Mirro Aluminum Co.

934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances, and as the petition was filed after the 1959' amendments to the contract were executed, we find that the amended contract constitutes a bar to this proceeding. The Board has also accorded consideration to the schism issue raised by the Petitioner at the hearing. The Petitioner alleges in this connection that the employees at the Employers' Fairborn plant have not availed themselves of the opportunities for participation in the. amalgamated union, and that the appointment of committee men and shop stewards by the Union, rather than their election, was improper. We find no merit in these contentions. In the Hershey case, supra, the Board reexamined and restated its schism doctrine, holding that it would find a schism to exist, warrant- ing an election in the face of a contract otherwise a bar, if, and only if, there existed, inter alia, a basic intraunion conflict affecting the employees' representative. The Petitioner in the instant case does not allege, nor does the record reflect, that the union members took any action whatsoever to disaffiliate from the Union, or even indicated an intention to do so. At most, the Petitioner's allegations amount to mere individual dissatisfaction with the collecting bargaining appara- tus, and afford no basis for finding a schism. Accordingly, as the existing contract is a bar to this proceeding,, we shall dismiss the petition without prejudice to a timely refiling. IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. Mirro Aluminum Company and District 50, United Mine Work- ers of America, Petitioner. Case No. 13-RC-6851. March 3, 1960 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 Karl W. Grabemann, 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 [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 organizations involved herein claim to represent cer- tain employees of the Employer.' i At the hearing , Locals 120 and 130, Aluminum Workers International Union, AFL-CIO, herein called the Intervenor , Lodge 516 and Lodge 1181 , International Association of 126 NLRB No. 121. MIRRO ALUMINUM COMPANY 935, The Employer and the Intervenor declined to stipulate that the Petitioner is a labor organization. A representative of the Petitioner testified without contradiction that the Petitioner negotiates and administers contracts with employers covering wages, hours, and con- ditions of employment of employees. Accordingly, we find that the Petitioner is a labor organization with the meaning of Section 2(5), of the Act 2 3. The Intervenor urges the Board to defer an election herein on the ground that a fair election can not be conducted at this time. In support of its position, the Intervenor offered to prove at the hearing that all its funds and property have been illegally seized by defecting officers of the Intervenor who withhold these assets despite demand therefor. As these circumstances do not preclude a free and uncoerced election, we reject the Intervenor's request.' Accordingly, we deny the Intervenor's motion to reopen the record for the purpose of taking further testimony relating to this matter. A question affecting com- merce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9(c) and Section 2(6) and (7) of the Act 4 4. The appropriate unit : The parties agree, in general, to the composition of the unit, set forth below. However, the parties disagree regarding the unit place- ment of die setters. The Petitioner and the Employer would exclude all die setters as supervisors; the Intervenor would include in the unit some die setters who it contends perform production duties, and would exclude from the unit other die setters who it concedes perform supervisory duties .5 In 1942, in a case involving the Employer's predecessor, the Board determined that certain die setters were supervisors.6 Since that time, die setters have not been included in the plantwide unit; in the most recent contract between the Employer and the Intervenor, which ex- pired on September 30, 1959, they were excluded. The record does Machinists , AFL-CIO, herein called the Machinists , and Lodge No. 751, International Brotherhood of Electrical Workers , AFL-CIO, herein called the Electrical Workers, inter- vened without objection on the basis of prior Board certifications relating to the em- ployees involved herein The parties stipulated that each of the Intervenors is a labor organization as defined in the Act ; and, we so find OF C. Russell Co, 116 NLRB 1015. 8 John Bischof, an individual, d/b/a Bischof Die and Engraving, 114 NLRB 1346, 1349; cf. Kearney and Trecker Corporation, 112 NLRB 69. 4 The Employer moved to dismiss the petition on the ground that the Petitioner had made no demand for recognition as bargaining representative of the employees in the unit described in the petition , or that such request was refused by the Employer. We deny this motion The Board has frequently held that the filing of a petition in itself constitutes a sufficient demand for recognition to support a representation petition. F. C. Russell Co., supra, and cases cited therein. 6 The Intervenor did not otherwise identify which die setters it would exclude and which it would include. G Aluminum Goods Manufacturing Company, 25 NLRB 1004, enfd . 125 F. 2d 353, 356 (C.A. 7). 936 DECISIO1&S OF NATIONAL LABOR RELATIONS BOARD not show that the duties of any die setter has changed since the Board's earlier determination. The die setters are listed- in the Employer's organizational chart as supervisors and they are so described in the Employer's position description of the die setter categories. Al- though there was testimony that some die setters spend a portion of their time doing production work, there was no testimony that any die setter did not perform supervisory functions; and it appears that the performance of such production work by -die setters is incidental to the performance of their supervisory duties. In these circumstances, we shall exclude all die setters from the unit. The following employees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All production employees and maintenance employees' in plants 1, 2, 3, 4, and 5 of the Employer in Two Rivers and Manitowoc, Wisconsin including clerical employees in the production department office, but excluding executive, administrative and professional em- ployees, general and factory office employees, die (setters, machine shop employees, pipe fitters, sheet metal workers, electricians, and pattern- makers, their helpers and apprentices, guards, watchmen, and super- visors as.defined in the Act.8 [Text of Direction of Election omitted from publication.] 7 This category includes window washers, janitors, and similar classifications. 8 The unit found appropriate conforms to that requested in the petition , as amended, and is the unit for which the Employer and Intervenor have bargained since 1942. Lewin-Mathes Company, Division of Cerro de Pasco Corpora- tion and United Independent Electrical Workers of America. Case No. 14-CA-1917. 'March 4, 1960 DECISION AND ORDER On April 17, 1959, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that it be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed exceptions to the Intermediate report and a brief in support of its exceptions to the Trial Examiner's Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, 126 NLRB No. 105.