New Castle Products, Inc.

NEW CASTLE PRODUCTS , INCORPORATED 811 The production, cultivation, growing, and harvesting of any agri- culture . . . commodities . . . and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, deliv- ery to storage or market or to carriers for transportation to market. [Emphasis added.] Although the tractor shop employees in the performance of their 'duties do not work on a farm, it is nevertheless clear that they service, maintain, and repair machinery and equipment which the Employer uses only for its farming operations, that they are completely sepa- rated from any of the Employer's other operations and that they do not repair, service or maintain any of its other machinery and equip- ment. In these circumstances, and upon the entire record, we find that tractor and mechanic shop employees involved in this proceeding perform work and services for the Employer which are incidental to its farming operations. We further find that the duties of these em- ployees fall within the definition of "agriculture" contained in section 3 (f) of the FLSA, and hence that they are agricultural laborers excluded from coverage by Section 2 (3) of the NLRA.5 We shall therefore dismiss the petition. Order IT IS HEREBY ORDERED that the petition be, and it hereby is, dismissed. 5 Luce & Company, S. en C., 98 NLRB 1060 , and authorities cited therein . See particu- larly the letter dated October 4, 1949 , addressed to the Solicitor of the Board by the Assistant Solicitor of the United States Department of Labor ( 1949 W H 1998). See also Interpretative Bulletin No. 14 issued by the Wage and Hour Division of the United States Department of Labor, paragraph 12. In Imperial Garden Growers, 91 NLRB 1034, the Board stated that it would follow the Interpretations of the Department of Labor and its Wage and Hour Division as to Section 3 (f) of the FLSA. In view of our findings , it is unnecessary to resolve the Employer 's other contentions. NEW CASTLE PRODUCTS, INCORPORATED and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER. Case No . 35-RC-719. June 18, 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 Leonard S. Kimmel, hearing 1 The Employer contends that Section 9 (c) of the Act and the Rules and Regulations based thereon which provide that the hearing officer who conducts the hearing shall not make any recommendations with respect thereto is violative of the fifth amendment to the Constitution. The Board has held that as an administrative agency created by Congress it cannot question the constitutionality of the Act which created it and that it will - leave such questions to the courts for determination . Unless and until the courts have determined otherwise , the Board will assume that the Act is constitutional . Samuel Bonat & Bro . Inc., 81 NLRB 1249; Rite-Form Corset Company, Inc., 75 NLRB 174. 99 NLRB No. 120. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .officer. The hearing officer's ruling 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 Murdock and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer contends that it is not engaged In-commerce within the meaning of the Act. The record discloses that the Employer, an Indiana corporation, is engaged in the manufacture and sale of folding doors. Annual purchases from both within and without the State total over one-half million dollars. Annual sales in excess of one million dollars are made directly to New Castle Products, a partnership ' existing under the laws of Indiana. The partnership, in turn, sells approximately 95 percent of the products received from the Employer to purchasers outside the State of Indiana. The Employer also sells a small portion of its products directly to the Government under the terms of a defense contract. Upon these facts, we find that the Employer is engaged in commerce within the meaning of the Act. Moreover, without considering the amount and character of the Employer's inflow and defense work, we further find, in view of the fact that the Employer sells goods valued in excess of $50,000 to New Castle Products, a partnership, which in turn ships over $25,000 worth of such goods out of State, it will effec- tuate the purposes of the Act to exercise jurisdiction over the Em- ployer's operations.3 2. The labor organizations involved claim to represent certain em- ployees of the Employer.4 3. The Employer and the Intervenor urge that the instant petition is barred by a collective bargaining contract between themselves effective 2 The Employer contends that the petition should be dismissed because no evidence was presented at the hearing to show that the Petitioner represents a substantial number of employees in the unit requested and that the hearing officer erred 'in revoking ,subpenaa requiring the production of such evidence In this connection , the Employer in its 'brief strongly urges that, under 9 (c) (1) of the amended Act, a showing of it substantial interest must be made by the Petitioner at the hearing before the Board can find on the record of such hearing that a question of representation exists. We find no merit to this contention . It is well established that under Section 9 ( c) (1) of the amended Act, showing of interest remains an administrative matter for the Board 's own determination and is not litigable by the parties Bryant Heater Co., 77 NLRB 744; Electrical Equip- ment Company, 76 NLRB 1060; Mascot Stone Company, 75 NLRB 427; cf. Felton Oil Company, 78 NLRB 1033 ( Member Murdock dissenting ) Moreover, the Board is adminis- tratively satisfied that the Petitioner's showing of interest is adequate. 9 Hollow Tree Lumber Company, 91 NLRB 635. 4 Local 1910, United Brotherhood of Carpenters and Joiners of America, AFL, was permitted to intervene on the basis of its contractual interest . At the hearing the Employer and the Intervenor refused to stipulate that the Petitioner is a labor organiza- tion within the meaning of the Act. As the Petitioner exists for the purpose of collective bargaining with the Employer with respect to wages, hours , and other conditions of employ- ment, we find that the Petitioner is a labor organization as defined in the Act. Pan American Refining Corporation, 95 NLRB 625. NEW CASTLE PRODUCTS, INCORPORATED 813 from March 8, 1951, to March 8, 1952, and subject to automatic renewal in the absence of a 60-day written notice of change. The Petitioner contends that the contract is not a bar because it contains an illegal union-security clause. The clause in question reads as follows : Article 1 The Party of the First Part hereby agrees to employ for pro- duction operations in its factory only such members of the Party of the Second Part who are members in good standing with the Party of the Second Part, or who shall signify their intention to become members by signing applications and becoming initiated in accordance with the Rules and Regulations of the Party of the Second Part. This hiring provision clearly exceeds the union-security limitations imposed by Section 8 (a) (3) of the Act and thereby renders the contract ineffective as a bar to a representation proceeding.5 We reject the Employer's further contention that article 1 of the contract is rendered ambiguous when read in conjunction with article 6 of the contract and that, therefore, the Board should consider parol evidence to determine the true intent of the parties. The particular language of article 6 adverted to by the Employer merely provides that a new employee shall be a probationary employee for the first 6 months of his employment, during which time he shall have no seniority ranking and his employment shall be subject to the discretion of the Employer. Nowhere is there any indication, as urged by the Em- ployer in its brief, that new employees are not required to become members of the Intervenor until after the first 6 months of their employment.