Toyad Corp.

National Labor Relations Board - Board Decisions

Oct 7, 1943

52 N.L.R.B. 1241 (N.L.R.B. 1943)

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.