The Liquid Carbonic Corp.

National Labor Relations Board - Board Decisions

Feb 10, 1942

38 N.L.R.B. 1065 (N.L.R.B. 1942)

In the Matter of THE LIQUID CARBONIC CORPORATION and DISTRICT 50,
UNITED MINE WORKERS OF AMERICA, C. I. O.
Case No. B-3465.-Decided February 10, 1942
Jurisdiction : carbonic gas, dry ice, and soda fountain equipment manufacturing
industry.
Investigation and Certification of Representatives : existence of question • refusal
to accord union recognition ; closed-shop contract, entered into with notice of
rival union's claim to representation, no bar to ; election necessary.
Unit Appropriate for Collective Bargaining : all production, maintenance, and
distribution employees employed in connection with the Company's Detroit
operations, including fillers, firemen, and plant-maintenance men employed
at the Detroit gas plant, and wholesale drivers, driver-salesmen, fountain and
machinery servicemlin, garage workers, and janitors employed at the Com-
pany's Detroit sales branch, but excluding all supervisory employees, office
and clerical employees, engineers, the shipping clerk, and the assistant ship-
ping clerk ; agreement as to.
Mr. H. C. Coleman, of Detroit, Mich., for the Company.
Mr. Charles Nelson, of Detroit, Mich., for the C. I. O.
Mr. Solomon Sniderman, of Detroit, Mich., and Mr. John Curran,
for the Teamsters.
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
On October 7, 1941, and November 10, 1941, respectively, District
50, United Mine Workers of America, CIO, herein called the C. I. 0.,
filed with the Regional Director for the Seventh Region (Detroit,
Michigan) a petition and an amended petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of The Liquid Carbonic Corporation, Detroit, Michigan,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein" called the Act. On De-
cember 2, 1941, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regu-
38 N. L. R. B , No. 200.
1065
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations-Series 2, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice. On January 8, 1942, the Act-
ing Regional Director issued a notice of hearing, copies of which
were duly served upon the Company, the C. I. 0., and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union 3371
Pursuant to notice, a hearing was held on January 16 and 17, 1942,
at Detroit, Michigan, before Harry N. Casselman, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company, the
C. I. 0., and the Teamsters were represented and participated 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 various rulings on the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Liquid Carbonic Corporation, a Delaware corporation with
its principal office at Chicago, Illinois, operates approximately 37
manufacturing plants in the United States, Canada, and Cuba, and
has branch offices and sales offices throughout these countries. It
produces carbonic gas and dry ice, soda fountains, bars and lunch-
eonette equipment, bottling equipment, and flavoring extracts. It
owns and operates in one building at Detroit, Michigan, a plant in
which carbonic gas is manufactured and a sales branch from which
various products of the Company are sold and distributed. All of
the Company's products sold and distributed in Michigan, except
carbonic gas and dry ice, are brought into the Detroit sales branch
from the Company's main plant in Chicago, Illinois. The chief
raw materials used by the Company at its Detroit plant for the pro-
duction of carbonic gas are coke and soda ash, all of which are
purchased outside the State of Michigan, and for the purchase of
which the Company expended approximately $23,000 during the year
ending October 1, 1941. During the same period, the sales of the
Detroit sales branch of the Company amounted to approximately
$877,000, and products valued at approximately $225,000 were sold
1 Notice of hearing was also served upon International Brotherhood of Firemen and
Oilers, Local No 32, A F L, which did not appear at the hearing and has made no claim
in this proceeding
TITE LIQUID CARBONIC CORPORATION 1067
through this branch to consumers outside the State of Michigan.
Approximately 65 per cent of the products sold and distributed by
the Detroit sales branch of the Company during this period were
obtained from the main plant at Chicago, Illinois. The Company
admits that it is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America is a labor organiza-
tion affiliated with the Congress of Industrial Organizations. In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Local Union 337 , is a labor organization
affiliated with the American Federation of Labor. Both admit to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The C. I. O. and the Teamsters appear to have begun organizing
employees of the Company during the summer of 1941, and rep-
resentatives of both approached H. C. Coleman, Detroit branch man-
ager of the Company, on-several occasions, unspecified as to date,
and requested that the Company bargain with them. On August
19, 1941, Gaal Nedry, an international representative of the C. I. 0.,
and a committee of employees called on Coleman, stated that the
C. I. O. represented a majority of the employees, and requested that
the Company bargain. Coleman replied that the Teamsters had
made the same request the day before and suggested that an election
by the Board would be the best way to solve the problem presented
by the requests of the two unions.2 On August 27, 1941, the Com-
pany and the Teamsters entered into a closed-shop contract, of which
the C. I. O. was notified on August 28, and on about September 15
the Teamsters posted in the plant a notice stating in effect that mem-
bership in that organization was required in order that employees
might continue working. All employees of the Company's Detroit
branch have now joined the Teamsters. On December 8, 1941, the
Company and the Teamsters entered into a wages and hours agree-
ment pursuant to a provision in the original contract.
