Phoenix Tinware Co., Inc.

5568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to an election after the first 2 years unless it is shown that such longer agreements are customary in the industry. In our opinion, revision of this rule is not warranted at this time. No evidence was adduced at the hearing to show that 3-year con- tracts are customary in the Employer's industry. Accordingly, in the absence of such a showing, and as more than 2 years have elapsed in the duration of this contract, we find that it is not a bar to this proceeding.3 We find further 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 4. The parties agree generally that a unit of all production and maintenance employees at the Employer's Granite City, Illinois, plant is appropriate. However, the Petitioner would exclude, and the Intervenor include, the clock carriers. These employees spend almost all their time patrolling the plant premises in the protection of company property. We find that these clock carriers are guards within the meaning of the Act, and therefore we will exclude them from the unit .5 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 production and main- tenance employees, including sample carriers and powerhouse em- ployees, at the Employer's Granite City, Illinois, plant, excluding clock carriers, office and clerical employees, professional and technical employees, routine laboratory analysts, printers, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election. 8 Ballance Manufacturing Company, Inc., 97 NLRB 1019, 4In view of this determination, it is unnecessary to decide the other contract-bar issues. 5 Manhattan Coil Corporation, 79 NLRB 187. PHOENIx TINWARE COMPANY, INC. and LOCAL 4755, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, PETITIONER . Case No. °J-RC-4577. August 11,195 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 Joseph A. Butler, hearing 100 NLRB No. 91. PHOENIX TINWARE COMPANY, INC. 569 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. 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. The Employer and the Intervenor urge as a bar to this proceeding a master contract first executed by them on August 28, 1948, for a 2- year term, with extensions executed in 1950 and 1951, and a supple- mental agreement executed January 14, 1952. The extended con- tract and supplement expire September 1, 1953. The petition herein was filed March 11, 1952. Article II of the master contract provides that its terms shall apply to all sheet metal work involving No. 10 gauge or lighter metal, a description which encompasses all the Employer's manufacturing operations. The contract also provides that ". . . none but tinsmiths, welders, sprayers, cutters, power press operators and Die setters, recognized by the [Intervenor] shall be employed on said work by the [Employer]" (emphasis added). Under section 1, article III, the Union agrees to furnish "to the best of its ability" enough employees in the categories specified in article II to satisfy the Employer's labor needs. Section 2, article III, is a standard union-security clause, which was duly authorized by a referendum among the Employer's employees. The 1952 supplement states that the Intervenor is unable to provide the relatively unskilled employees needed to meet the Employer's new labor requirements in connection with certain short-term defense con- tracts, and authorizes the Employer to hire such employees although not "recognized" by the Intervenor. These new employees must serve a 90-day probation period before they can apply for union membership. A $100 initiation fee is specified in the supplement, which also requires the Employer to deduct $5 per month from the wages of applicant for 20 months in payment of this fee. Many benefits of this contract are withheld until the initiation fee is paid in full. ' Sheet Metal Workers International Association, Local Union No. 137, AFL, was per- mitted to intervene on the basis of its contractual interest. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The master contract does not define the meaning of the "recognition" which the Employer's skilled job applicants must obtain from the Intervenor before being employed. It is apparent that under the contract the Intervenor can veto such applicants for any reason- including nonmembership. That the Employer had no right to hire any tinsmith or other employees in the specified categories, unless "recognized by" the Intervenor, is apparent from the terms of the supplement, which specifically give the Employer the right to employ only unskilled employees from "any available source." Thus, the supplement does not cure the defects in the master agreement, whose provisions remain in full force and effect except as modified; individ- ual tinsmiths, welders, and other categories of employees specified in the master agreement must still be "recognized" by the Intervenor before being employed. We are satisfied by the foregoing language that the parties in- tended and executed union-security clauses exceeding the limits set forth in Section 8 (a) (3) of the Act.' Accordingly, the contract cannot serve to bar this proceeding.3 4. In accordance with the parties' agreement, we find that all pro- duction and maintenance employees, excluding guards, professional employees, office and clerical employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.4 [Text of Direction of Election omitted from publication in this volume.] x Newton Investigation Bureau, 93 NLRB 1574. In view of this determination , it is unnecessary to pass upon the Petitioner 's other objections to the validity of the contract. 4 The Employer contends that no purpose would be served by ordering an election at this time, because termination of its defense contract will cause a contraction of the unit from 165 to about 50 employees . We find no merit in this contention . The record shows that even after termination of its defense contracts , the Employer will have about 50 employees on its payroll. We shall, therefore, in accordance with usual Board practice, direct an immediate election. The Girdler Corporation (Dana Project), 96 NLRB 894.