Heekin Can Co.

HEEKIN CAN COMPANY 783 purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 1. All production and maintenance employees. 2. All office clerical, secretarial, and accounting employees, and draftsmen .9 [Text of Direction of Elections omitted from publication in this volume.] , The record does not reveal sufficient information as to the duties of John Lory to enable us to determine whether he is a supervisor . If he is not a supervisor, he shall be deemed included in the unit and may vote in the election. HEEKIN CAN COMPANY and AMALGAMATED LITHOGRAPHERS OF AMER- ICA, CIO, LOCAL #8, PETITIONER . Case No. 9-RC-1216. December 29, 1951 Decision and Direction of Election Under a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Seymour Goldstein, 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 1 involved claim to represent certain employees of the Employer. 3. Pursuant to a Board Decision and Direction of Elections involv- ing the Employer's plant,2 separate elections were conducted on May 24, 1950, in the following two voting groups: (1) All lithographic processing employees, which is the group with which this proceeding is concerned; and (2) all production and maintenance employees excluding lithographic processing employees. The unions whose names appeared on the ballots in voting group (1) were the Petitioner herein and an independent union known as the Association of Em- ployees of Heekin Can Company, hereinafter called the Association, while the ballots in voting group (2) contained the names of the Intervenor herein and the Association. In voting group (1) neither x United Steelworkers of America, CIO, and its Local 4372, were permitted to intervene on the basis of a current contract with the Employer. 2 89 NLRB 717. 97 NLRB No. 136. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the contesting unions received a majority of the valid votes cast:3 The final determination of the election results was made by the Board in a Second Supplemental Decision and Order issued on January 26, 19514 Noting the results, the Board in that decision, ordered the petition dismissed as to the employees in voting group (1). As to voting group (2), the Intervenor herein won the election in that group and obtained its certificate on August 14, 1950. Shortly after its certification, the Intervenor entered into a col- lective bargaining agreement with the Employer covering the pro- duction and maintenance employees but excluding all lithographic processing employees. The contract which is to continue in effect until April 30, 1952, contains the following union-security provision : 1. The Company and the Union mutually agree that all em- ployees, as a condition of employment, shall become and remain members of the Union in good standing during the life of this Agreement. All new employees, within thirty (30) days after the day of hiring, shall, as a condition of continuous employment, become and remain members of the Union in good standing. On November 9, 1950, 3 months after the contract's execution, the Board conducted a union-authorization election among the employees in the contract unit and on December 17, 1950, the Intervenor was certified by the Board as authorized to make and enforce certain types of union-security agreements.5 On March 22, 1951, the Employer and the Intervenor amended their 1950, agreement by extending its cover- age to the lithographic processing employees. Less than a month later on April 15, 1951, the Petitioner filed the instant petition. The Employer and the Intervenor both contend that the petition in this case should be dismissed as untimely filed on the grounds that (1) the 12-month limitations provision in Section 9 (c) (3) of the Act precludes the Board from holding an election among the lithographic processing employees until January 26, 1952, the anniversary date of the final determination of the results in the last conclusive election and (2) the contract under which the lithographic employees are cur- rently covered will not expire until April 30, 1952, and is therefore a bar. As to the claim of the Employer and the Intervenor with respect to Section ,9 (c) (3) 6 the Board had previously held that the 12-month limitation provision in that section begins to run from the date of the balloting and not from the date of the final determination of the 9 The final tally showed that the Petitioner herein and the Association each received 23 votes. 92 NLRB 1658. The outcome of the election was not immediately determinable as there were a number of challenged ballots which might have affected the result, thereby making it necessary for the Board to consider their validity. Case No. 9-UA-1689. This section provides that "No election shall be directed in any bargaining unit or any subdivision within which in the preceding 12 month period, a valid election shall have been held." HEEKIN CAN COMPANY 785 results.' As the date of the balloting in the last election was May 24, 1950, and more than 12 months has elapsed since that time, we reject as without merit the first ground for dismissal advanced by the Em- ployer and the Intervenor. The second ground for dismissal is likewise without merit for the reason that the contract expiring April 30, 1952, contains a union- security clause which is unlawful within the meaning of Section 8 (a) (3) of the Act. By not according a 30-day grace period from the effective date of the contract to those employees who were not already members of the union on that date of the contract, the clause provides for union security in excess of that permitted by Section 8 (a) (3).11 The contract, therefore, cannot operate as a bar to this proceeding. 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. The Petitioner seeks a separate unit composed of all the litho- graphic processing employees. The unit request is similar to that made by the Petitioner in the earlier proceeding referred to above. The Employer and the Intervenor contend that the requested em- ployees should be included in the same unit with the production and maintenance employees. In the earlier proceeding, the Board found that the lithographic processing employees constitute a distinct, homogeneous, highly skilled group of the type which the Board has in the past found may constitute a separate appropriate unit. It noted, however, that these employees had bargained in the same unit with the'production and maintenance employees during the 3 years preceding the date of the hearing. In view of these circumstances, the Board made no final unit determination with respect to the lithographic processing em- ployees, pending the outcome of the election ordered in that proceed- ing. The results of the election are set forth, supra. The record in the earlier proceeding was by stipulation included in the instant case. As there has been no change in the situation of the lithographic processing employees since the earlier decision, we find that they may, if they so desire, constitute a separate bargaining unit or continue to be represented in a single unit together with the production and maintenance employees." Accordingly, we shall direct that an election be held among all the lithographic processing employees at the Employer's Cincinnati, Ohio, plant, including the employees classified as artists, cameramen, plate makers, grinders, pressmen, press feeders, and press helpers, but ex- cluding all other employees, guards, and supervisors as defined in the 7 Fruitualc Canning Company, 85 NLRB 684. e Chat les A. Krause Milling Co., 97 NLRB 536. s Aluminum Company of America, 85 NLRB 915. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. If, in this election, a majority of the lithographic processiiig employees vote for the Petitioner they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit de- scribed above, which the Board, under such circumstances finds to be appropriate for purposes of collective bargaining. In the event a majority vote for the Intervenor, the Board finds the existing unit-to be appropriate and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication in this volume.] OTIS ELEVATOR COMPANY and IVAN DIINFIELD and LOCAL 123, INTER- NATIONAL UNION OF ELEVATOR CONSTRUCTORS , AFL, PARTY TO THE CONTRACT. Case No. 7-CA-J3. December 29, 1951 Decision and Order On September 28, 1950, Trial Examiner James R. Hemingway is- sued his Intermediate Report in the above-entitled proceeding. Fol- lowing a remand by the Board, on June 15, 1951, the Trial Examiner issued a Supplemental Intermediate Report,' finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copies of the Inter- mediate Report and the Supplemental Intermediate Report attached hereto. Thereafter, exceptions were filed by the Respondent and 2 In- ternational Union of Elevator Constructors, Local 123. Local 123 and the International also filed supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at both hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Supplemental Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations I On March 15, 1951, the Board, on its own motion , had remanded the proceeding to the Trial Examining Division to permit the General Counsel , the Respondent , and all the parties to certain alleged agreements with the Respondent , to adduce further relevant testimony concerning the several allegations contained in the complaint. 2 The Respondent filed separate exceptions to each Report. 97 NLRB No. 115: