Fedders-Quigan Corp.

In the Matter of FEDDERS-QUIGAN CORPORATION, EMPLOYER and UNITED STEELWORKERS OF AMERICA, C. I. 0., PE`rITIONER Case No. 4-RC-537.-Decided February 5, 1950 DECISION AND ORDER Upon a petition duly filed, a hearing was held before Harold Kowal, 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 thre-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 labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer is engaged in the manufacture and sale of convector radiator parts. On March 1, 1949, it purchased a site and factory at Trenton, New Jersey, the only plant involved in this proceeding. As machinery was installed on the premises, workers were employed and trained for the jobs that became available. On May 19, 1949, Playthings, Jewelry and Novelty Workers Inter- national Union, CIO, herein called the Novelty Workers,2 filed the petition in Case No. 4-RC-464, and on May 31 an amended petition, ' At the hearing, the Employer moved to dismiss the petition herein. The hearing officer reserved ruling on the motion to the Board. For reasons indicated below, the mo- tion is granted. 2 The Novelty Workers, though served with notice, did not appear at the hearing. After the close of the hearing, however, the Novelty Workers filed a motion to intervene for the purpose of opposing the petition and submitting a brief. The motion is granted. 88 NLRB No. 106. 512 FEDDERS-QUIGAN CORPORATION 513 seeking certification as exclusive bargaining representative of em- ployees at the Employer's Trenton plant. On May 27, 1949, the Em- ployer and the Novelty Workers entered into an agreement for a consent election to determine whether production and maintenance employees at the Employer's Trenton plant, excluding office and cler- ical employees and supervisors , desired to be represented by the Nov- elty Workers as their collective bargaining representative. On June 3, 1949, the consent election was held. The Tally of Ballots shows that, of 15 eligible employees then in the agreed appropriate unit, 14 cast valid ballots for the Novelty Workers. On June 13, 1949, the Regional Director certified the Novelty Workers as the exclusive bar- gaining representative of all employees in the appropriate unit. Thereafter, the Employer and the Novelty Workers entered into a contract covering these employees.3 On September 1, 1949, the Petitioner filed the instant petition; seek- ing to represent production and maintenance employees at the Em- ployer's Trenton plant. On October 8, 1949, according to information submitted to the Regional Director by the Employer, there were 167 production and maintenance workers employed at this plant .4 The Employer and the Intervenor contend that the instant petition must be dismissed because Section 9 (c) (3) of the amended Act states : "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." The Petitioner contends that the consent election held on June 3, within the 12-month period, was not a "valid" election and therefore does not preclude the holding of an election at this time. The Petitioner, in substance, urges that no agreement for a consent election would have been made in May 1949, if the Employer's plan for extension of plant activities had been known to the parties thereto and that, in the light of the Employer's expan- sion since the election, employees participating in the election are not representative of employees now at the plant either in employment categories or numbers. On June 3, 1949, when the consent election was held, the Employer was producing finished goods at the Trenton plant. When the parties thereto were negotiating the consent-election agreement, the Employer could not or did not predict the number or classifications of employees it might in the future require at the plant. The holcling of the consent election in Juiie was in accord with Board policy in order that the The contract was not introduced into evidence at the hearing. The Employer 's representative left the hearing room soon after the opening of the hear- ing. Witnesses for the Petitioner later estimated that, at the time of the hearing, on November 30, 1949, there were between 200 and 280 employees at the plant. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees with vested employment rights might not indefinitely be deprived of collective bargaining. The record does not show that, since the consent election, the Employer has produced new plant prod- ucts or that the hiring of essentially new categories of employees has become necessary. The fact that the number of production and main. tenance employees in the plant has increased from 15 on June 3, 1949, to 167 on October 8, 1949, does not alone impair the validity of the election, which was valid when held .5 True, had the parties pre- sented the issue to us, the Board might well have deferred the holding of the election for a short time had it appeared from the then available evidence that the Employer's Trenton plant would soon be on a more stable employment basis.6 But that is insufficient reason to void an election held by consent of the parties when the new plant was in active operation, products were being marketed, and no definite information was before us concerning the possible immediate expansion of its busi- ness operations. Under these circumstances, we believe that, because of the valid consent election held on June 3, 1949, the statute, as amended, pre- cludes us from directing that a new election be held before the expira- tion of 1 year from that date. We shall, therefore, dismiss the petition filed herein, without prejudice to the timely filing of a new petition at a later time. ORDER Upon the entire record in this case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed, without prejudice. Cf. J. I. Case Company, 80 NLRB 217. Walnut Ridge Manufacturing Company, Inc., 80 NLRB 1196.