Lennox Furnace Co., Inc.

In the Matter of LENNOX FURNACE COMPANY, INC., EMPLOYER and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER Case No. 3-RC-331.-Decided October 21, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Richard Lipsitz, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer and the Intervenor 1 made motions to dismiss 2 which will be considered hereinafter. 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 [Members Reynolds, Murdock, 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 organizations involved claim to represent certain em- ployees of the Employer. 3. The question concerning representation : The petition herein was filed on August 8, 1949.3 On August 12, 1,949, the Employer and the Intervenor entered into a contract, which they claim constitutes a bar. Clearly, a contract entered into after the filing of a timely petition will not bar a representation proceeding. Further, however, the Employer and the Intervenor contend that since Local No. 3775 of the Petitioner, admittedly an interested party,4 was not. in compliance on the date the petition was filed, the petition 1 Furnace and Machine Metal Workers Union of Syracuse, New York. 2 The Intervenor moved to dismiss the petition upon the grounds of contract bar. The Employer moved to dismiss upon the basis of Insufficient showing of interest , and also upon the ground that Local No. 3775 of the Petitioner was not in compliance at the time the petition was filed. 8 The Employer received a letter from the Regional Office on August 10, 1949 , advising that the petition had been filed. The Employer , the Petitioner, and Local No. 3775 have previously had contractual relations for about 3 years. Their last contract expired on April 28, 1949. The Peti- tioner conceded at the hearing that it has acted jointly with Local No . 3775 in the past, and will continue to do so in the future. 86 N. L. It. B., No. 102. 698 LENNOX FURNACE COMPANY, INC. 699 should not have been entertained, and should now be dismissed. The Board has consistently and repeatedly held that compliance with the filing requirements of the Act is an administrative matter not litigable by the parties e Although Local No. 3775 was not in compliance on the date the petition was filed, it effected compliance 4 days later on August 12, 1949, and currently is in compliance. Such compliance by Local No. 3775 has extinguished any possibility that the Petitioner is or could be seeking certification to enable a noncomplying local to circumvent the provisions. of Section 9 (f), (g), and (h) of the Act.' Moreover, the compliance status of Local No. 3775 is not in issue in this proceeding, since the petition herein was filed by the Interna- tional.' In view of the foregoing, the motions to dismiss upon the grounds of contract bar and lack of compliance on the part of Local No. 3775 are hereby denied. The Employer also contends that the petition herein should be dis- missed because evidence was not presented at the hearing to support the allegation that the Petitioner represents a substantial number of employees in the unit sought. We have frequently pointed out that showing of interest is an administrative matter not subject to collateral attack." Once the Board has determined for itself that a petitioner has made a prima facie showing of interest, it will proceed to deter- mine the question concerning representation.9 The Employer's motion to dismiss on this basis is hereby denied. 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. We find that all production and maintenance employees at the Em- ployer's Syracuse, New York, plant, including group leaders, but excluding office and clerical employees, timekeepers, technical em- ployees, receiving and stock clerk, foremen and assistant foremen, guards, and supervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.10 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 s Matter of Veneer Products, Inc., 81 N. L. R. B. 492. 8 Matter of Lane Wells Company, 79 N. L. R. B. 252. 7 Matter of Lion Oil Company, 76 N. L. R. B. 565. 8 Matter of W. C. Nabors Co., 79 N. L. R. B. 40. 8 Matter of O. 1). Jennings & Company, 68 N. L. R. B. 516. 10 The unit description was amended at the hearing, and agreed upon by the parties. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 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 tem- porarily 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 excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of collective bargaining, by United Steelworkers of America, CIO, or by Furnace and Machine Metal Workers Union of Syracuse, New York, or by neither.