Washington-Eljer Co.

National Labor Relations Board - Board Decisions

Apr 13, 1943

48 N.L.R.B. 1165 (N.L.R.B. 1943)

r
In the Matter of WASHINGTON-ELDER Co. and WAPEHOUSE DISTRIBUTION
WORKERS, LOCAL 26, I. L. W. U.-C. I. O.
Case No. R-5006.-Decidcd April' 13, 1943
Jurisdiction : Steel products manufacturing industry.
Practice and Procedure : petition dismissed without prejudice to the' right or
the petitioner to file a new petition at a reasonable time before the date on
which an existing contract would be renewed, unless modified or reopened in
accordance with its provisions, when the contract; constituted a bar • to a
determination of representatives, having been executed without notice of peti-
tioner's 'claim to representation, the contract had several months to run, the
contracting union was actively engaged in collective bargaining with the
company since the execution of the contract, and the shift of membership from
the contracting union to the petitioner prior to the execution of the contract
was insubstantial.
Mr. Cecil W. Collins, of Los Angeles, Calif., for the Company.
Mr. Leo Gallagher, by Mr. Victor Kaplan, of Los Angeles,-Calif.,
for the C. I. O.
Mr. David Sokol, of Los Angeles, Calif., for the Council.
Mr. George E. Mock, of Los Angeles, Calif., for the Warehousemen.
""Mr: Henry Led, of Los Angeles, Calif., for the I. A. M.
Mr. Reginald Prime, of Los Angeles, Calif., for the Molders.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
ORDER'
STATEMENT OF THE CASE
Upon petition duly filed by Warehouse Distribution Workers Union,
Local 26, I. L. W: U.-C. I. 0., herein called the C. I. 0., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Washington-Eljer Co., Los Angeles, California,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Daniel J.
Harrington, Trial Examiner. Said hearing-was held at Los Angeles,
California, on March 8 and 9, 1943. The Company; the C. I. 0.; and
Los Angeles Metal Trades Council; International Molders and
Foundry Workers Union, Local No. 374; International Association of
48 N L. R. B , No 137.
1165
1166 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
Machinists , Local No. 311 ; and ,General Warehousemen Local 508;
herein collectively called the A. F. of L. Unions, appeared, partici-
pated, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues. The Trial Examiner 's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. The C. I. O. filed a
brief which the Board has considered.
Upon the entire record in the case, the Board makes, the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Washington-Eljer Co. is a California corporation currently en-
gaged at Los Angeles, California, in the manufacture of cast iron and
steel war materials. Prior to the conversion of its Los Angeles plant
to war production, the Company manufactured cast iron sanitary
fixtures. During the year ending December 31, 1942, the Company
purchased and used raw materials consisting of pig iron , cast iron
scrap, steel scrap, molding sand, chemicals and coke , valued at
$677,580. Of this amount , $203,275 represents the value of raw mate-
rials shipped to the Company from points outside the State of Cali-
fornia. During the same period , the Company sold finished products
valued at $1,112,410. Of this amount, $389,345 represents the value
of the finished products shipped by the Company to points outside
the State of California. The Company does not deny that it is en-
gaged in commerce within the meaning of the National Labor Rela-
tions Act.
II. TILE ORGANIZATIONS INVOLVED
Warehouse Distribution Workers Union, Local 26, I. L. W. U.-
C. I. 0., is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
Los Angeles Metal Trades Council is a labor organization'afliliated
with the American Federation of Labor, admitting to membership
employees of the Company.
International Molders and Foundry Workers Union of North
America, Local No' 374,' is a labor orgalization affiliated with the
American Federation of Labor, admitting to membership employees
of the,Company.
International Association of Machinists, Local No. 311 is a labor
organization affiliated with the American Federation of Labor, ad-'
mitting to membership employees of the Company.
General Warehousemen's Union, Local 598 is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
WASHLNGTON-ELJER CO.
