Philip Carey Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 13, 1942

39 N.L.R.B. 769 (N.L.R.B. 1942)

In the Matter of PHILIP CAREY MANUFACTURING COMPANY and
UNITED PAPER, ' NOVELTY & TOY WORKERS INTERNATIONAL UNION7
LOCAL 150, C. I. O.
Case No.R-3489.Decided March 13, 1942
Jurisdiction : asbestos, asphalt, and rock wool manufacturing industry.
Investigation and Certification of Representatives : existence of question : refusal
of Company to accord union recognition ; contract with rival union for one
year providing for annual renewal unless terminated upon sixty days, notice
and for termination or modification at any time upon sixty days notice, held
no bar in view of termination provision and since petitioner made its claim
to representation prior to its annual renewal date; inasmuch as contract
requires membership in contracting union as condition of permanent employ-
ment eligibility determined by pay roll preceding last renewal of contract;
election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at the Company's Lockland, Ohio, plant, including machine-shop
employees, electrical and powerhouse employees, watchmen, switching crews,
and printing-division employees, but excluding members of sales, supervisory,
office, technical, and executive forces, foremen, assistant foremen, all others
having the right to hire or fire, and inspectors ; stipulation as to.
Mr. John H. Clippinger, of Cincinnati, Ohio, for the Company.
Mr. Julius Holzberg, of Cincinnati, Ohio, for the C. I. O.
Mr. Luther E. Janmey, of Wyoming, Ohio, for the A. F. of L.
Mr. Robert E. Tillman, of counsel to the Board. ,
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 18, 1941, and January 13, 1942, respectively, United
Paper, Novelty & Toy Workers International Union, Local .150,
C. I. 0., herein called the C. I. 0., filed with the Regional Director
for the Ninth Region (Cincinnati, Ohio) a petition and an amended
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Philip Carey Manufactur-
ing Company, Lockland, Ohio,, herein called the Company, and re-
questing an investigation and certification of representatives pur-
30 N. L. R. B., No. 146.
769
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On January 21, 1942, the National Labor
Relations Board, herein called the Board, acting pursuant to Sec-
tion 9 (c) of the Act and Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, or-
dered an investigation and authorized the Regional Director to con-
duct it, and to provide for an appropriate hearing upon due notice.
On January 22, 1942, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
C. I.,O., and upon International Brotherhood of Paper Makers, Local
321, affiliated with the A. F. of L., herein called the A. F. of L., a
labor organization which has a contract covering employees of the
Company. Pursuant to notice, a hearing was held on January 27,
1942, at Cincinnati, Ohio, before Alba B. Martin, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company, the
C. I. 0., and the A. F. of L. were represented by counsel and partici-
pated 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 rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. On February 11, 1942, the A. F.
of L. filed a brief which the Board has considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
- Philip Carey Manufacturing Company is an Ohio corporation
having its office and principal place of business at Lockland, Ohio.
It also owns and operates plants at Plymouth Meeting, Pennsyl-
vania, Hamilton, Franklin, and Middletown, Ohio, one in Canada,
and is now constructing a new plant at Perth Amboy, New Jersey.
Only the Lockland plant is involved in this proceeding. The Com-
pany manufactures numerous items of asbestos, asphalt, and rock
wool, which are used primarily in the building industry. Raw ma-
terials of an amount in excess of $3,000,000 came to the Lockland
plant from States other than Ohio during 1941. In the same period,
products of a value of more than $8,000,000 were shipped from the
Lockland plant to destinations outside the State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the Act. -
PHILIP CAREY MANUFACTURING COMPANY 771
II. THE ORGANIZATIONS INVOLVED
United Paper, Novelty & Toy Workers International Union, Local
150, C. I. 0., is a labor organization admitting to membership
employees of the Company.
International Brotherhood of Paper Makers, Local 321, affiliated
with the A,-F. of L., is a-labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 19 and on November 19, 1941, the C. I. O. notified
the Company that it represented a majority of the employees of the
Lockland plant. The Company refused to enter into negotiations
with the C. I. O. because of the existence of a contract with the
A. F. of L. The A. F. of L. now pleads this contract as a bar to a
present investigation and certification of representatives. The
`contract, requiring membership in the A. F. of L. as a con-
dition of permanent employment, was entered into on January
7, 1939.1 There is also a provision for automatic renewal at the end
of each calendar year, and a further provision that the contract may
be terminated or modified in part or whole upon sixty days' written
,notice by either party. The contract was automatically renewed
on January 1, 1940, and 1941; on May 5, 1941, it was amended to
include switching crews and watchmen. On December 12, 1941, the
A. F. of L. entered into negotiations with the Company for a further
modification of the wage schedule of the 1939 contract 2 However,
no notice of termination was given and the A. F. of L. contends that
the contract was again automatically renewed on January 1, 1942.
