Massell Co.Download PDFNational Labor Relations Board - Board DecisionsApr 13, 195089 N.L.R.B. 409 (N.L.R.B. 1950) Copy Citation 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. 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