Baldwinville Products, Inc.

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Do you recall a nickname? A. I will make them available to you as soon as- Q. But you don't have them now? A. I don't recall them at this moment, no. Smith further testified on cross-examination that he received his financial reports from Al McClain, the financial secretary (the individual who signed the various Board Forms NLRB-1085 in evidence). Smith testified that whenever he asked for a finan- cial report from McClain there was one available. The witnesses called by the Regional Director were forthright and direct in their testimony. Emerson Smith, president of Local 802, though positive when testifying on direct examination, on cross-examination indicated such a vagueness of recollec- tion, compounded with assumptions, that the hearing officer would not be warranted in attaching much weight to his testimony. True, it may be, that Smith asked for and received copies of the financial report during certain of the years of his member- ship, but this fact alone does not support a finding that the statements made and certified to be true by L. McClain, financial secretary, for the periods in question, are in fact true. McClain, who signed and certified to the truth of the information contained in Board Form NLRB-1085, was not called as a witness by Local 802. On the basis of the record herein, my appraisal of the witnesses, the arguments and briefs of the respective parties, I find as follows: (1) Local 802 did not post a copy of its financial report "in a conspicuous place at the headquarters and meeting hall of the Local Union" for the periods 1951, 1952, and 1953 as certified to be true in Board Form NLRB-1085 for those years; Local 802 did post a copy of its financial report for the years 1948, 1949, and 1950, but such report remained posted for 2 or 3 days. (2) Local 802 did not announce at a regular meeting that copies of the financial report were ready for distribution to all members for the years 1948 through and including 1953 as certified to be true in Board Form NLRB-1085 for those years. BALDWINVILLE PRODUCTS, INC. and STATIONARY LOCAL UNION No. 86, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, PETITIONER. Case No. 1-RC-3572. February 18,1955 Supplemental Decision, Order, and Direction of Election On March 4, 1954, the Petitioner filed the Petition in this case, seeking to sever a unit of firemen and engineers from the existing unit of production and maintenance employees at the Employer's plant in Baldwinville, Massachusetts. On June 15, 1954, the Board issued a Decision and Order 1 finding that the unit sought was not severable as a craft or departmental group under the American Pot- ash case 2 On July 7, 1954, the Petitioner filed a motion to reopen the record to take further evidence bearing on the appropriateness of the unit sought. On July 14, 1954, International Brotherhood of Paper Makers, AFL, filed opposition to this motion. Having duly considered the matter, the Board, on September 23, 1954, granted the Petitioner's motion and directed a further hearing to receive testi- mony bearing on the appropriateness of the unit sought. The hear- ing was held on October 14 and 15, 1954, before a hearing officer I Not reported in printed volume of Board Decisions and Orders. 2 American Potash ct Chemical Corporation, 107 NLRB 1418. 111 NLRB No. 119. BALDWINVILLE PRODUCTS, INC. 753 of the Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon consideration of the entire record in this case, including the transcript of the hearing of October 14 and 15, 1954, we have deter- mined to vacate the Decision and Order of June 15, 1954, dismissing the petition, and in lieu thereof adopt the following : 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 and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent employees of the Employer 3 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act 4 4. The appropriate unit : The Petitioner seeks to sever a unit of 3 firemen and 3 engineers from the existing contract unit of production and maintenance em- ployees represented by the Intervenor. The Intervenor opposes sev- erance. The Employer is neutral. The employees sought are licensed under State law as required by the Employer. They have their headquarters in the engineroom and boilerroom, which are physically separated from the produc- tion area. There, under the separate, immediate supervision of the chief engineer, they operate and maintain the boilers and steam en- gines, which supply steam and power for the Employer's operations. These duties occupy at least 80 percent of their time. The balance of their time is spent in miscellaneous maintenance work through- out the plant, including overhauling and repair of motors, installa- tion of electrical wiring and pipelines, repair of electrical equipment, and some carpentry work. However, as most of their time is spent in the maintenance and operation of the boilers and engines, we find that they are a functionally distinct and separate group, with related tasks and interests , and are entitled to a self-determination election despite a history of bargaining on a broader basis 5 Moreover, the Petitioner is affiliated with a union which traditionally represents units of powerhouse employees like the one here sought. In view of the foregoing, and upon the entire record, we find that the following employees may, if they so desire, constitute a separate appropriate unit for the purposes of collective bargaining : 3 Local 434, International Brotherhood of Paper Makers, AFL, intervened at the initial hearing herein on the basis of its current contract with the Employer. * The Intervenor urges as a bar to an election its most recent contract with the Em- ployer, executed on August 20, 1954, while the Petitioner's motion to reopen was pending before the Board. We find that that contract does not bar any further proceedings herein. Refrigeration Manv facturing, Inc, 104 NLRB 510, 512. 