National Lead Co.

National Labor Relations Board - Board Decisions

Oct 30, 1942

45 N.L.R.B. 182 (N.L.R.B. 1942)

In the Matter of NATIONAL LEAD COMPANY and NATIONAL COUNCIL
OF GAS, COKE & CHEMICAL WORKERS
In the Matter of NATIONAL LEAD COMPANY TITANIUM DIVISION
and NATIONAL COUNCIL OF GAS, COKE & CHEMICAL WORKERS
In the Matter of NATIONAL LEAD COMPANY (DE LORE DIVISION)
and NATIONAL COUNCIL OF GAS, COKE & CHEMICAL WORKERS
Cases Nos. R-1,168, R-4169, and R-4170, respectively. Decided
October 30, 1940
Jurisdiction : pigment manufacturing industry.
Investigation and Certification of Representatives : existence of questions: re-
fusal to accord petitioner recognition until certified by the Board ; contracts
held no bar in view of shift in affiliation of members of contracting union ;
elections necessary.
Units Appropriate for Collective Bargaining : separate bargaining unit at each
of three of Company's plants ; stipulation as to.
Mr. Charles K. Hackler, for the Board.
Mr. Harry O. Smith, of St. Louis, Mo., for the Company.
Mr. Victor B. Harris, of St. Louis, Mo., for the National Council:
Mr. L. C. Dyer and Mr. Neil Beam, of St. Louis, Mo., for
District 50.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by National Council of Gas, Coke &
Chemical Workers, herein called the National Council, alleging that
questions' affecting commerce had arisen concerning the represen-
tation of employees of Lead and Oil Works, the Titanium Division
and the De Lore Division, respectively, of the National-Lead Com-
pany, of St. Louis, Missouri, herein called the Company, the National
Labor Relations Board provided for ' an appropriate hearing upon
due notice before Charles E. Persons , Trial Examiner. Said hearing
45 N. L. R. B., No. 33
182 •
NATIONAL LEAD COMPANY 183
was held at St. Louis, Missouri, on August 17, 1942. On,October 3,
1942, pursuant to an order of the' Board reopening the record, a
further hearing upon due notice was held at St. Louis, Missouri,
before Charles K. Hackler, Trial Examiner. At both hearings the
Company, ,the National Council, and District 50, United Mine
Workers of America, herein called District 50, appeared, partici-
pated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. The Trial Examiners' rulings made at the hearings are
free from prejudicial error and are hereby affirmed.
Upon the entire record in the cage, the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Lead Company, a New Jersey corporation , maintains
plants, offices, and warehouses throughout the United States. We
are here concerned only with its plants designated as the Lead and
Oil Works located at St. Louis, Missouri, the Titanium Division
located at Carondelet, Missouri, and the De Lore Division located
at the junction of the Mississippi and Des Peres rivers.
At the Lead and Oil Works, the Company is engaged in the
manufacture of both red and white lead pigments. The raw -ma-
terials used consist mainly' of fuel, pig lead, and processing ma-
terial. In the calendar year 1941 there was transported to the
plant in excess of $100,000 worth of raw materials and there was
sold and distributed from the plant in excels of $100,000 worth of
finished products. More than 50 percent of the raw materials and
more than 50 percent of the manufactured products sold and deliv-
ered either came to the plant from points outside of the State of
Missouri, or was shipped from the plant to points outside of the
State of Missouri. ,
At the Titanium Division, the Company is engaged in the manu-
facture of titanium, barium pigment, and titanium calcium pig-
ment. The raw materials used are principally coal, sulphur,
pyrites, barytes, lime, and ilmenite. During the calendar year 1941
the Company used more than $500,000 worth of raw materials at
the Titanium Division; in excess of 40 percent of which was shipped
to the plant from points outside the State of Missouri. During, the
same period the aggregate value of the finished products of the
Company was over $1,000,000 and in excess of 90 percent of such
products was shipped by the Company to points outside the State,
of Missouri.
At the De Lore Division the Company is engaged-in the manu-
facture of whitings. The chief raw materials consist of barium,
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sulphate,, and crushed limestone. During the calendar year 1941
there was shipped into the plant in excess of $100,000 worth of raw
materials . 50 percent of which was shipped to the plant from 'points
outside the State of Missouri. In excess of 50 percent of the fin-
ished products was shipped from the plant to points outside the
-State of Missouri.
The Company admits it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
National Council of Gas, Coke & Chemical Workers is a labor
organization. It admits to membership employees of the Company.
District '50, United Mine Workers of America is a labor organiza-
tion. It admits to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
By letters dated June 19, 1942, the National Council advised the
Company that it represented a majority of the Company's employees
in each of the plants involved herein. The Company refused to recog-
nize the National Council unless and until it had been certified by the
Board.
