Air Reduction Sales Co.

National Labor Relations Board - Board Decisions

Sep 23, 1944

58 N.L.R.B. 522 (N.L.R.B. 1944)

In the Matter of AIR REDUCTION SALES COMPANY and ALLIED VICTORY
WORKERS COMMERCIAL TRANSPORTATION ASSOCIATION
Case No. 3-R-844.-Decided September 23, 1944
Mr. Thomas C. Clark, of New York City, for the Company.
Mr. James B. McKenna, of Buffalo, N. Y., for the Association.
Mr. Daniel B. Shortal, of Buffalo, N. Y., for the Teamsters.
Mr. Ben Grodsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon an amended petition duly filed by Allied Victory Workers
Commercial Transportation Association, herein called the- Associa-
tion, alleging that a question affecting commerce had arisen concern-
ing the representation of employees of Air Reduction Sales Company,
Buffalo, New York, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing'upon due notice
before Peter J. Crotty, Trial Examiner. Said hearing was held at
Buffalo, New York, on August 18, 1944. The Company, the, Associa-
tion, and the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 449, affiliated with the
American Federation of Labor, herein called the Teamsters, appeared
and participated. All parties were afforded full opportunity to be
heard, to exaimmne and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the hearing the Teamsters moved
to dismiss the petition on the ground that the Association is not a'
labor organization within the meaning of the Act and on the further
ground that the Teamsters had a contract with the Company which
constitutes a bar to the present proceeding. For reasons hereinafter
appearing, these motions are denied. 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. In its brief filed with the Board the Teamsters moves for
leave to reopen the record for the purpose of introducing newly dis-
58 N. L. R. B., No. 103.
522 °
AIR REDUCTION SALES COMPANY 523
covered evidence. The Association has filed a brief in opposition to
the Teamsters' application. The Teamsters' motion is denied.'
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I.-THE BUSINESS OF TI-IE'COMI'ANY
'Fhe company is engaged in the manufacture of acetylene, oxygen,
nitrogen, carbon dioxide, and other industrial gases at its Buffalo,
New York, plants. During 194 the Company used in excess of $100,-
000 worth of raw materials at its Buffalo, New York, plants, of which
in excess of 90 percent Was slipped to it from points outside the State
of New York. During the same period the Company manufactured
at its Buffalo, New York, plants finished products valued at in excess
of $1,800,000, of which over 90 percent Was shipped to points outside
-the State.of New York.
The Company admits, and we find, that it is engaged in commerce
Within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Allied Victory Workers Commercial Transportation Association,
unaffiliated, is a labor organization -admitting to membership em-
ployees of the Company.'
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 449, affiliated with the American
Federation of Labor, is a labor organization admitting to member-
sllip-entployees-of-tile Company.
IIn its -brief the Tea uisteis sets forth the text of a letter purportedly written by John
McCullough , temporary president of the Association , addressed to Daniel J Tobin, presi-
dent of the Teamsters ' International , suggesting the issuance of a charter covering em-
ployees in the "pick up and delivery " divisions and stating that the waiter is "not in favor
of affiliation with any one but A F of I," It is argued that the letter is evidence that
the Association , composed largely of employees who were and apparently still are members
of the Teamsters , is not a bona fide labor organization , but is primarily a dissident group
interested in securing an election of officers among the Teamsters' members and an ac-
counting from that organization . We do not agree Moreover , it does not appear that
McCullough expressed more than his personal opinion and desires
i The Teamsters contends that the Association is not a labor organization within the
meaning of . Section 2. ( 5) of the National Labor Relations Act. In its brief it alleges that
the reason for the filing of the petition herein is dissatisfaction with the administration of
the Teamsters . The Teamsters further states that "It is unquestionably a fact that the
workmen [with ] whom the organizers for the association talked , in ;eahty, were duped or
unaware of the purpose of the authorization cards signed by them . In reality , their com-
plaint was directed against the conduct of the officers of Local 449 "
The Association is a group of employees which has retained an attorney , organized
themselves into a body for the purpose of collective bargaining , adopted a name , elected a
slate of temporary officers , held weekly meetings, and is in the process of considering the
adoption of bylaws and a constitution We have held that such a group is a labor organi-
zation, within the meaning of the Act. Matter of George TV. Boil/ Corporation, 25 N. L.
It. B. 481. Furthermore , the authorization cards submitted by the Association clearly
designate the Association as the collective bargaining representative of the signers.
524 DECISIONS OF NATIONAL LABORe RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
The Company has indicated that it will bargain with the Associa-
tion after the Association has been certified by the Board within an
appropriate unit.
Pursuant to the provisions of collective bargaining agreements
covering the distribution employees of its Buff a .] o plants, the Company
dealt with the Teamsters from 1937 to 1943 . These parties executed
a new agreement for a term of 1 year, effective June 17, 1943 , embracing
the distribution division employees and providing that it was to "con-
tinue from year to year thereafter unless terminated by written notice
from either party to the other, given not less than 90 (lays prior to
the annual expiration date." The agreement also provided for a closed
shop.
In 1941 the Company entered into an agreement with the Teamsters
for a term of 2 years , effective July 1 , 1941, covering the acetylene
division remployees of its Buffalo plants -and providing , fors automatic
renewal from year to year under the same conditions as the 1943 agree-
ment between them embracing the employees of the distribution divi-
sion. This agreement also provided for a closed shop. It was auto-
matically renewed in 1943.
Also in 1941 the Company and the Teamsters entered into an agree-
ment covering the oxygen division employees of the Company's Buffalo
