Lac Chemicals, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1945

63 N.L.R.B. 327 (N.L.R.B. 1945)

In the Matter of LAC CHEMICALS, INC. and INTERNATIONAL LONGSHORE-
MEN'S AND WAREHOUSEMEN'S UNION, WAREHOUSE & DISTRIBUTION
WORKERS UNION, LOCAL 26, C. I. 0., AND OTHER UNIONS
Case No. 21-RE-31.Decided August 13, 1945
Mr. J. E. Simpson , of Los Angeles, Calif., and Mr. Lewis A. Crank,
of Culver City, Calif ., for the Company.
Mr. Jack Steinhart , of Los Angeles , Calif ., for the C. I. O.
Messrs. David Sokol and Ralph Woolpert, both of Los Angeles,
Calif ., for the A. F. L.
Mr. Arthur LeRoy Meadows , of Venice, Calif ., for Employees Group.
Mr. Angelo J. Fiumara , of counsel to the Board.
DECISION
.AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Lac Chemicals, Inc., Culver City, Cali-
fornia, herein called the Company, alleging that a question affecting
commerce had arisen concerning the representation of its employees,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before William T. Whitsett, Trial Examiner.
Said hearing was held at Los Angeles, California, on May 23, 1945.
The Company, International Longshoremen's and Warehousemen's
Union, Warehouse & Distribution Workers Union, Local 26, C. I. O.,
herein called the C. 1. 0., and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local No. 595,
Grocery Warehousemen, A. F. L., herein called the A. F. L., appeared
and participated? All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.'
'Employees Group was served with notice, appeared through its representative , but did
not intervene . The representative stated that the Employees Group does not claim to be
a labor organization and therefore does not wish& to participate in any electron which the
Board may direct herein.
63 N. L. R. B., No. 48.
327
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lac Chemicals, Inc., a California corporation with its principal
office located at Culver City, California, is engaged in the manufacture
and distribution of industrial alcohol. During,the year ending June
30, 1944, the Company purchased raw materials valued at approxi-
Inately $350,000, consisting of molasses , steel containers, wood alcohol,
and denaturants. The molasses, which was purchased from the Pa-
cific Molasses Company, Ltd., f. o. b. San Pedro, California, amounted
in value to approximately $250,000, and originated in the Hawaiian
Islands. The wood alcohol and denaturants, together valued at ap-
proximately $28,500, were shipped to the Company from points out-
side the State of California. During the same period, the Company
sold approximately 16 percent or about $116,000, worth of its finished
products f. o. b. Los Angeles and San Francisco to the United States
Government and private industries for shipment to points outside the
State. At the present time, about 90 percent of the Company 's sales
is made to customers who take delivery at the plant at Culver City,
and the remaining 10 percent is being shipped by the Company to
purchasers outside the State of California.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's Union, Ware-
house & Distribution Workers Union, Local 26, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting to
membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Local No. 595, Grocery Warehousemen,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
About February 15, 1945, the A. F. L. requested recognition of the
Company as the exclusive collective bargaining agency of certain of
its employees. At a conference held about March 9, 1945, the Com-
pany advised the A. F. L. that the C. I. O. was the collective bargain-
ing agency until the Board decides otherwise. On April 19, 1945, the
Company filed the petition herein.
LAC CHEMICALS, INC. 329
On November 13, 1942, the Board certified the C. I. O. as the col-
lective bargaining agency of the Company's employees as a result of
a Board ordered election.' Due to inability to reach an agreement in
the ensuing negotiations, the matters in dispute between the parties
were referred to the War Labor Board on December 24, 1942. On
February 8 and 9, 1943, the Company and the C. I. O. orally agreed
before a War Labor Board referee as to certain terms 3 of a collec-
tive bargaining contract. There remained in dispute, however, issues
relating to vacations, hours of employment, grievance procedure,
wages, union shop, check-off, and sick leave. On November 27, 1943,
the Regional War Labor Board issued its Order on these disputed
issues. The C. I. 0., thereafter, on December 11, 1943, petitioned for
a review of this Order only as to check-off and sick leave benefits. The
National War Labor Board denied the C. I. O.'s petition on July 19,
1944. It appears that the parties did not learn of this action until
about May 9, 1945, several weeks after the C. I. O.'s petition of April
17, 1945 to the War Labor Board for an interim order requiring the
parties to incorporate the undisputed parts of the November 7, 1943
Order into a written contract. Proceedings are still pending before
the War Labor Board.
The Company adduced uncontradicted testimony showing that it
has substantially complied with the terms agreed upon at the hearing
before the referee and with those contained in the Regional War Labor
Board Order " from early 1943 to the date of the filing of the petition
herein, and that the employees have had substantial benefits as a result.
