All Metal Pickling Corp.

National Labor Relations Board - Board Decisions

Aug 25, 1949

85 N.L.R.B. 857 (N.L.R.B. 1949)

In the Matter of ALL METAL PICKLING CORPORATION, EMPLOYER 1 and
LOCAL 408, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS
OF INDUSTRIAL ORGANIZATIONS, PETITIONER 2
Case No. 7-RC-539.-Decided August 25, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed , a hearing was held before Harold L.
Hudson, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -melnber panel [Members Reynolds , Murdock, and
Gray].
Upon the entire record in this case , the Board finds :
1. The Employer , a Michigan corporation , maintaining its office
and principal place of business in Detroit, Michigan , is engaged in
the.operation of removing scale and rust from steel intended for use
in the automobile manufacturing industry . The process is referred
to as a "pickling" process. The particular pretreatment of the steel
is considered to be indispensable to its fabrication . None of the steel
processed is purchased or sold by the Employer . The steel is delivered
by the customer upon consignment to the Employer and at all times
remains the property of the customer. The Employer 's principal
customers are to be found in the automobile industry and includes
such companies as General Motors , Chrysler Corporation , and Briggs
Manufacturing Company. During the preceding year, the total
value of the services rendered by the Employer to its customers
amounted to approximately $700,000, of which 5 percent represented
work performed for plants located outside the State of Michigan.
During the same period , the Employer purchased supplies and equip-
' The name appears as amended at the hearing.
2 The Petitioner indicated at the hearing that the petition was filed by Local 408, and that
Local 408 was the labor organization whose name was to appear on the ballot if an election
were ordered . The name of the Petitioner is amended accordingly.
S5 N. L. R. B., No. 147.
857
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment replacements in excess of $200,000 in value, of which about 2
:percent .,represented purchases from sources outside the State of
Michigan. We find that the Employer is engaged in commerce within
the meaning of the Act.3
2. The organizations involved claim to represent certain employees
of the Employer.'
3. The Intervenor and the Employer contend that their existing
contract is a bar to a present determination of representatives. The
Intervenor and the Employer entered into a collective bargaining
agreement, which by its terms was effective from April 1, 1949, to
May 1, 1950, with annual renewal in the absence of a 30-day notice
prior to its expiration date of an intent to terminate the agreement.
This agreement followed the Employer's voluntary recognition of
the Intervenor as bargaining agent. The agreement contained, in
Article I thereof, a union-security provision which, in general terms,
requires all employees at the time of their employment to agree to
join the Intervenor and thereafter to become members in good stand-
ing within 30 days of the dates of their employment.5 The Inter-
venor, however, has not been certified by the Board under Section
9 (e) (1) of the Act as being authorized to execute such union-security
provision, which contains no clause postponing its application pending
authorization under Board procedure. On May 19, 1949, the same
parties executed a new agreement containing essentially the same pro-
visions as the earlier agreement,° but omitting the provision dealing
with union-security and specifically providing that it should replace
the contract of April 1, 1949, in which a union-security provision
had been inserted without adequate consideration of the consequences
thereof. The petition herein was filed on April 12, 1949.
3 Hatter of Vulcan Forging Company, 85 N. L. R. B. 621 ; Matter of New York
Steam Laundry , Inc., et al., 80 N. L. R. B . 1597 ; Matter of Pacific Moulded Products
Company, 76 N. L. R. B. 1140.
4 Local 247, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL, was permitted to intervene upon the basis of an existing con-
tractual interest.
6 The agreement of April 1 , 1949 , was not offered in evidence. The Employer admitted
at the hearing that after the execution of this agreement , the parties discovered that a
union-security provision could not be included in a collective bargaining agreement unless
certain sections of the National Labor Relations Act were complied with ; the Intervenor,
on the other hand , testified that the union -security provision would not have been in-
cluded in the agreement if the Intervenor had thought that the agreement would come
before the Board.
6 Article I of the new agreement states that the Employer recognizes the Intervenor
as the bargaining agent for its employees . Apparently this provision was not contained
in the April 1 , 1949, agreement . The preamble of the earlier agreement , also found in the
new agreement , lends itself to the inference that it was a "members only" contract, an
inference which the Employer and Intervenor claim was not intended . Article I was,
therefore , added to make clear the fact that the Intervenor was recognized as the bargaining
agent for all employees of the Employer.
ALL METAL PICKLING CORPORATION 859
The contentions of the Intervenor and Employer are without merit.
Because the agreement of April 1, 1949, contains, in accordance with
the intent of the parties, an unauthorized, though inadequately con-
sidered, union-security provision, we find, for this reason, and without
regard to other considerations, that the contract cannot serve as a
bar to an election.7 The agreement of May 19, 1949, having been
executed after the filing of the petition herein, also cannot, under
well-established principles, operate as a bar to a present determina-
tion of representatives.8
We find that a question affecting .commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties hereto, we find
that all employees of the Employer at its Detroit, Michigan, plant,
excluding office and clerical employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION.OF ELECTION 9
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period ininiediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
Y Matter of C. Hager d Sons Hinge Manufacturing Company, 80 N. L. R. B. 163 ; Matter
of Aluminum Ore Company, 85 N. L. It. B. 121 ; Matter of The A & 31 Woodcraft, Inc.,
85 N. L. R. B. 322. Cf. Matter of Schaefer Body, Inc., 85 N. L. R. B. 195.
In view of our decision herein, we find it unnecessary to pass on the question whether
the agreement of April 1, 1949, would operate as a bar to an election if the union-security
provision in question had in fact been "erroneously," that is, unintentionally, inserted in
the agreement.
8 Matter of General Electric Company, 82 N. L. R. B. 722.
9 Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they desire to be represented, for purposes of collective bargaining, by
Local 408, United Automobile, Aircraft and Agricultural Implement
Workers of America, affiliated with the Congress of Industrial Organ-
izations, or by Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, or by
neither.