Broadway Iron and Pipe Corp.

National Labor Relations Board - Board Decisions

May 27, 1949

83 N.L.R.B. 942 (N.L.R.B. 1949)

In the Matter of BROADWAY IRON AND PIPE CORPORATION , EMPLOYER
and TRUCK DRIVERS AND CHAUFFEURS UNION, LOCAL 807, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN
AND HELPERS, AFL, PETITIONER
Case No. 20-RC-934.-Decided May 27,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before D. J. Sullivan,
hearing officer of the National Labor Relations Board. 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 [Chairman Herzog and Members
Houston and Murdock].
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 named below claim to represent em-
ployees of the Employer.
3. The question concerning representation :
The Employer and the Intervenor, Local 1146, Retail Clerks Inter-
national Association, AFL, have maintained contractual relations
since 1946. Their contract dated January 1, 1948, provided for expira-
tion on January 1, 1949, and had a 30-day automatic renewal provision.
Within a week after November 29,1948,1- the Employer and the Inter-
venor executed a 1-year contract to become effective January 1, 1949.
On December 3, 1948, the Intervenor won a union authorization elec-
tion. On December 7,1948, the instant petition was filed. The Inter-
venor and the Employer claim that the contract executed on or about
' None of the parties recalled the prQcise date on which the new contract was signed by
the Intervenor . In view of our finding below that the contract does not constitute a bar
because it contains unlawful security provisions , it is unnecessary to determine whether
or not it was also prematurely extended.
83 N. L . R. B., No. 136.
942
BROADWAY IRON AND PIPE CORPORATION 943
November 29, is a bar to a present determination of representatives,
and moved to dismiss the petition on that ground. For the reasons
set forth below, this motion is denied.
Clauses 3 and 4 of the agreement read as follows:
3. All steady and/or extra employees shall be obtained from the
office of the union. In the event that the union shall not be able
to supply any employee, then the employer may attempt to obtain
employees from any source whatsoever and shall notify in writing,
the union, that he, it or them have hired such new employees,
within 48 hours from the time of the commencement of the new
employment. It shall be the duty of the employer to see that any
new employees shall become a member of the union within two
weeks from the date of the commencement of his employment.
4. In employing members of the union, the employer agrees to
require of such members a Work Permit or Dues Book signed by an
authorized representative or officer of the union before employing
same. In employing persons who are not in the union, a Work
Permit must be secured from the union, duly signed before com-
mencing their employment.
These clauses require the Employer (1) to hire only Intervenor
members whenever they are available; (2) to hire them through the
Intervenor ; (3) when Intervenor members are not available, to hire
only individuals who are acceptable to the Intervenor; (4) to require
these individuals to obtain Intervenor work permits before com-
mencing their employment; and (5) to compel them to become mem-
bers of the Intervenor within 2 weeks after they are hired. Such
requirements go beyond the limited degree of union security permitted
under Section 8 (a) (3) of the Act,2 and also beyond the authorization
of the union-shop election held pursuant to Section 9 (e) (1) of the
Act. Because of these requirements, the contract is violative of the
Act, and cannot therefore serve as a bar to a current determination
of representatives.3 Accordingly, we find that a question affecting
commerce exists concerning the representation of employees of the
Employer within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act.
4. The appropriate unit :
All parties agree that a unit of the Employer's truck drivers and
their helpers, excluding all other employees, is appropriate. The
Petitioner, however, wishes to exclude from this unit two sons of
Hyman Schreer, the Employer's president, who are employed as
2Matter of National Maritime Union of America, 78 N. L. R. B 971.
Matter of American Export Lines, 81 N. L. R. B. 1370 ; See also Matter of C. Hager
4 Sons Hinge Manufacturing Company , 80 N. L. R. B. 163.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck drivers, whereas the Intervenor and the Employer wish to
include them. As these two individuals exercise some supervisory
authority,4 and as one of them now is, and the other has been, a vice
president of the Employer, their interests seem to be more closely
allied with those of management than with those of the employees.
In view of this fact, and of our policy to exclude close relatives of
management from the appropriate unit,5 we shall exclude the sons
of the Employer's president, Hyman Schreer, from the appropriate
unit. Accordingly, we find that all truck drivers and their helpers
employed at the Employer's Brooklyn, New York, plant, excluding
office clerical employees, the sons of President Hyman Schreer,
guards, professional employees, and supervisors within the meaning of
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
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
supervision 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 of 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, and also excluding
employees on strike who are not entitled to reinstatement, to deter-
mine whether they desire to be represented, for purposes of collective
bargaining, by Truck Drivers and Chauffeurs Union, Local 807, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, AFL, or by Local 1146, Retail Clerks International Associa-
tion, AFL, or by neither.
4 It is not clear from the record whether or not these individuals are supervisors within
the meaning of the Act.
5 Matter of Alabama Brick t Tile Company , 80 N. L. R. B. 1365 ; Matter of Associated
Electronic Enterprises, Inc., 80 N . L. R. B. 295.