The Teamsters contends that no question concerning representation
has arisen because of its existing contract with the Company. In
view of the fact that the contract was entered into after the Company
z Nedry testified that he suggested a check of membership cards against the pay roll, to
be made by the Board , and that he informed Coleman that the C I 0 policy prohibited
a check by an employer Coleman denied that Nedry qualified his suggestion as to a pay-
roll check by requiring that it be made by the Board . He testified further that the
C I 0 had , not presented its cards for such a check and that sometime between August 19
and 27 the Teamsters presented its cards which revealed that it r epresented a majority of
the employees.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Teamsters had notice of the claim of the C. I. 0. to repre-
sent a majority of its employees the contract cannot serve as a bar
to this proceeding 8
A statement by the Regional Director, introduced in evidence, and
a statement of the Trial Examiner, made during the hearing, indi-
cate that the C. I. 0. and the Teamsters each represented, prior to
the execution of the closed-shop contract, a substantial number of
employees of the Company 4
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The parties agreed, and we find, that all production, maintenance,
and distribution employees employed in connection with the Com-
pany's Detroit operations, including fillers, firemen, and plant-main-
tenance men employed at the Detroit gas plant, and wholesale
drivers, driver-salesmen, fountain and machinery servicemen, garage
workers, and janitors employed) at, the Company's Detroit sales
branch, but excluding all supervisory employees, office and clerical
employees, engineers, the shipping clerk, and the assistant shipping
clerk, constitute a unit appropriate for the purposes of collective
bargaining. We find further that said unit will insure to employees
of the Company the full benefit of their right to self-organization
' Matter of Southern Wood Preserving Company and District 50, United Mine Workers
of America, affiliated loath the Congress of Industrial Organizations, 37 N L R B. 25 ;
Matter of Radio Wire Television, Inc. and Local 430, United Electrical, Radio & Machine
Workers of America, C. I. 0., 30 N L. R. B 930.
4 The Regional Director 's statement shows that the C. I. O. submitted 17 applications
for membership cards, 16 of which were dated between April and September 1941; 15 bore
genuine original signatures and 14 contained signatures of persons whose names appear on
the Company ' s pay roll of October 29 , 1941. The Trial Examiners statement shows that
of the 17 C. I. O. cards, 16 bore signatures of persons whose names were on the pay rolls
of August 23, 1941 , and January 3, 1942 . The Teamsters submitted to the Trial Examiner
27 application for membership cards, all containing genuine original signatures and all
bearing names on the Company 's pay roll of August 23, 1941. Twenty -four of these signa-
tures were of persons whose names appear on the pay roll of January 3 , 1942. The
Teamsters also submitted 11 authorization cards, all bearing genuine original signatures,
8 of persons on the August 23 pay roll and 10 of persons on the January 3, 1942, pay roll
There are about 35 employees in the unit
THE LIQUID CARBONIC CORPORATION 1069
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 holding an election by secret ballot.
The parties agreed that a current pay roll shall be used to determine
those eligible to vote. Persons eligible to participate in the election
shall be the employees in the appropriate unit who were employed
by the Company during the pay-roll period next preceding the date
of this Direction, subject to the limitations and additions hereinafter
set forth in the Direction.
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 The Liquid Carbonic Corporation, Detroit,
Michigan, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All production, maintenance, and distribution employees em-
ployed in connection with the Company's Detroit operations, in-
cluding fillers, firemen, and plant-maintenance 'men employed at the
Detroit Gas plant, and wholesale drivers, driver-salesmen, fountain
and machinery servicemen, garage workers, and janitors employed
in the Company's Detroit sales branch, but excluding all supervisory
employees, office and clerical employees, engineers, the shipping clerk,
and the assistant shipping clerk, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the National Labor Relations 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, 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 The Liquid Carbonic Corporation, Detroit, Michigan, 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 di-
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rection and supervision of the Regional Director for. the Seventh
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all production, maintenance, and distribution em-
ployees of The Liquid Carbonic Corporation employed in connection
with the Company's Detroit operations, including fillers, firemen,
and plant-maintenance men employed at the Detroit gas plant, and
wholesale drivers, driver-salesmen, fountain and machinery service-
men, garage workers, and janitors employed at the Company's Detroit
sales branch, who were employed during the pay-roll period next pre-
ceding the date of this Direction, including employees who did not
work during such 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 all supervisory employees, office
and clerical employees, engineers, the shipping clerk, and the assistant
shipping clerk, and employees who have since quit or been discharged
for cause, to determine whether they desire to be represented by
District 50, United Mine Workers of America, C. I. 0., or by Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 337, A. F. of L., for the purposes
of collective bargaining, or by neither.