Midwest Screw Products Co.

National Labor Relations Board - Board Decisions

Oct 19, 1949

86 N.L.R.B. 643 (N.L.R.B. 1949)

In the Matter of MIDWEST SCREW PRODUCTS COMPANY, EMPLOYER and
MIDWEST SCREW PRODUCTS EMPLOYEES ASSOCIATION (INDEPENDENT),
PETITIONER
Case No. 14-RC-790.-Decided October 19, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Ralph E.
Kennedy, 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
Reynolds 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 organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer Within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.'
I International Association of Machinists , District No. 9, herein called the Intervenor,
contends that a contract covering all the Employer's production and maintenance em-
ployees, executed by the Employer, the Intervenor, and Building Service Employees Union,
Local No. 50, A. F. L., herein called Local 50, is a bar to this proceeding. The contract,
executed on October 22, 1945, together with a supplemental agreement executed on No-
vember 24 , 1945 , was to continue in effect for a period of 12 months and provided for
automatic annual renewal thereafter , in the absence of 30 days' written notice by either
party of intention to amend or cancel the agreement . On September 16, 1946 , more than
'30 days before the first anniversary date of the contract , the Intervenor served written
notice upon the employer that it desired to open the agreement and to discuss and amend
certain of its provisions . Negotiations for a new contract, commenced pursuant to said
notice, continued regularly between that date and November 12, 1946 , when an impasse
was reached and the Intervenor called a strike . More than 2 years later , on June 29.
1949, the Petitioner filed the instant petition.
It is clear that the notice served by the Intervenor upon the Employer more than 30
days before October 22 , 1946, the automatic renewal date of the contract , opened the con-
tract for all purposes . As the September 16, 1946, notice effectively forestalled automatic
renewal, the contract does not constitute a bar to this proceeding . Matter of Brunswick
Balke Collender Company, 81 N. L. R. B. 877; Matter of C. A. Swanson and Sons, 81
N. L. R. B. 321.
86 N. L. R. B., No. 89.
643
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees employed at the Em-
ployer's St. Louis, Missouri, plant, excluding general office, clerical,
and professional employees, guards, and supervisors as defined in
the Act.
5. The determination of representatives :
The Petitioner and the Employer contend that approximately 54
production employees on strike have been permanently replaced and
are therefore ineligible to vote under the terms of the amended Act.
The Intervenor asserts that they are the only employees eligible.
On November 12, 1946, because of an impasse in contract negotia-
tions between the Intervenor and the Employer, the former called a
strike. The strike, which is still in effect, clearly was and is an "eco-
nomic strike." Although production operations at the plant ceased
when the strike got under way, they were resumed on January 6, 1947.
On that date, the Employer began operations with 6 employees. From
March 14, 1947, about 2 months after the plant was reopened, until
April 23, 1948, the Employer's production and maintenance comple-
ment fluctuated from 22 to 38 employees, the latter number consti-
tuting the highest peak since the strike began.2 On July 22, 1949, 3
weeks before the hearing, there were 28 employees. The Employer's
president testified that, because of a business recession in the machine
screw products manufacturing industry, he considers the Employer's
present complement normal. for its current volume of business. He
further testified that if business continued to recede, the Employer
would be required to lay off some of the replacement workers.
Only one striker applied for reinstatement; he was reinstated.
All replacement workers were obtained by the Employer as a result
of "blind advertisements" in the St. Louis newspapers. Applicants
for replacement positions executed the same forms that the Employer
used before the strike and, if the Employer found that they qualified
and possessed acceptable recommendations, they were employed.
Upon being hired, all replacements were told about the strike and
that they were being hired as permanent employees.
In view of all the foregoing, it is clear that all the strikers' positions
were permanently filled by April 23, 1948. Because the strike here
involved is an economic one, none of the strikers were entitled to rein-
statement after that date, long since past.' We therefore find that
2 During May and June 1948 and January 1949, the Employer's complement again
totaled 38.
8 Matter of Belmont Radio Corporation (Supplemental Decision), 83 N. L. R. B. 45, and
cases cited therein.
MIDWEST SCREW PRODUCTS COMPANY 645
they are not eligible to vote in the election hereinafter directed .4 We
shall follow our usual practice as to the eligibility date for voters in
the election.
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-
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
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
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 Midwest Screw Products Employees Association (Independent) ;
or by International Association of Machinists, District No. 9, or by
neither.
Matter of Pipe Machinery Company, 79 N. L. R. B. 1322. See also Matter of Belmont
Radio Corporation , supra; Matter of Triangle Publications , Inc., Station TVFIL-TV, 80
N. L. R. B. 835; and Matter of Solar Electric Corporation , 80 N. L. R. B. 43.
Any participant in the election directed herein may , upon its prompt request to, and
approval thereof by, the Regional Director , have its name removed from the ballot.
867351-50-vol. 86-42