The Baugh Chemical Co.

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neers, AFL-CIO, for the employees covered by said unions agreements and for whom Respondents would have made such contributions had Respondent not abrogated said agreement. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices reasonably may be anticipated . I shall there- fore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 649, International Union of Operating Engineers, AFL-CIO, and Dis- trict 50,'United Mine Workers of America, are labor organizations within the mean- ing of Section 2(5) of the Act. 3. All employees employed by Respondent and engaged in the operating and main- tenance of hoisting and portable machinery and engines used on: (a) open and heavy construction work and machinery, engines, motors, boilers, and pumps used at asphalt or blacktop mixing plants, and (b) all kinds of building, wrecking, repairing, excavation, and construction work in and around McDonough County, Illinois, but excluding office clerical employees, guards, all other employees, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Local 649, International Union of Operating Engineers, AFL-CIO, is, and at all times commencing and since July 13, 1963, has been, the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing at all times, commencing and since October 14, 1963, to bargain with Local 649, International Union of Operating Engineers, AFL-CIO, as the exclusive bargaining representative of employees in the appropriate unit, and by failing to conform with the provisions of the contracts of July 13, 1963, relative to payments as to the health benefit plan, as therein provided, and by otherwise failing to maintain such contracts in effect for the remainder of their terms, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By recognizing and entering into a contract with District 50, United Mine Workers of America, Respondent has contributed support and assisted District 50 and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (2) and (1) of the Act. 7. By entering into a contract with District 50, United Mine Workers of America, requiring membership in that organization as a condition of employment, Respondent has discriminated in regard to hire or tenure of employment to encourage member- ship in District 50 and to discourage membership in Local 649, International Union of Operating Engineers, AFL-CIO, and thus has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 8. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] The Baugh Chemical Company and Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, Petitioner. Case No. 5-RC-4554. January 14, 1965 DECISION ON REVIEW On July 17, 1964, the Regional Director for Region 5 issued a Decision and Direction of Election'-in the above-entitled proceeding. 1 On August 18, 1964, the Regional Director, issued an order denying a motion for reconsideration filed by the Petitioner on July 27, 1964. 150 NLRB No. 103. THE BAUGH CHEMICAL COMPANY 1035 Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review of such Decision and Direction of Election limited to the Regional Director's determination directing that the election be held at or about the approximate seasonal peak, in April or May 1965. The Employer filed a statement in opposition to the Petitioner's request for review. Thereafter, the Board by telegraphic order dated September 25, 1964, granted the request for review. The Board 2 has considered the entire record in the case with respect to the Regional Director's determination under review to- gether with the briefs of the parties and makes the following findings : The Employer operates two plants in Cambridge, Maryland, at which it manufactures fertilizer and other related agricultural chem- icals, and distributes these products to farmers and other customers. Except for a 2-month slack period in the middle of the summer, the Employer engages in production operations throughout the year with a ,permanent complement of approximately 40 year-round employees. However, due to increased demands based upon such factors as the agricultural growing seasons and weather conditions, the Employer experiences a cyclical upswing in its production during the spring and another less pronounced increase in, the fall. During the spring period the Employer utilizes, - on the average, about 40 additional workers to supplement its permanent force. In the fall, only a few, if any, additional employees are hired. The Regional Director con- cluded that employees hired for peak operations were in the unit and eligible to vote in the election as they had a reasonable expectation of substantial future employment. No request for review was made as to this finding. The only issue raised on review concerns the Regional Director's direction that because the Employer's operations ate seasonal in nature, the election be held during the next seasonal peak in April or May. Contrary. to the Regional Director, we do not view the instant case as one requiring the postponement of the election until the next seasonal peak in the Employer's operations. Unlike the seasonal industry cases where production operations are carried on only during a certain portion of the year, 'on a seasonal basis, here the Employer is engaged virtually in year-round production opera- tions. Further, the number of employees in the Employer's year- round complement is-substantial compared to the number in the com- plement employed during peak operations. In circumstances such as these a postponement of the election until a seasonal peak would in 2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman McCulloch and Members Fanning and Brown]. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our opinion, unduly hamper year-round employees in the enjoyment of their rights under the Act. We believe, therefore , that it will best effectuate the purposes of the Act to direct an immediate election herein. Accordingly, the case is hereby remanded to the Regional Director for Region 5 for the purpose of holding an election pursuant to his Decision and Direction of Election , except that the payroll period for determining eligibility shall be that immediately preceding the date above. Stafford Trucking Inc. and Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 30-CA-20 (formerly 18-CA-1668). Janu- ary 15, 1965 DECISION AND ORDER On June 17, 1964, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Decision. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of the complaint thereto. Thereafter, the Respondent 'filed exceptions to the Decision and a brief in support thereof.' 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 [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and finds merit in certain exceptions of the Respondent. Accordingly, the Board adopts the findings of the Trial Examiner except to the extent noted hereafter. I On November 18, 1964, the General Counsel filed a motion to remand and consolidate the instant case with Case No . 30-CA-103 and the Respondent filed suggestions in op- position to the General Counsel's motion to remand and consolidate . The complaint in that case, issued November 17, 1964, alleged that subsequent to this hearing Becker and Immel were discharged in violation of Section 8(a) (3). The record here is sufficient to make a determination as to the allegations set forth in this complaint . As the subsequent alleged discriminatory discharges can now also be adequately litigated on their merits, the motion is hereby denied. 150 NLRB No. 107.