Bentwood Products, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1949

81 N.L.R.B. 635 (N.L.R.B. 1949)

In the Matter of BENTWOOD PRODUCTS , INC.,I EMPLOYER and UNITED
FARM EQUIPMENT AND METAL WORKERS OF AMERICA , CIO, PETI-
TIONER
Case No. 9-RC-291.-Decided February 14,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board 2 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-man panel consisting of Chairman Herzog 4 and
Board Members Houston and Gray.
Upon the entire record in this case, the Board finds : 5
1 The petition and other formal papers are hereby amended to show the correct name of
the Employer.
2 The Employer moved to dismiss the petition, alleging ( 1) that the Petitioner has not
complied with the filing requirements of the Act ; (2 ) that the CIO , with which the Petitioner
is affiliated has not complied with the filing requirements of the Act ; and (3) that the
Petitioner is not the real party in interest , but is acting on behalf of an "unborn" local
union to be set up in the future, which prospective local is necessarily not in compliance
with Section 9 (f), (g), and ( h) of the Act . The motion is denied , inasmuch as (a) we have
administratively determined that the Petitioner is in compliance ; ( b) for the reasons stated
in Matter of Northern Virginia Broadcasters , Inc., 75 N. L. R. B. 11, the failure of the
CIO to comply with the filing requirements of the Act does not prevent one of its inter-
nationals , which has complied , from utilizing the provisions of the Act ; and (c ) the specu-
lative possibility that the Petitioner, if certified , may bargain through a local union to be
established in the future which may or may not comply with the filing requirements of
Section 9 ( f), (g), and ( h) does not justify a refusal to proceed with the determination
of representatives . Matter of American Enka Corporation ( Lowland ), 80 N. L It . B. 298.
1 The Employer contends that the hearing officer committed prejudicial error in refusing
to allow the Employer to introduce evidence kith respect to non-compliance by the Petitioner
with Sections 9 (f), (g), and (h) of the Act, and with respect to acts and conduct of the
Petitioner alleged to be wrongful and constituting unfair labor practices . The contentions
of the Employer are without merit . Whether or not a labor organization has complied with
Section 9 ( f), (g), and ( h) of the Act is a matter purely within the administrative com-
petence of the Board and not subject to challenge at the hearing . Matter of Armstrong
Cori . Company, 80 N. L R. B 566. Alleged unfair labor practices , and evidence relating
thereto, are, as a matter of Board policy , not properly admissible in representation hearings.
Matter of Crowley's Milk Co, Inc, 79 N. L. It. B 602.
4 Chairman Herzog did not participate in this case.
6 The Employer has moved the Board to incorporate into the record of this proceeding (1)
the records of the consent election held in 1947 wherein the Intervenor was certified as the
bargaining representative , and (2 ) a supplementary agreement between the Employer and
81 N L R. B., No. 113. 635
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations named below claim to represent certain
employees of the Employer .s
3. The question concerning representation : 7
On March 19, 1947, the Employer and the Intervenor entered into a
contract. The contract carried a terminal date of March 19, 1948, but
contained an automatic renewal clause, providing that the contract
would renew itself from year to year in the absence of a written notice
of termination given by either party to the other at least 30 days prior
to the terminal date or any anniversary date. No notice to terminate
was given prior to March 19, 1948. The Employer and the Intervenor
assert that the contract, by operation of the automatic renewal clause,
is effective until March 19, 1949, and is, therefore, a bar to a present
determination of representatives. The Petitioner contends that the
alleged contract does not bar the present proceeding, alleging that (a)
the Intervenor is a defunct labor organization; (b) the contract covers
union members only; and (c) the contract was reopened for negotia-
tions by the parties prior to the filing of the petition.
We find it unnecessary to determine these issues. The contract has
less than 2 months to run. Under these circumstances, it constitutes
no bar to an election to select a bargaining representative which may
enter into a new contract at the close of the present contract period.
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.8
the Intervenor affecting one paragraph of the existing contract , which agreement was en-
tered into after the hearing. The motion is denied as (a) the Board takes judicial notice
of any and all of its records and (b) the supplementary agreement becomes immaterial in
view of our determination that the contract is not a bar.
6 Bentwood Woodworkers Union, although not in compliance with Section 9 (f), (g),
and (h ) was allowed to intervene in this proceeding because of its current contract with the
Employer.
The Employer 's contentions that the Petitioner and the Intervenor are not labor organiza-
tions within the meaning of the Act are without merit. Each organization admits to mem-
bership employees for the purposes of bargaining on their behalf in regard to wages, hours,
and other working conditions . Matter of Trueman Fertilizer Company, 81 N. L. R B. 72.
7 The Employer contends that the Petitioner does not have a sufficient showing of interest
to raise a question concerning representation. The Petitioner's showing of interest is to be
determined by the administrative processes of the Board and is not subject to attack by the
parties at the hearing . We have administratively determined that the Petitioner does have
an adequate showing of interest.
