Farm Tools, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1950

88 N.L.R.B. 606 (N.L.R.B. 1950)

In the Matter of FARM TOOLS, INC., EMPLOYER and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, C. I. 0., PETITIONER
Case No. 8-RC-602.-Decided February 9,1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Bernard Ness,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed 1
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 Reynolds].
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 involved claim to represent certain em-
ployees of the Employer.
3. The question concerning representation :
The Intervenor contends that a collective bargaining agreement
between the Employer and Local 756, United Electrical, Radio
Machine Workers of America, executed on November 6, 1941, consti-
tutes a bar to this proceeding. The Employer joins. the Petitioner in
opposing this contention.
By its terms the contract was to remain in effect until September 1,
1942, and from year to year thereafter, unless either party gave written
notice of its desire to change the contract 30 days before the end of
any contract year.
1 At the hearing, the Petitioner moved to strike the intervention by Local 758, United
Electrical , Radio and Machine Workers of America , herein called the Intervenor, on the
ground that it had not made a sufficient showing of interest . As the Intervenor 's showing
of interest is an administrative matter not subject to collateral attack the motion is denied.
88 NLRB No. 124.
606
FARM TOOLS, INC. 607
On an unspecified date thereafter, Local 756 merged into and became
part of Local 758, the Intervenor herein. Following its initial 1-year
period, the contract was no longer implemented in any respect. The
Employer never thereafter recognized or dealt with either Local 756
or with the Intervenor. Wage adjustments and changes in working
conditions have since been made unilaterally by the Employer. On
July 2, 1947, the Employer by letter notified the Intervenor's Interna-
tional, through its local business agent, of its desire to effect cancella-
tion of the contract.
It seems clear, as the Petitioner asserts, that, because of its virtual
abandonment, the 1941 agreement has long since lost all binding effect
on the original parties or their successors. Apart from that aspect of
this issue, however, it is certain that the 1947 cancellation notice, served.
in accordance with the terms of the contract, effectively forestalled
renewal thereafter, even assuming that at that late date it retained
any vitality whatever. The contract therefore does not constitute a.
bar to a present determination of representatives.
4. The appropriate unit :
We find, in accordance with the stipulation of the parties, that all
production and maintenance employees at the Employer's Mansfield,
Ohio, plant, including timekeepers, draftsmen and machine operators
in the engineering department, but excluding office and clerical em-
ployees, engineers in the engineering department, watchmen, guards,
professional employees, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
5. Determination of representatives :
The parties agree that, in addition to those presently employed, all
employees temporarily laid off on November 2, 1949, are eligible to
vote in any election in this proceeding. However, the Employer con-
tends that of the latter, 26, who later received permanent discharge
notices, are ineligible to vote. The Petitioner opposes this contention.
On November 2, 1949, the Employer shut down all plant operations
for a period of 10 days because of a steel shortage and other economic
problems. Separation papers were not issued to the 154 employees
affected, as the Employer expected full operation to be resumed as
soon as possible. On December 2, 1949, the Employer notified 26 of
these employees that they were permanently discharged ; none of then
has since been recalled, although the Employer has resumed partial
operations. By December 15, 1949, the date of the hearing, approxi-
mately 54 other employees had been recalled. The Employer has no
seniority system at the present time.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the record before us, it does not appear that the em-
ployees given final separation notices have any reasonable expectation
of recall. We have held under similar circumstances that employees
without reasonable expectation of reemployment are ineligible to vote
in a representation election.2 We conclude, therefore, that the 26
employees who received permanent discharge notices from the Em-
ployer are ineligible to vote in the election hereinafter directed.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses 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, among the employees in the unit found
appropriate in paragraph numbered 4, above, who were employed
during the payroll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said payroll 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 they desire to
be represented, for purposes of collective bargaining, by International
Union, United Automobile, Aircraft & Agricultural Implement Work-
ers of America, C. I. 0., or by Local 758, United Electrical, Radio &
Machine Workers of America, or by neither.
1 Warner Brothers Company, 83 NLRB 191.