National Hardware Corp.

National Labor Relations Board - Board Decisions

Nov 18, 1948

80 N.L.R.B. 368 (N.L.R.B. 1948)

In the Matter of NATIONAL HARDWARE CORPORATION AND ACME HARD-
WARE CORPORATION, EMPLOYERS 1 and DISTRICT #15 OF INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, PETITIONER
Case No. 2-RC-366.-Decided November 18,19/8
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on July 13, 1948, before Herbert C. Kane, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial 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-man panel consisting of the undersigned Board
Members.*
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
National Hardware Corporation, herein called "National," which
is the successor of National Hardware Company, is a New York cor-
poration engaged in the manufacture and sale of builders' finishing
hardware and has its principal place of business at Ozone Park, L. I.,
New York. During the past year, it purchased raw materials, having
a value in excess of $250,000, of which approximately 75 percent was
shipped to the plant from points outside the State of New York.
During the same period, National sold finished products having a
value in excess of $500,000, of which approximately 75 percent was
shipped to points outside the State of New York.
' The names of Employers appear as amended at the hearing.
*Reynolds, Murdock, and Gray.
80 N. L. R. B., No. 80.
368
NATIONAL HARDWARE CORPORATION ET AL. 369
Acme Hardware Corporation, herein called "Acme," a New York
corporation, having its principal place of business at Ozone Park,
L. I., New York, is engaged in the manufacture and sale of builders'
finishing hardware. During the past year, it purchased raw materials,
having a value in excess of $50,000, of which approximately 75 percent
was shipped to the plant from points outside the State of New York.
During the same period, Acme sold finished products having a value
in excess of $100,000, of which 75 percent was shipped to points outside
the State of New York.
The operations of both corporations are integrated. Their officers
are identical and all the directors of Acme are also directors of Na-
tional. Labor relations for both corporations are supervised by the
same person. Under these circumstances, we find that, for the pur-
poses of this proceeding, National and Acme constitute a single em-
ployer within the meaning of Section 2 (2) of the Act.2
The Employers admit and we find that they are engaged in com-
merce within the meaning of the Act.
II. TIIE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization, claiming to represent em-
ployees of the Employers.
United Construction Workers, United Mine Workers of America,
herein called the Intervenor, is a labor organization claiming to rep-
resent employees of the Employers. Although it has not complied
with the registration and filing requirements of Section 9 (f) (g), and
(h) of the Act, as amended, its motion to intervene in this case was
granted by the hearing officer because of its existing contracts with
the Employers."
M. THE QUESTION CONCERNING REPRESENTATION
The Employers refuse to recognize the Petitioner as the exclusive
bargaining representative of their employees until the Petitioner
shall be certified by the Board.
On September 12, 1946, National Hardware Company and the In-
tervenor entered into an agreement covering all the said Employer's
production and maintenance employees. The contract provides,
among other things, that it shall remain in effect until July 31, 1948,
and shall be automatically renewed for successive periods of 1 year
unless either party shall give 60 days' notice to the other of its desire
to modify or terminate the contract. This contract was modified on
= Matter of Home Furniture Company, 77 N. L . R. B. 1347.
$ Matter of Bush Woolen Mills, Inc, 76 N . L. R. B. 618.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 5, 1948, by a supplemental contract which, in addition to other
material changes, extended the term of the original agreement to July
31, 1949.
On August 18, 1947, Acme and the Intervenor entered into an agree-
ment for a term expiring on July 31, 1948, covering all of the said
Employer's production and maintenance employees. On May 5, 1948,
the parties entered into a supplemental agreement. This agreement,
in addition to other material changes, extended the term of the orig-
inal agreement to July 31, 1949.
By letter, dated May 5, 1948, the Petitioner notified the Employ-
ers that it represented a majority of the production and maintenance
employees in National's plant and all such employees in Acme's plant.
On May 6, 1948, the Petitioner filed the original petition herein, nam-
ing only National as Employer, and on July 2, 1948, the Petitioner
filed an amended petition naming National and/or Acme as Employ-
ers. No objection to the amendment of the petition was made by any
of the parties. The Intervenor and Employers urge the above-
mentioned supplemental agreements as a bar to this proceeding.
However, with respect to National, the Petitioner, having filed its
original petition prior to the "Mill-B" date 4 provided for in the 1946
agreement, is not barred from the relief it seeks in this case by the
1946 contract nor by the supplemental contract of 1948, which was a
premature extension of the 1946 agreement .5 With respect to Acme,
the 1948 contract, having been executed during the term of the 1947
agreement, was a premature extension thereof and cannot constitute
a bar to this proceeding e
We find that a question affecting commerce exists concerning the
representation of certain employees of the Employers, within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
All parties agree that a single unit of the production and main-
tenance employees of both National and Acme constitutes a unit ap-
propriate for the purposes of collective bargaining.
We find that all the production and maintenance employees of
National and Acme, including shipping and receiving employees, but
excluding office, clerical and professional employees, guards, watch-
men, and supervisors as defined in the Act, constitute a unit appropriate
4 Matter of Mill-B Inc ., 4a N. L. R. B. 346.
5Matter of U. S. Pipe and Manufacturing Company, 78 N. L. R. B. 15; Matter of Blair
Limestone Company, 70 N. L. R. B. 689.
Matter of Robertshaw -Fulton Controls Company, 77 N. L. R. B. 316; Matter of Don
Juan, Inc., 71 N L. R. B. 734.
NATIONAL HARDWARE CORPORATION ET AL. 371
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
There remains for consideration the question of the eligibility of
the probationary employees to vote in the elections hereinafter di-
rected. All new employees of the Employers, many of whom are
school boys who work during their vacation periods, are subject to
a 30-day probationary period. The record shows that only an in-
substantial proportion of such employees remain with the Employers
at the end of the probationary period. While we have held that pro-
bationary employees are eligible to vote where there is a reasonable
expectation that their employment will be permanent," nevertheless,
in this case , since only an insubstantial proportion of the probationary
employees remain with the Employers at the end of the probationary
period, we find that these employees do not have a sufficient interest in
the selection of a bargaining representative to entitle them to vote
in the election.8
DIRECTION OF ELECTION 9
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employers, 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-Series 5, as amended, 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 probationary em-
ployees and those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, and also excluding employees on strike who are not entitled to
reinstatement, to determine whether or not they desire to be repre-
sented, for purposes of collective bargaining, by District #15 of
International Association of Machinists.
7 Matter of Beattie Manufacturing Company, 77 N. L. R. B. 361 ; Matter of Crossett
Chemical Company, 71 N L. R. B 433.
9 Matter of Continental Can Company , Inc , 74 N. L. R. B. 351 ; Matter of Swift and Co.,
76 N. L. R. B. 1171.
9 Since United Construction Workers, United Mine Workers of America , has not complied
with the registration and filing requirements of Section 9 (f), (g), and ( h) of the amended
Act, we shall not place its name on the ballot herein.
817319-49-vol. 80-25