Bell Cabinet Co.

National Labor Relations Board - Board Decisions

Apr 10, 1947

73 N.L.R.B. 332 (N.L.R.B. 1947)

In the Matter of BELL CABINET COMPANY, EMPLOYER and FURNITURE
WORKERS LOCAL 2267, UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMEIICA, A. F. L., ETC., PETITIONER
In the Matter of BELL CABINET COMPANY, E3I]'LOYER and CABINET
MAKERS EMPLOYEES' ASSOCIATION, INC., PETITIONER
Cases Nos. ^?1-R--3551 and 97-R- 3645, respectively.Decided April
10, 1947
Messrs. Louis Lieber, Jr., and H. DeVoe Rea, of Los Angeles, Calif.,
for the Employer.
Messrs. Arthur Garrett and Nick Cordil, of Los Angeles, Calif.,
and Mr. John Murray, of Santa Monica, Calif., for the Petitioner.
Mr. Marian Proctor, of Burbank, Calif., for the Association.
Mr. Emil C. Farkas, of counsel to the Board.
DECISION
AND
DIRECTION OF' ELECTION
Upon separate petitions duly filed, a consolidated hearing in this
case was held at Los Angeles, California, on November 14, 1946, before
Daniel J. Harrington, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Bell Cabinet Company, a California corporation, is engaged in the
manufacture of radio cabinets at its plant in Van Nuys, California.
During the year ending October 1, 1946, the Employer purchased for
use at this plant about $600,000 worth of raw materials, approximately
20 percent of which represented shipments from points outside the
State of California. During the same period the Employer sold all
its products, valued at $1,500,000, to a local concern for resale outside
the State.
73 N L II B, No 62
332
BELL CABINET COMPANY 333
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
11. THE ORGANIZATIONS INVOLVED
Furniture Workers' Local 2267, United Brotherhood of Carpenters
and Joiners of America, herein called the Carpenters, is a labor organ-
ization affiliated with the American Federation of Labor, claiming to
represent employees of the Employer.
Cabinet Makers Employees' Association, herein called the Asso-
ciation, is an unaffiliated labor organization, claiming to represent
employees of the Employer.'
III. THE QUESTION CONCERNING REPRESENTATION
In May or June 1946, the Carpenters notified the Employer that it
represented a majority of the Employer's employees and requested
recognition as their exclusive bargaining agent but the Employer re-
fused to grant such recognition. On August 15, 1946, the Carpenters
filed its petition in this proceeding and' shortly thereafter the Em-
ployer and the Carpenters entered unto an agreement for a consent elec-
tion to be held on Selftenlber 10, 1946. On August 22, 1946, the Asso-
ciation advised the Board's Regional Office, by letter, that it desired a
place on the ballot in the scheduled election. On or about the same
date the Association's attorney telephoned the Employer and re-
quested, and was refused, recognition as the bargaining agent of the
Employer's employees. Under the circumstances, the consent election
was not held. Shortly thereafter, on September 30, 1946, the Car-
penters requested of the Board's Regional Office permission to with-
draw its petition,2 and entered into a series of conferences with the Em-
ployer which culminated in a written agreement, on October 2, 1946,
defining a bargaining unit, virtually identical with the one sought
herein, and providing for recognition of the Carpenters by the Em-
ployer if the former won a card-check to be conducted by the United
States Conciliation Services.
'At the hearing the Eniplo}er and the Carpenters contended that the Association was
not a labor organization within the meaning of the Act The term `labor organization'
under the provisions of Section 2 (5) of the Act means "any organization of any kind, or
any agency or emplo%ee representation committee or plan, in which employees participate
and which exists for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of
woi k " The Association cleat ly meets the test of a labor organization prescribed in the
statute Accordingly, we find the Association to be a labor organization within the meaning
of the Act
2 The Carpenters contend that its request for withdrawal of its petition was approved by
the Board's Regional Director and that consequently no question concerning representation
exists ' Our records disclose, however, that this request was not granted, and that the in-
stant hearing was pi edicatell on the Carpenter's petition as well as that of the Association
Moreover, even assuming that the petition had been withdrawn, it is clear that the Asso-
r ration's petition relates to the same employees as those involved in the Carpenter's peti-
tion, and in and of itself raises it question concerning representation
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Commissioner of the, United, States. Conciliation Service con=
ducted a card-check and on October 4, 1946, issued his decision in
the form of an arbitration'award in which he found that a majority
of the Employer's employees had authorized the Carpenters to act
as their collective bargaining agent. Thereafter, on October 5, 1946,
the Employer distributed a circular letter among its employees sum-