The record shows that in the latter part of 1943, the C. I. O. submit-
ted to the Company, pursuant to the Regional War Labor Board
Order, a list of employees whose membership was in good standing and
that it did not thereafter deal with the Company in any manner until
about May 1944. At that time it signed an application for wage
increases to be filed with the War Labor Board. It also appears that,
although there have been few grievances among the employees, the
C. I. O. did not participate in their settlement. Since July 1944, there
have been no stewards in the plant nor any meetings of employees
belonging to the C. I. O. For the past 8 months no employee has paid
dues to the C. I. O. Indeed, on or about March 15, 1945, the C. I. 0.,
for the first time, submitted to the Company a proposed contract
together with a written demand that the Company discharge certain
delinquent employees pursuant to the terms of the Regional War
Labor Board Order of November 27, 1943.
2 See Matter of Lac Chemscai8 , Inc, 44 N. L . A B. 1196.
a The parties were in accord as to union recognition , holidays , seniority , draftees , leaves
of absence , transfers at work, discharges , minimums , bulletin boards, strikes and lockouts,
privileges of business agents, a length of agreement clause, and employee coverage.
4 Although the Order was issued on November 27, 1943, it was given retroactive effect
to about January 1, 1943.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The C. I. 0. contends, in effect, that the proceedings before the War
Labor Board bar a present determination of representatives since an
election, if now directed, would penalize it for unavoidable delay con-
sequent upon its acceptance of the orderly procedures established by
governmental authority for the adjustment of its differences with the
Company, and would prevent it from executing a complete and final
contract with the Company. We find no merit in this contention. The
mere pendency of a dispute before a governmental agency or the mere
fact that the execution of a complete contract between a newly certified
bargaining representative and the employer has been delayed by sub-
mission of disputed issues to such governmental agency, in itself, does
not necessarily bar an investigation of representatives.5
Where, as here, the delay has been due in large part to the bargaining
representative's own neglect or delay rather than to the proceedings
before the governmental agency, we will not postpone a determination
of representatives." Thus, it is clear that between December 1943 and
sometime in March 1945, the C. I. 0. was lacking in due diligence in
the prosecution of its case before the War Labor Board, and, signifi-
cantly, its renewed activity in March 1945 followed shortly after the
A. F. L. had made its rival representation claim.? In addition, we
have held that such proceedings will not bar an election where the
exclusive bargaining representative has had an opportunity to obtain
substantial benefits for the employees." The facts of the instant case
establish that the C. I. 0. has had opportunity to, and has obtained,
such benefits. We also note that more than 21/2 years have elapsed
since the C. I. 0. was certified as the exclusive bargaining representa-
tive. Under all the circumstances and on the entire record of the case,
we are of the opinion that the policies of the Act can best be effectuated
by affording the employees herein an opportunity to express their
desires as to representation in an election by secret ballot.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the A. F. L. represents a substantial number of em-
ployees in the unit hereinafter found appropriate."
See Matter of Allis -Chalmers Manufacturing Company, 50 N. L. R. B 306; Matter of
Diamond Magnesium Company, 57 N. L. R. B. 393. Cf. Matter of Taylor Forge & Pipe
Works, 58 N. L. R. B 1375.
See Matter of West Virginia Pulp & Paper Company, 61 N. L. R. B. 438.
It is apparent that the C. I. O. had, in many respects , failed to function as a representa-
tive of the Company's employees ever Once December 1943, and that the C. I. O. was not
forced into such inactivity by reason of its resort to the procedures of the War Labor Board.
6 See Matter of Great Lakes Carbon Corporation , 57 N. L. R. B. 115.
4 The Field Examiner reported that the A. F. L. submitted 10 application cards ; that
the names of 8 persons appearing on the cards were listed on the Company' s pay roll of
April 22, 1945, which contained the names of 18 employees in the appropriate unit ; and
that the cards were dated between February and April 1945. The C. I O. relies upon its'
-previous Board,certiflcation and its past .negotiations •with the Company to show its interest
in this proceeding.
LAC CHEMICALS, INC. 331
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the parties, that all
employees of Lac Chemicals, Inc., Culver City, California, including
the foremen of the warehouse denaturing plant and the foremen of the
fermentation department, but excluding the shipping and receiving
clerk, office employees, one employee who keeps records of the Com-
pany's government business, the chemist, the plant superintendent, and
all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act 10
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion." Since the C. I. O. stated at the hearing that it does not desire
to participate in any election that may be directed, we shall not accord
the C. I. O. a place on the ballot.
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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining which Lac Chemicals,
Inc., Culver City, 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 Twenty-first Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
10 This is the same unit found appropriate by the Board in a prior decision. (See
footnote 2, supra )
' The A. F. L.' s request that it be designated on the ballot as "Grocery Warehousemen's
Local 595, A. F. L." is hereby referred 1o the Regional Director for determination.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 any
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 or not they desire to be represented by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local No. 595, Grocery Warehousemen, affiliated with the American
Federation of Labor, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.