C. Hager & Sons Hinge Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 5, 1948

80 N.L.R.B. 163 (N.L.R.B. 1948)

In the Matter Of C. HAGER & SONS HINGE MANUFACTURING COMPANY,'
EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, DIs-
TRICT No.9, PETITIONER
Case No. 14-RC-8.-Decided November b, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a 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 .2 After the hearing, the Employer filed a motion
for further hearing. For the reasons stated below, the motion is
hereby denied.
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 organizations involved :
The Petitioner is an unaffiliated labor organization claiming to
represent employees of the Employer.
United Steelworkers of America, herein called the Intervenor, is
a labor organization affiliated with the Congress of Industrial Or-
ganizations, claiming to represent employees of the Employer.
3. The question concerning representation :
Since 1937, the Employer has recognized the Intervenor as the
exclusive bargaining representative of all its production and main-
tenance employees, including the employees herein • petitioned for,
and since that date has entered into successive contracts with the In-
3 The name of the Employer appears as amended at the hearing.
= The hearing officer limited the intervention of the Intervenor, which has not complied
with the filing requirements of Section 9 (f), (g), and (h) of the Act, to a showing of any
contractual rights it might have. In accordance with the policy announced in Matter of
American Chain and Cable Co., 77 N. L. R. B. 850 , the contracting union should have been
permitted to intervene for all purposes . However , the position of the Intervenor on all
issues was adequately presented at the hearing, so there was no prejudice.
80 N. L. R. B., No. 36.
163
817319-49-vol. 80-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tervenor. Both the Employer and the Intervenor contend that their
current contract, which will remain in effect until May 18, 1949, is a
bar to this proceeding. As this contract was executed on August
30, 1947,3 12 days before the Petitioner had demanded recognition of
the Employer,4 it would operate as a bar were it not for the inclusion
therein of certain illegal provisions.
The contract provides for a union shop on a 15-day basis and for
maintenance of membership ; it also calls for the compulsory check-off
of union dues, evidently without individual written authorization.6
All the parties admit that the contract was signed after August 22,
1947,6 the effective date of the Labor Management Relations Act, that
3 The contract was signed by the Employer on August 29, 1947 , and by representatives
of the Intervenor on August 30, 1947. Representatives of the local union, however, did
not sign the contract until September 18, 1947, 1 day after the petition had been filed
and 7 days after the Petitioner had demanded recognition . The Employer and the
Intervenor assert that , as they were the only parties to the agreement , the signatures
of representatives of the local were not neces .aiy for its execution The Petitioner
contends , on the other hand, that the contract did not become effective until it had been
signed by representatives of the local and that its petition was therefore timely filed. The
contract provides , in its first paragraph , that the agreement was made "between
C. Hager & Sons Hinge Manufacturing Company . . . and the United Steelworkers
of America on behalf of Local No 1509 It seems clear that the parties to the.11
contract are the Employer and the Intervenor , with the latter acting as an agent for the
local. Certainly there is no provision in the agreement or in the bylaws of the local
requiring the local ' s signature to the contract It appears , therefore , that the contract
became effective upon its being signed by the Employer and the Intervenor . See Matter
of Electro Metallurgical Company, 72 N L. R B. 1396 , at 1399; Matter of Montgomery
Ward & Co , Incorporated , 68 N. L . R. B 369, at 371.
4 The Petitioner demanded recognition of the Employer on September 11, 1947, and filed
its petition on September 17, 1947.
.
0 Article II, Section 3 of the contract provides:
The Company recognizes the United Steelworkers of America in behalf of Local
No. 1509, as the sole collective bargaining agency for the employees of the Company.
The employees of the Company who are now members of the Union shall remain
members of the Union during the term of this agreement
All employees hired during the term of this agreement shall become members of
the Union within fifteen ( 15) working days. [Italics supplied.]
Article II , Section 5 provides :
After the fifteen ( 15) day period , the Company will deduct on the first pay of
each month , the Union dues , fines and assessments for the preceding month and
promptly remit the same to the International Secretary-Treasurer of the Union.
The Union shall promptly furnish to the Company a list of members in good standing
and for such employees as shall join the Union after the date of this agreement.
The Union shall at the beginning of each month furnish to the Company a state-
ment showing a list of such employees who have joined the Union during the preceding
month.
