Magnesium Casting Co.

III the Matter Of MAGNESIUM CASTING COMPANY, EMPLOYER and EARL C. MERCER, ET AL., EMPLOYEES, PETITIONERS and UNITED STEEL- WORKERS OF AMERICA, C. I. 0., UNION Case No.1-RD-3.Decided February 19, 1948 Mr. Herman Leventhal, of Boston, Mass., for the Employer. Mr. Daniel J. Baker, of Jamaica Plain, Mass., for the Petitioners. 3Ir. Fredericks Cohen, of Boston, Mass., for the Union. DECISION AND DIRECTION OF ELECTION Upon a petition for decertification duly filed, hearing in this case was held at Boston, Massachusetts, on November 14, 1947, before Leo J. Halloran, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Magnesium Casting Company is a Massachusetts corporation en- gaged in the manufacture of die castings at its plant in Hyde Park, Massachusetts. During the 6-month period ending June 30, 1947, the Employer purchased raw materials valued in excess of $50,000, more 1 Puisuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [Houston , Reynolds, and Gray]. 2 The hearing officer excluded evidence tendered by the Union , and rejected its offer of proof, relating to the Union 's contention that the instant petition was instigated by the Employer and that the supporting signatures of its employees were obtained through intimi- dation by the Employer during working hours and on the plant premises The bearing officer also denied the Union's request that the Board 's records pertaining to a charge Sled by the Union against the Employer on December 16, 1947 , which was dismissed on June 19, 1947, be incorporated in the record herein. All the foregoing rulings by the hearing officer are in accord with our customary policy of excluding from a iepresentation ease any evidence of unfair labor practices Matter of Dominant, Inc., 74 N. L . R. B. 85; and Matter of Dayton, Price & Company, Ltd., 73 N L R . B. 149. 76 N. L. R. B., No 38. 251 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than 80 percent of which was received from points outside the State. During the same period the Employer manufactured finished products valued in excess of $350,000, approximately 95 percent of which was ultimately shipped to points outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the Act. H. THE PARTIES INVOLVED The Petitioners, Earl C. Mercer, Francis T. O'Rourke, and Daniel J. Baker, employees of the Employer, assert that the Union is no longer the representative of the employees as defined in Section 9 (a) of the amended Act. The Union, a labor organization affiliated with the Congress of Industrial Organizations, was established on August 30, 1946, in Case No. 1-R-3249, pursuant to a consent election, as the exclusive bargain- ing representative of the Employer's employees. III. THE QUESTION CONCERNING REPRESENTATION On August 30, 1946, following the consent election noted above, the union became the exclusive bargaining representative of the Em- ployer's production and maintenance workers. The Employer and the Union did not thereafter enter into any bargaining contract. On September 16, 1947, the Petitioners filed the instant petition. 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 that all production and maintenance employees at the Em- ployer's Hyde Park, Massachusetts, plant, excluding office and clerical employees, executives, and all supervisors, guards, and professional employees, as defined in the amended Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.3 V. THE DETERMINATION OF REPRESENTATIVES The Union contends that inasmuch as the size of the unit has de- clined to about one-third of its size at the time of the consent election 4 $ This is virtually the unit for which the Union was certified as bargaining representa- tive. The description has been changed slightly to conform with the provisions of the amended Act. * Two hundred and twenty -seven were eligible to vote in the election ; at the time of the hearing there were only about 80 employees in the unit. MAGNESIUM CASTING COMPANY 253 it would be contrary to our policy to order an election at this time. We do not agree. We do not direct an immediate election iji an expanding or contracting unit where the current complement of the unit is not representative of the expected complement. However, in the instant case, there is no evidence that the Employer expects to make any ma- terial change in the present size or composition of the unit. On the contrary, all the available evidence is to the effect that the unit has been stabilized at its present level. The Union's objection to an election on this ground is, accordingly, overruled. In the election which we shall direct, we shall, for reasons stated in an earlier proceeding,5 place the name of the Union on the ballot, although it has not complied with the registration and filing require- ments of the Act, as amended. Under our policy, the Union would be certified if it wins the election, provided that at that time it is in compliance with Section 9 (f) and (h) of the Act. Absent such compliance, the Board would only certify the arithmetical results of the election.' DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Magnesium Casting Company, Hyde Park, Massachusetts, 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 First Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regula- tions-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 also exclud- ing employees 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. Matter of Harris Foundry & Machine Company, 76 N. L. R. B. 118. 6 Matter of Harris Foundry & Machine Company, supra.