Frank Foundries Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1951

92 N.L.R.B. 1754 (N.L.R.B. 1951)

In the Matter of FRANK FOUNDRIES CORPORATION, EMPLOYER and
INTERNATIONAL MOLDERS & FOUNDRY WORKERS UNION OF NORTH
AMERICA, LOCAL #177, AFL, PETITIONER
Case No. 35-RC-429.-Decided January 30, 1951
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 Harold V. Carey, 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 2 is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
. 3: A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.3
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act: All production and maintenance employ-
ees at the Employer's iron casting plant at Muncie, Indiana, excluding
office and clerical employees, pattern makers and pattern maker
apprentices, the office janitor, watchmen, guards, and supervisors.
i The Employer's request for oral argument before the Board is denied, because, in our
opinion, the record and the briefs adequately present the issues and the positions of the
parties.
After the close of the hearing, the Petitioner filed a motion requesting permission to
withdraw its petition filed in this- proceeding. The Intervenor, Local Union No. 242,
International Union, United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, filed opposition to the motion. Under these circumstances, we deny the
motion. However, either participant in the election hereinafter directed may, upon its
prompt request to, and approval thereof by, the Regional Director, have its name removed
from the ballot. The Detroit Edison Company, 75 NLRB 1281.
The Employer's name appears herein as amended at the hearing.
On April 30, 1943, following a Decision and Direction of Election (48 NLRB 1025)
the Board certified the Intervenor as the exclusive bargaining representative of employees
involved herein. Because a question concerning representation may be raised and resolved
in a, proceeding for certification, we find no merit in the Employer's contention that to
raise a question of representation, the Petitioner should have filed a petition for decer-
tification. John J. Fitzsimmons (Wholesale Beverages), 84 NLRB 349.
92 NLRB No. 259.
1754
FRANK FOUNDRIES CORPORATION 1755
5. The Employer is engaged in the manufacturing, processing, and
sale of iron castings at its Muncie, Indiana, plant, the only plant in-
volved in this proceeding. , On June 10, 1947, the Employer and the
.Intervenor entered into a collective bargaining agreement, covering
-employees involved herein, and effective for 1 year and thereafter in
the absence of notice. On May 27, 1948, employees went out on strike,
and picketing has since continued at the plant.' The plant was closed
from May to December 1949. When the strike began, the Employer
had approximately 150 employees. At the time of the hearing, on
November 10, 1950, the Employer had approximately 100 employees.
The Employer hopes to have 150 to 230 employees in the future, con-
tracts permitting.
The Petitioner and the Employer contend that only those employees
who were employed during the week immediately preceding the date of
the Board's Direction of Election should be eligible to vote in the elec-
tion directed below. The Intervenor contends that those employees
currently working at the Employer's plant and those who were work-
ing during the week of May 27, 1948, and are at this time on strike,
should be eligible to vote in the election.
Section 9 (c) (3) of the amended Act provides that "Employees on
strike who are not entitled to reinstatement shall not be eligible to
vote." We cannot accurately determine on the present record which
of the employees who went on strike have been validly replaced, and
which are still entitled to reinstatement. In accordance with the
Board's procedure in earlier cases,-5 we shall direct an immediate elec-
tion,6 permitting all employees to participate who were employed
within the unit during the payroll period immediately preceding the
date of this Direction, subject to the usual limitations set forth in our
Direction of Election. All persons hired since May 27, 1948, the date
of the strike, and all strikers shall be presumptively eligible to vote,
subject to challenge? The challenged ballots shall not be counted
On April 26 , 1950, in Case No. 35-CB-22, the Trial Examiner issued his Intermediate
Report, finding that the Intervenor had committed unfair labor practices and recom-
mending that it cease from the'same and post notices . The Intervenor complied with
the recommended order.
6 Cf. Saxon Steel Service , Inc., 77 NLRB 525 ; The Pipe Machinery Company, '76
NLRB 247.
6 The Employer , alleging that employment at its plant is unstable , contends that the
Board should not direct an election at this time . We find no merit in this contention.
The Employer is operating its plant and manufacturing its products. The record dis-
closes that increases in the Employer 's work force are purely speculative . There is no
evidence that the Employer plans ' to hire essentially new categories of employees. Cf.
J. I. Case Company, 80 NLRB 217.
' Nothing in this Direction should be construed as indicating that the Board has
prejudged any of the questions which may be drawn into issue by a challenge to the
eligibility of certain voters, including such questions as whether ( 1) a new employee is
a permanent replacement , ( 2) an employee who went on strike has been validly replaced,
or (3) any employee ' s position no longer exists by reason of its permanent discontinuance
for economic reasons. The Pipe Machinery Company, supra.
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless they affect the results of the election , in which event, the ques-
tion as to which of these ballots shall be opened and counted will await
•a further investigation concerning the, employment status of the-
affected individuals.
[Text of Direction of Election omitted from publication in this,
volume.]
MEMBER MuRDOCK took .no part in the consideration of the above
Decision and Direction of Election. '