Moore Drop Forging Co.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the record in the case, the under- signed makes the following: CONCLUSIONS OF LAW 1. International Association of Machinists, AFL, and United Brotherhood of Carpenters and Joiners of America, Local 807, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Seabright Construction Company of Wheeling, West Virginia, is an employer within the meaning of Section 2 (2) of the Act. 3. By causing the Respondent Employer, Seabright Construction Company, to discriminate in regard to the lure and tenure of employment of Kenneth O. Kemp and Charles W. Alderman in violation of Section 8 (a) (3) of the Act, Respondent Union Local 807 has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act; and by interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent UnionLocal 807 has also engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (b) (1) (A) of thA Act. 4. By discriminating in regard to the hire and tenure of employment of Kenneth O. Kemp and Charles W. Alderman, thereby encouraging membership in a labor organization, the Respondent, Seabright Construction Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] MOORE DROP FORGING COMPANY and CARL PELCZARSKI, Petitioner and SPRINGFIELD DIE SINKERS LODGE #350 OF THE INTERNATIONAL DIE SINKERS CONFERENCE. Case No. 1-RD-159. March 24, 1954 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 Robert E. Greene, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' The Union contends that the petition should be dismissed on the ground that the decertification petition was inspired by Harold Dickey, the Employer's president. In support of this contention the Union relies upon Dickey's testimony that the Petitioner sought his advice with respect to the possibility of rejecting the Union as the bargaining representative of the Employer's employees, that Dickey thereafter suggested to the Petitioner that he contact a particular labor consultant whose name Dickey had heard in conversations with various State i The Union contends that it was prejudiced by the hearing officer's refusal to admit evidence on the history of the bargaining pattern relating to the Union's wage agreement with the Employer and by his refusal to admit in evidence the Union's letter in answer to the Employer's letter of September 24, 1953, which advised that the Employer was thereby termi- nating the bargaining contract hereinafter discussed. We affirm the hearing officer's rulings on these matters for the reason that the evidence is irrelevant to the issues here involved. 108 NLRB No. 5. MOORE DROP FORGING COMPANY 33 and Federal labor officials , andupon the fact that the Petitioner was apparently aware of the Employer ' s aforementioned con- tract-termination letter of September 24, 1953 . However, we reject this Union contention because we do not believe that the evidence relied upon, or the record otherwise , shows that the Petitioner has, in filing this petition , acted at the behest of the Employer ' s president." Upon the entire record in the case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The Petitioner , an employee of the Employer , asserts that the Union is no longer the bargaining representative of the employees designated in the petition , as defined in Section 9 (a) of the Act. The predecessor of the Union now representing the employees was certified on March 15, 1945 , as the bargaining representative of the Employer ' s employees here involved. 3. On August 21, 1949 , the Employer and the Union executed a collective -bargaining contract (hereafter called the basic contract ) operative until August 1, 1950 , subject to automatic renewal from year to year unless 30 days ' notice of change or termination was given . This basic contract provided that in the event either party desired alteration thereof it was to remain in effect until a new contract was executed . The Union moves to dismiss the petition herein for the additional reason that the basic contract is a bar to this proceeding . The Employer and the Petitioner contend , on the other hand, that the basic contract is not a bar because it was duly terminated after a breach thereof by the Union. The basic contracthere involved contains the following clause: ARTICLE III. STRIKES AND LOCKOUTS It is agreed that there shall be no strike, including sympathetic strike or lockout, nor shall thereby any stop- page of work pending the adjustment of any dispute. Although the basic contract contained no wage schedule, it did provide for wage reopening during its term. Wage rates were established in a separate wage agreement executed by the Employer and the Union on September 6, 1950, and operative until June 30, 1952; this wage agreement makes no reference to the basic contract. The record shows that on January 24, 1952, the Union wrote the Company requesting negotiation for a new wage agreement to take effect on the expiration of the June 30, 1952, agreement; thereafter the Employer agreed to negotiate as requested. The Union did not contact the Employer for the purpose of instituting such negotiations until approximately October 1952, when the parties actually began negotiating for a new wage agreement. " See Morganton Full Fashioned Hosiery Company, et al., 102 NLRB 134. 