The Liquid Carbonic Corp.

National Labor Relations Board - Board Decisions

Jul 20, 1949

85 N.L.R.B. 284 (N.L.R.B. 1949)

In the Matter of TILE LIQUID CtiRBONIC CORPORATION, MEDICAL GAS
DIVISION, EMPLOYER AND PETITIONER and UNITED GAS, COKE AND
CHEMICAL WORKERS OF AMERICA, LOCAL 142, CIO and INDEPENDENT
CHEMICAL WORKERS, LOCAL 1
Case No. 8-RIII 15.Decided July O, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing in this case was held before
Philip Fusco, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.2
2. Local 142, United Gas, Coke and Chemical Workers of America,
affiliated with the Congress of Industrial Organizations, and Local 1,
Independent Chemical Workers, Unaffiliated, are labor organizations
and claim to represent employees of the Employer.
3. Local 142 urges as a bar to this proceeding a contract with the
Employer originally effective April 1, 1948, for a period of 1 year, and
'Local 142, United Gas, Coke and Chemical Workers of America, and Local 1,
Independent Chemical workers were permitted to intervene upon the basis of claimed
contractual interests.
Local 142 objected to the intervention of Local 1 upon the ground that Local 1 had failed
to comply with the filing requirements of Section 9 (f), (g), and (h) of the Act. Its
motion to deny intervention to Local 1 upon this ground was denied by the hearing officer.
Under the circumstances of this case, and in view of Local 1's colorable claim to a con-
tractual interest, the denial of this motion was not error. See Matter of Pacific Tankers,
Inc., 81 N. L. R. B. 325.
A motion by Local 1 that the petition be dismissed upon the ground that no labor organi-
zation, other than Local 1, has made a showing of interest is hereby denied as no proof
of representation on the part of a labor organization is required to support an employer-
petition. See Matter of Felton Oil Company, 78 N. L. R. B. 1033.
The Employer, a Delaware corporation, maintains plants throughout the United States,
and is engaged at its Cleveland, Ohio, plant in theomanufacture of medical gases. The
Employer admits that in this operation it is engaged in commerce within the meaning of
the Act.
85 N. L. R. B., No. 53.
284
THE LIQUID CARBONIC CORPORATION 285
annually thereafter, in the absence of a 60-day notice of a desire to
change or modify the terms of the contract. It alleges further that
neither Local 142 nor the Employer gave notice of a desire to change
or modify the terms of the contract. Local 1 on the other hand con-
tends that Local 142 cannot assert the contract as a bar because Local
142, having disaffiliated from the International Union and having been
succeeded by Local 1, has no legal existence.4 In addition, Local 1
contends that the contract is not a bar because it gave timely notice
of a desire to renegotiate its terms as provided by the contract. The
Administrator,' acting in behalf of Local 142 contends that the dis-
affiliation was in violation of the constitution of the International and
therefore ineffective, and that Local 142 is still a legally constituted and
active unions However, the Administrator admits that Local 142 has
no dues paying members among the Employer's present employees and
has handled no grievances for such employees since the alleged dis-
affiliation.
In dealing with similar situations in earlier cases, the Board has
repeatedly held that where conflicting claims of successorship establish
that there is an unresolved doubt as to the identity of the labor organ-
ization which the employees desire to represent them, an agreement,
otherwise valid does not constitute a bar to a present determination
of representatives. Under the circumstances, we find that the contract
of April 1, 1948, is not a bar to a present determination of repre-
sentatives.'
3 The evidence discloses that at a regular monthly meeting of Local 142 on August 13',
1948 , the members present, estimated variously as from 35 to 60, voted unanimously to
disaffiliate from the parent organization , United Gas , Coke and Chemical Workers of
America, CIO . Although formal notice of the disaffiliation was not forwarded to the Inter-
national Union, it appears that notice of such disaffiliation was conveyed to the Inter-
national ; that within a month or two after such meeting, Local 1 was organized to succeed
Local 142 ; and that some of the former officers were elected officers in the new Local. It
further appears that the shop committee at the Employer 's plant, which had functioned
under the contract executed by Local 142 , continued to handle grievances for the employees,
but allegedly on behalf of the new Local ; that the Employer ' s production and maintenance
employees had ceased paying dues to Local 142 and had joined Local 1, which they have
specifically authorized to represent them for purposes of collective bargaining.
* Local 1 also objected to the intervention of Local 142 upon the ground that Local 142
was not an existing labor organization . The resolution of this question , involving as it
does, a construction of the constitution and charter of the labor organizations involved, is
not a function of the Board . See Matter of Aluminum Company of America, 80 N. L. R. B.
1342 , and cases cited . Under the circumstances of this case , we find that the objection
is without merit.
O Because of Local 142 's failure to pay dues or the per capita tax , the International
Union suspended its officers and appointed an administrator to administer its affairs.
6 In support of this contention , the Administrator points out that Local 142 has approxi-
mately 95 dues paying members ; that it still represents employees in 3 of the 7 plants
originally represented by Local 142 ; and that it has shop committees functioning under
existing contracts . The Administrator further alleges that he is now in the process of
renegotiating 2 of the contracts.
7Matter of Pittsburgh plate Glass Company, Columbia Chemical Division , 80 N. L. R. B.
1331: Matter of Foley Lumber d Export Corporation, et al., 70 N. L. It. B. 73, and cases cited.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
In accordance with the agreement of the parties hereto 'we find that
all production and maintenance employees at the Employer's Muncie,
Indiana, plant, excluding watchmen and guards, office clerical em-
ployees, professional employees, and supervisors, as defined in the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 8
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the region in which this hearing
was held, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees de-
scribed in paragraph numbered 4, 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, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether or not they desire to be represented, for
purposes of collective bargaining, by United Gas, Coke and Chemical
Workers of America, Local 142, CIO.
8In view of the failure of Local 1 to comply or to initiate steps to comply with the filing
requirements, Section 9 ( f), (g), and ( h), we shall not place its name on the ballot.