III. TIIE ALLEGED QUESTION CONCERNING REPRESENTATION
1167
On May 9, 1941, a collective bargaining contract was entered into
between the Company and the A. F. of L. Unions. This contract by
its terms, was to remain in effect until February 15, 1942, and covered
all production employees of the Company. It contained a mainte-
nance of membership clause. It appears that shortly before the ex-
piration of this contract the A. F. of L. Unions and the Company
began negotiations for an extension of the contract and by a letter
dated March 4. 1942, the Company granted a 90-day extension of this
agreement. On June 1, 1942,, the Company granted a further ex-
tension of 30 days and on August 1, 1942, a final 30-day extension
was granted. On September 1, 1942, a supplemental agreement was
entered into between the Company and the A. F. of L. Unions. This
agreement deferred any negotiations with respect to wages until
December 15, 1942, and extended all other provisions of the May 9,
1941 , contract for one year from the date on which the supplemental
agreement was signed . On December 18, 1942, the A. F. of L. Unions
and the Company executed a document designated as "Amendments
to Agreement" which, according to its terms , sets up a wage scale sub-
ject to the approval of the War Labor Board. This final supple-
mental agreement contains the following termination clause :
This agreement shall be in full force and effect until September 1,
1943, and from year to year thereafter unless upon 30 days'
written notice by either party prior to September 1, 1943, or any
subsequent yearly period this agreement shall be reopened for
amendment or modification of its provisions.
By letter dated December 21, 1942, the C. I. O. advised the Company
that it represented a majority of the employees in an appropriate bar-
gaining unit and requested recognition as their exclusive bargaining
representative. The Company has refused to recognize the C. I. O. be-
cause of the afore-mentioned contract between the Company and the
A. F. of L. Unions.
The C. I. O. contends that the contract as allegedly extended is not
a bar to a present determination of representatives for the 'following
reasons: .
(1) That a majority of the Company's employees have not paid dues
to any of the A. F. of L . Unions since June 1942 . This assertion is
supported by several employee witnesses and further evidenced by the.
introduction into evidence of 44 dues books of the Molders bearing dues
stamps which indicate that dues were last paid by those members on
dates prior to May 1942. The record contains no evidence on this
point with respect to the other 3*craft unions.
(2) That a majority of the Company's employees were under the,im-
pression that the, contract of May 9, 1941, had expired sometime in May
1168 DECISION) OF NATIONAL-LABOR RELATIONS BOARD
t
1942, and had no knowledge of the signing of the alleged. agreement
of September 1, 1942, until the middle of December 1942, when a copy
of said agreement was posted on the Company's bulletin board. Testi-
mony of several employees of the Company supports this contention as
do petitions introduced in evidence. These petitions are dated De-
cember 14,1942, and state that the signers, employees of the Company,
have designated the C. I. O. as their bargaining representative and
-`have had no agreement with the American Federation of Labor or
any of its affiliates since June of 1942." The petitions further re-,
nounce any right of the A. F. of L. Unions to represent the signers.
These petitions bear the signatures of 82 persons comprising molders,
molders' helpers, grinders, laborers, core makers, truck drivers, sand
blast operators, carpenters, enamel room employees, drill press opera-
tors, working foremen, crane operators, maintenance men, and other
employees who failed to designate their classification.-
(3) That a majority of the Company's employees had no knowledge
of the supplemental agreement between the Company and the A. F.
of L: Unions dated December 18, 1942, until sometime in January 1943;
when it was posted on the Company's bulletin board. -
The A. F. of L. Unions and the Company take the position that they
are operating under a valid contract which will remain in effect until
September 1, 1943, and from year to year thereafter in the absence
of 30 days?",-,yrittenxfotice by either. party, prior to an
date, and that their contract constitutes a bar to a pre'sent,' determina-
tion of representatives. In support of this contention the A. F. of L.
Unions submitted evidence to the effect that on January 7, 1943, an em-
ployee of the Company was discharged at the demand of the A. F. pf L.
Unions for failure to comply with the membership clause contained in
the A. F. of L. Unions' contract. The A. F. of L. Unions made this
demand on the Company sometime in October 1942. It also appears
that the A. F. of L. Unions have held regular meetings attended by
employees of the Company throughout 1942.
