Kind and Knox Gelatine Co.

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive for purposes of collective bargaining , with respect to rates of pay, wages, hours of employment, and other conditions of employment. KIND AND KNOX GELATINE COMPANY and INTERNATIONAL BROTHERHOOD OF FIREMEN, OILERS, POWERHOUSE OPERATORS, ICE PLANT EMPLOYEES, AND MAINTE- NANCE MECHANICS, LOCAL NO. 473, AFL, Petitioner. Cases Nos. 4-RC-1857, 4-RC-1858, 4-RC-1859, 4-RC- 1860, 4-RC-1861, 4-RC-1862, and 4-RC-1863. May 18, 1953 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Julius Topol, 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 meaning of the Act. 2. The labor organizations involved claim to represent cer- tain employees of the Employer. 3. The Intervenor, Local 80A, United Packinghouse Workers of America, CIO, raises a contract-bar contention. On October 17, 1950, the Employer and Local Industrial Union No. 80, Food and Tobacco Workers Union, CIO, herein referred to as FTW, executed a 2-year contract. FTW was certified by the Board as the collective-bargaining repre- sentative of the Employer's employees on February 2, 1951. On June 18, 1952, the Intervenor, which had succeeded FTW as the bargaining representative of the Employer's employees, received a compliance letter from the Board. On November 6, 1952, the Employer and the Intervenor executed an agreement extending the 1950 contract until October 17, 1953, with certain amendments. Among the clauses in the 1950 contract with FTW which were continued in the 1952 agreement was a union-security clause providing that "all employees shall join the Union after thirty (30) days in the etxiploy of the Com- pany as a condition of continued employment. ." 1 Subsequent to the conviction of Anthony Valentino, an officer in the FTW, for having made false statements in an affidavit filed under Section 9 (h),2 the Board, on November 21, 1952, by document designated "Notice," revoked the Intervenor's compliance letter of June 18, 1952. On December 16, 1952, oral argument was heard before the Board on a motion to 1 In view of the continuing contractual requirement of union membership, we find this provision valid, contrary to the contention of the Petitioner. See Josten Engraving Company d/b/a American Yearbook Company, 98 NLRB 49; and Charles A. Krause Milling Co., 97 NLRB 536. ZUmted States District Court at Camden, New Jersey (October 1952). 104 NLRB No. 134 KIND AND KNOX GELATINE COMPANY 1035 restore compliance. The Board on December 19, 1952, issued an Order providing that, "in the interest of protecting its own processes from further abuse," the FTW certification of February 2, 1951, "should be considered of no further force and effect." On the same date, the Board also issued an order denying motion to restore compliance, which read in part as follows: The Board has duly considered the arguments and briefs presented to it, and concludes that good cause has not been shown why its notice of November 21, 1952, should be set aside and the local union's Motion to Restore Compliance should be granted. The Board finds that its processes have been abused by the false statements for the making of which Anthony Valentino was convicted and that therefore there is reasonable basis to believe that its processes were abused at the time the letter of compliance of June 18, 1952, was issued. Section 8 (a) (3) of the Act, as amended in 1951,9 permits an employer and a labor organization to execute a- union-shop agreement if, among other things, the labor organization "has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with Section 9 (f), , h ." Emphasis supplied.) The Employer and the Intervenor contend that as they signed the 1952 contract extending the union-security pro- vision prior to the Board's "Notice" of November 21, 1952, such contract constitutes a bar, regardless of whether or not the union-security provision therein remains in effect. The Petitioner, on the other hand, contends that the conviction of Anthony Valentino, the withdrawal of the Intervenor's com- pliance letter, and the invalidation of the FTW certification, constitute sufficient grounds for removing the contract as a bar, regardless of whether or not the union-security clause has been extended. Although the Intervenor was ostensibly in compliance with the filing requirements of the Act on November 6, 1952, when the agreement was executed extending the contract termina- tion date to October 17, 1953, this was so only because Valentino had filed a false affidavit with the Board. Thus the Intervenor obtained from the Board the privilege of entering into a union-shop agreement through the fraud of one of its elected officials. Although the Employer may have been justi- fied in relying upon the Intervenor's apparent compliance with the statutory requirements, the Intervenor cannot benefit from an abuse of the Board's processes by one of its officials. Furthermore, as the Board found, in the December 1952 Order, "that its processes were abused at the time the letter of compliance of June 18, 1952, was issued," the withdrawal of the Intervenor's compliance letter was retroactive in 3Public Law 189, 82nd Congress, 1st Session, approved October 22, 1951. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect, and had the effect of establishing the status quo that would have existed at that time but for the fraudulent repre- sentation, so that the Intervenor was not, as a matter of law, as it could not have been under the circumstance, in com- pliance with the necessary filing requirements when the agree- ment in question was executed. We therefore find under all the circumstances that the contract is not a bar to this pro- ceeding. Accordingly, 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. 