Industrial Chemicals, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1946

71 N.L.R.B. 940 (N.L.R.B. 1946)

In the Matter Of U. S. INDUSTRIAL CHEMICALS, INC., EMPLOYER and
INTERNATIONAL CHEMICAL WORKERS UNION, AFL, PETITIONER
Case No. 2-R-6628.-Decided December 6, 1946
Mr. L. Everett Renz, of New York City, for the Employer.
Mr. A. Vincent Busby, of Newark, N. J., for the Petitioner.
Bwitenkant d Cohen, by Mr. Arnold Cohen, of Nev, York City, for
the Intervenor.
Mr. Sydney S. Asher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on July 30, 1946, before Sydney Reitman, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. After the hearing, the Inter-
venor moved to dismiss the petition on the ground that it has an exist-
ing contract with the Employer which constitutes a bar to this
proceeding . For reasons stated in Section IV, below, the motion is
hereby denied. The Intervenor's request for oral argument is denied,
inasmuch as the record , in our opinion , adequately presents the issues
and positions of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
U. S. Industrial Chemicals, Inc., is a Delaware corporation with
principal offices located in New York City. It maintains plants in
several cities of the United States, including a plant at Newark, New
Jersey, which is the only plant involved in this proceeding. At this
plant, the Employer is engaged in the manufacture, sale, and distribu-
tion of chemicals, resins and industrial alcohol. During the year
preceding April 26, 1946, the Employer purchased for use at its
Newark plant raw materials valued in excess of $1,000,000, more than
71 N. L R. B., No. 153.
940
U. S INDUSTRIAL CHEMICALS, INC. 941
50 percent of which was shipped to the Newark plant from points out-
side the State of New Jersey. During the same period, the Employer
manufactured at its Newark plant products valued at more than
$1,000,000, approximately 50 percent of which was shipped to points
outside the State.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
Wine, Liquor & Distillery Workers Union, Local 1, herein called
the Intervenor, is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
On or about March 1, 1945, the Employer entered into a collective
bargaining contract with the American Federation of Labor, herein
called the AFL, acting on behalf of itself and Federal Labor Union
No. 22558, herein referred to as the Federal, and International Union
of Operating Engineers, Local No. 68, herein called the Operating
Engineers. The contract was signed on behalf of the AFL by Samuel
R. Isard, Organizer, and on behalf of the Federal and the Operating
Engineers by their respective representatives. Paragraph 12 pro-
vided:
Duration: This Agreement shall remain in effect until March
1, 1946 and each year thereafter unless thirty days notice in
writing is giien by either party hereto, prior to March 1, 1946,
or any succeeding March 1st thereafter. Such written notice
shall contain the amendments to the agreement desired by the
parties hereto, and only such amendments as contained therein
shall be discussed at the conference.
On November 2, 1945, the Intervenor wrote a letter to the Em-
ployer stating that the employees of the Employer had voted unani-
mously to affiliate with the Intervenor, that the Intervenor would
endeavor to observe the existing contract bet ;Veen the Employer and
the Federal, and naming Albert Cooper as its shop steward. The
Employer did not reply to this letter.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the early part of December 1945, the Employer determined
to reduce its working hours from 48 to 40,hours per week, and so
advised Isar d. Isard told the Employer to consult Cooper, which
the Employer did. Cooper asked for a conference. At the confer-
ence , which was held on December 10, 1945, the employees were repre-
sented by members of the Intervenor. The Intervenor sought to
discuss terms of a new agreement and the Employer stated in reply
that it would not negotiate a new contract at that time, inasmuch as
it had an existing contract which was due to expire on March 1, 1946.
The Employer did, however, agree to postpone the shortening of the
work week until December 31, 1945.
