Massell Co.

National Labor Relations Board - Board Decisions

Apr 13, 1950

89 N.L.R.B. 409 (N.L.R.B. 1950)

In the Matter of SOL SCHEINMAN , JACOB MANDELL, OTTO LEWIN,
D/B/A MASSELL COMPANY, EMPLOYER and UNITED STEELWORKERS OF
AMERICA, CIO, PETITIONER
Case No. 4-RC-560.-Decided April 13, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before E. Don Wilson,
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 [Chairman Herzog and Members
Houston 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 employees of
the Employer.
3. On March 3, 1947, the Employer and Metal Box and File Produc-
tion Workers Union, Local 22045, AFL, executed an agreement effec-
tive until December 31, 1948. On January 3, 1948, the parties incorpo-
rated a wage increase in the above contract. On December 31, 1948,
the parties amended their original contract and extended the amended
agreement to December 31, 1950. The amended agreement contains
the following clause :
The employer recognizes and acknowledges the Union as the
collective bargaining agency for all of its production employees,
who are affiliated with the Union, with respect to wages, hours,
and conditions of employment.
' Metal Box and File Production Workers Union, Local 24531, AFL , an intervenor herein,
moved that a portion of the record be deleted because it was part of an "off the record"
discussion . As we do not rely on this portion of the record in our disposition of this case,
we need not rule on this motion.
District #98, International Association of Machinists , herein called the Machinists, was
allowed to intervene on the basis of its present showing of interest
89 NLRB No. 39.
409
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another clause contains the following sentence :
Should the said new employees thereafter apply for member-
ship into the Union , all of the benefits, terms and provisions of
this contract shall inure to them.
Further amendments of the agreement of December 31, 1948, were
negotiated by the parties on February 15, 1949. This supplemental
agreement did not alter the provisions of the contract as set forth
above.
The Employer was engaged , for a number of years, in the manufac-
ture of office equipment at a. plant in Brooklyn , New York. In April
1949, the Employer commenced production at a new plant in York,
Pennsylvania . Production for a time was carried on in both plants
with a gradual increase in the size of,the York operations and a corre-
sponding decrease at the Brooklyn plant as the machinery and equip-
ment of the latter plant were gradually transferred to the former.
Production ceased at the Brooklyn plant on August 15, 1949, some
months after the York operations first began . The Employer trans-
ferred only 25 employees , of whom 10 were leadmen, from its Brooklyn
plant to the York plant.
On May 26, 1949 , Metal Box and File Production Workers Union,
Local 22045, and Metal Box and File Production Workers Union,
Local 24531, herein known as Local 24531 , an Intervenor , executed an
assignment agreement, for the purpose of transferring the contract
between Local 22045 and the Employer covering the employees in the
Brooklyn plant, to Local 24531 at the York operations.
The assignment agreement , executed with the Employer's consent,.
contains the following clause :
Metal Box and File Production Workers Union, Local 24531,
York, Pa., A. F . of L., hereby agrees that the terms , provisions
and conditions of the agreement dated March 3, 1947 , as modified,
amended' and extended by the memoranda of agreement respec-
tively dated January 3 , 1948, December 31, 1948, and February 15,
1949, shall bind, apply to and inure to the benefits of its members.
There were 111 employees at the York operation when the assign-
ment agreement was executed , and 499 employees in the same plant at
the time of the hearing.
The Employer and Local 24531 urge the agreement of December 31,
1948, assigned from Local 22045, as a bar to a present determination of
representatives at the Employer 's York plant . The Petitioner con-
tends that the contract cannot serve as a bar because ( 1) it was exe-
cuted before there were any employees at the York operation, (2)
there is no proof that the employees at the York plant had any voice
MASSELL COMPANY 411
in the so-called "transfer and assignment," (3) there has been an
expansion of the Employer's working forces of over 40 percent. The
Machinists contends that the contract is a "members only" contract
and therefore cannot serve as a bar.2
We are not persuaded that the above contracts bar an election.
Local 24531 would have the Board construe the verbiage in the con-
tracts set forth above as indicating coverage-"for all its production
employees all of whom are affiliated with the Union." However the
language of the contract does not lend itself to such construction. An
examination of that language makes it apparent that the contract is
limited in coverage to those employees "who are affiliated with the
Union" or "who apply for membership into the Union." The con-
tractual relationship clearly embraces members only. Accordingly,
since the contract of March 3, 1947, as modified, amended, and ex-
tended, on its face as a "members only" contract, we find that the agree-
ment does not constitute a bar to a present determination of represent-
atives.,
We fiiid a question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.4
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, maintenance, and ship-
ping department employees at the Employer's office equipment manu-
facturing plant in York, Pennsylvania, excluding office and clerical
employees, professional employees, foremen, assistant foremen, and
all other supervisors within the meaning of the Act.
DIRECTION OF ELECTION -5
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 super-
H The Petitioner also urged this as a ground at the hearing , but not in its brief.
8 G. C. Murphy Company , 80 NLRB 1072; Dortch Stove Works, Inc ., 79 NLRB 1258;
American Tobacco Company, Incorporated, 62 NLRB 1239 . We find it unnecessary there-
fore to consider other contentions urged by the Petitioner and the Intervenor , Local 24531.
4 The Intervenor , Local 24531, urges that the petition be dismissed , or that the pro.
ceeding be stayed until there has been a determination made on appeals taken from dis-
missal by the Regional Director of charges filed in Case No. 4-CA-349 and Case No.
4-CB-66 . However, the General Counsel has sustained the action of the Regional Director
in the above -numbered cases . We, therefore, see no reason why an election should not be
held at this time.
The Board , by Order dated May 3, 1. 950, granted Metal Box and File Production Workers
Union, Local 24531, AFL, an intervenor herein, permission to withdraw its name from
the ballot.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision 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 Re-
lations 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 rein-
stated 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 District #98, Interna-
tional Association of Machinists, or by neither.