The Employer and the Intervenor contend, however , that the union-security provisions
became effective before that date They argue that, because their prior contract con-
tained identical union-security provisions , because they had an oral agreement to continue
in effect all the provisions of this contract until a new agreement had been reached, and
because the only subject of dispute was wages , the union -security provisions of the
previous contract remained in effect and constituted a binding obligation before August
22, 1947. There is no merit to this argument . Section 102 of the Labor Management
Relations Act provides that "the provisions of section 8 (a) (3) and section 8 (b)
(2) . . shall not make an unfair labor practice the performance of any obliga-
tion under a collective bargaining agreement entered into prior to the date of enactment
of this Act (June 23 , 1947 ) . . . if the performance of such obligation would not
C. HAGER & SONS HINGE MANUFACTURING COMPANY 165
no union-security authorization election was held by the Board, and
that the Board was not requested to hold such an election.' As the
union-shop provision does riot satisfy the conditions laid down in the
proviso to Section 8 (a) (3),8 it is illegal, even if no action has been
taken pursuant to it. The mere existence of such a provision acts as
a restraint upon those desiring to refrain from union activities within
the meaning of Section 7 of the Act, and is evidence that the Inter-
venor and the Employer are in accord in denying employment to
those who refuse to join the Union within the required time. The
compulsory check-off provision, which does not require written au-
thorizations by individual employees, is also illegal, as Section 302 9 of
the Labor Management Relations Act makes the mere execution of such
a provision a misdemeanor.
As both the Employer and the Intervenor have violated the Act
in the execution of their current contract, we believe that this con-
tract is not a bar to a current determination of representatives. We
find that a question affecting commerce exists concerning the repre-
sentation of employees of the Employer, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
have constituted an unfair labor practice under section 8 (3) of the National Labor
Relations Act prior to the effective date of this title, unless such agreement was renewed
or extended subsequent thereto." [Italics supplied .] The prior contract was terminated
on May 18, 1947. As the extension agreement was oral, there was no valid collective
bargaining agreement for a definite period in existence between that date and August 30,
1947, when the new contract was executed Even if we accept the contention that there
was a binding obligation to continue the union-security provisions in effect until a new
agreement had been reached , the new contract extended these provisions after the effective
date of the Act.
i As the Intervenor has not complied with the filing requirements of Section 9 (f), (g),
and (h ) of the Act, the Board could not have conducted such an election even if requested
to do so.
8 This proviso provides :
. . nothing in this Act, or in any other statute of the United States, shall pre-
clude an employer from making an agreement with a labor organization . . . to
require as a condition of employment membership therein on or after the thirtieth
day following the beginning of such employment or the effective date of such agree-
ment, whichever is the later, . . . (ii) if, following the most recent election held
as provided in section 9 (e) the Board shall have certified that at least a ma)ority
of the employees eligible to vote in such election have voted to authorize such labor
organization to make such an agreement . . . [ Italics supplied.]
9 Section 302 of the Act provides, in part :
(a) It shall be unlawful for any employer to pay or deliver, or to agree to pay or
deliver, any money or other thing of value to any representative of any of his em-
ployees who are employed in an industry affecting commerce.
(b) It shall be unlawful for any representative of any employees who are employed
in an industry affecting commerce to receive or accept, or to agree to receive or accept,
from the employer of such employees any money or other thing of value
(c) The provisions of this section shall not be applicable . . . ( 4) with respect
to money deducted from the wages of employees in payment of membership dues
in a labor organization : Provided, That the employer has received from each employee,
on whose account such deductions are made , a written assignment which shall not
be irrevocable for a period of more than one year, or beyond the termination date
of the applicable collective agreement , whichever occurs sooner. . . . [Italics
supplied.]
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The appropriate unit :
The Petitioner seeks to represent a unit of employees in the Em-
ployer's machine shop, including tool and die makers, machinists,
maintenance machinists, their helpers and apprentices, and all em-
ployees engaged in making, erecting, assembling, installing, main-
taining, repairing, and dismantling machinery or parts thereof '10 but
excluding supervisors." The Employer and the Intervenor contend
that, in view of the past history of collective bargaining on a plant-
wide basis and the fact that the activities of the machine shop em-
ployees are closely interrelated with those of the other employees in
the plant, the existing contract unit of all production and maintenance
employees, including the machine shop employees here involved, is
the appropriate one.
The Employer's machine shop is located in a separate section at
one end of its plant. Of the 700 to 750 employees in the plant, ap-
proximately 30 are employed in the machine shop, as tool and die
makers, machinists, shaper hands, die grinders, maintenance and mill-
wright men, miller hands, heat treaters, welders, lathe hands, lathe
operators, and helpers and apprentices. They are engaged in mak-
ing,12 maintaining, and repairing tools, dies, and fixtures which are
used in the Employer's production processes.
There is no formal apprenticeship program at the Employer's plant.
