F. C. Russell Co.

National Labor Relations Board - Board Decisions

Sep 4, 1956

116 N.L.R.B. 1015 (N.L.R.B. 1956)

F. C. RUSSELL COMPANY 1015
F. C. Russell Company i and Shopmen's Local Union #509 of the
International Association of Bridge , Structural and Orna-
mental Iron Workers, AFL-CIO, Petitioner2 Case No. 21-RC-
4419. September 4,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Fred W. Davis, hearing
officer? The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed .4
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 certain em-
ployees of the Employer. The Employer refused to stipulate at the
hearing that the Petitioner is a labor organization within the meaning
of the Act.' Petitioner's business agent testified without contradic-
tion, however, that the Petitioner negotiates and administers contracts
with several employers governing wages, hours, and conditions of em-
ployment for their employees. Accordingly, we find that the Peti-
tioner is a labor organization within the meaning of Section 2 (5) of the
Aet.6
i The name of the Employer appears above as amended at the hearing.
2 The name of the Petitioner appears above as amended at the hearing.
3 The Employer contends that the petition should be dismissed because the hearing
officer is not a hearing officer within the meaning of Section 11 of the Administrative
Procedure Act of 1946 We find no merit in this contention Section 11 applies only to
examiners presiding over hearings conducted pursuant to Sections 7 and 8, and both
those sections apply solely to hearings required by Section 5. However, Section 5 (6)
specifically exempts hearings for ". the certification of employee representatives' . . 11
from the provisions of Section 5 We find , therefore , that a hearing officer conducting a
healing pursuant to Section 9 (c) of the National Labor Relations Act is not subject to
the provisions of the Administrative Procedure Act See Globe Steel Tubes Co., 101 NLRB
772, and Angelus Cheziolet Co, 88 NLRB 929
4 The hearing officer referred to the Board motions made by the Employer at the hear-
ing to disiniss'the piesent petition on grounds that ( 1) no claim for recognition was made
by Petitioner before it filed its petition . (2) Petitioner, as a result of a jurisdictional dis-
pute, is engaged in i aiding actisity. (3) a current contract with the Intervenor bars an
election , and (4) no question concerning representation exists because Petitioner seeks
a unit which is inappropriate for bargaining purposes in that it seeks to include inspectors.
The Intervenoi joins in urging its contract with the Employer as a bar For reasons stated
beieinafter in paragraphs 3 and 4, infra, these motions ale hereby denied
5 We find no merit in the Employer's further contention that the petition be dismissed
on the giound that the Petitioner's constitution and bylaws prohibit it from representing
the employees sought herein It is Petitioner's ivillingness, rather than its constitutional
ability, to represent these employees which is the controlling factor Furthermore, a
union's jurisdictional limitation is not restrictive as to the Board's determination of what
constitutes an appiopriate unit for purposes of collective bargaining
0 The Metal Trades Council of Souther n California, AFL-CIO, herein called the Council,
was permitted to intervene at the hearing on behalf of four of its affiliates which, together
with the Council, are parties to the 1955 contract with the Employer We find that these
affiliates, herein iclerred to collectively as the Intervenor, are labor organizations within
the meaning of the Act. They aie District Council of Painters #36, Brotherhood of
116 NLRB No. 122.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Employer contends that the instant petition should be dis-
missed because (a) this proceeding involves a jurisdictional dispute
between the Petitioner and the Intervenor and (b) the Petitioner did
not make a request for recognition of the Employer prior to the filing
of its petition. Both the Employer and the Intervenor allege also that
a current contract between them constitutes a bar to an election at this
time.
With respect to the jurisdictional dispute issue, the Employer argues,
in effect, that, the present petition was filed in violation of a no-raiding
pact binding upon both Petitioner and the Intervenor' s affiliates, and
before the parties had exhausted the procedures provided therein to
settle such disputes. We find no merit in this contention, for, even if
established, it would not warrant our dismissal of the instant petition?
The Employer also contends, as noted above, that the petition should
'be dismissed on the ground that Petitioner has not complied with Sec-
tion 9 (c) (1) of the Act, in that, prior to the filing of its petition, it
made no request for recognition as bargaining 'representative of the
Employer's employees, nor did the Employer decline such recognition.
However, the Board has held that the filing of a petition in itself con-
stitutes a sufficient demand for recognition to support a representation
petition.8 Accordingly, we find no merit in this contention.
Nor do we find merit in the Employer's and the Intervenor 's claim
of a contract bar. The record shows that these parties executed a con-
tract effective from March 22, 1955, to July 31, 1956, and from year to
year thereafter absent 60 days' written notice by either party prior to
August 1 of each year. The instant petition was filed on May 8, 1956,
less than a month before the Mill B date of the contract urged as a bar.
As the present petition was thus timely filed in relation to the auto-
matic renewal date of the current agreement between the Employer
and the Intervenor, we find that there is no contract bar.
Accordingly, we find that a question affecting commerce exists con-
cerning 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 Employer operates plants in four States which are engaged in
the business of manufacturing windows, doors, awnings, and home com-
fortizing products. The only employees involved in this proceeding
are those at the Employer's plant located in Anaheim, California.
Painters, Decorators and Paper Hangers of America, Local #692, General Truck Drivers,
Chauffeurs, Warehousemen and Helpers; Local Lodge #1235, International Association
of Machinists, and Local #170, Sheet Metal Workers International Association
The Petitioner is also affiliated with the Council, but is not a party to the foregoing
,contract with the Employer.
7 See ' Minneapolis Star and Tribune Company, 115 NLRB 1300, Mason Can Company,
115 NLRB 105; and General Telephone Company of Ohio, 112 NLRB 1225.
8 Superior Sleeprtite Corporation, 106 NLRB 228 ; American Fruit Growers, Inc., 101
NLRB 740
STANDARD OIL COMPANY 1017
The parties are in substantial agreement as to the appropriateness of
the contract unit. However, Petitioner would include, while the Em-
ployer and the Intervenor would exclude, employees classified as in-
spectors. As the record clearly indicates that there are no employees
presently employed in this category, we shall not pass upon the unit
placement of inspectors at this time.'
Accordingly, we find that the following employees of the Employer
at its Anaheim, California, plant constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All production and maintenance employees, excluding office clerical
employees, technicians, draftsmen, timekeepers, professional em-
ployees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
9 We find no merit, therefore, in the Employer's contention that the petition be dis-
missed on grounds of inappropriate unit due to the requested inclusion of inspectors.
Standard Oil Company and Oil , Chemical and Atomic Workers
International Union , AFL-CIO, Local 11-389 . Case No. 7-RC-
3156. September 5,1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Iris H. Meyer, 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 certain
employees of the Employer.
3. For the reason indicated below, no 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.
This proceeding concerns the Employer's Detroit Sales Division.
The Detroit Sales Division is a marketing division that receives, dis-
tributes, and sells the Employer's petroleum products in an area that
includes Detroit and consists of approximately the southeast quarter
of lower Michigan.
The Employer employs in the Detroit Sales Division approxi-
mately 500 nonsupervisory employees in 22 or 23 job classifications.
Included among these employees are, during the peak season, ap-
116 NLRB No. 123.