339676 0 - 55 - 4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They bargained unsuccessfully until March 10, 1953, when the employees in the die department unit here involved went on strike, with the Union's sanction. Thereafter, the parties con- tinued to meet in an attempt to reach agreement, but without success. On September 24, 1953, the Employer wrote to the Union , stating, among other things, that the basic contract was being terminated in the light of the continuing March 10 strike in violation thereof. The parties held several bargainingmeet- ings after the mailing of the termination notice , and, prior to the hearing herein, the parties met for the last time in December 1953. At the time of the hearing , the strike was still in effect.' As indicated above , the Employer and the Petitioner contend that the basic contract is no longer an effective instrument and cannot be relied upon as a bar to this proceeding , because the Employer terminated the basic contract pursuant to the Union's strike in breach of the contract ' s no-strike clause. In asserting to the contrary , the Unionargues variously that: (1) The strike was the result of the parties ' failure to reach agreement on the separate wage agreement and was .not a breach of the basic contract's no-strike clause; (2) if the Union's strike did violate the no-strike clause, such action did not give the Employer the right to -abrogate the basic contract ; ( 3) the Employer did not terminate the basic contract validly, because it failed to comply with the provisions of Section 8 (d) of the Act; (4) the Employer waived the Union's breach of the no- strike clause by waiting approximately 6 months after inception of the strike before notifying the Union that it was terminating the basic contract and by continuing to meet with the Union in the interim; and (5 ) the Employer negated the effect of its term- ination notice of September 24, 1953 , by thereafter meeting with the Union for bargaining purposes. We find no merit in the Union's first contention for the reason that on its face the no - strike clause , hereinabove presented, clearly prohibited the Union from engaging in a strike with respect to any dispute between the parties. Furthermore, there is nothing elsewhere in the basic contract , or otherwise in the record, which warrants a finding that the parties intended their contractual no-strike , no-lockout agreement to be limited in scope. It is also clear that , because the Union' s strike was violative of the basic agreement, the Employer was privileged to, and on September 24, 1953, did, cancel the basic agreement. ° With respect to the Union' s contentions based upon the waiver principle , we believe that the Company ' s failure to send an 3At the time the strike started, the Employer operated its die department with approxi- mately 165 employees. At no time since the strike was called has the Employer discontinued operation of this department, which, at the time of the hearing, had a complement of approxi- mately 125 employees. The Employer testified, without contradiction, that such a smaller group will continue to constitute a full work complement for the die department. 4Sce Marathon Electric Mfg. Corp, 106 NLRB 1171. Cf. Land O'Sun Dairies, Inc., 107 NLRB 1195. OLDEN CAMERA & LENS COMPANY 35 earlier termination notice and its continuing meetings with the Union did not constitute a waiver of the Employer ' s right to terminate the contract , especially in view of the Union's con- tinuing breach of the no-strike clause. Therefore, we find that the basic contract in issue has been effectively terminated and does not constitute a bar to this proceeding.5 Accordingly , 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 following employees constitute an appropriate unit for the purposes of collective bargaining , within the meaning of Section 9 ( b) of the Act : All employees in the Employer's Brightwood and Chicopee plants working on dies and parts of dies used in the manufacture and completion of forgings, ex- 'cluding all other employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Election. 5 In the light of this finding, we find it unnecessary to pass upon the remaining reasons advanced by the Employer and the Petitioner as grounds for finding the contract here involved no bar to this proceeding. Furthermore, we also deem it unnecessary to rule upon other conten- tions advanced by the Union. WILLIAM OLDEN AND KURT OLDEN, co-partners d/b/a OLDEN CAMERA & LENS COMPANY and OFFICE EM- PLOYEES INTERNATIONAL UNION, LOCAL 153, AFL, Petitioner and AMALGAMATED UNION LOCAL 136, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, Petitioner. Cases Nos . 2-RC-6464and 2-RC-6475. March 24, 1954 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Jacob Lazarus, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 108 NLRB No. 9.