Lennox Furnace Co., Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1949

86 N.L.R.B. 698 (N.L.R.B. 1949)

In the Matter of LENNOX FURNACE COMPANY, INC., EMPLOYER and
UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER
Case No. 3-RC-331.-Decided October 21, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Richard
Lipsitz, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. The
Employer and the Intervenor 1 made motions to dismiss 2 which will
be considered hereinafter.
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 Reynolds, Murdock, and
Gray].
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 petition herein was filed on August 8, 1949.3 On August 12,
1,949, the Employer and the Intervenor entered into a contract, which
they claim constitutes a bar. Clearly, a contract entered into after
the filing of a timely petition will not bar a representation proceeding.
Further, however, the Employer and the Intervenor contend that
since Local No. 3775 of the Petitioner, admittedly an interested party,4
was not. in compliance on the date the petition was filed, the petition
1 Furnace and Machine Metal Workers Union of Syracuse , New York.
2 The Intervenor moved to dismiss the petition upon the grounds of contract bar. The
Employer moved to dismiss upon the basis of Insufficient showing of interest , and also
upon the ground that Local No. 3775 of the Petitioner was not in compliance at the time
the petition was filed.
8 The Employer received a letter from the Regional Office on August 10, 1949 , advising
that the petition had been filed.
The Employer , the Petitioner , and Local No. 3775 have previously had contractual
relations for about 3 years. Their last contract expired on April 28, 1949 . The Peti-
tioner conceded at the hearing that it has acted jointly with Local No . 3775 in the past,
and will continue to do so in the future.
86 N. L. It. B., No. 102.
698
LENNOX FURNACE COMPANY, INC. 699
should not have been entertained, and should now be dismissed. The
Board has consistently and repeatedly held that compliance with the
filing requirements of the Act is an administrative matter not litigable
by the parties e Although Local No. 3775 was not in compliance on
the date the petition was filed, it effected compliance 4 days later on
August 12, 1949, and currently is in compliance. Such compliance by
Local No. 3775 has extinguished any possibility that the Petitioner is
or could be seeking certification to enable a noncomplying local to
circumvent the provisions. of Section 9 (f), (g), and (h) of the Act.'
Moreover, the compliance status of Local No. 3775 is not in issue in
this proceeding, since the petition herein was filed by the Interna-
tional.' In view of the foregoing, the motions to dismiss upon the
grounds of contract bar and lack of compliance on the part of Local
No. 3775 are hereby denied.
The Employer also contends that the petition herein should be dis-
missed because evidence was not presented at the hearing to support
the allegation that the Petitioner represents a substantial number of
employees in the unit sought. We have frequently pointed out that
showing of interest is an administrative matter not subject to collateral
attack." Once the Board has determined for itself that a petitioner
has made a prima facie showing of interest, it will proceed to deter-
mine the question concerning representation.9 The Employer's motion
to dismiss on this basis is hereby denied.
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.
We find that all production and maintenance employees at the Em-
ployer's Syracuse, New York, plant, including group leaders, but
excluding office and clerical employees, timekeepers, technical em-
ployees, receiving and stock clerk, foremen and assistant foremen,
guards, and supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.10
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
s Matter of Veneer Products, Inc., 81 N. L. R. B. 492.
8 Matter of Lane Wells Company, 79 N. L . R. B. 252.
7 Matter of Lion Oil Company, 76 N. L. R. B. 565.
8 Matter of W. C. Nabors Co., 79 N. L. R. B. 40.
8 Matter of O. 1). Jennings & Company, 68 N. L. R. B. 516.
10 The unit description was amended at the hearing, and agreed upon by the parties.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 pay-roll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said pay-roll period because they were ill or on vacation or tem-
porarily 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 United
Steelworkers of America, CIO, or by Furnace and Machine Metal
Workers Union of Syracuse, New York, or by neither.