Franklin Smelting & Refining Co.

National Labor Relations Board - Board Decisions

May 17, 1950

89 N.L.R.B. 1394 (N.L.R.B. 1950)

In the Matter of Louis SCHWAB, ROSE L. SCHWAB, AND MILTON
SCHWAB, D/B/A FRANKLIN SMELTING & REFINING COMPANY,
EMPLOYER and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER
Case No. 41-RC-608.-Decided May 17, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold Kowal,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 [Members Houston, Reynolds, and
Murdock].
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
employees of the Employer.
3. On March 4, 1949, the Employer and the Industrial Union of
Marine and Shipbuilding Workers of America, PMC Local No. 539,
CIO,' entered into a collective bargaining contract. This contract
was to be effective from November 1, 1948, until October 31, 1949, and
thereafter from year to year unless notice was given 60 days prior to
the expiration date of intention to terminate or change. Neither
party gave such notice in 1949. At a regularly called meeting of
Local 539 on August 7, 1949, a resolution was adopted to disaffiliate
from the Industrial Union of Marine and Shipbuilding Workers of
America, CIO, herein called IUMSWA, and to seek affiliation with
the United Steelworkers of America, CIO, the Petitioner herein.
The approximately 100 to 110 members present at the meeting voted
1 Neither the International nor Local 539 appeared at the hearing.
89 NLRB No. 162.
1394
FRANKLIN SMELTING & REFINING COMPANY 1395
unanimously in favor of the resolution. The total membership of
Local 539 was 160 to 170 members. Membership in Local 539 was
made up of employees from 3 plants, of which the Employer was
one. About "a month or two months" later the Petitioner issued a
charter to the former members of Local 539 as Local 49-54. On August
15, 1949, the Petitioner made a claim for representation to the Em-
ployer. Agreement with the IUMSWA respecting the disaffiliation
was attempted and failed. As a result of that failure the Petiti oner's
August 15 claim on the Employer was withdrawn by letter dated
August 24, 1949. This was followed by a second claim by letter
dated December 1, 1949, even though no agreement with the IUMSWA
had been reached. During this period between the 2 claims made by
the Petitioner, dues checked off under Local 539's contract were cred-
ited to IUMSWA's accounts and arbitration under the grievance pro-
cedure of the contract was observed in one incident occurring August
24, 1949. On December 11, 1949, with 120 to 125 members present,
meeting as Local 4254, a repeat disaffiliation resolution was unani-
mously passed, but this time only for purposes of demonstrating the
members' positive intention before an international representative of
IUMSWA who was present at the meeting. All officers of Local 539
assumed similar positions with Local 4254 and membership clues at
the time of the hearing were being paid to the Petitioner and not to
Local 539. No IUMSWA representative has, since August 15, 1949,
communicated with the Employer and there is nothing in the record
to indicate that Local 539 is now functioning.
The Employer contends that the contract, which it executed with
IUMSWA on November 1, 1948, is valid and existing, and that the
Petitioner's petition should be dismissed unless such representation
-claim is inalterably tied to the existing contract of November 1, 1948.
The Employer maintains that the Petitioner, if chosen as the collective
bargaining representative, should be bound by the contract as a
successor.
From the foregoing it appears that Local 539 has ceased to function
as representative of the employees of the Employer. The facts clearly
reveal a breakdown in the normal bargaining relationship between the
Employer and the preexisting bargaining representative of its em-
ployees. Accordingly, the contract is rendered ineffective as a bar to
this proceeding. Further, we find it unnecessary to pass on the
Employer's contention that the November 8, 1948, contract should
remain valid and subsisting for the reasons recently stated in Boston
Machine Works Company, 89 NLRB 59.
889227-51-vol. 89 89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a 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.
4. In accordance with the agreement of the parties, we.find that all
production and maintenance employees at the Employer's Phila-
delphia, Pennsylvania, plant, excluding foremen, executive employees,
and relatives thereof, office clericals, laboratory chemists, assistant
chemists, cost accountants, satipling department employees, watch-
men, guards, and all other supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 3
As part of the investigation to ascertain representatives for the
purposes 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 or
not they desire to be represented, for purposes of collective bargaining,
by United Steelworkers of America, CIO.
In the event that the Industrial Union of Marine and Shipbuilding Workers of America,
CIO, indicates, in writing, a desire to be placed on the ballot within 2 weeks from the date
of this Direction, the Regional Director is instructed to accord Industrial Union of Marine
and Shipbuilding Workers of America, CIO, a place on the ballot in the election directed
herein. however, the record indicates that there is doubt as to whether Local 539 is still
in existence. If it is in existence the participation on the ballot of the Industrial' Union of
Marine and Shipbuilding Workers of America, CIO, alone or with Local 539, then becomes
conditioned upon Local 539's achieving compliance within 2 weeks from the date of this
Direction. No election shall be held during this 2 week period unless and until compliance
is determined.