Aviola Radio Corp.

National Labor Relations Board - Board Decisions

Oct 11, 1946

71 N.L.R.B. 321 (N.L.R.B. 1946)

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