Aviola Radio Corp.

In the Matter of AVIOLA RADIO CORPORATION, EMPLOYER and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, FOR ITSELF AND ON BEHALF ,OF ITS DISTRICT LODGE No. 49, PETITIONER Case No. 01-R-.3379.-Decided October 11, 1916 Messrs. Irving A. Jennings and Robert A. Clelland, of Phoenix, Ariz., for the Employer. Mr. L. E. Poesnecker , of Los Angeles , Calif., and Messrs. James C. Jones, N. R. Pyatt, and Andy Heil, of Phoenix, Ariz., for the Peti- tioner. Messrs. James Marsh and John L. Dutch, of Phoenix , Ariz., for the Intervenor. Mr. Sidney Grossman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Phoenix, Arizona, on July 31, 1946, before William T. Whitsett, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following:: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Aviola Radio Corporation, an Arizona corporation, is engaged in the manufacture of radios, photographs, and aluminum window frames and sashes at its Phoenix, Arizona, plant. It uses principally radio parts, wood, and aluminum in the manufacture of its products. Dur- ing the 5-month period ending July 1, 1946, its purchases amounted to approximately $238,500 in value, of which 98 percent consisted of materials shipped to it from States other than the State of Arizona. During the 5-month period ending July 1, 1946, its manufacture of finished products amounted to approximately $271,600 in value, of which 70 percent was shipped to points outside the State of Arizona. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 71 N. L. R. B., No. 43. ?21 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ORGANIZATIONS INVOLVED The Petitioner is a labor orga>ization, claiming to represent em- ployees of the Employer. United Electrical, Radio and Machine Workers of America, herein called the Intervenor, is a labor organi- zation affiliated with the Congress of Industrial Organizations claim- ing to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner or the Intervenor as the exclusive bargaining representative of employees of the Em- ployer until either labor organization has been certified by the Board in an appropriate unit. On August 7, 1945, following a consent election conducted under the auspices of the Board, the Aviola Radio Corporation, a California corporation, executed a contract with the Intervenor covering the employees at its Glendale, California, plant. The contract provided that it was to be in effect until January 6, 1946, and it contained an automatic renewal clause. The California corporation engaged in the manufacture of radar equipment for the armed services. Its war con- tracts were cancelled shortly after the execution of the collective agree- ment because of the cessation of hostilities and its employees were thereafter released, and in December 1945, prior to the anniversary date of the 1945 contract, it ceased its operations. In January 1946, the Employer corporation was formed as an Arizona corporation. It acquired, through purchase, the equipment and supplies of the Cali- fornia corporation, which was thereupon dissolved, and purchased additional equipment from the Reconstruction Finance Corporation. As previously stated, it principally manufactures radios and phono- graphs at its Phoenix, Arizona, plant, which is more than 350 miles distant from the Glendale, California, plant. The Intervenor contends that the 1945 contract operates as a bar I o this proceeding; the Employer and the Petitioner oppose this con- tention. Although the Intervenor purported to show that the Em- ployer in March 1946 indicated an intention to comply with the 1945 contract, the record otherwise discloses that the Employer has con- sistently withheld recognition and that the contract has never been caiforced at the Phoenix plant. Of paramount importance is the fact that few, if any, of the employees who now work at the Phoenix plant were formerly employed at the Glendale plant. It is evident that the employees here involved were not covered by the 1945 contract, nor were they contemplated as future employees at the time the contract was signed. In Matter of Bethlehem Transportation Corporation," we stated : 161N L R B 1110, 1116. AVIOLA RADIO CORPORATION 323 Where a new plant and new employees are involved, even where there is an existing contract and no dispute as to the unit, the Board requires the employees not in existence at the time the con- tract was executed to decide the issue as to their representation. In the case under consideration, the reasons for following this rule are even more decisive. The Employer is a separate and distinct en- tity apart from the corporation which operated the Glendale plant, its products are foreign to those manufactured by that corporation, and its personnel, including its administrative employees, are com- pletely different: We are therefore of the opinion that the 1945 con- tract does not operate as a bar.2 A contrary conclusion is not warranted in the circumstances of this case merely because the 1945 contract in its introductory paragraph extends to the successors and assigns of the Calif ornia corporation. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Sect ion 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in substantial accord with the agreement of the parties, that all production and maintenance employees at the Employer's Phoenix, Arizona, plant, including material handlers, leaders, and shop timekeepers, but excluding office and clerical employees, engi- neering employees, plant protection employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status-of employees, or effectively rec- ommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the Investigation to ascertain representatives for the purposes of collective bargaining with Aviola Radio Corporation, Phoenix, Arizona, all 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203J)6, of National Labor Relations Board Rules and Regula- 2 See also Matter of The Pro5perzty Company , Inc, 55 N L R B 35Q; Matter of Menasha Wooden, Ware Corporation, 4S N L R B 345 , Matter of Chase Brass ct Copper Co , Inc, 47 N I, R IS 298 , Matter of Sardik Food Products Corporation , 46 N_ L R B 894 v Subsequent to the close of the hearing, the Intervenor withdrew its request that plant protection employees be included in the unit 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions-Series 4, 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 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 repre- sented by the International Association of Machinists, District Lodge No. 49,4 or by the United Electrical, Radio and Machine Workers of America, CIO, for the purposes of collective bargaining, or by neither. 4 District Lodge No 49 appears to be the real party in interest