Hermet, Inc.

HERMET, INC. 671 Hermet, Inc. and Local Lodge No. 5, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Petitioner.' Case 22-RC-5471 November 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY A petition was duly filed on October 24, 1972, under Section 9(c) of the National Labor Relations Act, as amended. On November 29, 1972, the Regional Director for Region 22 dismissed the petition and on December 12, 1972, the Petitioner appealed that dismissal. The Board issued on June 11, 1973, a ruling on that appeal, directed that a hearing be held and that the case be transferred to the Board for decision. A hearing was held on July 9 and 18, 1973, before Hearing Officer Robert Jack- son. Following the hearing and pursuant to the Board's ruling on appeal and Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. The Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the National Labor Relations Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations 2 involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. The Petitioner, the Boilermakers, seeks a unit of all production, maintenance, and shipping and receiving employees of the Employer at its Dover, New Jersey, plant. The Employer and the Ironworkers contend 1 The name of the Petitioner appears as amended at the hearing. 2 Shopman's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, was permitted to intervene at the hearing on the basis of a collective-bargaining agreement with the Employer and on the basis of a Board Order involving it and the Employer contained in Lawrence Rigging, Inc., 202 NLRB 1094. It is referred to herein as the Ironworkers Its sister Local No. 545 was permitted that a contract made pursuant to the Board's Order in the Lawrence Rigging case3 is a bar to the petition. The Employer's operations were originally located in Corona, New York.4 In May 1971, the Ironwork- ers began an organizational campaign among the Employer's production and maintenance employees and by the end of that month had succeeded in obtaining authorization cards from 25 of the Em- ployer's employees. On June 3, 1971, the Ironworkers demanded recognition as the majority representative of the employees. The Employer refused such recognition and began a campaign to oust the Ironworkers, a campaign which included unlawful assistance to the Petitioner, the Boilermakers. The Employer's conduct was the subject of unfair labor practice charges and on August 25, 1972, an Administrative Law Judge found that the Employer had violated Section 8(a)(1) by threats and promises of benefit made to its employees; Section 8(a)(2) by the assistance and support rendered the Boilermak- ers; and Section 8(a)(5) by its refusal to bargain with the Ironworkers at a time when that union possessed valid authorization cards from a majority of the Employer's employees. On April 12, 1973, the Board affirmed the findings of the Administrative Law Judge and ordered the Employer to remedy the violations it had committed, including an order to bargain with the Ironworkers. Sometime during 1972 the Employer found more adequate quarters for its operations in Dover, New Jersey, which is located about 50 miles from the Employer's operations in Corona, New York. On May 19, 1972, the Employer notified all of its employees of its contemplated move and offered them jobs at the new location and assistance in moving from Corona to Dover. All of the clerical and management employees took advantage of the offer and 12 of the 51 production employees also transferred to the Dover plant. The Employer began production at Dover on August 15, 1972, using the same production methods and equipment and the same job classifications as at Corona. The Employer also has the same type of customers and utilizes some of the same suppliers. There is no contention that the Employer's move from Dover to Corona was violative of the Act. On October 24, 1972, the Petitioner filed its petition for an election in the unit found appropriate by the Board in the Lawrence Rigging case. At this to intervene on the basis of a showing of interest. 3 The parties stipulated that Lawrence Rigging and Hermet are the same employer- 4 The facts regarding events in Corona , New York, are in accordance with the facts as found by the Board and the Administrative Law Judge in the Lawrence Rigging case. 207 NLRB No. 106 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time the Employer had 57 employees of which 12 were transferees from the operation in Corona. The record discloses that on March 13 or 14, 1973, all of the Employer's employees went out on strike and picketed the Employer's premises. The placards carried by the pickets bore the name of the Ironworkers. On March 19 the Employer and the Ironworkers executed a recognition agreement and on March 30 a contract was finalized . All except one or two of the employees ratified the contract on March 30 and on April 2 the employees returned to work. The Employer has honored the contract since it was finalized on March 30. As noted above, the Employer and the Ironworkers assert that the contract and the Board's Order requiring the Employer to bargain with the Iron- workers are bars to the petition . At the time of the filing of the petition by the Boilermakers, the Employer was obligated to bargain with the Iron- workers. Such a finding had been made in a decision of an Administrative Law Judge which was later affirmed by the Board . Under these circumstances, and particularly where, as here, the petitioning Union had recently been found to have been unlawfully assisted with respect to the same unit, we do not find that the petition raised a question concerning representation in view of the Employer's obligation to bargain with the Ironworkers which existed at the time the petition was filed and which subsequently resulted in the execution of a contract which is still in effect. Accordingly, we shall dismiss the petition herein. ORDER It is hereby ordered that the petition herein be, and it hereby is, dismissed.