War Labor Board for determination 3 Among them was the A. F. L.-I. A. M.'s request for a general wage increase. On January 11, 1945, the Regional Board issued a Directive denying this- request. The A. F. L.-I. A. M. ap- pealed from this determination to the National War Labor Board, which affirmed the Regional Board by a Directive dated July 23, 1945. By a letter dated July 24, 1945, the A. F. L.-I. A. M. requested a conference with the Company for the purpose of "making certain changes in [the 1944 agreement] for the coming agreement term of 1945-1946." The Company replied on the following day, setting August 1, 1945, as the first conference date, and giving notice on its own behalf that it desired to make changes and revisions in each of the articles in the 1944 agreement. It is not disputed that the effect of this correspondence was to forestall the operation of the automatic renewal clause in the 1944 agreement. On July 28, 1945, the CIO served telegraphic notice upon the Com- pany of its claim to represent all employees covered by the 1944 agree- ment. The Company answered the CIO by letter dated August 1, 1945, in which it stated that it had a collective bargaining agreement with the A. F. L.-I. A. M. On the same day, in accordance with its letter of July 25, 1945, the Company commenced negotiations with the A. F. L.-I. A. M. with respect to their future contractual rela- tionship. These negotiations were concluded on August 23, 1945, when the Company and the A. F. L.-I. A. M. executed two documents, entitled Second and Third Supplemental Agreements, respectively. The Second Supplemental Agreement, herein called the Renewal Agree- ment, provided for the renewal of the 1944 agreement for 1 year from August 28, 1945." The Third Supplemental Agreement provided for an adjustment in the wage rates of working foremen and a premium for night work. Thus, except for the few matters contained in the Third Supplemental Agreement, the 1944 agreement was, in effect, renewed for an additional year without change. Case No. 111-6070-D. ° The Renewal Agreement also contained virtually the same automatic renewal clause as the 1944 contract. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 24, 1945, the CIO filed the petition in this proceed- ing. On the same day the petition was filed a strike took place at the Company's plant, causing it to be shut down until October 13, 1945. During this interval the A. F. L.-I. A. M., by letter dated September 29, 1945, notified the Company that the employees would be willing to return to work after agreement between the Company and the A. F. L.-I. A. M. upon certain demands of the latter, among which were a reduction of the work week fixed by the 1944 agreement as renewed,5 a closed shop, and a general wage increase. On October 13, 1945, the Company and the A. F. L.-I. A. M. exe- cuted an agreement in settlement of the strike which provided, inter alia, that the parties were to begin negotiations on a general wage in- crease and a reduction in the work week. It further stated that the A. F. L.-I. A. M.'s demand for a closed shop was withdrawn. Nego- tiations were then held between these parties. As of the date of the hearing no written agreement had been executed. The Company and the A. F. L.-I. A. M. urge, among other things, that the Renewal Agreement constitutes a bar to this proceeding be- cause the CIO's rival claim to representation, though timely, was not followed by the expeditious filing of a petition with the Board." But the CIO counters with the argument that, while its petition was pend- ing before the Board, the Renewal Agreement was mutually "opened up" by the contracting parties as a result of the strike settlement agreement and their ensuing negotiations and, consequently, a present determination of representatives is not precluded. In rebuttal, the Company and the A. F. L.-I. A. M. assert that the negotiations con- ducted between them subsequent to the execution of the Renewal Agreement were contemplated by and provided for in the Renewal Agreement and thus did not open this contract.? Had the Company and the A. F. L.-I. A. M. not entered upon post-contract negotiations, the Renewal Agreement would now con- stitute a bar to this proceeding, inasmuch as the CIO's rival claim to representation was not followed by the prompt filing of its petition.8 We are satisfied, however, that the actions of the contracting parties subsequent to the execution of the Renewal Agreement constituted b In the 1943 agreement the subject of the work week was left "open for further nego- tiation between the parties." 6 Apparently the Company and the A. F. L.