6 General Electric Company (Fitchburg Works), 110 NLRB 744. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All firemen and engineers at the Employer's Baldwinville, Massa- chusetts, plant, excluding supervisors. We shall, however, make no final unit determination at this time, but shall first ascertain the desires of these employees as expressed in the election hereinafter directed. If a majority vote for the Peti- tioner, they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election is instructed to issue a certification of representatives to the Petitioner for the voting group described above, which the Board, under such circumstances, finds to be an appropriate unit for the purposes of collective bargaining. If a majority vote for the Inter- venor, they may continue to be represented by it as a part of the existing production and maintenance unit, and the Regional Director is instructed to issue a certification of results of election to such effect. [The Board set aside the Order of June 15, 1954.] [Text of Direction of Election omitted from publication.] MEMBER PETERSON, dissenting : Without reaching the question whether the Petitioner finally has adduced sufficient evidence to warrant a finding that the employees sought are a severable craft or departmental group, I would affirm our original dismissal of the petition on the ground that the inter- vening contract between the Employer and Intervenor is a bar to an election at this time. In rejecting the contract-bar argument, the majority rely on Refrigeration Manufacturing, Inc.,' which I think is readily distin- guishable. There, the Board directed an election, after considering evidence taken at a reopened hearing following an earlier dismissal of the petition. It did so despite an intervening contract entered into while the motion to reopen was pending. That is the situation here, but in my view there are further significant facts which serve to dif- ferentiate the cases. In the former case, the Board originally dis- missed because the record in the first hearing failed to show that timely notice had been given to forestall automatic renewal of an existing contract. Indeed, the intervening unions there asserted the then existing contract as a bar, and the Board found the contract had been automatically renewed prior to the filing of the petition. When the Board's attention was called to the fact (not theretofore disclosed) that the contracting parties had by proper notice fore- closed automatic renewal, it granted the Petitioner's motion to reopen. The Board noted that the Petitioner moved to reopen "as soon as [it] became cognizant of" the facts negating automatic renewal-"factors 6104 NLRB 510. This decision and the earlier ( unpublished ) proceeding therein were made by a panel consisting of Members Houston, Murdock, and Styles. MANCHESTER MODES, INC. 755 peculiarly within the knowledge of" the contracting parties. The Board did not permit the new contract negotiated in the interim to be a bar for the reason, as I view it, that to do so would permit parties to benefit from the nondisclosure of evidence peculiarly within their knowledge, which, if disclosed, would negate the position ad- vanced before and adopted by the Board. Here, the Petitioner originally sought severance on the theory that the employees were a craft. The Board, on the record, found they did not constitute a true craft or a proper departmental group and dismissed the petition on the basis of the American Potash decision.' Petitioner's motion to reopen did not allege that the Board, on the record before it, erred in dismissing the petition. Rather Petitioner urged that the record be reopened "to take further evidence concern- ing the positive true craft identity of the unit herein sought," excus- ing its failure to do so at the original hearing only on the ground that in a proceeding 2 years earlier an election had been ordered in an identical unit. In these circumstances, I think the contract executed by the Em- ployer and Intervenor while the motion to reopen was pending should be held a bar to a present election. To do otherwise, it seems to me, places a premium on piecemeal presentation of cases, and makes for uncertainty and instability in collective-bargaining relationships. I think it is most inequitable to penalize the Intervenor for the Peti- tioner's failure to persuade the Board of the appropriateness of the unit sought by evidence of which it was at all times cognizant. I be- lieve the proper rule would be to hold that a petitioner in these cir- cumstances must bear the risk of being denied an election by reason of an intervening contract. A contrary rule will encourage motions to reconsider and reopen, thereby unnecessarily prolonging the reso- lution of representation proceedings. 7107 NLRB 1418, issued March 1, 1954. The original hearing in the present case was held on March 24, 1954. The Petitioner, therefore, cannot complain that it was then unaware of the necessity for producing evidence meeting the requirements for severance set forth in American Potash MANCHESTER MODES, INC., AND BRITAIN HALL, INC. and LOCAL 141, INTERNATIONAL LADIES' GARMENT W ORKERS UNION9 AFL, PETI- TIONER. Case No. 1-RC-3071. February 18, 1955 Second Supplemental Decision and Direction On October 3, 1953, pursuant to a Supplemental Decision, Order, and Direction of Second Election,' an election by secret hallo was conducted under the direction and supervision of the Regional Direc- 1 Not reported in printed volume of Board Decisions and Orders 111 NLRB No. 113. 344056-55-vol 111-49