Machine shop employees are promoted from the various production
departments, but further training is required to enable the production
employees to do the work in the machine shop 13 Although the Em-
ployer contends that 75 percent of its machine shop employees could
not qualify as journeymen machinists, it admits that in general they
are more highly paid and more skilled than its production employees.
10 The Employer contends that set-up men, who attach tools to and remove them from
the machines in the various departments and, when necessary , make minor adjustments
on the machines , would be included in the Petitioner 's definition of the appropriate unit.
There are approximately 20 set-up men at the Employer 's plant, one or more in each of
the production departments , working under the supervision of the foreman in their
respective departments . The Petitioner stated at the hearing that it was not seeking
to include the set-up men in the unit, but refused to amend its unit description.
11 Both the Petitioner and the Employer would exclude the machine shop foreman
as a supervisor The Petitioner would include the assistant foreman , however, as a
non-supervisory employee . The assistant foreman spends part of his time working as
a tool and die maker, but also directs the work of the employees in the machine shop and
passes on the quality of their work The record discloses that his recommendation as to
discharges would be given considerable weight. The assistant foreman will therefore
be excluded as a supervisor . See Matter of National Container Corporation, Ino., 75
N. L. it. B. 770; Matter of Sigmund Cohn of Co., 75 N. L . R B. 177.
12 The Employer stated that it purchases a "considerable amount " of its tools, dies, and
fixtures from jobbing tool and machine shops. It admitted , however , that some of these
are made by its own machine shop employees.
13 It is not clear from the record what this further training consists of. The Employer
stated at the hearing that production employees are often sent to night trade or technical
schools before being transferred to the machine shop.
C. HAGER & SONS HINGE MANUFACTURING COMPANY 167
We have found units of tool makers, die makers, machinists, and
other employees engaged in the fabrication of tools and dies in a sep-
arate toolroom or machine shop to be appropriate, even though not
all the machine shop employees have possessed definite craft skills.',
The machine shop employees here petitioned for constitute an identi-
fiable, homogeneous group, with a sufficient craft nucleus to enable
them to constitute a separate unit, notwithstanding the history of
collective bargaining on a plant-wide basis 15
We find, accordingly, that the machine shop employees may, if they
so desire, constitute a separate unit. However, we shall make no unit
determination pending the outcome of the election directed below. If,
in this election, the employees in the voting group described below
select the Petitioner, they will be taken to have indicated their desire
to constitute a separate unit. We shall not place the name of the Inter-
venor on the ballot, as it has not complied with Section 9 (f), (g), and
(h) of the Act 16
In accordance with the foregoing, we shall direct that an election be
held among the employees employed in the machine shop at the Em-
ployer's St. Louis, Missouri, plant, including tool and die makers,
machinists, shaper hands, die grinders, maintenance and millwright
men, miller hands, heat treaters, welders, lathe hands, machine lathe
operators, and their apprentices and helpers, but excluding supervisors
as defined in the Act.17
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with C. Hager & Sons Hinge Manu-
facturing Company, St. Louis, Missouri , an election by secret ballot
14 Matter of Robertshaw-Fulton Controls Company (American Thermometer Company),
77 N. L. R. B. 316; Matter of National Container Corporation , Inc., 75 N. L. It. B. 770;
Matter of International Harvester Company, 79 N L. It. B. 1452
15 See Matter of Continental Can Company , 76 N. L It. B. 131; Matter of Columbus Bolt
Works, 76 N. L R. B. 305. After the hearing, the Employer filed a motion for further
hearing, alleging that, on the basis of the Board's decision in Matter of National Tube
Company , 76 N. L. It. B. 1199, it should be permitted to introduce evidence relating to bar-
gaining history in the binge industry. The factors underlying our decision in that case are
not present here, however. First, according to the statements made by the Employer in its
motion papers , of the six other companies in the industry, only three or four are actually
bargaining on a plant -wide basis . Second, the functions of the machine shop employees
here involved are not as "intimately connected" with the production process as were those
of the bricklayers employed by the National Tube Company. Although there is some per-
sonal contact between the machine shop employees and the Employer 's production employees,
the record discloses that the operations of the machine shop are no more interrelated with
the Employer 's production processes than they are in any manufacturing plant.
19 Matter of Wilson Transit Company , 75 N. L. R. B. 181.
17 Both the foreman and the assistant foreman of the machine shop are excluded. See
footnote 11, supra.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Fourteenth Region, and sub-
ject to Sections 203.61 and 203.62 of National Labor Relations Board
Rules and Regulations-Series 5, as amended, among the employees in
the voting group described in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction, 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, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether or not they
desire to be represented by International Association of Machinists,
District No. 9, for the purposes of collective bargaining.
MEMBER HOUSTON took no part in the consideration of the above De-
cision and Direction of Election.