Atlas Powder Co.

National Labor Relations Board - Board Decisions

Aug 28, 1942

43 N.L.R.B. 757 (N.L.R.B. 1942)

I
In-the•Matter of ATLAS POWDER COMPANY, ZAPON DIvIsIoN and LOCAL
12083, NATIONAL COUNCIL OF GAS, COKE & CHEMICAL WORKERS
Case No. R-4171.-Decided August 28, 1942
Jurisdiction : artificial,leather,• rubberized cloth,,and chemical industrial finishes
manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition ; expired contract held no bar ; election
necessary:
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding clerical, supervisory, and laboratory employees.
Definitions : organization composed of employees who had associated themselves
together for the purpose of collective bargaining and had taken concerted
action to effect that purpose, held to be a "labor organization" within the
meaning of the Act notwithstanding the fact that its formal organization had
not been perfected.
Mr. Fr^ derick'R. Livingsto', for'the Bo M.
Cummings & Lockwoodby Mr. William A. Kelly, of Stamford,
Conn., for" the Company.
Mr. Samuel Gruber, of Stamford, Conn., for National Council.
Mr. Emil Schlesinger, of New York City, for District 50.
Mr. H. G. Moorhead, Jr., of counsel to the Board. '
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Locid" 12083, National Council of this,
Coke & Chemical Workers, herein called National Council, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of Atlas Powder Company, Zapon Division, 'Stamford,
Connecticut, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon dike notice
before 'Henry J. Kent, Trial Examiner. Said hearing was held on
August 17, 1942, at Stamford, Connecticut. The Company, National
Council, and District 50, United Mine Workers of America, C. I. 0.,
herein called District 50, appeared, participated, and were afforded
full, opportunity to be heard, to examine and cross-examine witnesses,
43 N. L. R. B., No. 120.
757
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to introduce evidence bearing on the, issues . The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
,and are hereby affirmed. At the close of the hearing District 50'
moved to dismiss the petition on the ground that National Council
Js not a proper bargaining , agency. The Trial , Examiner referred
the motion to the Board. For the reasons indicated in Section III,
below , the motion is hereby -denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE COMPANY
- Atlas Powder Company is a Delaware corporation which at Stam-
ford, Connecticut, operates its Zapon Division, which is engaged in
the manufacture, sale, anti 'distribution of artificial leather; rubber-
'ized cloth, and chemical iildustrial finishes. It annually purchases
for an amount approximating $2;000,000 the 'following raw materials :
cloth, pigments, solvents, nitrocellulose, resins, and chemicals; ap-
proximately 90 percent of these raw materials are purchased in States
other than the State of Connecticut. - It annually sells for an amount
approximating $3,000,000 products which it manufactures and dis-
tributes; approximately 85 percent of -these products are sold and
delivered to customers in Suites other ,than the 'State of Connecticut.
A substantial part of the Company's business is now connected with
the war effort. ' -
The Company concedes that, for the purposes of this proceeding,
it is engaged in interstate commerce within the meaning of the
National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Local 12083, National Council of Gas, Coke & Chemical Workers
.is a labor organization admitting to membership' employees of the
'Company.' -
- District -50, United' Mine Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor? organization admit-.
ting to membership employees of the Company.
3 Local 12083 claims as members employees of the Company who were formerly mem-
bers of Local 12102 , District 50 Local 12083 claims affiliation with National Council of
Gas, Coke & Chemical workers, a national unaflihated organization operating de facto
pending a convention to be held in September for the purpose of forming a constitution
which will effect its objects : to organize unorganized workers , to negotiate contracts, and
to take case of all grievance procedures and other general duties of a.labor organization
District 50 contends that National Council is not a labor organization and is not entitled
to, represent employees of the Company . ' Its contentions are discussed in Section III,
infra.
I
ATUAS POWDER C,O_v1PANY^ ZAPON DIVISION-,-.-- 759
III. THE QUESTION CONCERNING REPRESENTATION
On August 12, ,1941, the Company entered into a contract with
Local 12102 of District 50, for, the term, of 1 year. The contract
provided that unless 60 days' ,notice were given, .before the ,date of
expiration, the contract would automatically renew. On, June 8,
1942, Edward. Heckelbech, Regional Director of District 50, advised
,the Company. that it desired to open negotiations for is new-agree-
ment. On June 10,,1942, David Abrams as president of Local 12102
wrote to the Company advising it that it desired to make 'changes in
the contract, and further advising the Company that Local' 12102
had "officially disaffiliated" from District 50.2 The Coinpany reflisecl
to recognize National Council_ as the bargaining agent of the em-
ployees.
