Technical Porcelain and Chinaware Co.

In the Matter of TECHNICAL PORCELAIN AND CHINAWARE COMPANY and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL 1412 Case No. B-1694.-Decided April 10, 1940 Porcelain Manufacturing Industry-Investigation of Representatives : contro- versy concerning representation of employees : rival organizations-Unit Appro- priate for Collective Bargaining : all production and maintenance employees with specified inclusions and exclusions ; agreement as to-Electron Ordered. Mr. Jonathan H. Rowell, for the Board. Clark, Nichols, and Eltse, by Mr. Reece Clark, of Berkeley, Calif., for the Company. Mr. Paul S. Schlipf, of Oakland, Calif., for the United. Mr. Frank HuJ,l, of Los Angeles, Calif., and Mr. Joseph A. Sargent, of Richmond, Calif., for the Brotherhood. Mr. John W. LaDame, Jr., of Richmond, Calif., for the Asso- ciation. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 22, 1939, United Electrical, Radio and Machine Workers of America, Local 1412, herein called the United, filed with the Regional Director for the Twentieth Region (San Francisco, Cali- fornia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Technical Por- celain and Chinaware Company, El Cerrito, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On October 3, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to 22 N. L. R. B., No. 57. 835 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct it and to provide for an appropriate hearing upon due notice.' On November 2, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the United, and upon National Brotherhood of Operative Potters, herein called the Brotherhood, a labor organization claiming to represent employees directly affected by the investigation. On November 21, 1939, the Regional Director issued a notice of postponement of hearing. On January 10, 1940, the Regional Director issued a second notice of hearing. Pursuant to the second notice of hearing, a hearing was held on January 22 and 23, 1940, at San Francisco, California, before Howard Myers, the Trial Examiner duly designated by the Board. At the commencement of the hearing, the Trial Examiner granted a :notion to intervene filed by the Brotherhood. The Board, the Com- pany, and the United were represented by counsel, the Brotherhood by its representative, and all participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 21, 1940, counsel for the Brotherhood filed motions with the Board alleging that the Brotherhood represented a majority of the employees, stating that it desired a place on the ballot in the event of an election and praying 'that a speedy and prompt election be directed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Technical Porcelain and Chinaware Company, a California cor- poration having its principal office and place of business in El Cerrito, California, is engaged in the business of manufacturing, selling, and dealing in vitrified chinaware, electrical specialties, high-tension in- ' At the same time the Board ordered this proceeding consolidated with Case No. C-1513, based on charges of unfair labor practices against the Company filed by National Brother- hood of Operative Potters A stipulation was entered into in Case No C-1513, waiving hearing and providing for the entry of an order by the Board On March 24, 1940, the Board approved this stipulation and severed Case No C-1513 from the instant representa- tion proceeding On Aptil 4, 1940, the Board issued its Decision and Order in Case No. C-1513, requiring the Company to cease and desist from certain practices -and to take certain affirmative action , 22 N L. R. B. 718. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 837 sulators, bathroom accessories, and other types of porcelain and china, ware. Raw materials valued at approximately $20,500 were used in the manufacturing processes carried on by the Company during 1938, approximately 25 per cent of which was shipped to different points outside the State of California. During the same period, the Com- pany sold goods of the value of approximately $129,615, of which ap- proximately 10 per cent was shipped to points outside the State of California. The Company employs approximately 90 employees. It admits, for the purpose of this proceeding, that it is engaged in commerce within the meaning of Section 2 (6) of the Act. H. THE ORGANIZATIONS INVOLVED United Electrical, Radio and Machine Workers of America, Local 1412, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership the production and mainte- nance employees of the Company. National Brotherhood of Operative Potters is a labor organization affiliated with the American Federation of Labor. It admits to mem- fbership production and maintenance employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In 1937 the Company entered into a closed-shop contract with the, Brotherhood, governing the wages and hours of all the production and maintenance employees in the plant. This contract provided for ter- mination upon 30 days' notice by either party thereto. Notice of termination has never been given. In the latter part of 1938 the United began organizing among the, Company's employees, and at the hearing claimed to represent a majority of the employees. At the hearing the Brotherhood main- tained that the contract mentioned above was still in full force and effect and constituted a bar to an election. After the close of the hearing the Brotherhood, as set forth above, filed a motion requesting that an election be held. We find that a question has arisen concerning the representation of employees of the Company. 'IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 283033-41-vol 22-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT The Company, the United, and the Brotherhood agreed at the hear- ing that the appropriate unit should consist of all production and maintenance employees of the Company employed in the mold shop, clay shop, turning department, handling department, casting depart- ment, dust-press department, sagger shop, finishers, finishing depart- ment, slip house, kilm hand department, bisque wareroom, glaze room, decorating department, and warehouse, excluding foremen and clerical workers. We see no reason for departing from such unit. We find that all production and maintenance employees of the Company employed in the mold shop, clay shop, turning department, handling department, casting department, dust-press department, Bagger shop, finishers, finishing department, slip house, kiln hand de- partment, bisque wareroom, glaze room, decorating department, and warehouse, excluding foremen and clerical workers, constitute a unit appropriate for the purpose of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectu- ate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES According to the Company's pay roll as of January 20, 1940, there were 87 employees in the appropriate unit. The United introduced in evidence membership cards signed by 24 employees. We find that an election by secret ballot is necessary to resolve the question concern- ing representation. Although the Brotherhood did not introduce any evidence of membership, in view of its bargaining relations with the Company it is entitled to a place on the ballot. Those eligible to vote in the election shall be employees in the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of our Direction of Election, including employees who did not work during such pay- roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those employees who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the,repre- sentation of employees of Technical Porcelain and Chinaware Com- pany, El Cerrito, California, within the meaning of Section 9- (c) and Section 2 (6) and (7) of the National Labor Relations Act. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 839 2. All production and maintenance employees of the Company em- ployed in the mold shop, clay shop, turning department, handling department, casting department, dust-press department, sagger shop, finishers, finishing department, slip house, kiln hand department, bisque wareroom, glaze room, decorating department, and warehouse, excluding foremen and clerical workers, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Technical Porcelain and Chinaware Company, El Cerrito, California, 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 Twentieth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company employed during the pay- roll period immediately preceding the date of this Direction of Election in the mold shop, clay shop, turning department, handling department, casting department, dust-press department, sagger shop, finishers, finishing department, slip house, kiln hand department, bisque wareroom, glaze room, decorating department, and ware- house, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding foremen, clerical workers, and employees who have since quit or been dis- charged for cause, to determine whether they desire to be repre- sented by United Electrical, Radio and Machine Workers of America, Local 1412, affiliated with the Congress of Industrial Organizations, or by National Brotherhood of Operative Potters, Local 165, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [SAME TITLE AMENDMENT TO DIRECTION OF ELECTION April 17, 194,0 On April 10, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled matter, the election to be held within thirty (30) days from the date of the Direction, under the direction and supervision of the Regional Director for the Twentieth Region (San Francisco, California). The Board, having been advised that United Electrical, Radio and Machine Workers of America, Local 1412, does not desire its name to appear upon the ballot, hereby amends the Direction of Election issued on April 10, 1940, by striking therefrom the words "to determine whether they desire to be represented by United Electrical, Radio and Machine Workers of America, Local 1412, affiliated with the Congress of Industrial Organizations, or by National Brotherhood of Operative Potters, Local 165, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither" and substitut- ing therefor the words "to determine whether or not they desire to be represented by National Brotherhood of Operative Potters, Local 165, affiliated with the American Federation of Labor, for the purposes of collective bargaining." 22 N. L. R B., No. 57a.