National Fireproofing Corp.

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.