A statement by the Regional Director, introduced into evidence at
the hearing, indicates that the National Council represents a substan-
tial number of employees in each of the Company's three plants in-
volved herein. -
i The statement of the Regional Director shows that the National Council submitted to
him:
(a) In support of its allegation that it. represented a substantial number of em-
ployees in the Lead and Oil Works, 116 cards, each of-which bears the statement that
the signer had withdrawn from membership in and affiliation with Distract 50 and
did thereby apply for membership in the National Council Of the 116 cards sub-
mitted, 115 bear apparently genuine original signatures of persons whose names
appear on the Company 's' pay roll of Tune 20 . 1942 , in the Lead and Oil Works, which
pay roll contains 131 names of persons in the alleged appropriate unit. All of the
116 cards submitted are dated the latter part of June and the first part of July 1942.
(b) In support of its allegation that it represents a substantial number of employees
in the Titanium Division , 528 cards in the identical form as those mentioned above,
of which 523 bear apparently genuine signatures and the remaining 5 cards show
printed names All 528 bear the names of persons appearing on the Company's pay
roll of June 14 to 20, 1942, in the Titanium Division, which pay roll contains names
of 698 persons in the alleged appropriate unit All of the 528 cards are dated during
the latter part of June and the first part of July 1942, with the exception of 3 cards
which are undated
(c) In support of its allegation that it represents a substantial number of em-
ployees in the De Lore Division , 42 cards similar in form to those above mentioned,
all of which bear apparently genuine original signatures of persons whose names
appear on the Company's pay roll of June 14 to 20, 1942,' in the De Lore Division,
which pay roll contains the names of 45 persons in the alleged appropriate unit. All
the cards are dated the latter pact of June and the first , part of July 1942
The Regional Director 'further stated in his report that District 50 relies on the
three contracts involved in this proceeding to substantiate its claim of representation.
NATIONAL LEAD COMPANY 185
District 50 rnaintains ' that it has a collective bargain ing contract
with each of the Company 's three plants involved herein. The Na-
tional Coulicil maintains that each of said contracts is with a local
union which , at the time the contract was signed , was affiliated with
District 50 but which has since, by resolution , unanimously voted,
severed its connection with District 50 and affiliated with the National
Council.
There are three contracts involved herein. The contract for the
'Lead and Oil Works is between the Company and the National Lead
Workers Union, Local No. 12152, affiliated with the United Mine
Workers of America, District 50; it was executed on November. 28,
1941 , effective October 1, 1941, and provides that it shall expire on
March 30, 1943. The other two contracts are between the Company
and Local 12212, affiliated with'the United Mine Workers of America,
District 50, and cover the Titanium Division and the De Lore Division,
respectively . The contract for the Titanium Division was executed
November 18, 1941 , effective September 14,, 1941 , and expires March
13, 1943. The De Lore Division contract was executed December 1,
1941 , effective September 14, 1941, and expires March 13, 1943. Each
contract contains a maintenance of membership clause and provides,
for dues check-off upon individual authorization.
In the early part of June 1942 representatives of the two local
unions herein` involved , met in Washington , D. C., with representa-
tives of numerous other District 50 locals At this meeting it-wtis,
decided that a new International Union designated as National Coun-
cil of Gas , Coke & Chemical Workers should be formed and an appeal
was made to the executive board of the C I. O. for a charter. Na-
tionalCouncil granted charters to various local unions including the
two local unions involved herein. Thereafter, on June 8, 1942, Local
12152, which represented the employees of the Lead and Oil Works
of the Company , held a special mass meeting at which the local union
unanimously adopted a resolution to sever its relationship with and
surrender its charter to District 50 and further authorized its officers
to make immediate application for charter of affiliation with Na-
tional Council and in other respects continue in the same manner as
it had, theretofore operated. Local 12212, which represented the em-
ployees of the Titanium Division and De Lore Division of the
Company, held a similar meeting on June 8 at which an identical
resolution was unanimously adopted.
Since the action of the locals in severing their affiliation with
District 50, the latter organization has not attempted to form new
locals at the plants involved . No effort has been made to elect new
officers to replace those who participated in the shift to the National
Council , and per capita dues are not paid to District 50.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 50, relying on the'afore-mentioned contracts, contends that
no question concerning representation has arisen and that the at-
tempt at secession made by the two local unions was illegal, irregular,
and effectuated only a resignation from a local union office and Dis-
trict 50 membership by officers participating therein. For these rea-
sons it contends that- the contracts are a.bar to this proceeding. The
National Council, on the other hand, contends that the action of the
membership of the locals effectively severed relations with District
50 and that 'the employees were free to affiliate with the National'
Council.
The Board, as a general rule, will not proceed with an investiga-
•tion as to representation where a- valid contract urged as a bar by
a party exists. In certain circumstances, however, the Board has
found that a contract is not a bar to'a.determination of representa-
tives. Thus, where a contract has already been iri effect for a reason-
able period,2 or where it is about to expire,3 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,' or where substantially the entire membership of the con-
tracting union in the affected bargaining unit has shifted to another
organization.5 As stated above, the membership of the District 50
locals in the plants here involved voted unanimously to sever their
affiliation with District 50, to surrender the District 50 charters, and
to affiliate with the National Council. So far as the record shows,
there are no employees who desire to retain membership in District
50 and to be represented by that organization. Accordingly, we find
that the contracts do not constitute a bar to a present 'determination
of representatives.
