Los Angeles Brick & Clay Products Co.

In the Matter of 'Los ANGELES BRICK & CLAY PRODUCTS Co.-and UNITED BRICK & CLAY WORKERS OF AMERICA, ELSINORE LOCAL 843, AFFILIATED WITH THE A. F. OF L. Case No. R-3269.-Decided December 12, 1941 - Jurisdiction : brick and clay products manufacturing industry. Investigation and Certification of Representatives : existence of question: Com- pany refuses to accord union recognition ; under circumstances, existing collective bargaining contract and Circuit Court decree enforcing prior order of Board no bar to investigation and certification ; election necessary. Unit Appropriate for Collective Bargaining : all employees in plant and clay pits at Alberh'ill, California, excluding foremen and supervisors with,the right to hire and fire, and office employees ; stipulation as to. Mr. Prentiss More, of Los Angeles, Calif., for the Company. Mr. Tony Benfatti -and Mr. John 0. Grissom, of Los Angeles, Calif., for the United. Gallagher & Wirin, of Los Angeles, Calif., by Mr. Harry A. Kap- lan; and Mr. H. A. Hennes, of Los Angeles, Calif., for the Interna- tional. Mr. Wm. F. Scharnikow, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 26, 1941, United' Brick & Clay Workers of America, Elsinore Local 843, affiliated with the American Federation of Labor, herein called the United, filed with the Regional Director for the Twenty-first Region (Los Angeles; California) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Los Angeles Brick & Clay Products Co., Los Angeles, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 27, 1941,- 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, as amended, ordered an 37 N. L. R. B., No. 88. 539 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 29, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the United, and International Union of Mine, Mill and Smelter Workers, Local 373, affiliated with the Congress of Industrial Organizations, herein called the International, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on November 6, 1941, at Los Angeles, Cali- fornia, before Maurice J. Nicoson, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the United, and the International were represented by counsel and participated in the hearing. Full opportunity 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 a ruling on an objection to the admission of evidence. The Board has reviewed the ruling of the Trial Examiner and finds that no prejudicial error was committed. The ruling is hereby affirmed. At the hearing, the Company and the International moved to dis- miss the petition herein-on grounds considered in Section III, below. The Trial Examiner referred said motions to the Board for appro- priate action. For the reasons stated in Section III, below, the mo- tions of the Company and the International are denied. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Los Angeles Brick & Clay Products Co., a California corporation with its principal office at Los Angeles, California, is engaged in the manufacture of brick and clay products at its plant in Alberhill, Cali- fornia. It obtains all of its raw materials, with the exception of small quantities of chemicals, within the State of California. During the first nine months of 1941, the sales of the Company's products amounted to approximately $479,000, of which $51,000 represented sales and shipments to points outside the State of California. II. THE ORGANIZATIONS INVOLVED United Brick & Clay Workers of America, Elsinore Local 843, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. International Union of Mine, Mill and Smelter Workers, Local 373, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. LOS ANGELES BRICK & CLAY PRODUCTS CO. 541 III. THE QUESTION CONCERNING PRESENTATION The United requested the Company to bargain with it as the exclu- sive representative of its employees. The Company refused, and still refuses, stating that it has a contract with the International as the sole bargaining representative of its employees. The United then filed its petition herein and, according to a statement prepared by the Regional Director and introduced into evidence, showed that it repre- sents a substantial number of the Company's employees in the unit hereinafter found to be appropriate.' The term of the contract between the Company and the Interna- tional, which is urged by the Company and the International as ground for their motions to dismiss the petition, was one year from its date, December 9, 1939, with continuance thereafter, but was made expressly subject to, termination on sixty days' notice given by either party at any time.2 In view of this 60-day provision and in view of the fact that the contract will have, been in effect for two years by the time an election can be held in this proceeding, we find that the contract between the Company and the International is no bar to an investigation and certification of the representatives of the Company's employees for the purposes of collective bargaining. In its motion to dismiss the petition, the Company further con- tends that the investigation and certification presently sought are barred by the continuing effect of a consent decree of the United States Circuit Court of Appeals for the Ninth Circuit, entered on January 15, 1940, and enforcing the Board's Order of February 27, 1939,3 directing the Company to cease and desist from refusing to bargain collectively with the International' as the exclusive representative of its employees. Such, however, is not the effect of the decree.5 ' The United submitted 13 dues books and 102 bargaining authorization cards, -100 of which bear apparently genuine original signatures . 9 of the cards were dated in June 1941, 77 in July, 1941, and 16 in August 1941 . All the dues books showed last payments of dues on August 5, 1941. All the names on the dues books and 98 of the apparently genuine original signatures on the cards are the names of persons on the Company's pa,y roll of August 15 , 1941 The Company 's pay roll , which was submitted in evidence at the hearing is substantially the'same as that of August 15, 1941, and shows that there are 189 persons in the appropriate unit 2 The contract , which was introduced into evidence provides exclusive bargaining rights, and covers wages and terms and conditions of work. On May 11, 1940 , the parties, by written agreement , also admitted in evidence , amended the original labor classifications and wage rates without extending or altering the period, of the contract Matter of Los Angeles Brick & Clay Products Co. and Alberhill Clay Products Workers' Union No. 373, 11 N L R B 750. 4 Designated in the Circuit Court proceedings and in the previous case before this Board as "Alberhill Clay Products Workers' Union. No. 373 " The Decision of the Board referred to its chanter by International Union of Mine , Mill and Smelter Workers; affiliated with the Committee for Industrial Organization ' See National Labor Relations Board v Remington Rand Inc., 94 F (2d) 862, 870 (C ,C A. 2), cert. den. 304 U. S. 576, 304 U. S. 585 ; National Labor Relations Board V. Highland Park Mfq Co 110 F. (2d) 632 , 640 (C C. A. 4 ) ; National Labor Relations Board v. Whittier Mills Co. 111 F. (2d) 474, 478 (C. C. A 5). 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ielation 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. V. THE APPROPRIATE UNIT The Company, the United, and the International stipulated, and we find, that all the employees of the Company at its plant and pits in Alberhill, California, excluding foremen and supervisors with the authority to hire and fire, and office employees at said plant, constitute a unit appropriate for the purposes 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 effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES' We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. In accordance with our usual practice, we shall direct that the persons eligible to participate in the election shall be the employees in the appropriate unit who worked for the Company during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to such limitations and additions as are set forth in the Direction. 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 Los Angeles Brick & Clay Products Co., Los Angeles, California, within the meaning of Section 9 (c) and Section 2 -(6) and (7) of the National Labor Relations Act. '2. All the employees of the Company at its plant and pits in Alberhill, California, excluding foremen and supervisors with the authority to hire and fire, and office employees at said plant, consti- LOS ANGELES BRICK & CLAY PRODUCTS CO. 543- tute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Rela- tions 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 the 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 Los Angeles Brick & Clay Products Co., Los Angeles; Cali- fornia, 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 Direc- tor for the Twenty-first 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 employees who worked for the Company at its plant and pits in Alberhill, California, during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay- roll period because they were ill or, on vacation, or in the active military service or training of the United States, or temporarily laid off, but excluding foremen and supervisors with the authority to hire and fire, and office employees at said plant, and those employees who have since quit or been discharged for cause, to determine whether they desire to be represented for purposes of collective bargaining by United Brick & Clay Workers of America, Elsinore Local 843, affili- ated with the American Federation of Labor, or by International Union of Mine, Mill and Smelter Workers, Local 373, affiliated with the Congress of Industrial Organizations, or by neither.