Amco Tank and Welding Works, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1949

85 N.L.R.B. 861 (N.L.R.B. 1949)

In the Matter of'AMCO TANK AND WELDING WORKS, INC.,1 EMPLOYER
and SHOPMEN'S LOCAL UNION #694 OF INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, PE-
TITIONER
Case No. 39-RC-93.-Decided August 25, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Clifford W.
Potter, 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-member panel [Members Reynolds, Murdock, and
Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employer?
3. The Intervenor contends that its current collective bargaining
agreement with the employer precludes a present determination of
representatives. On June 23, 1948, the Intervenor entered into an
agreement with the partnerships effective from July 23, 1948, to
July 22, 1949, and annually thereafter, in the absence of a 60-day
written notice prior to any anniversary date of a desire to modify or
terminate the agreement. The agreement was executed on behalf
The Employer , a Texas corporation , maintaining its office and principal place of busi-
ness in Houston , Texas, is engaged in the manufacture and general fabrication of tanks and
steel erection products . The Employer was originally organized about July 1948, under
the name of Amco Tank , as successor to a partnership of two individuals doing business
under the same name . A change in corporate ownership and management took place in
October 1948 at which time the present corporate name was adopted.
2 Local No. 74 of International Brotherhood of Boilermakers , Iron Shipbuilders &
Helpers of America was permitted to intervene on the basis of a current contractual
interest.
8 It appears from the record that the partnership obligations pursuant to the agreement
devolved upon the Employer as successor to the partnership.
85 N. L. R. B., No. 148.
861
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Intervenor by two of the Intervenor's International representa-
tives and an individual identified in the record as a business agent.
On May 21, 1949, before the automatic renewal date of the agreement,
a representative of the Intervenor's International, purporting to act
on behalf of the Intervenor, served notice upon the Employer of the
Intervenor's desire to modify the terms and conditions of employment
for the succeeding contract year, and asked that discussions be held.
Copies of this letter were forwarded to both the International presi-
dent and vice president. The Employer did not respond to this com-
munication, nor were any negotiations held with respect thereto. The
petition herein was filed oil May 31,1949.
The Intervenor now contends that the notice of May 21, 1949, was
ineffective to prevent the automatic renewal of the agreement upon
the ground that the International representative in question did not
have the authority to give such notice on behalf of Local No. 74.
However, nothing appears on the face of the notice to indicate lack
of authorization. The Intervenor, although presumably aware of
the notice which issued from its own office and on its own stationery,
made no attempt prior to the hearing to repudiate the giving of such
notice in its name under the termination or modification provision in
the contract. The record shows that the International representative,
whose authority to act for the Intervenor is now in issue, has, without
objection from the Intervenor, previously represented the Intervenor
in the handling of its labor relations .4 Furthermore, Article 10 of
the contract indicates that the representative of the Intervenor's
International is authorized to represent the Intervenor in the ad-
ministration of the contract.' Under all the circumstances, we find
that proper and timely notice was given under the modification and
termination provision of the contract and that the contract was not
automatically renewed prior to the filing of the petition.' There
is, therefore, no bar to a present determination of representatives.
4 The record shows that the International representative, although regularly assigned to
another local, participated on behalf of the Intervenor and against the Employer in the
filing of an unfair labor practice charge based upon an alleged attempt by the Employer
to dishonor the agreement with the Intervenor. As part of his general authority to act
for the Intervenor in connection with the unfair labor practice charge, the International
representative sent the notice to the Employer, which notice, in addition to its stated pur-
pose, had the purpose of clearing up any doubt as to the existence of a valid agreement with
the Employer.
5 The Intervenor's agreement with the Employer provided in Article 10 that "nothing
in the agreement shall be construed as limiting or abridging the right of the International
to assign its representative to work with or assist any local in the negotiation or appli-
cation of the terms and conditions of the agreement." [Italics supplied.]
6 Matter of Adirondack Transit Lines, Inc., 54 N. L. R. B. 974 ; Matter of Dictaphone
Corporation, 78 N. L. It. B. 866 ; Matter of Eastern Cooperatives, Inc., 79 N. L. It. B. 1112.
AMCO TANK AND WELDING WORKS, INC. 863
We find that a question affecting cominerce 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 stipulation of the parties, we find that all
maintenance and production employees employed at the Employer's
Houston, Texas, plant, excluding all clerical, office, and professional
employees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 7
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 immediately 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
they desire to be represented, for purposes of collective bargaining, by
Shopmen's Local Union #694 of International Association of Bridge,
Structural and Ornamental Iron Workers, or by International
Brotherhood of Boilermakers, Iron Shipbuilders & Helpers of
America, Local No. 74, or by neither.
7 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.