National Fireworks, Inc.

National Labor Relations Board - Board Decisions

May 30, 1945

61 N.L.R.B. 1597 (N.L.R.B. 1945)

In the Matter of NATIONAL FIREWORKS, INC. and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA
Case No. 9-R-1768.-Decided May 30,1945
Mr. Walter White, of West Hanover, Mass., for the Company.
Mr. Stanley Denlinger, of Akron, Ohio, for District 50.
Mr. E. C. Bundy, of Cincinnati, Ohio, for the A. F. L.
Mr. Jack Mantel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by District 50, United Mine Workers of
America, herein called District 50, alleging that a question affecting
commerce had arisen concerning the representation of employees of
National Fireworks, Inc., Chillicothe, Ohio, herein called the Com-
pany, the National Labor Relations Board provided for an appro- -
priate hearing upon due notice before James A. Shaw, Trial Examiner.
Said hearing was held at Chillicothe, Ohio, on May 4, 1945. The
Company, District 50, and International Chemical Workers Union,
Local 43, A. F. L.,1 herein called the A. F. L., appeared and partici-
pated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Fireworks, Inc., a Massachusetts corporation, has its
principal office and place of business in West Hanover, Massachusetts,
1 At the hearing , the parties stipulated that this union succeeded Federal Labor Union
No. 23337, A . F. L., and that its correct name is now as set forth above
61 N. L R. B., No. 247.
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1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and operates plants in Massachusetts, Maryland, Virginia, Kentucky,
Tennessee, and Ohio. The only plant involved in this proceeding is
located in Chillicothe, Ohio, where the Company is engaged in the
manufacture of rockets and fuses which are sold to the United States
Government. The raw materials used by the Company consists mainly
of rocket components, of which 75 percent is shipped to its -plant at
Chillicothe from points outside the State of Ohio. The annual sales
of the Company's finished products are valued in excess of $100,000,
all of which are shipped from its plant to points outside the State of
Ohio.
The Company admits for the purpose of this proceeding, and we
find, that it is engaged in commerce within the meaning of the Na-
tional Labor Relations Act.
II. THE ORGANIZATION INVOLVED
District 50, United Mine Workers of America, is a labor organiza-
tion admitting to membership employees of the Company.
International Chemical Workers Union, Local 43, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 9, 1945, District 50 notified the Company by letter that
it represented a substantial number of its employees and requested
a conference with the Company for the purpose of collective bargain-
ing. The Company replied that it was currently under contract with
the A. F. L. and was negotiating with the latter union for a new con-
tract. On March 17, 1945, District 50 filed its petition herein.
The Company and the A. F. L. entered into a contract on April 17,
1944, effective as of June 1, 1944. This contract provided that it was
to continue in full force and effect until June 1, 1945, and from year
to year thereafter, unless either party gave 60 days' written notice
prior to the annual expiration date of its desire to modify or termi-
nate the agreement. The A. F. L. contends that the contract is still
in effect, and that in view of the automatic renewal clause contained
therein it constitutes a bar to the instant proceeding. Since, however,
District 50 presented its claim of representation to the Company prior
to the automatic renewal date of the contract , under well -established
NATIONAL FIREWORKS, INC. 1599
principles of the Board,2 such contract cannot operate to preclude a
present determination of representatives.'
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that District 50 represents a substantial number of
employees in the unit hereinafter found appropriate.'
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 UNIT
We find, in substantial accord with the agreement of the parties,
that all production, maintenance, and traffic employees of the Com-
pany, including inspectors engaged in production, but excluding office
employees, clerks wherever employed, timekeepers, plant fire and
police protection employees, technical inspectors, professional em-
ployees, work leaders, 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, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.'
V. THE DETERMINATION OF REPRESENTATIVES
District 50 contends that the eligibility pay-roll date should be
April 7, 1945, on the ground that such date was tentatively agreed
upon by the parties for the holding of a consent election, but was
subsequently rejected by the Company. The foregoing contention
presents no adequate reason for departing from the Board's usual
custom in determining the eligibility date. Accordingly, we shall di-
2 See Matter of Mill B. Inc, at at. 40 N. L. R B 346 , and subsequent cases.
3In any event, the contract would not constitute a bar, since it appears that on March
6, 1945, the A. F. L. gave written notice to the Company that it desired to negotiate modi-
fications in the existing contract , thereby preventing operation of the automatic renewal
clause Consequently , the contract will expire on June 1, 1945
4 The Board agent reported that District 50 submitted 1,159 authorization cards ; that
a spot check was made of 212 cards , of which 175 bore the names of persons whose names
appeared on the Company ' s pay roll ; and, that on this basis , of the 1,159 cards submitted,
955 would have borne names of persons whose names appeared on the aforesaid pay roll.
The evidence in the record discloses that there are approximately 1,800 employees in the
unit hereinafter found appropriate The A. F L claims an interest in the proceeding by
virtue of its contract.
In their briefs , the Company and the A. F . L. object to the above report on the ground
that the cards were not checked to determine their authenticity . We have repeatedly
pointed out that union designations are not submitted as a basis for certification by the
Board, but as prima facie evidence that the petitioning union has sufficient interest to
justify the Board in proceeding with an investigation of representatives The Board,
therefore, does not permit opposing parties to question the apparent authenticity of such
representation showing. Matter of West Kentucky Coal Company , 58 N. L. R B. 607.
and cases cited therein.
6 This unit Is substantially the same unit as that set forth in the contract between the
Company and the A. F. L.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rect that the question concerning representation which has arisen be
resolved by an election by secret ballot among the employees in the
appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein, sub-
ject 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 Rela-
tions 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 National Fire-
works, Inc., Chillicothe, Ohio, 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 Ninth 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 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
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in 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 represented by
District 50, United Mine Workers of America, or by International
Chemical Workers Union, Local 43, A. F. L., for the purposes of
collective bargaining, or by neither.