Mason Can Co.

MASON CAN COMPANY 105 should have been clear to the voter, in the light of both of these state- ments, that he had "spoiled" his ballot. And if, as further alleged by the Petitioner, there was no eraser on the voter's pencil to eradicate the spoilage, he should have obtained a new ballot in order to cast a clear vote. Accordingly, we find, no mitigating circumstances to render the ballot valid. In view of the foregoing, we adopt the Regional Director' s recom- mendations that the Petitioner's objections be overruled, and that a certification of results of election be issued. [The Board certified that a majority of the valid ballots was not cast for Die and Tool Makers Lodge No. 113, International Association of Machinists, AFL-CIO, and that said Union is not the exclusive repre- sentative of the employees in the unit heretofore found to be appropriate.] Mason Can Company and Mason Can Employees Independent Union,' Petitioner.' Cases Nos. 1-RC-4201 and 1-RC-4330. Janu- ary 18,1956 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before William I. Shooer, 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 these cases the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Employer and the Intervenor contend that the petitions should be dismissed because the Petitioner is not a bona fide labor organization, but is merely "fronting" for the United Steelworkers of America, AFL-CIO, with which the Intervenor's parent organization has a "no-raiding" agreement. We find no merit in this contention, as (1) the record shows that the Petitioner exists for the purpose of dealing with employers concerning terms and conditions of employ- ment, and (2) the fact, if it be a fact, that the Petitioner is assisting i As the AFL and CIO merged since the hearing in this case, we are taking notice thereof and amending the names of the Intervenor and IAM. 2 Amalgamated Jewelry Workers Union, Local 18, International Jewelry Workers Union, AFL-CIO, herein called the Intervenor, was permitted to intervene at the hearing on the basis of a current contractual interest. International Association of Machinists, AFL- CIO, intervened on the basis of a showing of interest. We find no merit in the Petitioner's contention that the last named organization should not have been permitted to intervene because its showing of interest was insufficient . That question is a matter for administra- tive determination, not litigable by the parties. However, we are satisfied as to the ade- quacy of IAM's showing. 115 NLRB No. 21. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another union to circumvent the '"no-raiding" agreement is not suffi- cient ground, under Board policy, to dismiss the petition. The Employer and the Intervenor also contend that although the Petitioner ostensibly complied on September 1, 1955, with the filing requirements of Section 9 (f), (g), and (h) of the Act, such compli- ance was ineffective because it was achieved 1 day before the Petitioner -came into existence and its officers were elected, so that various repre- sentations made in the affidavits and other documents filed as to the existence of the Petitioner and the status of its officers were necessarily false. We find no merit in this contention, as it is well settled that compliance is an administrative matter, not litigable in a representa- tion proceeding. However, the Board will permit parties to'a repre- sentation proceeding to cause to be instituted an administrative inves- tigation of those compliance matters which the Board may properly decide in a collateral hearing.3 3. The Intervenor contends that its current contract with the Employer, executed on August 30, 1955, and effective until October 1, 1958, is a_bar to the petition filed in Case No. 1-RC-4201 on September 2, 1955.1 As the contract contains a union-security clause and the Intervenor was out of compliance with the filing requirements of Sec- tion 9 (f), (g), and (h) of the Act from May 31, 1954, until October 31, 1955,• we find that the contract is not a bar to that petition.' 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. We find, in accordance with the stipulation of the parties, that the following employees of the Employer constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act : All production, maintenance, and shipping employees at the Em- ployer's East Providence, Rhode Island, plant, excluding office and I United States Plywood Corporation, 112 NLRB 147 1 We reject the additional con- tentions of the Intervenor and the Employer that: (1) the petition of September 2 herein was invalid because filed a few hours before the Petitioner came into existence; and (2) the cards submitted in support of that petition are invalid because they designated a non- existent labor organization As to ( 1), even if the formal organization of Petitioner was not completed until a few hours after the filing of the petition , the petition would not thereby he invalidated. It is clear from the record that the petition has, in any event, since September 2, been adopted by the Petitioner. As to ( 2), the sufficiency of a Peti- tioner 's showing of interest is a matter for administrative determination , not litigable by the parties. Moreover , even if the designations of Petitioner were premature , they are still significant as indications of the desires of the employees , in the absence of any revo- cation of such designations 4 The Petitioner filed a second petition (Case No. 1-RC-4230) on September- 29, 1955, seeking the same 'unit as in its first petition ( Case No 1-RC-4201 ). The Petitioner stated in its second petition that it was being filed because a schism had occurred in the Intervenor The hearing officer referred to the Board the Intervenor 's motion to dismiss the second petition on the ground that it constitutes a "harassment " of all other parties. As the second petition is identical with the first , and as the latter affords sufficient basis for our action in directing an election herein, we shall dismiss the second petition. 5 Canbe Plastics Corp., 107 NLRB 7. CADILLAC MARINE & BOAT COMPANY 107 professional employees, foremen, assistant foremen, executives, .guards, watchmen, truckdrivers, and supervisors as defined in the Act. [The Board dismissed the petition in Case No. 1-RC-4230.6] [Text of Direction of Election omitted from publication.] e See footnote 4, above. Cadillac Marine & Boat Company and International Association of Machinists, AFL-CIO. Case No. 7-CA-1053. January 20, 1956 DECISION AND ORDER On February 11, 1955, Trial Examiner Herbert Silberman issued his intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner,' with the following additions and modi- fications. 1 The following matters raised by the Respondent, in its exceptions and brief , warrant comment : (1) The Respondent contends that the Trial Examiner erred in refusing to admit evidence regarding dischargee Fulk's past employment record, and other evidence pertaining to the individual attitudes of three of the Respondent's officials ( I. e. Manager Weld, Superintendent Shervey, and Supervisor Swanson) toward unionism . At the hear- ing the Respondent, in substance, offered to prove that Folk's past work record is a poor one, in that Fulk had worked for numerous other employers and had not stayed long with any of them ; and also offered to prove, in substance , that Wold and Swanson had in the past enjoyed pleasant relations with unions, and that Shervey was a former member of the Charging Union herein . The Trial Examiner refused to admit the proffered evidence on the ground that it was not relevant . In the circumstances of this case , we cannot agree with the Trial Examiner and say the proffered evidence was not relevant. However, we do not deem this evidence to be of sufficient probative weight, if admitted and fully considered , as to cause us to . disagree with the Trial Examiner's resolution of the issues to which such evidence was relevant ; (2) the Respondent contends that the Trial Ex- aminer inaccurately reported , in his Intermediate Report, the testimony of Supervisor Ivon Waite, pertaining to the date when Waite first learned of the Union 's organizing ,campaign. The Trial Examiner relied, in part, upon Waite's testimony to show that the Respondent had knowledge of the organizing campaign before it affected the discharge here in issue. Waite's testimony in this respect is somewhat ambiguous , and the Respond. ent's contention is not without merit. Accordingly , we do not rely upon Waite's testimony to establish that the Respondent's officials were aware of the Union's activities prior to the discharges , this latter fact being clearly established by other evidence. For example, as noted by the Trial Examiner , the Respondent's superintendent, Wesley Shervey, admitted 115 NLRB No. 30.