Harris Foundry & Machine Co.

In the Matter of HARRIS FOUNDRY &, MACHINE COMPANY, EMPLOYER and ARTHUR HAYS HOWARD, AN EMPLOYEE, PETITIONER and UNITED STEELWORKERS OF AMERICA, C. I. 0., UNION Case No. 10-RD-8.-Decided February 11, 1948 Mr. J. R. Reese, of Cordele, Ga., for the Employer. Mr. Arthur Hays Howard, of Cordele, Ga., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition for decertification duly filed, hearing in this case was held at Cordele, Georgia, on November 6, 1947, before Frank H. Stout, hearing officer. The bearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Harris Foundry & Machine Company is engaged at its only plant in Cordele, Georgia, in the manufacture and sale of steel products, castings, and implements. During the 12-month period preceding the hearing, the Employer purchased for use at its plant raw materials valued in excess of $250,000, of which amount about 90 percent repre- sented shipments to this plant from sources outside the State of Georgia. During the same period, the Employer sold from its plant finished products valued in excess of $1,000,000, of which amount about 90 percent represented sales to customers located outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE PARTIES INVOLVED The Petitioner, an employee of the Employer, asserts that the Union is no longer the representative of the Employer's employees as defined in Section 9 (a) of the amended Act. 76 N. L. R. B., No. 14. 118 HARRIS FOUNDRY & MACHINE COMPANY 119 The Union, a labor organization affiliated with the Congress of Industrial Organizations, was certified by the Board on October 22, 1946, as the bargaining representative of employees of the Employer? III. THE QUESTION CONCERNING REPRESENTATION On October 22, 1946, following a consent election,2 the Union was certified as the bargaining representative of the Employer's production and maintenance employees. Thereafter, the Union and the Em- ployer entered into a collective bargaining contract to terminate on December 7, 1947. On September 29, 1947, the Petitioner and seven other employees of the Employer informally requested the Board in writing to conduct an election to determine whether the Union still represented a majority of the employees in the appropriate unit. A copy of this request was also sent to the Employer. On receipt of this request, the Employer notified the Union that, in conformity with the provisions of the agreement, it was terminating the contract as of December 7, 1947.3 On October 22, 1947, the Petitioner filed the present petition with the Board. 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. IV. THE APPROPRIATE UNIT We find, substantially in accordance with the agreement of the par- ties at the hearing, that all production and maintenance employees in the implement department, foundry and machine shop at the Employer's Cordele, Georgia, plant (excluding servicemen, watch- men, salesmen, office and clerical employees, and all guards, profes- sional employees, and supervisors as defined in the amended Act), con- stitute a .unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.4 V. THE DETERMINATION OF REPRESENTATIVES The only question in this case is whether a deoertilcation election should be conducted in accordance with Section 9 (c) (1) of the amended Act, despite the fact that the incumbent Union has not com- 1 The Union was served with a Notice of Hearing herein, but did not appear. 2 Case No. 10-R-1997. 8 None of the parties contends that the contract is a bar to this proceeding. 4 This is virtually the unit for which the Union was certified as the bargaining repre- sentative. The description has been changed slightly to conform with the provisions of the amended Act. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plied with the registration and filing requirements of Section 9 (f) and (h) of-the amended Act. Section 9 (f) and (h) provides that the Board shall not conduct an investigation of any question concerning representation "raised by a labor organization" unless that labor organization has met the registra- tion and filing requirements. In the present case, the negative ques- tion concerning representation has been raised, in fact as well as in form, by individuals and not by a labor organizations Hence, Sec- tion 9 (f) and (h) does not prevent the Board from proceeding with the investigation and resolving the representation question by con- ducting an election in which the Union's name appears on the ballot. To hold otherwise would confer upon non-complying unions the power to immunize themselves against decertification proceedings by their very refusal to comply with the registration and filing requirements of the amended Act. Encouragement would thereby be given to non- compliance, contrary to the Congressional purpose in amending the Act. Accordingly, we shall conduct an election and place the Union's name on the ballot." DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Harris Foundry & Machine Company, Cordele, Georgia, an election by secret ballot shall be con- ducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regu- lations-Series 5, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, 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 reinstated prior to the date of the election, and any em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by United Steelworkers of America, C. I. 0., for the purposes of collective bargaining. Cf. Matter of Herman Loewenstein, Inc, 75 N. L.-R. B. 377, wherein an employer's petition resulted from the affirmative claim by a labor organization that it represented a majority of that employer's employees . There the question concerning representation was raised , as a matter of fact, "by a labor organization." The Board therefore declined to place the name of a non-complying union on the ballot. 6 Under our policy, the Union would be certified if it wins the election , provided that at the time it is in compliance with Section 9 (f) and (h) of the Act. Absent such com- pliance, the Board would only certify the arithmetical results of the election.