We find that questions affecting commerce have arisen concern-
ing the representation of the employees of the Company, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
' See Matter of Wichita Union Stockyards Company and,Pacl, anghouse Workers Organ-
izing Committee, Local No. 91/, affiliated with C. I. 0., 40 N. L. R. B. 369, and cases therein
cited '
3 See Matter of W. J. Voit Rubber Corporation and United Rubber Workers of America,
Local 225 , C I 0 , 41 N. L It . B 585 ; Matter of United States- Rubber Company , Indian-
apolis Branch, Indianapolis , Indiana, and Local No. 110 of the United Rubber Workers of
America (C 1 0 ), 41 N L R B 1005 -
4 See Matter of Brenizer Trucking Company, et al. and United Paving and Building
Supply Workers, Local Industrial Union ##1221, C I. 0 , 44 N L - R B 810 ; Matter
of Harbison -Walker Refractories Company and United Clay Products Workers Local In-
dustrial Union ## 1205, etc, 44 N L R B 816.
See Matter of Sealed Power Corporation and the Accuralite Co. and International
Union, United Automobile, Aircraft &+Agricultural Implement Workers of America (UAW-
CIO), affiliated with the C I 0., 41" N L. R B. 1225, and cases cited therein. Cf Matter
of Great Lakes Carbon Corporation and National Council of Gas, Coke and Chemical
Workers, Local 12327, 44 N L R B. 70.
NATIONAL LEAD COMPANY
IV. THE APPROPRIATE UNITS
187
We find, in accordance with a stipulation of the parties, that the
following employees of the Company constitute units appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act :
(1) All production acrd maintenance employees, excluding sal-
aried employees, foremen, and watchmen, employed -by the Company
at- its St. Louis Lead and Oil Works.
(2) All employees of the Titanium Division of the Company,
including the working foremen employed in the acid plant, but
excluding executives, salaried foremen, watchmen, supervisory em-
ployees, and all other salaried employees.
(3) All production and maintenance employees employed in the
De Lore Division of the Company, excluding office employees, fore-
men, supervisory employees, technical men, or anyone who is not
employed, directly in production or maintenance work of the plant .6
V: THE DETERMINATION OF REPRESENTATIVES
We shall direct that the' questions concerning representation which
have arisen be resolved by. elections by secret ballot among the em-
ployees in the appropriate units who were employed during the
pay-roll period immediately preceding the date of our Direction of
Elections herein, subject to the limitations and additions set forth
in the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National
Labor, Relations Board Rules and Regulations-Series 2,.as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with National
Lead Company, St. Louis, Missouri, elections 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 'irection and supervision
of the Regional Director fo`r the Fourteenth Region, acting in this
matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Section 10, of said Rules and Regulations, among
the employees in the units found appropriate in Section IV, above,
° The units found above to be appropriate are, identical with the units covered in the
contracts between the Company and District 50.
188 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
who were employed during the pay-roll period immediately preced-
ing the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vaca-
tion or in, the active military service or training of the United
States, or temporarily laid off, but excluding employees who' have
since quit or been discharged for cause, to determine whether they
desire to be represented by National Council of Gas, Coke & Chemi-
cal Workers or by District 50, United Mine Workers of America, for
the purposes of collective bargaining, or by neither.
0
In the Matter of NATIONAL LEAD COMPANY and UNITED GAS, COKE &
CHEMICAL WORKERS OF AMERICA
In the Matter of NATIONAL LEAD COMPANY (TITANIUM DIVISION and
UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA
In the Matter of NATIONAL LEAD COMPANY and UNITED GAS, COKE &
CHEMICAL WORKERS OF AMERICA
Cases Nos . R-4168, R-4169, and R-4170, respectively
AMENDMENT TO DECISION AND DIRECTION OF
ELECTIONS
November 13, 1944
On October 30, 1942, the National Labor Relations Board issued
a Decision and Direction of Elections in the above -entitled proceed-
ing.' We shall, in accordance with a stipulation of the parties made
at the hearing and inadvertently overlooked in our Decision, amend
our Decision and Direction of Elections by substituting the name
"United Gas , Coke & Chemical Workers of America " for the name
"National Council of Gas, Coke & Chemical Workers" in the caption
and Direction of Elections.
By letter dated November 4, 1942, District 50, United Mine Work-
ers of America , notified the Reginal Director for the Fourteenth
Region that it did not desire to participate , in the elections. The
Board, accordingly , further amends the aforesaid Direction of Elec-
tions by striking therefrom the words "whether they desire to be
represented by National Council of Gas , Coke & Chemical Workers
or by District 50, United Mine Workers of America, for the purposes
of collective bargaining , or by neither" and substituting therefor the
words "whether or not they desire to be represented by United Gas,
Coke & Chemical Workers of America for the purposes of collective
bargaining."
145 N L. R. B. 182.
189
45 N. L. R. B., No. 33a.