The Employer moves to dismiss the petition on the grounds that the Petitioner has
committed unfair labor practices in connection with its organizing of employees and should
therefore , be denied the right to file a petition for certification for at least a year. There
have been no charges of unfair labor practices filed by any of the parties hereto. We per-
ceive no merit in the Employer 's motion, and it is hereby denied.
3 The Employer contends that the Petitioner failed to make a timely request for recogni-
tion, and that , therefore , no question concerning representation exists. Although there is
some doubt that a clear and unequivocal request for recognition was made by the Petitioner
BENTWOOD PRODUCTS, INC. 637
4. The parties agree that production and maintenance employees
at the Employer's Louisville, Kentucky, woodworking and chair man-
ufacturing plant, excluding clerical and professional employees,
guards, and all supervisors within the meaning of the Act, constitute
an appropriate bargaining unit.
The Petitioner would include in the unit the inspector and the two
watchmen. The Employer disagrees, contending that the inspector
is a supervisor and that the watchmen are guards within the meaning
of the Act.
The inspector.-This employee spend 90 percent of his time in-
specting chairs for defects prior to the application of the finishing
processes . Those chairs found to have defects or blemishes are re-
jected by the inspector and returned to the woodworking department
for correction. The record discloses that the inspector neither exer-
cises, nor has, the authority of a supervisor under Section 2 (11) of the
Act. We shall include this employee in the unit .9
Watchmen.-The Employer employs a day watchman and a night
watchman. The day watchman devotes 75 percent of his time to
attending the boiler in the boiler room. He makes two rounds a day
to check upon the Employer's property. Since less than one-half of
the working time of this employee is spent performing the duties of
watchman, we find that he is not employed as a guard within the
meaning of the Act and we shall include him."' The night watchman,
on the other hand, spends approximately 25 percent of his time firing
the boiler and attending the boiler room and the remaining time in
guarding the Employer's property. He makes rounds every hour
throughout the night and maintains a lookout for fire and unauthorized
persons. We find that the night watchman is employed as a guard
within the meaning of the Act, as amended, and we shall exclude him
from the unit 11
We find that all production and maintenance employees at the
Employer's Louisville, Kentucky, plant, including the inspector and
day watchman, but excluding clerical and professional employees,
the night watchmen, guards, and all supervisors within the meaning
of the Act, constitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
prior to the filing of the petition, the Employer did refuse at the hearing, to recognize the
Petitioner The status of the Petitioner as a bargaining representative was thus disputed
as of the date of the hearing and recognition therefore depends upon certification by the
Board. Under these circumstances, we will proceed with the determination of representa-
tives. Matter of Advance Pattern Company, 80 N. L. R. B. 29 ( upon reconsideration).
9 Matter of American Lawn Mower Company, 79 N. L. R. B. 367; Matter of Clayton Mark
& Company, 76 N. L. R. B. 230.
"Matter of American Lawn Mower Company, supra.
11 Matter of Armstrong Cork Company, supra.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The determination of representatves :
Although a walk-out occurred at the Employer's plant in the latter
part of September 1948, the Employer is at present continuing opera-
tions on a reduced scale with approximately 15 employees who have
returned to work. The Employer was operating with 54 employees
immediately preceding the walk-out.
In accordance with previous holdings, we shall direct an immediate
election, permitting all employees to participate who were employed
in the pay-roll period immediately preceding the date of this Direction.
All new employees hired since September 27, 1948, the date of the
walk-out, and all employees out on strike shall be presumptively
eligible to vote, subject to challenge. The challenged ballots shall not
be counted unless they affect the results of the election, in which case
the question as to which of these ballots shall be opened and counted
will await a further investigation concerning the employment status
of the affected individual S.12
DIRECTION OF ELECTION 13
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-Series 5, as amended, 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 reinstated prior to the date of the election, to determine
whether they desire to be represented, for purposes of collective bar-
gaining, by United Farm Equipment and Metal Workers of America,
CIO, or by Bentwood Woodworkers Union, or by neither.
12 Matter of Ace Novelty Manufacturing Company, 77 N. L. R. B. 945.
11 At the time of the Decision and Direction of Election herein, the Board found the Inter-
venor not to be in compliance with Section 9 (f), (g), and (h) of the Act. On February 23,
1949, however , counsel for the Intervenor filed a motion to vacate and set aside the Decision
and Direction of Election alleging that the Intervenor was wrongfully denied a place on
the ballot because of alleged non -compliance . The Board , on March 3 , 1949, ordered that
the Intervenor be accorded a place on the ballot, provided it shall have fully complied with
Section 9 (f), (g), and (h) of the Act within 10 days from the date of the Order, and the
Regional Director shall postpone the holding of the election as many days as may be neces-
sary to effectuate the above.