-I. A. M. would concede that, if the CIO's petition had been filed before the execution of the Renewal Agreement , there would be no bar to a current determination of representatives. S These parties base their argument upon Article II, Section 2 of the agreement which recites : "In the event that new and unforeseen circumstances arise, or in the event of a disagreement with respect to the meaning of any of the provisions of this agreement, a meeting . . . shall be held between Company representatives and the Plant Commit- tee . . . for the purpose of considering and endeavoring to adjust any such matters. Any agreement which may be arrived at shall be reduced to writing and shall become effective upon authorized approval and ratification of such Union membership as is affected and by appropriate Company action." ^ See Matter of General Electric X-Ray Corporation, 67 N. L R B. 997 OLIN INDUSTRIES, INC. 1047 an "opening up" of that contract. Thus, as contended by the CIO, there is no bar to this proceeding, for the CIO's petition was pending at the time the Renewal Agreement was opened. During the time the CIO's petition was on file, the Company and the A. F. L.-I. A. M. mutually agreed to discuss and did, in fact, nego- tiate as vital a subject of collective bargaining as a general wage increase, despite the fact that the National War Labor Board had but 3 months before definitively settled this matter. Also during this time, the Company and the A. F. L.-I. A. M. consented to reconsider and actually treated with each other concerning a reduction of the work week-a condition of employment fixed by the Renewal Agree- ment. We are constrained to reject the assertion that the Renewal Agreement permitted the parties to reconsider these matters without opening their contractual relationship. For, in our view of the facts, neither the question of the general wage increase nor the reduction in the work week can be construed as a "new and unforeseen" circum- stance or as involving "a disagreement with respect to the meaning of any of the provisions" of the Renewal Agreement. We find, there- fore, that no bar exists to a current determination of representatives.9 A statement of a Board agent, introduced into evidence at the hearing, indicates that the CIO represents a substantial number of employees in the unit hereinafter found appropriate.lo We find that a question affecting commerce has arisen concerning the representation of the employees of the Company within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, substantially in accordance with the stipulation of the parties made at the hearing, that all production and maintenance employees of the Company, including working foremen who spend less than 50 percent of their time performing supervisory functions and production and maintenance clerical employees, but excluding all employees of Equitable Powder Manufacturing Company, all em- ployees of the Smokeless Powder Division of Olin Industries, Inc., guards, office employees, timekeepers, stenographers and typists on the factory pay roll, technical employees, fire fighters, superintendents, general foremen, working foremen who spend a majority or more of e Cf. Matter of Marvel -Sehebler Division, Borg-Warner Corporation, 56 N. L. R. B. 105. In that case we held that "the legal effect of a contract is not impaired by the desire of one party to repudiate or modify it." Here, however , the contract was not the subject of a unilateral attempt to re-open but was opened by both of the contracting parties. 10 The Field Examiner reported that the CIO submitted 745 designations bearing signa- tures which "checked on" the Company's daily card index for the period ending December 19, 1945. He further reported that there were 3774 employees in the unit hereinafter found appropriate . In view of the maintenance of membership provision in the agree- ments between the Company and the A. F L -I A M , we regard the CIO's showing as substantial . See Matter of Dolese f Shepard Company, 57 N. L. R. B. 1598. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their time performing supervisory functions, and all other super-, visory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or of-, fectively recommend such 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 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 Rela- tions 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 Olin Industries, Inc. (Western Cartridge Company Division, East Alton, Illinois), 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 Fourteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, 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, includ- ing 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 them- selves 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 Electrical, Radio & Machine Workers of America, CIO, or by American Federation of Labor and its affiliated organizations and International Association of Ma- chinists, District No. 9, for the purposes of collective bargaining, or by neither. "This is substantially the same unit found appropriate by the Board in the proceeding leading to the A. F. L. -I. A. M 's prior certification. See footnote 2, supra.