Toyad Corp.Download PDFNational Labor Relations Board - Board DecisionsOct 7, 194352 N.L.R.B. 1241 (N.L.R.B. 1943) Copy Citation In the Matter of TOYAD CORPORATION and LOCAL No. 755, OPERATIVE PLASTERERS & CEMENT FINISHERS INTERNATIONAL ASSOCIATION, AFL Case. No. R-5869.-Decided October 7, 1943 Mr. Harry Phillips, of Los Angeles, Calif., for the Company. Mr. Ben Martinez, of Hollywood, Calif., and Mr. Walter A. Red- mond, of Los Angeles, Calif., for the AFL. Messrs. G. L. Patterson, L. S. Buckmaster, Floyd Gartrell and Arthur Scott, of Los Angeles, Calif., for the CIO. Miss Frances Lopinsky, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Local No. 755, Operative Plasterers & Cement Finishers International Association, AFL, herein called the AFL, alleging that a question affecting commerce had arisen concerning the representation of employees of Toyad Corporation, Los Angeles, California, herein called the Company, the National Labor Relations Board provided for an approprate hearing upon due notice before Maurice J. Nicoson, Trial Examiner. Said hear- ing was held at Los Angeles, California, on August 18, 1943. The Company, the AFL, and United Rubber Workers of America, Local #228, CIO, herein called the CIO, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The CIO moved the dismissal of the petition on the ground that an existing contract which it has with the Company is a bar. For reasons given hereinbelow, the motion is denied. 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 : 52 N. L. R. B., No. 207. 1241 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Toyad Corporation is engaged in the business of manufacturing plaster forms for use in the construction of bullet proof fuel tanks for combat aircraft. During the year immediately prior to the hear- ing the Company used raw materials, principally paper, plaster, and lumber, of a value approximating $75,000, 70 percent of which origi- nated outside the State of California. Its finished product is sold to rubber companies within the State of California which manufacture _ tanks that ultimately are installed in combat planes for the United States Government. Its annual sales approximate $350,000. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Local No. 755, Operative Plasterers & Cement Finishers Interna- tional Association, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. United Rubber Workers of America, Local #223, affiliated with the Congress of Industrial Organizations, is a labor organization admit- ting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The CIO and the Company were parties to a contract dated March 15, 1942, which contained the following paragraph governing dura- tion and termination : This agreement shall be enforced and in effect until March 15, 1913, and shall continue thereafter for yearly periods,unless notice of termination is given by either party to the other party thirty (30) days or more prior to the expiration of such period pro- vided, however, that termination may be effected by either party upon a thirty (30) day notice in writing at any time after March 15, 1943. Neither party to the contract gave notice of termination prior to February 15, 1943. Some time after March 15, 1943, the contracting parties began negotiations for certain wage adjustments and before May 2, 1943, they had reached an agreement. A fire which demolished the plant prevented signing of the contract at that time. Shortly after the fire, the AFL made known its claims of membership and in June 1943 it made formal demand for recognition. On July 20, 1943, TOYAD CORPORATION 1243 the Company and the CIO executed the new agreement providing inter alia that all prior agreements were thereby canceled.' The Company contends that since the March 15, 1942, contract was automatically renewed, it remained -in effect until the signing of the new contract; that it was arbar to an investigation and determ ination of representatives until the actual signing of the July contract and that the July contract is now a bar. The AFL questions the-existence of the March 1942 contract after March 15, 1943. It is unnecessary to discuss or decide this issue. Granted that the 1942 contract remained in effect until the date of the signing of the 1943 contract, it was at no time after March 15, 1943, a bar to a determination of representa- tives, because on that date the proviso : "that termination may be ef- fected by either party upon a thirty (30) day notice in writing at any time after March 15, 1943," took effect, making the contract one of in- definite duration, which had already run a year.' The July contract, having been signed with notice of the AFL's claims, is no bar.3 A statement of the Field Examiner introduced into evidence at the hearing, indicates that the AFL and the CIO each represents a substantial number of employees in the unit hereinafter found ap- propriate.' 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 The parties are in agreement as to what constitutes an appropriate unit. In accordance with their wishes, we find that all employees of the Company excluding clerical employees, plaster pattern makers, plaster mold makers and plaster casters, guards, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively 1 The contract set up a new wage scale and materially altered the March 1942 contract by the inclusion of a check-off provision and a clause defining the rights of union representa- tives on the property and the substitution of a "union" shop for a "closed" shop provision therein. . 2 See Matter of Borman Sportswear, Inc., 44 N. L. R. B. 742; Lennox Furnace Co., 50 N. L. R. B. 80 ' See Matter of Eicor, 46 N. L. R. B. 1035. 4 The Field Examiner reported that the AFL submitted an undated petition entitled "Vote to change from CIO to A. F. of L." which bore 57 apparently genuine original signa- tures ; that the names of 54 persons appearing on the petition were listed on the Company's pay roll of June 23, 1943 , which contained , the names of 115 employees in the appropriate unit. The Company submitted 85 authorizations for CIO check -off cards all of which bore apparently genuine original signatures . The names of all of the persons appearing on the cards were listed on the Company's pay roll of June 23, 1943 . The cards were dated 41 In the months of February through December ],942, and 41 in the months of February through June 1943 . Three were undated. 1244 DECISION'S OF NATIONAL LABOR RELATIONS BOARD recommend such action,' constitute a unit appropriate for the pur- poses 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 employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIREOTED that, as part of the investigation to ascertain represent- atives for the purposes of collective bargaining with Toyad Cor- poration, 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, 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 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 person at the polls, but excluding those employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local No. 755, Operative Plasterers & Cement Fin- ishers International Association, affiliated with the American Feder- ation of Labor, or by United Rubber Workers of America, Local #228, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Direction of Election. 5 This is substantially the unit described in the CIO contract dated July 20, 1943 The AFL represents the employees of the Plaster Pattern Makers department and has repre- sented them since 1941. Copy with citationCopy as parenthetical citation