Local 450

National Labor Relations Board - Board Decisions

Aug 12, 1955

113 N.L.R.B. 618 (N.L.R.B. 1955)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and better served if all eligible employees covered by this Agree-
ment are willing to become members of the Union.
The contract also contains the following language :
Employees not in good standing with Union lose all rights and
privileges under this Contract.
On its face this agreement provides for exclusive recognition of the
Intervenor as the representative of all employees in the unit. How-
ever, the last-quoted clause either belies the exclusive recognition clause
by providing, in effect, that the Intervenor will represent only its
members, or seeks, notwithstanding the noncompliance of the Union,
to simulate union-shop conditions by withholding from nonmembers
all benefits under the contract. Accordingly, whether the contract be
viewed as a "members-only" contract 1 or as containing an illegal union-
security provision,2 it does not, in either event, constitute a bar to a
present election among all production and maintenance employees.'
4. We find, in agreement with the stipulation of the parties, that
the following employees of the Employer constitute a unit appro-
priate for purposes of^ collective bargaining within the meaning of
Section 9 (b) of the Act :
All production and maintenance employees of the Employer' s metal
fabricating division plant, 15843 Second Boulevard, Detroit 3, Michi-
gan, excluding janitors, office clerical employees, shop clerical em-
ployees, professional employees, guards , and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN FARMER took no part in the consideration of the .above
Decision and Direction of Election.
1 Associated Shoe Industries of Southeastern Mass., Inc., 81 NLRB 224, 226 footnote 6 ;
accord : Hughes Tool Company, 104 NLRB 318.
2 See Ward Baking Company , 101 NLRB 419.
' In view of our determination herein, we find it unnecessary to decide whether the con-
tract was properly executed of extended.
Local 450, International Union of Operating Engineers ,'AFL and
W. J. Hedrick and H . W. Marschall , Jr., d/b/a Industrial
Painters and Sand Blasters. Case No. 39-CD-14. August 12,
1955
ORDER GRANTING MOTION AND REMANDING FOR
FURTHER HEARING
On April 25, 1955, the Board issued a Decision and Determination
of Dispute in the instant case, finding that the Respondent was not
113 NLRB No. 66.
LOCAL 450 619
lawfully entitled to require the Employer, by means proscribed by
Section 8 (b) (4) (D), to assign work on the Employer's air compres-
sors to the Respondent's members rather than to the Employer's own
employees who were not members of that labor organization.'
On May 5, 1955, the Respondent filed a motion to reconsider, con-
tending, among other things, that the Board's determination exceeds
the more limited issue posed in the notice of hearing, as issued by the
Regional Director, and embraced within the scope of the hearing, as
conducted by the hearing officer.
The Board, having duly considered the motion and having reex-
amined the entire record in this case, in the light of the motion, finds
that the Regional Director's notice of hearing, by restricting the scope
of the hearing to a consideration of the alleged "overtime" demand, and
the hearing officer's rulings made at the hearing in pursuance of that
notice, necessarily foreclosed full litigation of the matters charged by
the Employer. To that extent, therefore, the notice and the rulings,
in the Board's opinion, precluded consideration by the Board of mat-
ters alleged in the charge and essential to a determination of the dis-
pute.
Accordingly, we find merit in the Respondent's motion insofar as
it seeks a remand of the case for the purpose of taking evidence on
the "work assignment" issue. We shall therefore remand the case to
the Regional Director for a further hearing on all matters relevant to
the dispute as embraced by the charge?
ORDER
IT IS HEREBY ORDERED that the instant case be, and the same hereby
is, remanded to the Regional Director for the Sixteenth Region for
further hearing for the purpose of receiving additional evidence rela-
tive to all matters alleged in the charge heretofore filed herein and
to the dispute which constitutes the basis of the charge.
IT IS FURTHER ORDERED that the Regional Director shall, in accord-
ance with the provisions of Section 102.71 of the Board's Rules and
Regulations, Series 6, as amended, prepare and cause to be served
on the parties an amended notice of hearing setting the case down
for further hearing for the purpose of receiving evidence with respect
to the matters alleged in the charge heretofore filed herein, i. e., alleged
attempts by Local 450, International Union of Operating Engineers,
AFL, by means proscribed by Section 8 (b) (4) (D) of the Act, to
force or require the Employer to assign work on the Employer's air
compressors to the Respondent's members rather than to the Em-
1112 NLRB 437.
2In view of our disposition herein , the Respondent's motion for oral argument is hereby
denied.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's own employees who were not members of that labor organi-
zation.
MEMBERS RODGERS and LEEDOM took no part in the consideration
of the above Order Granting Motion and Remanding for Further
Hearing.
National Electronic Manufacturing Corporation and Mylsher
Realty Corporation and International Union of Electrical
Radio and Machine Workers, CIO and Amalgamated Workers
Union, Local 130, AFL. Case No. 1-CA-1667. August 15, 1955
DECISION AND ORDER
On October 27, 1954, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and the brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, modifications, and
additions noted below.
1. We find in,agreement with the Trial Examiner and our • col-
leagues that the Respondents, National and Mylsher, should be con-
sidered as constituting a single employer, particularly in light of the
fact that: (a) The ownership and control of both Companies is sub-
stantially identical; (b) when, National decided to leave New York
and relocate in Manchester, New Hampshire, Mylsher acquired the
premises into which it moved with National; (c) the nature of the op-
erations of National and Mylsher are related-Mylsher functions
much like a department of National; (d) more than half of the Myl-
sher employees, upon termination of their services with that Com-
pany, received employment with National; and (e) the same individ-
ual is operating head and, in charge of the labor relations policies of
both Companies.2
' The Respondents ' request for oral argument is hereby denied as the record and the
exceptions and brief , in our opinion , adequately present the issues and the positions of the
parties.
2 Sanitary Mattress Company, Rest Line of California , Inc., 109 NLRB 1010 ; Oregon
Frozen Foods Co. and Ore-Ida Potato Products , Inc., 108 NLRB 1668; F. Hilgemeter eE
Bro., Inc., 108 NLRB 352 ; Rushville Metal Products, Inc., 107 NLRB 1146.
113 NLRB No. 73.