Lock Joint Pipe Co.

LOCK JOINT PIPE COMPANY 355 We find nothing the record to indicate , nor does the Peti- tioner contend , that the employees in the proposed unit comprise a departmental group with a sufficient craft nucleus to be represented on this basis . Moreover, the record discloses no sufficient special community of interest of these employees apart from the Employer' s other production employees. In view of these circumstances , including the fact that they have been represented in the same unit with other production em- ployees for 10 years, we perceive no reason for severing the employees in question from the existing unit now represented by the Intervenor.' Accordingly, we shall dismiss the petition in Case No . 9-RC-1954. [Text of Direction of Elections omitted from publication.] [The Board dismissed the petition in Case No . 9-RC-1954.] Member Peterson , concurring in part and dissenting inpart: I agree with the majority opinion to the extent that it dis- misses the petition in Case No. 9-RC- 1954 for the machine- division employees because there is no basis for severing them from the existing overall unit represented by the Intervenor. However, I disagree with the decision to direct elections in Case No. 9-RC-1953 for maintenance employees , welders, carpenters , plumbers, painters , and boiler firemen. In accordance with the views which I expressed in my dis- senting opinion in the Hamilton case , 16 I find no reason to grant craft severance for the employees sought by the Peti- tioner in Case No. 9-RC-1953, where, as here, for a period of 10 years there has been an apparently satisfactory history of collective bargaining for a general unit of all production and maintenance employees including the employees sought herein. 15 See John Deere Waterloo Tractor Works , 97 NLRB 969; The Store Kraft Manufacturing Company, 100 NLRB 968. >s W. C. Hamilton and Sons, 104 NLRB 627 LOCK JOINT PIPE COMPANY, Petitioner and LOCAL 910, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL and INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION, LOCAL 846, AFL. Case No. 10 -RM-123. July 22, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed , a hearing was held before Paul L. Harper, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 106 NLRB No. 56. 322615 0 - 54 - 24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Murdock, Styles, and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer.' 3. During the latter part of February 1953, at a time when the Employer began construction on its Chattanooga, Tennes- see, plant, the Hod Carriers commenced negotiations with the Employer at the latter's request looking toward a written contract covering its employees. Sometime prior to April 1, 1953,2 the Operating Engineers contacted the Employer with a view to making a representation claim, and on or about April 1, 1953, it formally demanded recognition, claiming that it then represented a majority of the employees in question. On April 29, 1953, the Employer acceded to the Operating Engi- neers' demand and executed a contract with it, effective as of April 1, 1953. On May 4, 1953, the Hod Carriers called a strike, the effectiveness of which is demonstrated by the fact that the plant was completely shut down. On May 5, 1953, the Operating Engineers filed an RC petition. On May 7, 1953, the Employer met with the two labor organizations in an effort to settle the strike and to seek a resolution of the representa- tion dispute. The Employer as serted at that time that if the Hod Carriers would call off its strike it would file an RM petition seeking a Board election for resolution of the representation dispute. The Hod Carriers agreed to call off the strike pending consideration of the Employer- petition. It is not clear from the record whether the Operating Engineers, at the same time, agreed to withdraw its RC petition. However, the events of the next day warrant the inference that suchwas the case. For, on May 8, 1953, the Hod Carriers called off its strike, the Employer filed the instant RM petition, and the Operating Engineers withdrew its pending RC petition. The Operating Engineers contends that its April 29 contract with the Employer bars a present determination of repre- sentatives. The Hod Carriers opposes this contention in view of the above circumstances. The Employer, who is the Peti- tioner herein, takes a neutral position. We agree with the Hod Carriers that, under the circum- stances set forth above, the contract of April 29, 1953, should not be deemed a bar to a present determination of repre- 'For convenience, Local 910, International Union of Operating Engineers. AFL, is herein referred to as Operating Engineers, and International Hod Carriers, Building and Common Laborers Union, Local 846, AFL, as Hod Carriers. 2Mr. Wade, counsel for the Operating Engineers, testified that verbal demand for recogni- tion was made about 6 weeks prior to the signing of the contract, which would place the date on or about March 18, 1953. LOCK JOINT PIPE COMPANY 357 sentatives. It appears that such contract was executed at a time when the Employer had knowledge of the Hod Carriers' conflicting claim to representation of the employees in question ,9 and the Hod Carriers believed in good faith that the Employer had recognized such claim to be valid. In these circumstances, the failure of the Hod Carriers to file a repre- sentation petition within 10 days of its claim for recognition, 4 does not preclude a finding that an unresolved question con- cerning representation existed at the time the contract was executed.' Furthermore, that such a representation question existed at all times here material was acknowledged by the Operating Engineers when, on May 5, 1953, it filed an RC petition with this Board. The filing of this petition rendered it unnecessary for the Hod Carriers to petition the Board for an election. In any event, we believe that, in view of the recognized status of the Hod Carriers and the agreement among the parties of May 7, 1953, by which the Operating Engineers agreed to withdraw its petition, the Hod Carriers consented to call off its strike, and the Employer agreed to file the instant RM petition, the contract of the Operating Engineers cannot operate as a bar. We find for the reasons set forth above that a question af- fecting 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. In accord with the agreement of the parties, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees of the Employer at its Chattanooga, Tennes- see, plant, including operators, laborers, and welders, but excluding office employees, clerical employees, truckdrivers, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] SCf. Chicago Bridge & Iron Company, 88 NLRB 402. 4 General Electric X-Ray Corp., 67 NLRB 997. 5 Chicago Bridge & Iron Company, supra.