Engineering Metal Products Corp.

National Labor Relations Board - Board Decisions

Dec 19, 1950

92 N.L.R.B. 823 (N.L.R.B. 1950)

In the Matter of ENGINEERING METAL PRODUCTS CORPORATION, EM-
PLOYER and INDEPENDENT SHOPMANS UNION # 1, PETITIONER
Case No. 35-RC-415.-Decided December 19, 1950
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William A. McGowan,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within. the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. The Petitioner seeks a unit of the Employer's production and
maintenance employees, including machine shop employees. The
Intervenor,' which asserts its contract with the Employer as a bar
to this proceeding, urges the appropriateness of the unit it has been
representing, a multiemployer unit from which machine shop em-
ployees have been excluded.2 At the hearing the Employer took a
somewhat ambiguous position as to the appropriate unit. However,
in its brief, the Employer asserted unequivocally its intention to
pursue a course of individual employer action with respect to its
labor relations.
The Employer is engaged in the fabrication of steel and alumi-
num structural and ornamental products and truck bodies at Indian-
apolis, Indiana. Since 1937 it has bargained with the Intervenor
for its production and maintenance employees on a multiple-employer
basis with other employers in the Indianapolis area engaged in similar
operations. Since 1947, the Employer and three other employers with
whom the Employer has bargained jointly ,3 have designated two
representatives to bargain for them with the Intervenor, and have
signed individual but identical agreements.4 These employers are
i Shopmen's Union No. 529 of the International Association of Bridge , Structural and
Ornamental Iron Workers, AFL. ,
2 Apparently the other employers who participate in the multiemployer bargaining have
no machine shop.
8 There were originally six employers who bargained jointly.
' The current contracts , however, contain some minor deviations from one another. Thus,
two cOntr"acts provide for holidays with pay and two for hourly pay in lieu of holidays,
and only one contract requires employees to punch time clocks . It does not appear, how-
ever, that these variations were individually rather than jointly negotiated.
92 NLRB No. 140.
823
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not members of a formal association. Negotiations for the current
contract between the Employer and the Intervenor were not consum-
mated by a written agreement until July 18, 1950. The Petitioner
had made its request for recognition on July 10, 1950, and filed the
petition herein on July 14, 1950. Accordingly, we find that the con-
tract is not a bar to this proceeding.5
To find whether or not the single-employer unit sought by the Peti-
tioner is appropriate, in the face of the long history of multiemployer
bargaining, it is necessary to determine the Employer's intent to be
bound by group action or to pursue an independent course of bargain-
ing. As the Employer has manifested a varying intent, however,
it is also necessary to determine at what point this intent shall be
controlling.6 The Employer here chose, despite the filing of the peti-
tion for a single-employer unit, to enter into a contract which had
been negotiated jointly with other employers. It thus clearly mani-
fested an intent at that time to be bound in collective bargaining by
group rather than by individual action. Thereafter it sought to re-
verse its position. We have held that although an employer is free
to abandon its participation in group bargaining, this must be done
at an appropriate time.' To permit the Employer to alter its eburse
from joint to individual action during an existing contract would
not make for that stability in collective bargaining which the Act
seeks to promote. We find, therefore, that the unit sought by the
Petitioner is not at the present time appropriate. Accordingly, we
find that no question affecting commerce exists within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, and shall
therefore dismiss the petition herein.
ORDER
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
MEMBER HOUSTON, dissenting :
I disagree with the conclusion of my colleagues that the petition
herein should be dismissed. Section 9 of the Act vests the Board with
exclusive power to determine the appropriate unit, and provides Board
procedures for the resolution of such questions concerning repre-
sentation. To give controlling effect to the Employer's recognition
of the Intervenor in disregard of the pending petition would con-
stitute an abdication of the Board's power to determine the appro-,
priate unit. Although the Board has granted great freedom to em-
5 Utica Structural Steel, Inc., 86 NLRB 1261.
6 Pacific Metals Company, Ltd., et at., 91 NLRB 696..
'+ Economy Shade Company, 91 NLRB 1552.
ENGINEERING METAL PRODUCTS CORPORATION 825
ployers in choosing single- or multiple-employer bargaining," once a
question concerning representation is before the Board, it becomes
the province of the Board to make the unit determinations.9 As the
Employer's execution of the contract with the Intervenor was in dero-
gation of the Board's power to determine the appropriate unit I would
not give controlling weight to the contract as evidence of the Em-
ployer's intent.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
8 Morand Brothers Beverage Co., et al., 91 NLRB 409.
9 See Johnson Optical Company, et al., 87 NLRB 539 (Supplemental Decision), in which,
upon motion of the employers , the Board reconsidered its previous decision and altered its
unit finding.
929979-51-vol. 92-54