Inasmuch as the contract expressly provides for termination by
either party upon sixty days' notice, and since the C. I. O. made its
first claim to represent a majority of the employees of the Company
more than 60 days prior to the annual renewal date of the contract,
we find that the contract is no bar to the present proceeding.
The C. I. O. has submitted to the Regional Director evidence
showing that it represents a substantial numbers of employees in the
unit hereinafter found appropriate.3
i The A. F. of L first organized employees in the plant in 1933. Its first contract ran
from July 8, 1937 , to January 1, 1939. -
2 There is no indication in the record as to what notice , if any, preceded the negotiations
8 The Regional Director ' s statement shows that 626 application- for-membership. and
authorization cards were submitted by the C. I. O. These cards bore the following dates :
1941 1941
March_________: 193 August_________ 25 1941 only------- 49
April----------- 31 September------ 28 January 1942 --- 5
May____________ 5 October_________ 76 Undated-------- 1
June___________ 2 November------- 124
July----------- 11 December------- 76
Of the 626 cards, 610 bore apparently genuine signatures ; 16 were hand printed. A
comparison with a pay roll listing names of 1290 employees eligible to the proposed unit,
showed that 495 of the 626 cards bore names appearing on that pay roll.
772 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 OOMMERCE
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
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The parties, stipulated, and we find, that all production and main-
tenance employees of the Company at its Lockland plant, including
machine-shop employees, electrical and powerhouse employees,
watchmen, switching crews, and printing-division employees,
but excluding members of sales, supervisory, office, technical, and
executive forces, foremen, assistant foremen, all others having the
right to hire or fire, and inspectors,' constitute a unit appropriate
for the purposes of collective bargaining.5 We further find 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 will effectuate the policies of the Act. .
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret
ballot and we shall so direct. Inasmuch as the contract between
the A. F. of L. and the Company requires membership in the A. F.
of L. as a condition of permanent employment, we are of the opinion
that eligibility to vote should be determined as of the pay-roll period
immediately preceding the last renewal of such contract.6 - Accord-
ingly, we shall direct that, those eligible to vote shall be the em-
ployees in the appropriate unit who were employed during the
pay-roll period immediately preceding January 1, 1942, subject to
the limitations and additions set forth in our Direction of Election.
4 The parties further agree that the term "inspectors; " does not include checkers but
does include laboratory technicians and another group that makes chemical tests.
6 This unit is the same as that covered by the A F of L. contract as amended on May
5, 1941.
6 See Matter of Cudahy Packing Company and Packinghouse Workers Organ4zting Com-
mittee, C. I. 0, 38 N. L. R. B. 511.
PHILIP tAREY 'MANUFACTURING COMPANY 773
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 Philip 'Carey Manufacturing Company,
Lockland, Ohio, within the meaning of-Section 9 (c) and Section
2 (6) and (7) of the Act.
2. All production and maintenance employees of Philip Carey
Manufacturing Company at its Lockland plant, including machine-
shop employees, electrical and powerhouse employees, watchmen,
switching crews and printing-division employees, but excluding
members of sales, supervisory, office, technical, and executive forces,
foremen, assistant foremen, all others having the right to hire or fire,
and inspectors,7 constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the 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, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations`-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective-bargaining
with Philip Carey Manufacturing Company, Lockland, Ohio, 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 of
Election, under the direction and supervision of the Regional Di-
rector for the Ninth 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 production and main-
tenance employees of the Company who were employed during the
pay-roll period immediately preceding January 1, 1942, including
machine-shop employees, electrical and powerhouse employees,
watchmen, switching crews, printing-division employees, and em-
ployees 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 members
of sales, supervisory, office, technical, and executive forces, foremen,
assistant foremen, all others having the right to hire or fire, in
7 See footnote 4, supra.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spectors, and those employees who have since quit or been discharged
for cause, to determine whether they desire to be represented by
United Paper, Novelty & Toy Workers International Union, Local
150, C. I. 0., or by International Brotherhood of Paper Makers,
Local 321, affiliated with the A. F. of L., for the purposes of col-
lective bargaining, or by neither.
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Direction of Election.