marizing the developments of the preceding months and advising the
employees that it planned to recognize the Carpenters as their col-
lective bargaining representative. The Association, which was not
notified of, and did not participate in, the arbitration proceedings,
filed its petition herein on October 7, 1946. On October 15, 1946,
judgment was entered on the arbitration award by the Superior
Court of the State of California in and for the County of "Los An-
geles, and on October 18, 1946, the Employer and the Carpenters
executed a written agreement by which the Carpenters was recog-
nized as the exclusive collective bargaining representative of the
Employer's employees. The Employer and the Carpenters contend
that (1) the arbitration award by the United States Conciliation Serv-
ice and (2) the subsequent contract of October 18, 1946, constitute
bars to the present proceeding. We find no merit in either contention.
We have heretofore given a card-check conducted by the United
States Conciliation Service equal effect to that of a secret election,
only if it appeared that the union involved had been designated by a
majority of the employees in the agreed unit, and that notices to that
effect had been posted on the Employer's premises for a period of 5
days thereafter, during which time any interested party had an op-
portunity to file objections to the conduct of the card-check, but did
not do so. However, inasmuch as the Employer failed to post the
required notices, we are of the opinion that the card-check should not
be accorded equal effect to that of a secret election. Moreover, even
assuming that the Employer had complied with the posting require-
ment, we find the card-check vulnerable on the further ground that
the Association, which was an interested party and was neither noti-
fied of the arbitration proceedings nor afforded an opportunity to
participate therein, manifested its objections to the card-check within
the 5-day period by filing its petition in this proceeding. Under all
these circumstances, we find that the arbitration award based on the
card-check conducted by the United States Conciliation Service does
not bar a current determination of representatives.3
With respect to the contention that the agreement of October 18,
1946, constitutes a bar to the Association's claim for representation,
the record discloses that the execution date of the contract followed
3 Matter of Electra Metallurgical Company, 69 N L R B 772 ; see also Matter of Joe
FFearing, Lumber, 68 N L R B. 150, Matter of Victory Chemical Company, 60 N L R B
997.
BELL CABINET COMPANY 335
the Association's petition by several days. Under well established
Board principles it cannot, therefore, bar an election based on that
petition.4 In addition, it appears that this instrument lacks sub-
stantive terms and conditions of employment and is, at best, only a
recognition agreement by which the Employer recognizes the Car-
penters as the collective bargaining agent for its employees. Such
agreements, the Board has consistently held, do not operate as a bar
in view of their inability to achieve stability in labor relations.5 In
view of the foregoing Ave find that the agreement of October 18, 1946,
does not constitute a bar to this proceeding.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section. 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties agree, and we find, that all employees of the Employer,
including leadmen, but excluding office, clerical, and engineering em-
ployees, draftsmen, plant protection employees, executives, foremen,
supervisory leadmen, and all other supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such ac-
tion, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 6
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Bell Cabinet Company, Van
Nuys, California, 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 Di-
rector for the Twenty-first Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Sections 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, among the employees in the unit found appropriate in
Section IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in the
4 Matter of Miami Copper Company, 71 N. L. R. B 24; Matter of Ste. Genevieve Lime
it Quarry Company, 70 N L R B 1259, Matter of Fifth Ave Shoe Corpoiation, 69 N L.
R B 400
5 Matter of Electra Metallurgical Company, 69 N L R B. 772 , Matter of Ginstina
Brothei s Lumber Co , 68 N L R B 451 , Matter of C V Hilt it Company, Inc , 64 N. L
R B 1109 , Matter of Heniy Weis Manufacturing Company, Inc, 49 N L R B.^511.
Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot
739926-47-vol 73 23
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
armed forces of the United States who present themselves i n person
at the polls, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether they desire to be repre-
sented by Furniture Workers Local 2267, United Brotherhood of
Carpenters and Joiners of America, A. F. L., or by Cabinet Makers
Employees' Association (unaffiliated), for the purposes of collective
bargaining, or by neither.
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.