The Board, as a general rule, is reluctant to entertain a petition for
investigation of representatives where there is urged as a bar a `valid
contract executed] rior to any claim by the petitioner. 'In certain
circumstances, however, the Board has made exceptions to its policy
of treating such a contract as a bar. Thus, where the contract has
I The statement of a Field Examiner of the Board, introduced m,evidence at the' hearing,
shows that the C T 0 submitted to him 90 cuirently dated application- tor-membei ship,
cards hearing apparently original signatu,es that the C 7 n also submitted petitions
dated December 14, 1942 ( these aie the petitions referred to above), Beaune R2 appaientiv
ouginal sienatuies ; that 92 of the signatures appealing '00 the cards and the petitions
aue, the names of persons appealing on the Company's pay ioll of December 8, 1942,
which contains the names of 17-1 persons in the alleged appropriate enit The 'Field
Examinei further stated that the A - F of L Ynions, rely ui,on then contract with' the
.Company to substantiate their representation claim.
WASHINGTON-LLJLR Co. 1169
already been in effect for a reasonable period,2 or where it is about to
expire, the Board has proceeded with its representation investigation.
The Board has also found the contract not to be a bar where there
exists substantial -doubt as to the identity of the labor organization
that claims to be the party to the contract,3 or where substantially the
entire membership of the contracting union iii-the affected bargaining
unit-has shifted to another organization ,4 or Where the contracting
union has, in effect, abandoned. its members.
In our, opinion the instant case presents no such justification for
departing from our usual policy. The contract urged as a bar has been
in effect only since September 1, 1942; the contracting unions are,
plainly, still in existence, and it appears from the record that they have
been actively engaged in collective bargaining with the Company on
behalf of its employees since the execution of this contract. Further-
more, there is not, sufficient evidence in the record to indicate that
substantially the entire membership of the A. F. of. L. -Unions in the
affected bargaining unit has shifted to the C. I. 0., since at most only
82 of the 174 persons in the affected bargaining unit have expressed
such an intent by signing the afore-mentioned petitions dated Decem-
her 14, 1942. Under these circumstances, for reasons stated in similar
cases,c we find that the contract between the Company and the A. F.
-of. L. Unions constitutes ,a bar to a determination of representatives,
at: this,time,^and, accordingly, the petition of the C. I. O. shall be dis-
missed. This dismissal, however, shall not prejudice the right of the
C. I. O. to file a new petition at a reasonable time before the date on
ivhich the contract will be renewed unless modified or reopened in
ticcordance with its provisions.
ORDER
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the -National Labor Relations Board hereby orders.
that the petition for investigation and certification of representatives
of employees of Washington-Eljer Co., Los Angeles, Califori' lia, filed
by Ware] ouse'"Distribution Workers Union, Local 26, I. L. W. U.-
C. I. 0., be, and it hereby is dismissed.
'See utter of Wichita Union Stock Yaids Company and Pact eq}rouse Woil,ees Or-_
gani,iny Committee, Local No 9Ii, affiliated with the C. I 0., 40 N L R B. 361.1, and
cases cited therein
See flutter of I3iemi^er Ducting Conipanq,ret at and United Pacing, Building and
Supply Woi l ars, Local Industrial Union 41221, C. 1 0, 44 N L R 13 810; Matter of
11aibtson-Traller Refiactoiice Company and United Clay Pioducts lhor!cis, Local Indus-
it fat Union #t 1205, etc, 44 N L R 11 1280
`See Matter of National Lead Company and United, Gas, Cole & Chemical Woikeis
`oI I mei tc"a,,etc .45 N. L It B 182
SScc Matter of Sunshine Alining Company,,Manganesc Division apd Local 827, Intcina--
tional Union of Mine, JIM & Smelter Woikeis, C 1 0, 48 N L Ii'B, No 42
6 See Matto) of Gieal Lates Coipoiation and National Council of Gas, Cole and Chemical:
Worlms Local inn, 44 N L. It B 70 and cases cited thciein.