Hawley & Hoops, Inc.

In the Matter of HAWLEY & HOOPS, INC., EMPLOYER and INTER- NATIONAL UNION OF OPERATING ENGINEERS , LOCAL #30, AFL, PETITIONER Case No. 2-RC-9M.-Decided May 4,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Daniel J. Sullivan, hearing officer of the National Labor Relations Board. The hearing officer's ruling made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board 1 finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. The question concerning representation : Since May 1, 1947, when it was certified as the representative for the Employer's production and maintenance employees,2 the Candy & Confectionery Workers Union, Local #452, AFL, herein called Local 452, has entered into several contracts with the Employer, the last of which was entered into on March 1, 1948, and is to expire on November 30, 1949. The contracting union was served with notice of the hearing but did not intervene.3 The Employer moved to dismiss the petition on the ground that the current contract with Local 452 presents a bar to the present proceeding. The current con- tract excludes from its coverage "personnel employed in departments or job classifications over which some other union has jurisdiction." The Petitioner contends that the employees it seeks to represent fall within this exemption. However, we need not resolve the con- flict in evidence relating to the scope and purpose of the exemption. 1 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 [ Chairman' Heizog and Members Houston and Murdock]. s Case No. 2-R-7246. e We do not regard the failure of the contracting union to intervene as a disclaimer of interest in representation of the employees involved in this proceeding . See Matter of Gabriel Steel Company, 80 N. L . R. B. 1361. 83 N. L. R. B., No. 50. 371 372 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD The current contract provides in pertinent part as follows : Union Shop. Second : Whenever the company shall require additional employees within the bargaining unit covered hereby, it will give full consideration to the members of the union for employment. Should the union be unable to furnish competent workers within 24 hours after request therefor, is made, the company may employ other than union members. New em- ployees shall be deemed temporary employees until they have been on a trial basis for a period from (sic) four weeks. Such new employees shall make application for membership in the Union within thirty days after commencement after ( sic) em- ployment.. However, it shall be the privilege of all Union mem- bers to refuse to work with non-union members, and such refusal shall not be considered a violation of the contract signed between the comany and the Union. a). The Employer shall be entitled to a trial period of four weeks for all new employees and the said probationary employees may be discharged without reason being assigned therefor. Discharges. Ninth : No member of the Union may be discharged except for proper cause, provided, however, that within 48 hours the Employer shall notify the Union by mail of the discharge of any employee who is a member of the Union, setting forth the reasons therefor. The clear effect of these provisions of the contract is to require that the Employer give preferential treatment in the hire of employees to those who are members of the contracting union. These provisions thus go beyond the limited "union shop" permitted, under certain circumstances, by Section 8 (a) (3) of the amended Act, and are thus illegal without regard to whether their execution was authorized by an election conducted under Section 9 (e) of the Act .4 It is admitted that no such election was requested or held. Under these circum- stances the contract cannot serve as a bar to the present proceeding.5 We find that a question affecting commerce exists concerning the representation of certain employes of the Employer, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner requests a unit consisting of all operating engineers and has asserted- its willingness to include within that unit the coal 'tender, the single other worker employed at the present time in the 4 Matter or American Export Lines, Inc., 81 N. L It. B .• 1370. c Cf. Matter of C. Hager & Sons Hinge Manufacturing Company, 80 N. L. It. B. 163; Matter of General Electric Company (Plastics Division), 81 N. L. R. B. 476. ' The fact that no employee has been discharged pursuant to this provision is immaterial. Id.; Matter of Hughes Aircraft Co., 81 N. L. It. B. 867. HAWLEY & HOOPS, INC. 373 boiler and furnace area. The Employer contends that the only ap- propriate unit is an over-all production and maintenance unit. The operating engineers are licensed engineers responsible for the proper operation of the boilers, furnaces,' pumps, conduits, and gauges which furnish hot water, heat, and steam for the entire plant. They work only in the basement in and around the boilers and gauges and no other employees perform any similar functions. The coal tender. is an unskilled laborer whose function is to heave coal into the fur-, naces which fire the boilers. These employees comprise a typical boiler room group with common interests separate from those of the other production and maintenance employees, sufficient to constitute them a separate appropriate unit .6 Accordingly, we find the following employees of the Employer may constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act : all operating engineers and coal tenders at the Mulberry Street, New York City, candy factory, excluding all other employees and supervisors as de- fined in the Act. However, we shall make no final unit determination at this time, but shall be guided in part by the desires of these employees as ex- pressed in the election hereinafter directed. If a majority vote for the Petitioner, they will be taken to have indicated their desire to con- stitute a separate appropriate unit. If a majority vote for the Candy & Confectionery Workers Union, Local #452, AFL, they will be taken to have indicated their desire to continue in the present produc- tion and maintenance unit.7 DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes 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 case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the voting group described in paragraph numbered 4, above, who were employed during the pay-roll period immediately 6 Matter of Swift & Co., 81 N. L. R. B. 333 ; Matter of Crocker, Burbank & Co, 80 N. L. R. B. 774. 7 Although Local #452 did not appear at the hearing, in view of its present contractual relationship with the Employer, we shall accord it a place on the ballot. See Matter of Moore-Eastwood & Company, 71 N. L. R B. 591, 593. If Local #452 does not wish to participate in this election , however, it may withdraw from the ballot by informing the Regional Director for the Second Region to that effect within 10 days after the issuance of this Decision and Direction of Election. 844840-50-vol. 83;, 25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, 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, and also exclud- ing employees. on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of col- lective bargaining, by International Union of Operating Engineers, Local #30, AFL, or by Candy & Confectionery Workers Union, Local #452, AFL, or by neither.