Consolidated Chemical Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1942

44 N.L.R.B. 985 (N.L.R.B. 1942)

In the Matter Of CONSOLIDATED CHEMICAL INDUSTRIES, INC. and
CHEMICAL WORKERS LOCAL UNION No. 12203
Case No. R-4253.-Decided October 9, 1942
Jurisdiction : sulphuric and muriatic acids manufacturing industry.
Investigation and. Certification of Representatives : existence of question : con-
flicting claims of rival representatives ; contract held no bar when timely notice
of termination was 'given by local union with apparent authority to act for
contracting union and apparent authority was not repudiated by contracting
union until long after it had knowledge of termination by local ; election
necessary.
Unit Appropriate for Collective Bargaining : all regular hourly rated produc-
tion and maintenance employees at one of the Company's plants, excluding
watchmen, clerical and supervisory employees, and chemists.
Mr. Tom M. Davis, Mr. C. W. Mitchell, Mr. E. S. Rothrock, and
Mr. H. G. Funk, of Houston, Tex., for the Company.
Mr. Herman Wright, of Houston, Tex., for the Local.
Mr. William M. Hatten and Mr. W. P. Clayton, of Houston, Tex.,
for District 50.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Chemical Workers Local Union No.
12203, herein called the Local, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Con-
solidated Chemical Industries, Inc., Houston, Texas, herein called the
Company, the National 'Labor Relations Board provided for an appro-
priate hearing upon due notice before Claud H. Eads, Trial Exam-
iner. - Said hearing was held in Houston, Texas, on September 3, 1942.
The Company, the Local, and District 50, United Mine Workers of
America, herein called District 50, appeared, participated, and were
afforded full opportunity-to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
44 N. L R. B., No. 188.
985
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's rulings made at the hearing'are free from prejudicial error
and are hereby affirmed.
Upon the entire record in the case, the, Board makes the following:
' FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Consolidated Chemical Industries, Inc., a Delaware corporation,
having its principal offices in San Francisco, California, and plants in
Louisiana and Texas, is engaged in the manufacture of sulphuric and
muriatic acids, bone products, and aluminum sulphate. The Com-
pany's plant at Houston, Texas, is the one involved in this proceeding.
During a representative 1-year period, the Company purchased for
use at its Houston plant 12,936 tons of raw materials, valued at
approximately $367,000, from States other than the State of Texas.
During the same 1-year period, the Company shipped from its Houston
plant to States other than the State of Texas approximately 4,204 tons
of finished products valued at approximately $325,000.
a
H. THE ORGANIZATIONS INVOLVED
Chemical Workers Local Union No. 12203 is a labor organization
admitting to membership employees of the Company.
District 50, United Mine Workers of America, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to June 30, 1941, on the basis of a card-check, the Regional
Director certified that District 50, with which the Local was then
affiliated, was the exclusive bargaining agent of 'the Company's em-,
ployees at the Houston, Texas, plant. On June 30, 1941, District 50
and the Company entered into a 1-year contract with provision for
automatic renewal from year to year in the absence of a written notice
to terminate by either party at least 30 days before the end of any
yearly period. The contract further provided fora conference of the
parties within said 30-day period after notice, for the purpose of con-
sidering changes in the contract.
During May 1942, members of the Local met and elected a com-
mittee to draft a new contract. The committee, through J. L. Wat-
son, president of the Local, instructed the attorney for the Local to
inform the Company that the Local desired "to negotiate a new con-
tract to take the place of the old one." Accordingly, on May 19, 1942,
a letter was sent by the Local's attorney to the Company, the signifi-
cant part of- which reads as follows :
CONSOLIDATED CHEMICAL INDUSTRIES, INC. 987
In accordance with the provision of the contract by your company
and Local Union of the United Mine Workers of America, Dis-
trict 50, under the heading "Terms of Agreement" this is to advise
you that the union, desires to meet with you as soon as practicable
in order to determine on what terms and conditions the present
contract may be renewed upon its expiration on June 30, 1942.
The letter thus purported to speak for the contracting union, Dis-
trict 50, and it was not denied that, at that time, the Local had
authority to speak for that organization.
On or about May 27, 1942, the attorney for the Local telephoned to
C. W. Mitchell, vice president of the Company, to arrange a confer-
ence to negotiate terms of a new contract, but no conference material-
ized because of the intermittent absences of Mitchell.
During May and June, the drafting committee held several meet-
ings at which the drafting of a new agreement was begun and the
letter of May 19 to the Company was discussed. Some of these meet-
ings were attended by representatives of District 50 who participated
in the discussions but voiced no opposition to the drafting of, a new ,
contract or to the letter of May 19.
