The Ebsary Gypsum Co.

In the Matter of THE EBSARY GYPSUM COMPANY, EMPLOYER and UNITED CEMENT, LIME & Gypsum WORKERS INTERNATIONAL UNION7 LOCAL No. 293, AFL, PETITIONER Case No. 3-RC- 9. Decided December 14, 19. 9 DECISION AND .DIRECTION OF ELECTION Upon a petition duly filed, a hearing in the above-entitled proceed- ing was held before David F. Doyle, 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 moved to dismiss the petition upon the ground of contract bar, which motion 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 employees of the Employer. 3. On June 22, 1949, the Intervenor and the Employer executed a contract, effective from July 1, 1949, to June 30, 1950, covering only the maintenance employees at the Employer's Wheatland,.New York, plant.2 - The petition herein, seeking both production and maintenance employees at the Wheatland plant, was filed on September 27, 1949. The Employer and the Intervenor contend that their contract covering maintenance employees, which was in effect at the time the petition was filed, acts as a bar to this proceeding. On the other hand, the Pe- titioner contends that such contract contains unlawful provisions which will prevent it from constituting a bar. Although the contract 1 International Union of Operating Engineers, Locals Nos. 71 and 71A, AFL, s At the time of the hearing, there were 11 maintenance employees covered by the agree- ment, who were classified either as "maintenance mnen-mill," or "maintenance nmen- board." 87 NLRB No. 89. 624 THE EBSARY GYPSUM COMPANY 625 contains union-shop clauses ,3 it provides that they shall become opera- tive only upon Board certification pursuant to an election.4 We have already found that such a contract is lawful.5 Accordingly, we find that the contract in question is a valid collective bargaining agreement, entered into approximately 3 months prior to the filing of the instant petition, and therefore acts as a bar insofar as the maintenance em ployees covered therein are concerned.6 However, with regard to the production employees,' it appears that they are not covered in the Intervenor's contract with the Employer, but have been bargained for in the past, in a separate unit, by the Hod Carriers.8 As the Em- ployer's last contract with the Hod Carriers expired on September 12, 1949, it is apparent that the petition herein was timely filed as to the production workers. The motion to dismiss, with respect to them, 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. 4. We find that all production employees at the Employer's Wheat- land, New York, plant, excluding office and clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act,, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 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 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 3 Articles 1 and 2 of the agreement. 4 No UA election has been petitioned for, or held, with respect to the employees covered, by the contract. 5 Schaefer Body, Inc., 85 NLRB 195. "The notion to dismiss, with respect to the maintenance employees, is hereby granted- 7 At the time of the hearing, there were approximately 87 production employees at the Wheatland plant. s International Hod Carriers, Building and Common Laborers' Union of America, Local No. 1068, AFL. This union , although served with notice,, did not appear at the hearing. No useful purpose would be served in a finding that the Intervenor's contract with the Employer , covering only maintenance employees, bars the instant petition insofar, as: production employees are concerned. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work during said pay-roll period because they were ill or on vaca- tion 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 excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collec- tive bargaining, by United Cement, Lime & Gypsum Workers Inter- national Union, Local No. 293, AFL.lo 10 The Hod Carriers ( see footnote 8, supra ) is omitted from the ballot, since Local No. 1068 is currently out of compliance. In the event such Local effects compliance within 2 weeks from the date of this Direction , the Regional Director is instructed to accord the Hod Carriers a place on the ballot in the election directed herein.