A statement of the Regional Director for the Second Region',
introduced in evidence at the hearing, indicates that, National Council
represents a substantial number of employeesemploy es in the .unit". herein
found appropriate .3 District 50 objected to the introduction of the
statement in evidence, contending that it should be permitted cross-
examination based, on the statements therein appearing. We have
heretofore affirmed the ruling of the.Trial Examiner overruling the
objection .4-
As indicated above. District 50 moved to,;dismiss the proceeding
on the I ground that National Council is not a prober bargaining
agency. , The record discloses that certain of the members of Local
12102, District 50, became dissatisfied with, District 50' and "sent a
2National Council also presented to the Company what purpoited to'be a resolution
of Local 12102, representing that the Local had severed its affiliation with District 50.
The Local claimed the representation rights in the contract between the Company and
Local 12102, District 50, but the Company did not accede
3 The statement indicates that the Regional Diiector examined a pay roll containing
427 names, and against this pay roll checked names apperring by apparently genuine
and original signatuies on authorization cards presented by National Council, and that
the pay roll contained 2S7 names which so appeared by signature ion such cards The
cards contained the following statement describing and qualifying prior grant of authori-
zation which was in usual form .
"The full power and authority to act for the rindersigned as described herein supersedes
and cancels any power or antlimity lie,ciofore given to any person or organization to
represent we in respect to hours of labor,, wages, and other conditions of employment,
and shall, remain in full force and effect, subject to thirty (36 days written notice of
my desire to withdraw 'such power and authoiity to act for me on the matters referred
to herein " ,
Two of the cards were undated, 205 were dated between June 14 and June 30, 1942, 28
between July 1 and July 9, 1942 No evidence cf withdrawal appears
' In cases where the petitioner union does not seek certification upon the record, the
Board does not permit a party opposing the petitioner to go behind the apparently genuine
authoiization,in the-manner proposed by District 30 The showing of substantial repie-
sentatioi is an administrative requii ement of the Board,. to satisfy it as a preliminary
matter that there is sufficient showing to justify proceeding with the investigation of
representatives. See Matter of R. II. Sis/un if Sons and Steel TPorkets Organizing Com-
nrittee, 41 N L. R B 187: Matter of Ifill Stores, Inc., and International Longshore-
inen's and Ti'aiehoisemen's Union, 39 N L. R B. 874, 876 and cases therein cited.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative to a conference of representatives of various locals
which represented gas, coke, and chemical workers and were affiliated
with District 50; that certain of -such representatives determined to
withdraw their locals from District 50 and form a new organization,
within the Congress ' of Industrial Organizations if possible., There-
after such, representatives proceeded toward the organizing of
National Council of Gas, Coke & Chemical Workers.5 A chairman
of this national group was elected but election of permanent officers
was deferred pending its constitutional convention to be held in
September- 1942:'" Local 12102;' District 50,-leld'.-a meeting- on ,June.
6,- 1942; 6 about 125 to 150 members attended' and voted to sever
affiliation with District 50; and a resolution to that effect was passed.
The president and other interested persons thereafter secured the
signatures of employees on the authorization cards submitted to the
Regional Director for this' proceeding. - Thereafter, under the name
of Local 12083, National Council of Gas, Coke & Chemical Workers,
a number of employees who had thus expressed their preference for
that organization met together and by designated agents attempted
to bargain with the Company. An instrument bearing date of June
15, 1942, and purporting to be a charter, was issued by the chairman`
of a group operating as a continuations committee pending the' com-
pletion of the national organization of National Council of Gas, Coke
& Chemical Workers. This charter was issued in blank on the appli-
cation of the local's president.
District 50 urges inter alia in support of its position that -the Na-
tional Council is not a proper bargaining agency, that although- the
local returned the charter of Local 12102, District 50, to District 50,
the local has not returned all the supplies and property owned by
District 50; 8 that the form 'of the organization of Local 12083 is
not completed as yet with respect to final adoption of a constitution,
bylaws, and other matters; that under the constitution of District
50 there is'no authority for a local to affiliate with any organization
other than District 50; ° that •the' National Council was-established
for the purpose of "raiding" its membership; and that the National
5 Affiliation with the Congress of Industrial Organizations was denied when applied for,
but National Council is continuing its attempt to establish Its national organization,
as is indicated in footnote 1, above
0 The notice of the meeting stated that it was of "vital importance," but did not other-
wise disclose the purpose of the meeting The president of the local testified that the
purpose of meetings was never so disclosed.
