The Linde Air Products Co.

National Labor Relations Board - Board Decisions

Apr 5, 1948

76 N.L.R.B. 1127 (N.L.R.B. 1948)

In the Matter of THE LIN DE ATP, PRODUCTS COMPANY, EMPLOYER and
INTERNATIONAL CHEMICAL WORKERS UNION LOCAL No. 11,
PE'T'ITIONER
Case No. 21-R-4105:..Decided April 5, 1948
Mr. A. D. Stackpole , of New York City , and Mr. J. J. McKeen, of
Los Angeles , Calif., for the Employer.
Mr. Drew Taylor , of Los Angeles , Calif., for the Petitioner.
Messrs. Earl C. Smith and Lester 0. Wilson, of Los Angeles , Calif.,
for the Intervenor.
Messrs. A. L. Bradley and Cecil Holman, of Los Angeles , Calif., for
the Intervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed on June 30, 1947, hearing in this case was
held at Los Angeles, California, on December 11, 1947, before Daniel
J. Harrington, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-man panel
consisting of the undersigned Board Members.*
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS of FACT
1. THE BUSINESS OF Tiles EMPLOYER
The Linde Air Products Company, an Ohio corporation, is engaged
in the manufacture and distribution of compressed and liquefied gases
at Los Angeles, California. At the Los Angeles plant, during the past
year, the Employer purchased materials valued in excess of $50,000, of
which 75 percent was received from points outside the State of Cali-
fornia. During the same period the Employer sold finished products
*Chairman Herzog and Members Murdock and Gray.
76 N. L. R B., No. 160. °
1127
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued in excess of $50,000, of which more than 10 percent represented
shipments to points outside the State of California.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED'
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
International Union of Operating Engineers, Local 63, 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 Intervenor and the Employer 3 entered into a contract for 1 year
starting May 31, 1946, with provision for automatic renewal annually
in the absence of notice of desire to change given in writing by either
party to the other at least 30 days before June 1 of any year.
On April 23, 1947, the Intervenor notified the Employer in writing of
its desire to change the contract. The Employer replied in writing on
May 26, 1947, proposing renewal without change of the original con-
tract, but suggesting that if any changes were made they be retroactive
to June 1, 1947. This letter further stated that a meeting with the
Intervenor would be arranged at a date after June 15, 1947. There-
after meetings were held, and a contract was negotiated and executed as
of June 1, 1947. The evidence clearly establishes, however, that this
contract was not signed until after July 1, 1947,4 and that provisions
for wage increases were not incorporated into the contract until an
undetermined date after its execution: On June 27, 1947, the Peti-
tioner by letter notified the Employer that it represented a majority of
1 General Warehousemen ' s Union, Local 598, appeared solely to protect Its separate
interests and does not seek to represent the employees in the unit found appropriate herein,
or desire to be placed upon the ballot
2 The Employer asserts that the Board should decline to act upon the petition In this
proceeding because both the Petitioner and Intervenor are affiliated with the American
Federation of Labor. As it appears , however , that there is little prospect that the con-
troversy herein mvolved can be effectively resolved without resort to the administrative
processes of the Act, we shall proceed with the investigation of representatives . See Matter
of Pacific Gas and Foundry Company, 76 N. L. R B. 32
8 The Linde Air Products Company was formerly known under the trade name of Prest-
o-Late Company All parties in interest stipulate that the only change involved, upon
the acquisition of Prest-O-Lite by Linde Products on January 1, 1947, was in the corporate
name
"The secretary of the Intervenor testified that he was unable to recall whether the 1947
contract had been signed before or after June 30, 1947, whereas the Employer's representa-
tive. whose signature appears as a witness to the contract in question , reiterated, in
response to repeated questioning , that the contract was not signed until after July 1, 1947.
THE LINDE AIR PRODUCTS COMPANY 1129
its employees and requested recognition as exclusive bargaining agent.
This claim was followed on June 30, 1947, by the filing of the petition in
this proceeding.
Both the Employer and the Intervenor contend that the 1947 contract
constitutes a bar to a current determination of representatives. We
find no merit in this contention. As the contract of May 31, 1946, had
been terminated by notice given by the Intervenor in accordance with
its terms, and the filing of the petition herein preceded the execution of
the 1947 contract, neither contract, under well established Board prin-
ciples,' constitutes a bar to this proceeding.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
We find, substantially in accord with the agreement of the parties,
that all production and maintenance employees at the Employer's Los
Angeles plant, including generatorman, repairman, pumper, and
tester, but excluding clerical employees, shipper, receiver, floorman,
and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act."
DIRECTION OF ELECTION 7
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Linde Air Products Com-
pany, Los Angeles, 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 Director for the Twenty-first Region, and subject to
Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, 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,
6 Matter of Public Service Corporation of New Jersey, 72 N. L. R. B. 224 ; Matter of
American Norit Company , Inc, 66 N. L. R B. 1308; Matter of Ste. Genevieve Lime and
Quarry Company, 70 N L. It. B. 1259, and cases pited Matter of National Chair Company,
Inc, 74 N . L. R B 1014.
This is virtually the same unit as that described in the contract between the Employer
and Intervenor. The description has been changed slightly to conform with the amended
Act.
7 Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director , have its namf removed from the ballot.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, but ex-
eluding 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 , and also excluding employees on strike who are not en-
titled to reinstatement, to determine whether they desire to be rep
resented by International Chemical Workers Union Local No. 11,
A. F. of L., or by International Union of Operating Engineers, Local
6 3, A. F. of L., for the purposes of collective bargaining , or by neither.