The Alliance Manufacturing Co.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in such circumstances finds to be a separate unit appropriate for collec- tive bargaining purposes. If a majority of the employees in voting group (b) also selects a labor organization, the Regional Director conducting the election is instructed to issue a certification of repre- sentatives to the labor organization selected by the employees in that group, which the Board in such circumstances also finds to be a separate unit appropriate for collective bargaining purposes. If the employees in either or both of the voting groups do not select a labor organization, the Regional Director conducting the election is instructed to issue a certificate of results of election with respect to such group or groups. [Text of Direction of Elections omitted from publication in this volume.] THE ALLIANCE MANUFACTURING COMPANY and INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, LOCAL 750, CIO, PETI- TIONER. Case No. 8-RC-1666. October 28, 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 Charles A. Fleming, 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 Murdock and Peterson]. 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 named below 1 claim to represent certain employees of the Employer. 3. Intervenor UE contends that although its last contract with the Employer terminated on February 1, ,1952, followed by a strike, the subsequent strike-settlement agreement constitutes a bar upon the grounds (1) that it extended the last contract between the parties, and (2) that the settlement agreement itself further operates as a bar pending the expiration of a reasonable time for compliance with the terms of the agreement. The Petitioner and the Intervenor IBEW take the position that no valid contract is in effect, but that even if such 1 The United Electrical, Radio & Machine Workers of America, Local 705 (UE), and the International Brotherhood of Electrical Workers, AFL (IBEW), were permitted to. intervene. 101 NLRB No. 38. THE ALLIANCE MANUFACTURING COMPANY 113 contract were in existence, an alleged schism in the membership of the UE Local would prevent such contract from constituting a bar.2 The Employer's representative stated at the hearing that the Employer was confused as to the identity of the bargaining representative and that it desired an election as expeditiously as possible. As indicated above, the last contract expired February 1, 1952. Sixty days prior thereto, the UE and its Local 705 gave the Employer the required notice of intention to modify the contract. Thereafter, following some negotiations, the Employer declined to bargain, and the UE filed refusal-to-bargain charges 3 under Section 8 (a) (5) of the Act. A work stoppage followed. On March 25, 1952, through the intervention of the Ministerial Association of Alliance, the Em- ployer and the UE Local entered into a settlement agreement. On April 7, 1952, the Regional Director for the Eighth Region advised the parties that he had approved the Local's request for the with- drawal of the unfair labor practices charge without prejudice. There- after bargaining was resumed. On April 30, 1952, during the prog- ress of these negotiations there occurred an alleged disaffiliation meeting wherein Local 705 severed its affiliation with the International UE. On May 1, the present petition was filed. The Employer there- upon refused to bargain with the UE, as a result of which the UE again filed charges under Section 8 (a) (5).4 The settlement agreement between the Employer and the UE con- tained the following provisions : (a) The Company and the employees are to be subject to all the provisions and conditions of the contract which terminated February 1, 1952. (b) Negotiations for a new contract are to be resumed as soon as possible but in no event later than 30 days from the date of the agreement. (c) Retroactive pay increases are to be one of the subjects of negotiation. (d) The parties "expect" that the unfair labor practice charges filed with the NLRB are to be withdrawn by the Local. As noted above, the UE contends on the basis of the settlement that (1) the last contract was reinstated; and (2) that even if no such 4 As we find herein that the contract in question is not a bar, there is no need to con- sider the nrerits of the schism issue 8 Case No. 8-CA-657. 4 Case No. 8-CA-704. The record shows that on June 26 , 1952, the Regional Director dismissed the charges for lack of merit, and the UE filed an appeal to the General Counsel. The UE therefore contended that the petition should be dismissed on the ground that the unfair labor practice charge in Case No. 8-CA-704 had not been finally resolved or waived. The motion to dismiss is denied on the ground that the Regional Director 's dismissal dis- poses of the charge so far as it concerns this representation case , even though an appeal to the General Counsel may be pending . United States Smelting, Refining and Mining Company, 93 NLRB 1280, footnote 2. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract is considered in existence, the settlement agreement itself bars further representation proceedings pending compliance with its provisions, under a recent decision of the United States court of appeals.5 As to point one, it is well established in Board decisions that the effect of a contract bar will not be given to an expired contract which, having been extended until such time as a new contract may be nego- tiated, is not only a contract of indefinite duration but is also tempo- rary and provisional in characters It is clear from the provisions of the present settlement agreement that the reinstatement of the last contract constituted such a temporary stopgap arrangement. It is therefore not a bar to the present proceeding. Secondly, we do not believe that the decision in the Poole case is applicable to the facts of the present proceeding. There the parties entered into a settlement agreement to settle the unfair labor practice charges previously filed by the Union. The Regional Director ap- proved that settlement by affixing his signature thereto. As part of the agreement, the Respondent was required and agreed to post notices indicating