National Malleable and Steel Castings Co.

NATIONAL MALLEABLE AND STEEL CASTINGS COMPANY 737 no other basis appears for establishing such a unit. We find, therefore, that the unit petitioned for is inappropriate, and that no question affecting commerce exists concerning the representation of employees of the Employer 5 Order Upon the basis of the foregoing findings of fact, and upon the entire record, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed. 5 See Schaffer Stores Co., Inc., 88 NLRB 4446; Kroger company, 88 NLRB 194; The Grand Union Company, 81 NLRB 1016. NATIONAL MALLEABLE AND STEEL CASTINGS COMPANY and PATTERN MAKERS' LEAGUE OF NORTH AMERICA, A. F. OF L., PETITIONER. Case No. 35-RC-673. June 13, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Richard C. Curry, 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 [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 Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer and the Intervenor herein, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Local 761, contend that their current contract consti- tutesa bar to this proceeding. The Petitioner argues that the contract contains an illegal union-security clause and, therefore, cannot operate as a bar. The contract, which covers all production and maintenance eIn- ployees, was executed August 28, 1950, to remain in effect until July 24, 1953, with provision for annual automatic renewals thereafter. The contract provides : Article II. RECOGNITION Section 2. (a) Each employee who, on the effective date of this agree- ment is a member of the Union in good standing . . . shall, 99 NLRB No. 114. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i as a condition of employment, maintain his membership in the Union to the extent of paying his monthly dues and International and Local Union general assessments uni- formly levied against all Union members. Similar provisions cover old and new employees who become union members. Because these provisions require the payment of general union assessments as a condition of continuing employment, they go beyond the permissive language of Section 8 (a) (3) of the Act.' The Employer and Intervenor urge that their contract does not exceed the permissive scope of Section 8 (a) (3) because of the defer- ment language in the following provisions: Article II. RECOGNITION Section 2. (g) ... CHECK-orF ------ The Company shall honor wage assignments . . . by employees for initiation fees, monthly dues and general assessments ... (f) . . . the Company shall not make any deductions which are prohibited by Federal or State law and ... [the union-shop provisions] shall terminate . . . if any such de- ductions shall be prohibited by law. Article X. WORKING CONDITIONS Section 17. . .. In the event any provision of the Agreement shall conflict with any present or future Federal or State law, the provisions of such law shall apply without affecting the other provisions of this Agreement. We find no merit in this argument, as the aforesaid provisions do not expressly defer the application of the illegal union-security clauses, which thus remain effective until declared invalid.2 The Intervenor also contends, in effect, that the parties orally deleted assessments from the contract and never enforced the assessment pro- visions as a condition of employment. The Intervenor's representa- tive testified that in April 1951, more than a year ago, the International had eliminated assessments from its own constitution; that the Em- ployer thereafter had "been talked to about it, and the Local Unions posted notices on the bulletin boards notifying members that there would be no more assessments" 3; and that the Intervenor never re- quested the discharge of an employee for failure to pay assessments. We find no merit in this contention. The mere existence of illegal i Continental Can Company, Inc, 98 NLRB 1252. Malden Electric Company, 96 NLRB 517; Muntz Television, Inc., 92 NLRB 29. a The testimony of the Employer 's manager was that the parties had orally agreed to live up to the terms of the union-security provisions as written , I. e., to abide by the law whenever the provisions conflicted therewith. NATIONAL MALLEABLE AND STEEL CASTINGS COMPANY 739 written union-security provisions acts as a restraint upon employees desiring to refrain from union activities within the meaning of Sec-, tion 7 of the Act.4 The Board has held that an, oral agreement to delete such provisions does not remove the infirmity so as to constitute the contract a bar,5 and that it is immaterial that the illegal union-security provisions had not been enforced.6 As the contract contains an illegal union-security clause, we find that it cannot constitute a bar to these proceedings? Accordingly, we find that a question exists concerning the representation of em= ployees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 1 4. The Petitioner seeks to sever the patternmakers and apprentices, employed at the Employer's Indianapolis, Indiana, steel castings plant, from the contract unit now represented by the Intervenor. The Intervenor opposes severance on the ground that the interests of the patternmakers are closely related to those of the other production and maintenance employees. The patternmakers perform the usual tasks of their craft, making metal or wooden patterns from blueprints. They do not perform any production work. They have their own supervisor and do not inter- change with employees in other departments. The pattern repairman performs the necessary repair work on the patterns." There is one apprentice, who is participating in the Employer's 5-year apprentice program. Upon the entire record, the Board finds that all patternmakers; pattern repairmen, and patternmakers' apprentices at the Employer's Indianapolis, Indiana, plant, excluding all other employees, guards, professional employees, and supervisors as defined in the Act, com- prise a highly skilled, homogeneous, identifiable craft group, and may constitute an appropriate collective bargaining unit notwithstanding their previous inclusion in a broader bargaining group .9 However, we make no present unit determination as to these employees until we have first ascertained their desires in the matter. If a majority vote for the Petitioner they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director con- , d14cting the election directed herein is instructed to issue 'a certification 4 National Lead Company, 97 NLRB 651. s Ketchum & Company, Inc., 95 NLRB 43 ; Eagle Lock Company, 88 NLRB 970 ; Evans Milling Company, 85 NLRB 391. 6 C. Hilterbrandt Dry Dock Company, Inc., 98 NLRB 1275 ; National Lead Company, supra. 7 C. Hager & Sons Hinge Manufacturing Company, 81 NLRB 163. In view of our determination herein , we find it unnecessary to consider the question as to whether the contract herein was of unreasonable duration and not a bar for that reason. 8 The parties have stipulated the inclusion of the pattern repairmen. O Bethlehem Steel Company ( Shipbuilding Division ), 97 NLRB 1591 ; Ford Motor Company, Aircraft Division, 96 NLRB 1075. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of representatives to the Petitioner for the unit described above, which the Board, under such circumstances, finds to be appropriate for pur- poses 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 certificate of results of election to such effect. [Text of Direction of Election omitted from publication in this volume.] BULLOCK'S INC. and CARPET, LINOLEUM & RESILIENT FLOOR DECORA- TORS, LOCAL 1247, BROTHERHOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, AFL, PETITIONER. Case No. 21-RC--097. June 13, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Arthur Hailey, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Employer moved to dismiss the petition upon the ground that the unit sought is inappropriate. For reasons discussed in paragraph numbered 4, infra, the motion is hereby denied. 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 organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion 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 craft unit of carpet cutters, carpet layers, carpet binders, and Oriental rug repairmen, their assistants and apprentices, including the maintenance carpet layer and his assistant and the head Oriental rug repairman, but excluding carpet measure- man, shipping clerk, carpet workroom manager, and all other depart- ment store employees of the Employer. The Employer regards these employees as skilled workmen, but urges that separate craft units are inappropriate in a department store organization. The Employer also maintains that the head Oriental rug repairman is a supervisor. There is no history of collective bargaining for any of the employees involved herein. 99 NLRB No. 103.