Du-Wel Decorative Co.

DU-WEL DECORATIVE COMPANY 31 that the pretrial statements be introduced as exhibits , which was done The state- ments have been examined by the Trial Examiner, together with all the testimony in the light to the original and the supplemental hearing and no material difference exists which would warrant any modification of the findings and conclusions made by the Trial Examiner in his report dated August 22, 1958 It is therefore recommended that the Board adopt the recommendations made by the Trial Examiner in this matter in has original report dated August 22, 1958, except that the dates for compliance as to posting of notice , and notification to the Regional Director by the Respondent and action by the Board shall run from the date of this Supplemental Report Du-Wel Decorative Company and Du-Wel Metal Products, Inc. and International Association of Machinists, AFL-CIO, Peti- tioner. Cases Nos 7-RC-4132 and 7-RC-4133 November 9, 1959 DECISION 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 James P Kurtz, hearing officer The hearing off'icer's rulings made at the hearing are free from prejudicial error and are hereby affirmed' Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Bean, and Fanning] Upon the entire record in this case 2 the Board finds 1 Each Employer is engaged in commerce within the meaning of the Act 2 The labor organizations involved claim to represent certain em- ployees of each Employer 3 The Employers moved to dismiss the petitions, on the ground that they are barred by contracts made with the Intervenor. Inter- venor takes the same position as the Employers Petitioner contends that neither contract is a bar because, inter alga, each contains a union- security clause which was made at a time when the Intervenor was not in compliance with Section 9(f), (g), and (h) of the Act then in effect a The record indicates that since 1954, the Intervenor has not been in compliance with the filing requirements of the Act On November 1 Die Casters Independent Union, which has a current collective-bargaining agreement with each Employer, was granted leave to intervene We find that this intervention was properly granted M & W Transportation 61o, 115 NLRB 1727 11 The Employers' request for oral argument is hereby denied, because , in our opinion, the record and the Employers' brief adequately set forth the issues and the positions of the parties a These sections have been repealed by the Labor Management Reporting and Disclosure Act of 1959, effective September 14, 1959 However, at the time each contract, urged herein as a bar, was executed and at the time each petition was filed, these filing pro- visions were in effect 125 NLRB No 5 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 159 1956, Employer Du-Wel Metal Products, Inc., hereinafter referred to as the Corporation, entered into a collective-bargaining agreement with the Intervenor containing a union-security clause, which is al- legedly still in effect and covers most of the Corporation's employees involved herein. On October 1, 1958, Employer Du-Wel Decorative Company, hereinafter referred to as the Company, entered into a collective-bargaining agreement with the Intervenor covering most of the Company's employees involved herein and likewise containing union-security provisions which are alleged to be still in effect. Despite the Intervenor's noncompliance, each Employer averred that its agreement is a bar, because of an earlier union-security agreement made by the Corporation while the Intervenor was in compliance. However, inasmuch as neither contract, urged as a bar, was executed at a time when the Intervenor was in compliance in accordance with our rules as set forth in Keystone Coat, Apron d Towel Supply Com- pany,4 we find no contract bar to either petition. Accordingly, we deny the Employers' motion to dismiss the petitions. We find that a question of representation affecting commerce exists concerning the representation of the employees of each Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : Petitioner seeks to represent the same two units of production and maintenance employees as are now represented by the Intervenor, with some minor additions as stipulated by the parties.5 The Em- ployers contend that certain other employees,6 now unrepresented, should also be added to the existing production and maintenance units. Intervenor takes no position. As these additional employees are not part of either existing unit, however, they would not be included, in any event, without being given an opportunity to vote as to whether or not they desire to become part of the unit.' Inasmuch as neither labor organization has made any showing of interest among the unrepre- sented employees whose inclusion was stipulated, we do not direct a self-determination election among them.' In view of the fact that no a 121 NLRB 880. In Case No. 7-RC-4133. the parties stipulated the inclusion of the automatic die casting machine operator, the part-time janitress and the part -time machinist, all pres- ently unrepresented. 0A. In Case No. 7-RC-4132 the leadman in plant #3, the clerk in the plating depart- ment and the lab technician. B. In Case No. 7-RC-4133 the AQL inspector ; the roving inspectors ; the leadmen in the machining department , maintenance department, toolroom , shipping department, and die casting department ; the senior electrician ; the tool- and die-maker ; the clerical employees in the shipping department ; the expediter in the machine department ; the setup men in the die casting department ; the draftsmen in the engineering department ; the time-study clerks ; and the estimator. The Zia Company, 108 NLRB 1134. 