Warshawsky and Co.

National Labor Relations Board - Board Decisions

Jul 22, 1947

74 N.L.R.B. 577 (N.L.R.B. 1947)

In the Matter Of WARSHAWSKY AND COMPANY, EMPLOYER and UNITED
AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW-CIO, PETITIONER
Case No. 13-R-/386.Decided July 22, 1947
TVeehartz & Hirsch, by Messrs . Julian H. Levy and Sanvuel E.
Hirsch, of Chicago, Ill., for the Employer.
Meyers, Meyers ct Rothstein , by Mr . Irving Meyers, of Chicago, Ill.,
for the Petitioner.
Mr. P. L . Siemiller , of Chicago , Ill., for the Intervenor.
Mr. Stanley R. Strauss , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Chicago,
Illinois, on June 6, 1947, before Robert T. Drake, hearing officer.
At the hearing, the Intervenor moved to dismiss the petition on the
ground that a contract between the Employer and the Intervenor con-
stitutes a bar to the present proceeding. The hearing officer referred
this motion to the Board. For the reasons stated in Section III, infra,
the motion is denied.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS QF FACT
I. THE BUSINESS OF THE EMPLOYER
Warshawsky and Company, a Delaware corporation, with office and
plant at Chicago, Illinois, is engaged in the business of rebuilding and
selling, at retail and by mail order, used automobile parts..
During 1947, the Employer purchased, outside Illinois, automobile
parts valued at more than $100,000, and sold, outside Illinois, auto-
mobile parts valued at more than $200,000.
74 N L R B., No. 111. 577
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Congress of
Industrial, Organizations, claiming to represent employees of the
Employer.
International Association of Machinists, Auto Mechanics Local No.
701, herein called the Intervenor, is a labor organization, claiming to
represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION-
In June, 1941, the Employer recognized the Intervenor as the
bargaining representative of employees within the scope of the unit
herein requested. Thereafter, the Employer and the Intervenor
negotiated a series of bargaining contracts. The contract in effect
during the year 1946-47 recited, as its terminal date, April 30, 1947,
and contained a provision for automatic renewal from year to year
thereafter, unless notice of a desire to modify its provisions was given
by either party 30 days prior to the terminal date. On March 18,
1947, the Intervenor notified the Employer that it desired to negotiate
a new contract. On March 22, 1947, representatives of the Employer
and the Intervenor conducted the first of several meetings concerned
with the question of wage schedules in a new contract. All the terms
of such a contract were orally agreed upon on April 14, 1947.
On April 15, 1947, the Petitioner's attorneys addressed a letter
to the Employer requesting, on behalf of the Petitioner, recognition
as exclusive bargaining representative of employees in the unit sought
herein. The letter was received by the Employer on April 16, 1947.
On April 17, 1947, the instant petition was filed. However, on that
day, April 17, the Employer and the Intervenor executed a new con-
tract which embodied the terms previously agreed upon, and which
had an effective date of May 1, 1947.
The Intervenor contends that the instant proceeding is barred by
the contract which was executed on April 17, 1947, since that contract
is the written embodiment of a verbal agreement concluded before the
Employer had notice of the Petitioner's claim.' We find no merit in
this contention.
In view of the well-established principle of the Board that a parole
agreement cannot preclude a determination of representatives; the
In support of its contention , the Intervenor relies upon the recent decision in Matter
of De Vry Coi poration . 73 N L R B 1145 That case and the instant case are clearly
distinguishab le on the facts
WARSHAWSKY AND COMPANY 579
oral understanding of April 14, 1947, has no operative effect upon the
instant proceedmg.2 Moreover, since the Employer had notice of
the Petitioner's claim before April 17, 1947, the contract executed on
-that date cannot constitute a bar to this proceeding.3 We conclude,
therefore, and Ave so find, that the present proceeding is not barred by
the contractual relations between the Employer and the Intervenor.
We find that a ouesttion affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, Jr, accordance with the agreement of the parties, that all
production and maintenance employees at the Employer's Chicago,
Illinois, plant, including employees performing work concerned with
crankshaft grinding, lining and reboring, rebuilding special transmis-
sions, assembling and rebuilding used engi^ies, cold welding of engine
blocks, valve assembling and pin fitting, rebabbitting and inspect-
ing blocks, shock absorbers, knee action, ignitions, line transmission
assemblies , and cold welding of small parts, and employees perform-
ing miscellaneous labor, but excluding office and clerical employees,
truck drivers, employees in the retail store, the mail department, the
stockroom, the shipping and receiving room, and the . wreck-
ing area, and all supervisory employees, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
DIRECTION OF ELECTION 4
As part of the investigation to ascertain representatives for the pur-
poses of collective barganning with Warshawsky and Company, Chi-
cago, Illinois, 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 Thirteenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immedi-
ately preceding the date of this Direction, including employees who
did not work during said pay-roll period because they were ill or on
2 Matter of Eacor, Inc , 46 N. L R B 1035
3 Matter of American Norit Company , Inc., 66 N. L. R . B 1308.
4 Any participant in the election herein may , upon its prompt request to, and approval
thereof by , the Regional Director, have its name removed from the ballot.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and have not been rehired or reinstated prior
to the date of the election, to determine whether they desire to be
represented by United Automobile, Aircraft & Agricultural Imple-
ment Workers of America, UAW-CIO, or by International Association
of Machinists, Auto Mechanics Local No. 701, for the purposes of
collective bargaining, or by neither.