Midwest Screw Products Co.

In the Matter of MIDWEST SCREW PRODUCTS COMPANY, EMPLOYER and MIDWEST SCREW PRODUCTS EMPLOYEES ASSOCIATION (INDEPENDENT), PETITIONER Case No. 14-RC-790.-Decided October 19, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Ralph E. Kennedy, 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 Reynolds and Gray]. 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 labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer Within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' I International Association of Machinists , District No. 9, herein called the Intervenor, contends that a contract covering all the Employer's production and maintenance em- ployees, executed by the Employer, the Intervenor, and Building Service Employees Union, Local No. 50, A. F. L., herein called Local 50, is a bar to this proceeding. The contract, executed on October 22, 1945, together with a supplemental agreement executed on No- vember 24 , 1945 , was to continue in effect for a period of 12 months and provided for automatic annual renewal thereafter , in the absence of 30 days' written notice by either party of intention to amend or cancel the agreement . On September 16, 1946 , more than '30 days before the first anniversary date of the contract , the Intervenor served written notice upon the employer that it desired to open the agreement and to discuss and amend certain of its provisions. Negotiations for a new contract, commenced pursuant to said notice, continued regularly between that date and November 12, 1946 , when an impasse was reached and the Intervenor called a strike . More than 2 years later , on June 29. 1949, the Petitioner filed the instant petition. It is clear that the notice served by the Intervenor upon the Employer more than 30 days before October 22 , 1946, the automatic renewal date of the contract , opened the con- tract for all purposes . As the September 16, 1946, notice effectively forestalled automatic renewal, the contract does not constitute a bar to this proceeding . Matter of Brunswick Balke Collender Company, 81 N. L. R. B. 877; Matter of C. A. Swanson and Sons, 81 N. L. R. B. 321. 86 N. L. R. B., No. 89. 643 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees employed at the Em- ployer's St. Louis, Missouri, plant, excluding general office, clerical, and professional employees, guards, and supervisors as defined in the Act. 5. The determination of representatives : The Petitioner and the Employer contend that approximately 54 production employees on strike have been permanently replaced and are therefore ineligible to vote under the terms of the amended Act. The Intervenor asserts that they are the only employees eligible. On November 12, 1946, because of an impasse in contract negotia- tions between the Intervenor and the Employer, the former called a strike. The strike, which is still in effect, clearly was and is an "eco- nomic strike." Although production operations at the plant ceased when the strike got under way, they were resumed on January 6, 1947. On that date, the Employer began operations with 6 employees. From March 14, 1947, about 2 months after the plant was reopened, until April 23, 1948, the Employer's production and maintenance comple- ment fluctuated from 22 to 38 employees, the latter number consti- tuting the highest peak since the strike began.2 On July 22, 1949, 3 weeks before the hearing, there were 28 employees. The Employer's president testified that, because of a business recession in the machine screw products manufacturing industry, he considers the Employer's present complement normal. for its current volume of business. He further testified that if business continued to recede, the Employer would be required to lay off some of the replacement workers. Only one striker applied for reinstatement; he was reinstated. All replacement workers were obtained by the Employer as a result of "blind advertisements" in the St. Louis newspapers. Applicants for replacement positions executed the same forms that the Employer used before the strike and, if the Employer found that they qualified and possessed acceptable recommendations, they were employed. Upon being hired, all replacements were told about the strike and that they were being hired as permanent employees. In view of all the foregoing, it is clear that all the strikers' positions were permanently filled by April 23, 1948. Because the strike here involved is an economic one, none of the strikers were entitled to rein- statement after that date, long since past.' We therefore find that 2 During May and June 1948 and January 1949, the Employer's complement again totaled 38. 8 Matter of Belmont Radio Corporation (Supplemental Decision), 83 N. L. R. B. 45, and cases cited therein. MIDWEST SCREW PRODUCTS COMPANY 645 they are not eligible to vote in the election hereinafter directed .4 We shall follow our usual practice as to the eligibility date for voters in the election. DIRECTION OF ELECTION 5 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, among the employees 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 Midwest Screw Products Employees Association (Independent) ; or by International Association of Machinists, District No. 9, or by neither. Matter of Pipe Machinery Company, 79 N. L. R. B. 1322. See also Matter of Belmont Radio Corporation, supra; Matter of Triangle Publications, Inc., Station TVFIL-TV, 80 N. L. R. B. 835; and Matter of Solar Electric Corporation , 80 N. L. R. B. 43. Any participant in the election directed herein may , upon its prompt request to, and approval thereof by, the Regional Director , have its name removed from the ballot. 867351-50-vol. 86-42