8 Pennington Brothers, Inc., 124 NLRB 935 ; Swift & Company Refinery, 117 NLRB 945. DU-WEL DECORATIVE COMPANY 33 labor organization has presented a claim to represent those presently unrepresented employees whom the Employers alone would include, we likewise do not direct a self-determination election among them.' Accordingly, we find that the following employees of the respective Employers constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:10 A. In Case No. 7-RC-4132 all production and maintenance employ- ees employed by Du-Wel Decorative Company at its Bangor, Michi- gan, place of business, excluding the leadman in plant #3, the clerk in the plating department, the lab technician, office clerical employees, administrative personnel, draftsmen, professional employees, guards, and supervisors as defined in the Act. B. In Case No. 7-RC-4133 all production and maintenance em- ployees employed by Du-Wel Metal Products, Inc., at its Bangor, Michigan, plant, excluding the automatic die casting machine opera- tor; the part-time janitress; the part-time machinist; the AQL in- spector; the roving inspectors; the leadmen in the machining depart- ment, maintenance department, toolroom, shipping department, and die casting department; the senior electrician; the tool- and die- maker; the clerical employees in the shipping department; the expe- diter in the machine department; the setup men in the die casting department; the draftsmen in the engineering department; the time- study clerks; the estimator; office clerical employees; administrative personnel; draftsmen; professional employees; guards, and supervi- sors as defined in the Act. 5. The Petitioner contended that the Intervenor is defunct and should not be placed on the ballot. The record indicates, and it is not disputed, that, in accordance with each respective collective- bargaining agreement, Intervenor represented the employees in the appropriate units described above as late as May 1959. At a meeting on May 17, 1959, attended by Intervenor's officers and less than one- fourth of Intervenor's total membership of about 280, most of those present voted to affiliate with Petitioner. However, the record re- flects that Intervenor has continued to function as a labor organiza- tion since May 17, 1959. On June 2, 1959, Intervenor participated in a labor-management meeting with the Corporation. Intervenor held a meeting of its members on June 6, 1959, for the purpose of consider- ing a request by one of the Employers regarding the transfer of a senior employee to a different shift for health reasons. According to one of Intervenor's officers a meeting was reportedly held on June 18, B See dmperex Electronic Corporation, 109 NLRB 353 ; Luper Transportation Co., Inc., 92 NLRB 1178. 10 Each unit description is intended to include all employees of the Company or the Corporation presently represented by the Intervenor under its respective collective- bargaining agreement. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1959, between representatives of the Company and Intervenor's stew- ards for the purpose of settling a sitdown strike at the Company's plant. None of the dues checkoff authorizations in favor of Inter- venor had been canceled as of the hearing date. On the contrary, In- tervenor has received checkoff authorizations from two additional employees. Manny Weiss,'one of those who appeared at the hearing in behalf of Intervenor, testified that he was a member of the Inter- venor on the date of the hearing and that he and other employees desired the Intervenor to continue as their collective-bargaining rep- resentative. Finally, the record indicates that Petitioner joined in a stipulation that the Intervenor, as of the date of the hearing, was a labor organization within the meaning of the Act. Despite these facts, Petitioner urges that the results of the vote of less than one-fourth of Intervenor's membership on May 17 prove that Intervenor is defunct. From the record as a whole and despite the defection of its former leadership and part of its membership, we find that Intervenor is not defunct," but continues to exist as a labor organization and has members desirous of maintaining it as such.12 Accordingly we shall place Intervenor on the ballot.13 [Text of Direction of Separate Elections omitted from publication.] " A.. 0. Smith Corporation, 107 NLRB 141.5; Dick Brothers, Inc., 107 NLRB 1,054, ' In view of this finding it becomes unnecessary to consider the Employers ' motion to reopen the record to receive an affidavit that Weiss and other employees, who appeared at the hearing in behalf of the Intervenor , were members of the Intervenor by virtue of their unrevoked dues checkoff authorizations. M. & W. Transportation Co., supra; Standard Conveyor Company, 114 NLRB 1447. Business Machine & Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, AFL-CIO and Texaco, Inc.' Case No. 2-CC- 4497. November 12, 1959 DECISION AND ORDER On June 26, 1959, Trial Examiner Sidney Lindner issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, the Charging Party, the General Counsel, and the Respondent filed exceptions to portions 1 We have been advised that the name of the -Charging Party has been changed from The Texas Company to Texaco, Inc., and have therefore thus amended its name. 125 NLRB No. 7.