On December 18, 1945, the Intervenor sent to the Employer a draft
of a proposed contract and asked for a conference for the purpose of
discussing it. On December 27, 1945, the Intervenor telegraphed to
the Employer, protesting the proposed change in working hours. On
the same day, the Employer wrote to the Intervenor, acknowledging
receipt of the draft of the proposed contract, and stating that the,
matter would be taken up "in flue course. ", The letter further ac-
knowledged receipt of the telegram of protest, and confirmed the
intention of the Employer to shorten the work week after December
31, 1945, "in accordance with provision of contract expiring March 1,
1946." The projected reduction in working hours-was, in fact, put
into effect on December 31, 1945.
On January 10, 1946, Isard, as organizer for the AFL, wrote to the
Employer, advising the latter that the Federal had dissolved on No-
vember 5, 1945, and that its members had transferred their affiliation
to the Intervenor.' The letter further stated : "This is to also official
(sic) notify you that in accordance with the terms of the Agreement
we have with your Corporation dated March 1st, 1945: Paragraph 12
DURATION : that we are hereby terminating our part of the Agree-
ment." The letter also expressed the hope that the Employer would
"continue to respect and recognize the rights" of the Operating En-
gineers , and would recognize the Intervenor. The Employer replied
to Isard's letter on January 11, 1946, stating that it understood that
`.you are hereby terminating your part of said contract as of March
1, 1946."
On January 21, 1946, the Employer met with representatives of the
Intervenor before a Commissioner of the United States Conciliation
Service, to discuss the reduction of hours. The Employer refused to
bargain with the Intervenor, asserting that it had a contract still in
force and effect which did not terminate, by its terms, until March 1,
1946. The Employer, however, requested the Intervenor to present
' This was the first notice received by the Employer from any of the original contracting
parties that the Federal had dissolved.
U. S INDUSTRIAL CHEMICALS, INC. 943
its demands in writing the following week, and the Intervenor agreed
to do so. Another conference was held before the Commissioner on
January 28, 1946, at which time the Intervenor stated that it had
decided not to present the written demands requested by the Employer,
since they were already contained in the proposed contract sent to the
Employer on December 18, 1945. The meeting thereupon broke up,
and on January 31, 1946, the Employer's employees went out on strike.
The Intervenor next wrote to the Employer on February 25, 1946,
maintaining that it had been designated by the Employer's employees
as their collective bargaining agent. The letter stated the Intervenor's
understanding that there was then a contract in existence which was to
expire on March 1, 1946, and requested a conference "for the purpose
of negotiating a renewal of the contract setting forth the terms and
conditions of a new Agreement." The Employer acknowledged re-
ceipt of this letter on February 28, 1946. A conference between the
Employer and the Intervenor took place on March 5, 1946, at which
time the contract proposed by the Intervenor was discussed. On the
game clay, the Intervenor filed charges against the Employer with this
J3oard alleging that the Employer had refused to bargain collectively
with it.' Thereafter, on March 11, 1946, the Employer and the Inter-
venor met with representatives of the Board. The Employer took
the position that the parties had not, at that time, exhausted collective
bargaining. On the same day, the Intervenor's representative wrote
to the Employer requesting an additional conference to continue the
bargaining. On March 14, 1946, the parties met again, and, on the
same date the Employer sent to the Intervenor written counterpro-
posals, in the form of a draft contract. The Employer's letter of trans-
mittal stated : "If you prefer to renew the contract which expired on
March 1, 1946, a copy of which you have, substituting schedule of wages
annexed to the enclosed contract, you may do so." The Intervenor
replied on March 15, h946, restating its demands. Additional con-
ferences, including one at the New Jersey Board of Mediation, failed
to produce any agreement.
On May 24, 1946, the Petitioner wrote to the Employer, requesting
recognition as the collective bargaining agent of the employees, and on
May 27, 1946, filed the petition herein.