its compliance with the agreement and to notify the Regional Director what steps it had taken to carry out such compli- ance. After the Regional Director was assured the Respondent had complied with the terms of the settlement agreement, the case was finally closed. Thus it appears that the agreement was intended as a substitute for and had all the implementation of a Board order. It is clear from the present record that this settlement agreement is not of such character. It was not a settlement of the unfair labor practice charges but a settlement of the strike. The withdrawal of the charges was not a condition for the agreement' There was no approval by the Regional Director of the terms of the settlement .8 We find, therefore, that as the present settlement agreement was in fact a private settlement not participated in or monitored by a repre- sentative of the Board, it cannot be considered on a par with a Board certification; nor is this the type of agreement entitled to the degree of consideration accorded by the Board and the court of appeals to 5 Poole Foundry & Machine Co , 192 F. 2d 740 ( C. A. 4) 29 LRRM 2104, enforcing 95 NLRB 34. certiorari denied, 342 U S. 954. G Fruity ale Canning Co., 85 NLRB 684 , footnote 9. Cf. Sanson Hosiery Mills, Ina., 84 NLRB 654. 7 The Employer's representative testified without contradiction that he did not make the withdrawal of the charges a condition of the settlement By way of contrast, the withdrawal and settlement of the charges constituted the purpose of the settlement agree- ment in the Poole case. " It is well established in Board decisions that even though a Board representative participates in a settlement agreement, the Board will not be estopped from taking action based on conduct prior to the agreement , if to do so would effectuate the policies of the Act. Wooster Brass Co., 80 NLRB 1633 . A fortiori the Board will not give as much weight to settlement agreements in which there was no participation by a representative of the Board. National Biscuit Co , 83 NLRB 79. THE ALLIANCE MANUFACTURING COMPANY 115 the settlement agreement in the Poole case. We therefore find that the settlement agreement herein is not a bar to the present proceeding. We find that a question affecting commerce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : Concerning the composition of the requested production and main- tenance unit, the parties agreed except as to the inclusion of three cafeteria employees and four boiler room employees. The Petitioner and the Intervenors would include and the Employer exclude these employees. Cafeteria employees: The cafeteria is operated by the Company for the employees on a nonprofit basis. The three employees working there are on a salary basis and are under the supervision of the plant manager. They work hours which correspond roughly to those of the first shift. They get the same vacations as office employees which differ slightly from those of the production workers. Although the cafeteria workers have not been included in previous contracts, we find, in accordance with many decisions of the Board, that cafeteria workers may be included in a unit of production and maintenance employees on the ground that their interests are not so dissimilar from those of the latter so as to preclude them from being in the same unit, particularly where no other labor union seeks to represent the cafeteria workers separately ° We shall, therefore, include them in the unit. The boiler room employees: There are four boiler room employees who work some 7 months of the year in the boiler room attending boilers, which are used exclusively for heating purposes. The remain- ing months of the year they do maintenance work and are under the supervision of the maintenance superintendent throughout the year. They have been covered in previous contracts and are subject to the same benefits and working conditions as the production and main- tenance employees. Under these conditions, we find that the interests of the boiler room employees are closely allied to those of the produc- tion workers and in the absence of a request for their separate repre- sentation, we shall include them in the unit 10 We find that all production and maintenance employees at the Em- ployer's Alliance, Ohio, plant including the cafeteria employees and the boiler room employees, but excluding the office clerical employees, professional employees, guards, and all supervisors as defined in the Standard Romper Co ., Inc., 77 NLRB 421 ; Western Electric Company, Inc., 76 NLRB 400. 10 Massissippi Products, Inc., 74 NLRB 107 ; New York Steam Laundry, Inc., 80 NLRB 1596. 242303--33 9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] FOOD MACHINERY AND CHEMICAL CORPORATION and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, LOCAL No. 164, AFFILIATED WITH THE INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL, PETITIONER. Case No. 00-RC-1792. October 28, 1952 Decision and Direction of Election Upon a petition duly filed, a hearing was held before John H. Immel, Jr., 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 National Labor Relations 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 is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. The Intervenor, International Association of Machinists, Dis- trict Lodge No. 93, Local Lodge No. 504, the present contracting union, contends that a union-authorization election, held in October 1949, in which some of the employees included in the group sought as a unit by the Petitioner participated, is a bar to an election in the present proceeding., This contention clearly lacks validity in that the Board does not regard a union-security referendum as that type of election which for 1 year thereafter will bar a representation election? Furthermore, the referendum election took place more than 2 years before the date of the filing of the petition herein and cannot, therefore, bar the present proceedings. 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. 'See Labor Management Relations Act, 1947, Section 9 (c) (3) which provides that "no election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held." 2 Baker Ice Machine Company, 86 NLRB 385. 101 NLRB No. 33.