On June 18, 1942, at a membership meeting of the Local, a majority
of those present voted to conduct a referendum to determine whether
or not the Local should disaffiliate itself from District 50. Accord-
ingly, during the succeeding week, petitions were circulated -among
the members of the Local, and on June 25, at a membership meeting,
it was revealed that a majority had voted to sever the Local from
District 50. - The next day the Company was informed of the result
of the vote and on the succeeding day the present petition was filed.
District 50 takes the position that no question of representation has
arisen, since the contract was automatically renewed in the absence
.of a 30-day notice to terminate and therefore constitutes a bar to this
proceeding. The Company takes the same position as District 50 in
respect to the renewal of the contract but it would leave the designa-
tion of the proper representative under the contract to the Board.
The Local argues that the contract does not constitute a bar to this
proceeding because it was terminated on June 30, 1942, by the notice
contained in the letter of May 19, 1942. The Local maintains that
District, 50 acquiesced in and ratified the Local's notice of termination
by actively participating in the work of the drafting committee in
formulating the terms of the new contract to be submitted to' the
Company and in failing to register any protest with the Company to
the letter of May 19 until June 25.
It was admitted that on June 25, either before or after Wright's
conversation with Mitchell advising the latter of the disaffiliation vote,
a Mr. Clayton, representative of District 50, informed Mitchell for
988. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first time that Wright did not represent District 50. Moreover, it
was not until the last part of June that District 50, although fully
informed of the contents of the letter.of May 19 shortly after it was
sent, advised the-Company that District 50 considered the, contract as
having renewed itself automatically.
Since timely notice of termination was given by the 'Local which
had at least apparent authority to -act_ for District 50 and this ap-
parent authority was not repudiated by District 50 until June 25, long
after District 50 had knowledge of the notice of termination by its
local, 'e find that the contract does not constitute a bar to a deter-
mination of representatives at this'time.'
A statement of the Field Examiner, introduced in evidence at the
hearing, shows that the,Local represents a substantial number of em-
ployees in the unit hereinafter found appropriate.2
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 National Labor Rela-
tions Act.
IV. THE APPROPRIATE UNIT
The Local and District 50 agreed that the appropriate unit should
include all regular hourly rated production and maintenance employees
of the Company," excluding clerical and supervisory employees and
chemists. This is substantially the unit provided for in the contract.
The parties are in disagreement with respect to watchmen, District
50 seeking to include them in the unit. , Prior to December 1941, the
Company employed two watchmen (or guards) who made nighly
rounds on the clocks. In December 1941, the guard force was increased.
The contract of June 1941 excluded watchmen, and we therefore
shall exclude them from the appropriate unit.
We find that all regular hourly rated production and maintenance
employees of the Company, excluding watchmen, clerical and super-
visory employees and chemists, constitute a unit appropriate for the
' See In the Matter of Lone Star Cement Corporation and United Construction Workers
Organizing Committee, C. I. 0 , 37 N L R B. 997.
2 The Field Examiner reported that petitioner submitted a Resolution containing 82
signatures Of these, 75 appeared to be genuine original signatures of poisons whose
names appear on the Company's pay roll of June 21, 1942, which contained 162 eligibles
in the appiopiiate unit. The Resolution contained the statement that the Local "Hereby
severs its relationship with and surrenders its Charter to District 50 . . It author-
ized the officers of the Local to make application for a charter of affiliation with National
Council of Gas, Coke and Chemical Worker, C. I. O. It further stated that the Local
and all its membership should continue in existence and it re-delegated to the Local and
delegated to the National Council of Gas, Coke and Chemical Workers, C. I. 0 , authority
to bargain for the signatories. In support of its interest in these proceedings, District 50
relies upon the contract.
A regular hourly rated employee is one who had 90 working days-728 working hours-
in the Company's Houston plant to his credit
J
CONSOLIDATED CHEMICAL INDUSTRIES, -INC. 989
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 among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding 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 a part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with Consolidated
Chemical Industries, Inc., Houston, Texas, 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 super-
vision of the Regional Director for the Sixteenth 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 the
employees in the unit found appropriate in Section IV, above, who
were employed 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 tempo-
rarily laid off, but excluding any who have since quit or been discharged
for cause, to determine whether they desire to be represented by Chemi-
cal Workers Local Union No. 12203 or by District 50, United Mine
Workers of America, for the purposes of collective bargaining or by
neither.
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Direction of Election. '