plants. This agreement was for a term of 1 year ending July 1, 1942.
In 1942 they entered into another 1-year agreement effective July 1,
1942, covering the oxygen division employees and containing a similar
automatic renewal clause to that provided for in the -1943 contract
covering the distribution division employees . This contract also con-
tained a closed-shop provision . In 1943 it was automatically renewed.
On March 14 and 17, 1944, the Teamsters sent letters to the Com-
pany with respect to each of the existing agreements which read as
follows :
Our agreement which expires -------------------- provides for
a notification 90 days prior to expiration date if any change is
desired. Therefore , we are taking this opportunity to notify you
that we desire a change in our contract upon its expiration.
These letters were served in timely fashion, and, in our opinion , stayed
the operation of the automatic renewal clauses cont ained in the exist-
ing agreements . The letters , we find, effectively terminated the dis-
tribution division contract as of June 17, 1944, and the acetylene divi-
sion and oxygen division contracts as of July 1, 1944. Thus, contrary
to the Teamsters ' contention , none of these agreements constitutes a
bar to a current determination of representatives. -
AIR REDUCTION SALES COMPANY 525
While the Teamsters also contends that the Company considers
itself bound by the contracts in that it is still operating under their
provisions, in the absence of written and signed contracts extending
the terms of the expired agreements, we do not consider that this
arrangement bars the instant proceeding.3
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Association represents a substantial number of
employees in the unit alleged to be appropriate.4
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 UNITS
The Association requests a single unit covering all production and
maintenance employees in the acetylene, oxygen, and distribution
divisions of the Company's Buffalo plants, but excluding office, cler-
ical, and supervisory employees. The Teamsters and the Company
contend that there should be separate units for each of these three
divisions.
The Association urges that a single unit is appropriate because the
three divisions are coordinated in management and maintain a com-
mon pay roll; and because there has been only one bargaining agent
for the three divisions.
On the other hand, the Teamsters and the Company point to the
fact that the oxygen division and the transportation division are at
one location and the acetylene division is located 3 miles away, that
each division has its own superintendent, and that there are, and have
always been, three separate contracts, one applicable to each division.
As noted in Section III, above, the Company has dealt with the Team-
sters as the bargaining representative of its distribution division
employees since 1937, and as the representative of its acetylene and
oxygen division employees since 1941. As the basis for this relation-
ship three separate contractual units were established and have been
maintained by these parties.
3 Matter of Eicor, Inc , 46 N L R B 1035
' The Field Examiner reported that the Association submitted 49 cards, 48 of which bore
the names of persons listed on the Company's pay roll of July 27, 1944, which contained
the names of 69 employees in the alleged appropriate unit. According to the uncon-
tradicted testimony of counsel for the Association, the cards were signed after the middle
of July 1944
The Field Examiner further reported that, of the 33 employees in the distribution divi-
sion listed on the aforesaid pav roll, the Association submitted cards bearing the names of
21 ; that, of the 12 employees in the acetylene division, listed on the aforesaid pay roll, the
Association submitted cards bearing the names of all , and that, of the 24 employees in the
oxygen division listed on the aforesaid pay roll, the Association submitted cards bearing
the names of 13 The Teamsters relies on its contracts with the Company as evidence of
its interest in this proceeding.
526' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire-record, and particularly because of the history of
collective bargaining upon the basis of a separate unit for each- of the
three divisions, we are of the opinion that the employees of each
division constitute a separate bargaining unit.
We find that all production and maintenance employees in the acety-
lene division of the Company's Buffalo, New York, plants, but ex-
cluding office and clerical employees, 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.
We also find that all production and maintenance employees in the
oxygen division of the Company's Buffalo, New York, plants, but ex-
cluding cffice and clerical employees, 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 bar-
gaining within the meaning of Section 9 (h) of the Act.
We further find that all production and maintenance employees in
the distribution division of the Company's Buffalo, New York, plants,
but excluding office and clerical employees, and all supervisory em-
ployees with;authority to hire, promote, discharge, discipline, or other-
wise 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.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be I;esolved by separate elections by secret ballot among the
employees in the appropriate units who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election, 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 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 with Air Reductio,h
Sales Company, Buffalo, New York, separate elections by secret ballot'
shall be conducted as early as possible , but not later than thirty (30)
clays from the date of this Direction , Under the direction and super-
AIR REDUCTION SALES COMPANY 527
vision of the Regional Director for the Third 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 employees in the units 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
the said pay-roll period because they were, ill or on vacation or tem-
porarily laid oft, and including, employees in the armed forces of the
United States wino present themselves in person at. the polls, but exclud-
ing any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the elections, to deter-
mine whether they desire to be represented by Allied VictoryWorkers
Commercial Transportation Association, or by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local 449, affiliated with the American Federation of Labor, for
the purposes of collective bargaining, or by neither.