The Intervenor contends that, in November 1945, it succeeded to
the interests of the AFL under the 1945 contract, that thereafter the
AFL had no power to terminate the agreement, that the AFL's at-
tempted termination was ineffective, and that the contract has been
automatically renewed for another year to March 1, 1947. Assuming
arguenndo that, in November 1945, the Intervenor validly replaced
the AFL as bargaining representative wider the provisions of the
Case No 2-C-6193. The charges were later dismissed.
717734-47-vol. 71-61
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract and that, therefore, the AFL's notice of termination and the
Employer's acknowledgment thereof were without effect, it neverthe-
less remains clear from the entire course of negotiations between the
Employer and the Intervenor that neither party intended that the
1945 agreement should renew itself for an additional year. As we
have previously held, where the parties to a collective bargaining
contract which contains an automatic renewal clause voluntarily enter
into negotiations for modification of their agreement, they thereby
evince an intent to terminate such contract on the next anniversary
date, thus rendering the renewal clause inoperative.3 In view of
all the facts, we are of the opinion that the contract of March 1, 1945,
terminated on March 1, 1946, and is, therefore, not a bar to a present
determination of representatives.4
It is to be noted that both unions here involved are affiliated with
the American Federation of Labor. On June 19, 1946, in accordance
with the Board's usual practice in such cases, the Regional Director
sent a letter to Frank P. Fenton, Director of Organization of the
American Federation of Labor, describing the dispute herein, and
requesting a statement as to the efforts made by the unions involved
and the American Federation of Labor towards achieving a settle-
ment of the dispute. No answer to this letter has ever been received.
The primary reason underlying the Board's reluctance to entertain
petitions in the presence of a jurisdictional dispute is the likelihood
that all contention will be eliminated by submission to the authority
of the parent body. However, in this case there is little prospect that
the controversy can be effectively resolved without resort to the
administrative processes of the Act. Under the circumstances, we
are constrained to proceed with the investigation.5
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.
'Matter of Honolulu Rapid Transit Conpani, Limited, 71 N L R B 172 , Matter of
.4tla^ Felt Products Company, 68 N. L R. B 1
4 The Intervenor contends that it was merely bargaining for changes in an existing
contract , and that, under Paragraph 12 of the 1945 contract , the agreement is renewed
for another year unless either party affirmatively effects termination . The Intervenor
attempted to show that on March 5, 1946 , the Bmployei had agreed to certain clauses,
while refusing to accept others . It argues that the contract is still in force as to all
conditions on which there one agreement. 13oweve,, the record reveals that the Employer
stated at the conference of March 5 . that any portion of the proposed contract upon which
agreement wati had was not to be binding unless the entiie contract was consummated
Moreover , Paragraph 12 of the contract of March 1 , 1945 , makes no provision for the ex-
tension of the contract beyond March 1 , 1946 , in the event that the parties had agreed to
some provisions and disagreed with respect to others
5 Matter of Midwest Printing Co , 58 N L. R B 673 . Matter of Con P Curran Pi anting
Company, 57 N L R B 185 , Matter of The 1V 11. Kistler Stationery Company. 51 N L.
R. B 97S; Matter of 11am bison - Walker Refractor ies Company , Lower Woodland Plant,
44 N I. R B 343
U. S INDUSTRIAL CHEMICALS, INC . 945
IV. THE APPROPRIATE UNIT
In accordance with the agreement of the parties, Nye find that alJ
production and maintenance employees of the Employer employed at
its Newark , New Jersey , plant, excluding engineers , engineers ' helpers,
truck drivers , truck drivers ' helpers, clerical and office employees,
chemists and all supervisory employees with authority to hire, pro-
mote, 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.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with U. S. Industrial Chemicals,
Inc., Newark, New Jersey, an election by secret ballot shall be con-
ducted 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 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 Regu-
lations-Series 4, 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 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 armed forces of the United States who present themselves in per-
son 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 represented by International Chemical Workers Union, AFL, or
by Wine, Liquor & Distillery Workers Union, Local 1, AFL, for the
purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.