Morley Manufacturing Co.

National Labor Relations Board - Board Decisions

May 6, 1949

83 N.L.R.B. 404 (N.L.R.B. 1949)

In the Matter Of MORLEY MANUFACTURING COMPANY, EMPLOYER and
STOVE MOUNTERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL,
PETITIONER and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS
UNION OF NORTH AMERICA, AFL, INTERVENOR
Case No. 14-RC-623.-Decided May 6,1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Glenn L.
Moller, 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 Petitioner and the Intervenor are labor organizations, affili-
ated with the American Federation of Labor, claiming to represent
employees of the Employer.
3. The question concerning representation :
The instant petition was filed on February 3, 1949. The Intervenor
urges as a bar to this proceeding a contract executed on January 26,
1948, between the Intervenor and the Manufacturers' Protective and
Development Association, herein called the Association.' This con-
tract contains the following provision :
ARTICLE I
Clause 2: When the company shall deem it necessary to hire
a new employee, it is understood and agreed that members of
the Union shall be given preference of employment with the
understanding, however, that the new employee shall be a com-
petent workman with ability to fill the position that is vacant.
1 Although the Employer is not a member of the Association , the Intervenor contends
that the contract in question is binding upon this Employer * In'view of the disposition
made herein of the contract bar issue , we need not resolvethts question.
'V
83 N. L . R. B., No. 60.
404
A
MORLEY MANUFACTURING COMPANY - 405
The clear effect of this provision 'of the contract is to require that
the Employer give preferential treatment in the hiring of employees
to individuals who are members of the Intervenor. Although the
intervenor has been authorized, in an election held pursuant to Sec-
tion 9 (e) (1) of the Act, to execute a union-security agreement, the
above-quoted provision goes beyond the limited form of union--
security agreement permitted by Section 8 (a) (3) of the Act, as
amended, and is therefore unlawful without regard to whether its
execution has been authorized in a Section 9 (e) (1) election? Thus,
without regard to any other considerations, the contract in question
cannot operate to bar a present determination of representatives.8
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.
4. The appropriate unit :
The Petitioner seeks a unit of the Employer's' production and
maintenance employees. The Intervenor contends that a unit re-
stricted to employees of this Employer is inappropriate because of
a history of collective bargaining on a multiple-employer basis in
which this Employer has participated.
The Association, whose membership includes 30 stove manufac-
turers, has during the past 58 years negotiated and bargained col-
lectively with the Intervenor on behalf of its member companies.a
Some 32 stove manufacturing companies, including the instant Em-
ployer, who are not members of the Association, have apparently cus-
tomarily followed the agreements reached by the Association and the
Intervenor. However, the record shows that the instant Employer
has not participated with the Association members in the negotiations
with the Intervenor which preceded the execution of the contracts, or
delegated to the Association any authority to conduct negotiations on
its behalf. Under these circumstances, the fact that the Employer has
consistently adopted the contracts executed by the Association does not
itself provide a sufficient basis for the inclusion of its employees in a
unit with those of the Association members.6
We therefore find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act : all production and
x See Matter of American Export Lines , Inc., 81 N. L. R. B. 1370.
s See Matter of C. Hager d Sons Hinge Manufacturing Co., 80 N. L. R. B. 163.
The Employer , who commenced operations in 1946 , is engaged in the manufacture and
sale of commercial gas ranges and appliances.
5 See Matter of Kalamazoo Stove and Furnace Co., 61 N. L. R. B. 1041.
See Matter of Air Conditioning Co. of Southern Calif., 79 N. L. R. B. 1396, and 81
N. L. R. B . 946; Matter of Associated Shoe Industries, 81 N. L . R. B. 224 ; Matter of Ad-
vance Tanning Co., 60 N. L. R. B. 923.
844340-50-vol. 83-27
'406 DECISIONS''OF• NATIONAL LABOR RELATIONS BOARD
maintenance employees ; including the polisher,' but excluding clerical
and professional employees ; guards, and supervisors as defined in the
Act. '
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
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-Series 5, as amended, among the em-
ployees 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
.Stove Mounters' International Union of North America, AFL, or by
International Molders and Foundry Workers Union of North Amer-
ica, AFL, or by neither: .
1 7 The Petitioner contends that the one polisher involved should be excluded from the unit
because he possesses the skill of a different craft As this individual has in the past been
included in the production and maintenance unit represented by the Intervenor , and as' it
appears that no other labor organization is seeking to represent this employee on a separate
basis, we shall include him in the unit. See Matter of Geneva Forge, Inc., 76 N. L. R. B.
497. .