'On this date there were approximately 215 members paid up and a total of 300
member s including those whose dues were not paid to this date
8 For a ui render of a local 's charter under the constitution of District 50, there must
be a return of all property . The president of National Council testified that it does not
claim District 50's property, but that District 50 is free to conic and get it at its pleasure.
° It appears that no dual form of organization is permissible under the constitution
of District 50
ATLAS POWDER GO'iPANY, ZAPON DIVISION 761
Council made misrepresentations to -employees in securing authori-
zations from them herein.
- The essential issue raised by this contention is whether the Na-
tional Council is a labor organization qualified to represent em-
ployees for the purposes of collective bargaining. We deem all the
considerations urged upon us by District 50, as outlined above,
immaterial to a decision on that issue. Section 2 (5) of the Act
provides : "The term `labor organization' means any organization of
any kind, or any agency or employee representation committee or
plan, -in which employees participate and which 'exists for the pur-
pose, in whole or in part, of dealing with employers concerning'
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work." In other words, a bargaining agency
does not have to be formally organized with a written constitution
and bylaws. A substantial number of employees of the Company
have associated themselves under the ;name of Local 12083, National
Council of Gas, Coke & Chemical Workers for the purpose of col-
lective bargaining and have taken concerted action to effect their
purpose. - The organization so formed plainly falls within the statu-
tory definition of a labor organization and we so find.10 The motion
of'District 50,mti,st, therefore, be denied.
As we have hereinabove found, on June 8, 1942, before the expira-
tion of its August 12, 1941, contract with the Company, District 50
advised the Company that it desired to open negotiations for a new
agreement. 'After this notice, the National Council, on June 10,
1942, advised the Company of its claim to majority representation.
Moreover; by its terms the contract expired on August 12, 1942.
,Under these circumstances, we find that the contract between District
50 and the Company is no bar to a present determination of
representatives.11
We,find that a question affecting commerce has arisen concerning
representation of employees of the Company within the meaning
of Section 9 (a)' and Section 2 (6) and (7) of the National Labor
Relations Act.
IV. THE APPROPRIATE UNIT'
The parties agree that the employees covered'by the contract be-
tween the Company and District 50, namely "all' production em-
10See Matter of Pueblo Gas & Fuel Company and International Brotherhood of Plec-
trical Workers , Local Union No 607-B, 23 N L. R B. 1028 , 1 035, enforced ,' Pueblo Gas
and Fuel Co v N. L. R. B, 118 P. (2d) 304 (C. C A 10) , Matter of Monteith Brothers,
Inc and International Union, United Automobile Workers, 34 N L R. R . 896, 902-3:
Matter of Yellow; Truck d Coach Manufacturing Company and United Organization of Plant
Production Employees, 39 N. L R B. 14, 17
11 See Matter of Philip Carey Manufacturing Company and United Paper, Novelty/ & Toy
Workers International Union, Local 150, C . I. 0., 39 N. L. R. B. 769; Matter of General
Motors Corporation , Chevrolet Motor Division, Norwood Plant and United Automobile
Workers of America, affiliated with the 'C. I. 0., 33 N L. R. B. 41.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees,, including maintenance- employees, but excluding clerical,
supervisory, and 'laboratory employees," constitute an appropriate
unit. We find that all production and maintenance employees, ex-
cluding, clerical, supervisory, and laboratory employees, 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 resolved by an election by secret -ballot nliiong,'the
employees 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 Direction.
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 8, of-'-National
Labor Relations Board Rules and Regulations- Series 2, as amended,
it is"hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Atlas Powder
Company, Zapon, Division, Stamford, Connecticut, 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 Second Region,
acting in this Ina tter'as. agent for the National Labor Relations Board
tnd subject to Article III, Section 9, of -the said Rules and Regu-
lations, among the employees in the' unit found appropriate in. Sec-
tion IV, above,: who were employed by the Company during the
pay-roll- period; immediately preceding, the date of, this Direction,
including any such employees who did not work during said 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 any employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Local'
12083, National Council of Gas, Coke & Chemical Workers, or by
District 50, United Mine Workers of America, C. I. 0., -for the pur-
poses of collective bargaining, or by neither.
CHAIRMAN MILLIS took no,part in the consideration of the above
Decision and Direction of Election.