Dade Drydock Corp.

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Election herein. We shall direct an election among the fol- lowing employees at the Employer's Grand Rapids, Michigan, plants.' All employees in the toolroom, the engineering experimental shop, and the flexible shop, including electronic model makers and the stock selector and mover, but excluding experimental shop inspectors, the toolroom and flexible shop general foreman, the toolroom foreman, the flexible shop foreman, the engineering experimental shop general foreman and foreman, office clerical employees, professional employ- ees, all other employees, guards, and supervisors as defined in the Act. If a majority vote for the Petitioner they will be taken to have indi- cated their desire to constitute a separate appropriate unit and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit described above, which the Board, under such circumstances finds to be appropriate. In the event a majority do not vote for the Petitioner, they will be taken to have indicated their desire to remain part of the existing unit and the Regional Director will issue a certi- fication of results of election to such effect. [Text of Second Direction of Election omitted from publication.] 4 The Regional Director is authorized to permit the withdrawal of the petition without prejudice, upon timely request of the Petitioner . Radio & Television Station WFLA (The Tribune Company ), 120 NLRB 903. Dade Drydock Corp., Petitioner and Industrial Union of Marine and Shipbuilding Workers of America and its Local 7, AFL- CIO. Case No. 12-ISM-17. August 17, 1959 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 Herbert N. Waterson, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1The Union moved to dismiss the petition on the grounds that (a) the Regional Di- rector had no authority to order a hearing while the Union 's appeal from the Regional Director's dismissal of its charges against the Employer was pending before the General Counsel in Case No. 12-CA-751, and (b) the Employer's counsel at the hearing herein was employed by the Board 's Regional Office at the time the Regional Director dismissed the Union's charges in 'Case No. 12-CA-751. As to (a), the Regional Director's dis- missal of the charges in Case No 12-CA-751 on April 1, 1959 , disposed of those charges insofar as they affected the Regional Director 's authority to issue a notice of hearing in this representation case, even though the Unions' appeal to the General Counsel was pending at the time the hearing was held herein . See The Alliance Manufacturing Com- pany, 101 NLRB 112 , footnote 4. Moreover, as indicated below , the General Counsel denied the appeal on June 27 , 1959 As to (b), Section 102.96 of the Board's Rules and Regulations, which governs practice before the Board by its former regional em- ployees, prohibits such practice only in connection with any case or proceeding which was pending in the Regional Office during the time of such employee's employment with the Board . As counsel's employment with the Regional Office terminated on March 23, 124 NLRB No. 61. DADE DRYDOCK CORP. 533 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 Leedom and Members Bean and Fanning]. 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 organization involved claims to represent certain employees of the Employer. 3. Industrial Union of Marine and Shipbuilding Workers of Ameri- ca, AFL-CIO, was certified on August 20,1957, and, together with its Local 7, executed a contract with the Employer effective September 16, 1957, until September 16, 1959. The parties entered into negotia- tions in August 1958, under a wage reopening clause. On January 12, 1959, the Union called a strike which at the time of the hearing, on June 5, was still in progress. Four pickets were appearing at the Employer's premises daily. When the strike began, there were 113 employees in the unit. At the time of the hearing the plant was op- erating with 67 employees, of whom 18 never went on strike, the remainder being replacements and reinstated former strikers. On January 27, 1959, the Union filed unf air labor practice charges alleg- ing, inter alia, a refusal to bargain by the Employer (Case No. 12-CA- 751). The Regional Director dismissed the charges on April 1, 1959. At the time of the hearing, the Union's appeal from the Regional Director's dismissal was pending before the General Counsel. At the hearing, the Union refused to disclaim its interest in the employees in the unit, stating that it represented some employees currently em- ployed, and that its claim to majority status depended on the General Counsel's decision on its appeal in Case No. 12-CA-751. The Union further asserted at the hearing that its current contract with the Employer-Petitioner was a bar.' On June 27, 1959, the appeal was formally denied by the General Counsel. At the hearing, the Employer-Petitioner contended that as the Union did not claim to represent a majority of the employees cur- rently employed in the unit, there was no question of representation, and that the Board should therefore dismiss the petition. If, on the other hand, the Board should find, contrary to its contention, that a question of representation exists, the Employer-Petitioner desires that an election be directed. As noted above, the certified and contractual representative of the employees in the unit involved is asserting its current contract as a 1959 , prior to the filing of the petition in the instant case on May 12, 1959, he is not prohibited from representing the Employer-Petitioner in this proceeding. Accordingly, the union's motion to dismiss the petition on these grounds is denied. ? This contract expires on September 16, 1959. As the petition was filed on May 12, 1959, more than 60 and less than 150 days prior to the expiration date of the contract, we find that the petition is timely, and the contract is not a bar , Deluxe Metal Furni- ture Company, 121 NLRB 995. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bar. Under these circumstances, and apart from any other considera- tions, we find, contrary to the Employer-Petitioner, that the Union is currently demanding recognition, without regard to its majority status, and that such a demand is sufficient to raise a question of repre- sentation.2 We further find, in agreement with the Employer- Petitioner's alternative position, that such question should be resolved by an election.4 Accordingly, we find that a question affecting commerce exists con- cerning 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 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 : 5 All production and main- tenance employees at the Employer's Miami, Florida, ship construction and repair operations, including truckdrivers and leadmen, but ex- cluding office clerical employees, timekeepers, time clerks, planning and estimating employees, draftsmen, salaried employees, plant- protection' employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 8 See American Lawn Mower Co., 108 NLRB 1589, 1590. 4 After the close of the hearing, the Employer-Petitioner filed with the Board a motion that the Board revoke the certification , or take other appropriate action to implement Section 8 ( d) of the Act, on the ground that a majority of the prestrike employees lost their employee status by striking in violation of Section 8(d) ; and, contingent upon this motion being granted , the Employer-Petitioner moved to withdraw its petition herein. At the hearing, evidence was adduced to show that the Union failed to notify the Federal Mediation and Conciliation Service of its dispute with the Employer prior to calling the strike. The contention with respect to Section 8(d) constitutes an allegation of an unfair labor practice in violation of Section 8(b) (3). See Retail Clerks International Association; Local No. 1179, AFL (J. C. Penney Company ), 109 NLRB 754 . The Em- ployer has not filed a Section 8 (b) (3) charge against the Union, and the Board does not litigate unfair labor practice issues in a representation proceeding . See National Foundry Company of New York, Inc., 109 NLRB 357. The motion to revoke the certi- fication is , therefore, denied. Further, as this contention is irrelevant to a representation proceeding, testimony and documents with respect thereto were erroneously admitted into evidence by the hearing officer. . 6 There is no dispute as to the appropriateness of the unit, which conforms with the contract unit. Shreveport-Bossier Cleaners & Laundries, Inc.' and Local Union No. 44, Laundry & Dry Cleaning International Union, AFL- CIO, Petitioner. Case No. 15-PC-1941. August 17, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition 2 duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Loren P. Jones, hearing of- 1 Herein called Employer or Association. 2 Laundry , Dry Cleaners and Dye House Workers International Union, Local No. 44, Independent, intervened on the basis of its contract covering employees in the requested unit. In a motion filed with the Board , it seeks to have the petition dismissed on the 124 NLRB No. 64.