Morley Manufacturing Co.

In the Matter Of MORLEY MANUFACTURING COMPANY, EMPLOYER and STOVE MOUNTERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETITIONER and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL, INTERVENOR Case No. 14-RC-623.-Decided May 6,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Glenn L. Moller, 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 [Chairman Herzog and Members Houston and Murdock]. 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. The Petitioner and the Intervenor are labor organizations, affili- ated with the American Federation of Labor, claiming to represent employees of the Employer. 3. The question concerning representation : The instant petition was filed on February 3, 1949. The Intervenor urges as a bar to this proceeding a contract executed on January 26, 1948, between the Intervenor and the Manufacturers' Protective and Development Association, herein called the Association.' This con- tract contains the following provision : ARTICLE I Clause 2: When the company shall deem it necessary to hire a new employee, it is understood and agreed that members of the Union shall be given preference of employment with the understanding, however, that the new employee shall be a com- petent workman with ability to fill the position that is vacant. 1 Although the Employer is not a member of the Association , the Intervenor contends that the contract in question is binding upon this Employer *In'view of the disposition made herein of the contract bar issue , we need not resolvethts question. 'V 83 N. L. R. B., No. 60. 404 A MORLEY MANUFACTURING COMPANY - 405 The clear effect of this provision 'of the contract is to require that the Employer give preferential treatment in the hiring of employees to individuals who are members of the Intervenor. Although the intervenor has been authorized, in an election held pursuant to Sec- tion 9 (e) (1) of the Act, to execute a union-security agreement, the above-quoted provision goes beyond the limited form of union-- security agreement permitted by Section 8 (a) (3) of the Act, as amended, and is therefore unlawful without regard to whether its execution has been authorized in a Section 9 (e) (1) election? Thus, without regard to any other considerations, the contract in question cannot operate to bar a present determination of representatives.8 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. 4. The appropriate unit : The Petitioner seeks a unit of the Employer's' production and maintenance employees. The Intervenor contends that a unit re- stricted to employees of this Employer is inappropriate because of a history of collective bargaining on a multiple-employer basis in which this Employer has participated. The Association, whose membership includes 30 stove manufac- turers, has during the past 58 years negotiated and bargained col- lectively with the Intervenor on behalf of its member companies.a Some 32 stove manufacturing companies, including the instant Em- ployer, who are not members of the Association, have apparently cus- tomarily followed the agreements reached by the Association and the Intervenor. However, the record shows that the instant Employer has not participated with the Association members in the negotiations with the Intervenor which preceded the execution of the contracts, or delegated to the Association any authority to conduct negotiations on its behalf. Under these circumstances, the fact that the Employer has consistently adopted the contracts executed by the Association does not itself provide a sufficient basis for the inclusion of its employees in a unit with those of the Association members.6 We therefore find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act : all production and x See Matter of American Export Lines , Inc., 81 N. L. R. B. 1370. s See Matter of C. Hager d Sons Hinge Manufacturing Co., 80 N. L. R. B. 163. The Employer, who commenced operations in 1946, is engaged in the manufacture and sale of commercial gas ranges and appliances. 5 See Matter of Kalamazoo Stove and Furnace Co., 61 N. L. R. B. 1041. See Matter of Air Conditioning Co. of Southern Calif., 79 N. L. R. B. 1396, and 81 N. L. R. B. 946; Matter of Associated Shoe Industries, 81 N. L. R. B. 224 ; Matter of Ad- vance Tanning Co., 60 N. L. R. B. 923. 844340-50-vol. 83-27 '406 DECISIONS''OF• NATIONAL LABOR RELATIONS BOARD maintenance employees; including the polisher,' but excluding clerical and professional employees; guards, and supervisors as defined in the Act. ' DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses 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 supervision 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 em- ployees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately 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 rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by .Stove Mounters' International Union of North America, AFL, or by International Molders and Foundry Workers Union of North Amer- ica, AFL, or by neither: . 1 7 The Petitioner contends that the one polisher involved should be excluded from the unit because he possesses the skill of a different craft As this individual has in the past been included in the production and maintenance unit represented by the Intervenor , and as' it appears that no other labor organization is seeking to represent this employee on a separate basis, we shall include him in the unit. See Matter of Geneva Forge, Inc., 76 N. L. R. B. 497. .