The Mosier Safe Co.

THE MOSLER SAFE COMPANY 9 The Mosier Safe Company and Local No. 1862, International Union, United Automobile, Aero- space and Agricultural and Implement Workers of America, UAW, Petitioner. Case 9-RC-10601 December 31, 1974 DECISION AND DIRECTION OF ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Daniel J. Roketenetz. Thereafter, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Acting Regional Director for Region 9 transferred this proceeding to the National Labor Relations Board for decision. The Employer, Petitioner, and Intervenor Safe Workers' Organiza- tion, Chapter No. 2 (herein Safe Workers), have 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. The rulings are hereby affirmed. On the entire record of this proceeding, including the briefs, the Board finds: 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(cxl) and 2(6) and (7) of the Act. 4. The Employer has, since the mid-1930's, recognized Safe Workers as the exclusive bargaining representative of a unit of production, maintenance, and warehouse employees at its Fairfield and Hamilton, Ohio, plants. Since that time, both parties have entered into a series of successive collective- 1 Cases 9-RM-650 and 9-RC-9374 (unpublished). The certified collec- tive-bargaining unit is as follows: All production and maintenance employees of the Employer at its Hamilton and Fairfield, Ohio, plants , including warehouse employees, but excluding all research and development employees at the Fairfield, Ohio, plant, service employees, polishers, buffers, platers and helpers 216 NLRB No. 23 bargaining agreements. Following a representation election conducted on June 30, 1972, after which the Safe Workers was certified on July 11, 1972, as the exclusive bargaining representative in the appropri- ate unit,l the parties executed a new collective- bargaining agreement on October 23, 1972, effective to March 5, 1975. On November 4, 1973, Safe Workers called a special meeting for the purpose of voting as to whether the Safe Workers should affiliate with the International Union, United Automobile, Aerospace and Agricultural and Implement Workers of Ameri- ca, UAW (herein UAW). Out of the approximately 800 employees in the appropriate unit, all of whom were members of Safe Workers, 447 employees voted; the tally reflected a vote of 258 employees for affiliation and 189 employees against affiliation. Thereafter the president of UAW notified the Employer in writing of the Safe Workers' vote in favor of affiliation with UAW, and International representatives of UAW formally requested that Employer now recognize UAW. The Employer refused to recognize UAW, stating instead that it was obligated to deal exclusively with Safe Workers, the exclusive bargaining representative. Whereupon UAW, on November 9, 1973, filed an AC petition requesting that its name be substituted for Safe Workers in the certification. After a hearing, the Board, on May 28, 1974, dismissed the petition; 2 pointing to the close margin in the affiliation vote and the rejection of UAW by unit employees in two recent Board elections, the Board concluded that opinion as to the merits of UAW affiliation was so sharply divided among employees as to give rise to a question concerning representation which could only be resolved in a Board election. The UAW thereupon, on June 6, 1974, filed the instant RC petition. The Regional Director for Region 9, on June 18, 1974, dismissed the petition, holding that the current collective-bargaining agree- ment between the Employer and Safe Workers acted as a bar. However, the Board, on July 30, 1974, granted UAW's petition for review, reinstated the RC petition, and ordered a hearing to resolve the factual question as to whether or not Safe Workers was defunct, as UAW alleged, so as to remove the collective-bargaining agreement as a bar to the election. Petitioner contends that by virtue of the November 4, 1973, special Safe Workers meeting, wherein a employed in the polishing and plating department who are represented by another bargaining agent, all plant clerical employees who are represented by another bargaining agent , and all administrative, executive, and professional employees, engineering department em- ployees, timekeepers. office employees, clerks to foremen, guards and watchmen, foremen, and all other supervisors as defined in the Act. 2 210 NLRB 934. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of unit employees in attendance voted to affiliate with UAW, Safe Workers is now defunct, and' its collective-bargaining agreement with the Employer therefore is not a bar to an election. Safe Workers and the Employer, on the other hand, take the position that procedural and substantive irregu- larities rendered the affiliation vote invalid; and assuming, arguendo, the validity of the affiliation vote, Safe Workers is not defunct in that a substan- tial number of employees regard themselves as independent of UAW affiliation and have expressed a desire that Safe Workers remain an independent entity.3 The Board has held that a petition will not be dismissed, even though prematurely filed, if a hearing is directed despite the prematurity of the petition and the Board's decision issues on or after the 90th day preceding the expiration date of the contract.4 Given the expiration date of the current collective-bargaining agreement, March 5, 1975, this is the situation here. We therefore find it unnecessary to consider the above contentions of the Employer, the Petitioner, and Intervenor Safe Workers as the existing contract is, under the circumstances, not a bar to the petition. Accordingly, we shall direct an election among the employees in the appropriate unit, with Petitioner and both Intervenors appearing on the ballot. [Direction of Election and Excelsior footnote omitted from publication.] 3 Local Union No. 522, International Association of Bridge , Structural 4 Royal Crown Cola Bottling Co of Sacramento, 150 NLRB 1624 (1965), and Ornamental Iron Workers (herein Iron Workers), intervened at the cf. Wesiclox Division of Genera! Time Corporation, 195 NLRB 1107 (1972). hearing, but took no position on the issue of defunctness