° Moreover, article 7 of the contract, not referred to by the parties, also contains a union-security provision which in addition to refuting any such implication of article 6, serves in itself to remove the contract as a bar to this proceeding. Article 7 reads as follows : It is agreed that all factory employees . . . must be members of the Party of the Second Part's Local No. 1910, and remain in good standing for the duration of their employment... . 5 See Herndon Rock Products, 97 NLRB 1250 6 The Board has held that where the contractual language is clear and unambiguous with respect to a union-security provision, parol evidence may not be considered in determining the intent of the parties, nor is it material that the parties have never enforced an illegal union-security provision as such provision by its very presence in the contract acts as a deterrent to the free exercise by employees of their rights under the Act. Western Can Company, 83 NLRB 489; C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although article 7 does not expressly state that employees must be and remain members of the Intervenor as a condition of their employ- ment, nevertheless, application of the usual principles of construction to the agreement in question requires such a conclusion.7 Thus, by not according a 30-day grace period from the effective date of the contract to new employees and those employees who were not already members of the Intervenor on that date, article 7 provides for union security in excess of that permitted by Section 8 (a) (3) .11 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.9 4. All parties stipulated that a production and maintenance unit with the usual exclusions is appropriate. However, a question was raised by the Petitioner as to whether certain group leaders classified as "supervisors" 10 by the Employer should be excluded from the unit as possessing supervisory status within the meaning of the Act. The Employer and Intervenor contend that the employees in question do not possess supervisory power and should be included in the unit. The group leaders have been included in the contractual unit in the past. The record discloses that they perform production work along- side other employees and are, themselves, under the direct supervision of the foreman in their respective departments. The group leaders have no power to hire, discharge, or transfer employees. They have nothing at all to do with the handling of grievances. Although, occa- sionally, when the foreman is absent, they may reprimand an employee and, to some extent, have the right to assign an employee to a particular machine, their primary duty is to see that employees have materials and tools to work with and to transmit routine directions to employees from the foreman. Upon the basis of the entire record, we find that the duties of these employees are routine in nature and do not require for their performance such a degree of independent judgment or discretion as would warrant a finding that they are supervisors within the meaning of the Act; 11 accordingly, we shall include the group leaders in the unit hereinafter found appropriate. We find that all production, and maintenance employees at the Employer's New Castle, Indiana, plant, including the group leaders, but excluding office and clerical employees, confidential employees, watchmen, professional employees, and supervisors as defined in the P See Hughes Aircraft Company, 81 NLRB 867. 8 Heekin Can Company, 97 NLRB 783; Charles A Krause Milling Co, 97 NLRB 536. 9In view of our finding that the contract cannot operate as a bar because it contains illegal union-security provisions , we find it unnecessary to determine whether or not, as contended by the Employer and the Intervenor over the opposition of the Petitioner, the contract was automatically renewed. 10 To avoid confusion, we shall hereinafter refer to these employees as group leaders. " Southern Paperboard Corporation, 84 NLRB 822. WAGNER ELECTRIC CORPORATION 815 Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act 12 12 The Employer and the Intervenor also contend that because the Petitioner is a na- tional union , and not a local union, it should not represent the employees in question. The record does not indicate that there exists a local union of the Petitioner or that the Petitioner intends to establish a local union for the employees concerned . Moreover, under existing law, the division of function and responsibility between International and local unons with respect to bargaining is clearly a matter of their internal affairs of which the Board will not take cognizance , unless thereby some policy of the Act is vio- lated we find no merit to this contention See Lane Wells Company, 79 NLRB 252 (Members Reynolds and Gray dissenting) ; Granite Textile Mills, 76 NLRB 613 [Text of Direction of Election omitted from publication in this volume.] WAGNER ELECTRIC CORPORATION and DISTRICT No. 9, INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F. L., PETITIONER. Case No. 14-RC-1741. June 19, 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 Harry G. Carlson, 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 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 to sever from an existing multiplant pro- duction and maintenance unit, a "skilled craft" unit of toolroom employees, tool and die makers, toolroom machinists, their apprentices, and other employees with related skills of the machinists craft.' In I In its brief, the Petitioner indicated that it seeks specifically to represent all employees In the following classifications in the various plant departments indicated: All tool and die makers, tool and die maker group leaders, toolroom machinists, D W. O. bench hands C, toolroom vapor blast-brazers, heat treat and tool hardeners, tool and die gage grinders In department 65, the main toolroom ; all tool and die makers, toolroom machinists, machine repairmen, machine repairmen-resident and die grinders in department 60, the the repair room ; all tool and die makers, toolroom machinists, and machine repairmen In department 54, the tool repair room, small motor division ; all machine repairmen and machinists, machine builders in department 61, the machine repair shop ; the tool and die makers in department 50, the small motor winding division ; the tool and die maker- 99 NLRB No. 124.