4. The appropriate units: The Petitioner seeks to sever six separate units of electri- cians, carpenters, painters, pipefitters, machinists, and store- keepers at the Employer's Camden, New Jersey, plant.4 The Employer and the Intervenor contend that these units are inappropriate as all the employees sought work in the main- tenance department, which has been part of a production and maintenance unit for 10 years, and as the operations of the various categories of employees in the maintenance department are highly integrated. Bargaining history, however, does not foreclose the severance of appropriate craft units, nor do we find the operations of the maintenance department so highly integrated as to preclude separate bargaining for such units. Electricians (Case No. 4-RC-1857): The proposed unit includes two employees. One spends 80 percent of his time doing skilled electrical work, but the other spends most of his time greasing and lubricating equipment throughout the plant, and does very little electrical work of any kind. We find that this employee is not an electrician, and as one employee may not constitute a separate appropriate unit, we shall dismiss this petition. r' Carpenters (Case No. 4-RC- 1858): The two carpenters sought perform the type of carpentry work characteristic of their craft, including the repair and rebuilding of platforms, repair of wooden tanks and stairways, and replacement of molding. About 10 percent of their work is fine carpentry work; the remainder is rough carpentry work comparable to that per- formed in building the frame and roof of a house. When 1 of the carpenters is absent, or when more than 2 men are needed, other maintenance employees help the carpenters, but their work is limited to unskilled operations such as lifting lumber and sometimes using a hammer or screwdriver. The two carpenters have worked from drawings explained by the fore- man. One has served an apprenticeship and has been a carpenter for a number of years. The record is silent as to the training of the second carpenter, but he performs the same work as the first one. We find that the carpenters are an 4The Petitioner also petitioned for a unit of millwrights (Case No 4-RC- 1863), but moved at the hearing to withdraw this petition on the ground that no millwrights are employed by the Employer . This motion was referred to the Board, and is hereby granted. 5 Armstrong Cork Company, 100 NLRB 1163. KIND AND KNOX GELATINE COMPANY 1037 identifiable, homogeneous craft group who may constitute a separate appropriate bargaining unit.' Painters (Case No. 4-RC-1859): The two painters sought perform all the painting required throughout the plant and spend most of their time doing the type of work identified with the painting craft. One of these men also does the rigging required in the plant. During the annual shutdown of the plant, laborers and utility employees assist the painters in applying paint to surfaces throughout the plant. While the painters may work with another maintenance group when there is no painting to be done, these employees work as painters most of the time, and as such engage in work requiring craft skills. Ac- cordingly, they may constitute a separate appropriate unit.' Pipefitters (Case No. 4-RC-1860): The proposed unit would include three employees who do pipefitting work. Two of the employees are skilled pipefitters who can work directly from blueprints, and one of them served an apprenticeship. One of the pipefitters spends about 20 percent of his time doing plumbing work and 50 percent of his time doing pipefitting. Another pipefitter spends about 70 percent of his time doing pipefitting work. The third employee in this proposed unit is a helper who spends 70 percent of his time helping the pipefitters. We find that the pipefitters are an identifiable, homogeneous craft group who may constitute a separate appropriate bargain- ing unit.' Machinists (Case No. 4-RC-1861): This proposed unit would include three employees who perform work described as rough machine work. They also assemble , install , tear down, and repair pumps and maintain the repair of the chain conveyor and cutting off machines. Very little of their work is done with machine tools. One of these three employees can do machine work when a replacement part cannot be purchased immediately and must be made. Precision parts are made by outside machine parts companies . In view of the limited scope and unskilled nature of their work, we find that this group of employees does not constitute a craft group.' Accordingly, we shall dismiss the petition in Case No. 4-RC-1861. Storekeepers (Case No. 4-RC-1862): The two storekeepers in the proposed unit maintain the inventory of maintenance supplies , tools, and equipment. They receive and disburse maintenance supplies in stock and ship material which is to be repaired away from the plant. The testimony was that it requires about a month to train a man of average intelligence to become an efficient storekeeper . We find that this proposed unit does not comprise a skilled craft group , and that it does not on any other basis constitute a separate appropriate unit for the purposes of collective bargaining . We shall , therefore , dismiss the petition in Case No . 4-RC-1862. slntermtional Harvester Company, West Pullman Works, 103 NLRB 716. 7 The Kroger Co., 103 NLRB 218; Owens-Corning Fiberglass Corporation, 84 NLRB 298. IA. rnstiong Cork Company, supra 9McCarthy Chemical Company. 90 NLRB 1084; Sawyer Biscuit Co., 92 NLRB 1447. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall at this time direct that separate elections be held among the following voting groups of employees at the Employer's Camden, New Jersey, plant, excluding from each group guards, professional employees, all other em- ployees, and all supervisors as defined in the Act: 1. All carpenters. 2. All painters. 3. All pipefitters. If a majority of the employees in any of the voting groups vote for the Petitioner, they will be taken to have indicated their desire to be represented in a separate unit, and the Regional Director conducting the elections directed herein is instructed, in that event, to issue a certification of representatives to the Petitioner for such unit or units, which the Board, under such circumstances; finds to be appropriate for the purposes of collective bargaining. If, however, a majority of the employees in any of the voting groups vote for the Intervenor, they will be taken to have indicated their desire to remain part of the existing production and maintenance unit, and the Regional Director is instructed to issue a certification of results to such effect. ORDER IT IS HEREBY ORDERED that the petitions filed in Cases Nos. 4-RC-1857, 4-RC-1861, and 4-RC-1862, be, and they hereby are , dismissed. [Text of Direction of Elections omitted from publication in this volume.] Chairman Herzog and Member Peterson took no part in the consideration of the above Decision, Order, and Direction of Elections. BASIC MANAGEMENT, INC., and JOHN W. GALBREATH, d/b/a JOHN W. GALBREATH CO. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, LOCAL 631, AFL, Petitioner. Case No. 20 -RC-2148. May 18, 1953 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 Clement W. Miller, 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 [Members Houston, Murdock, and Peter- son]. 104 NLRB No. 133.