New England Casket Co., Inc.

National Labor Relations Board - Board Decisions

May 17, 1950

89 N.L.R.B. 1388 (N.L.R.B. 1950)

In the Matter of NEW ENGLAND CASKET COMPANY, INC., EMPLOYER
and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF
AMERICA, C. I. 0., PETITIONER
Case No.1-RC-1396.Decided llfay 17,1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Leo J. Hal-
":1oran, hearing officer. The hearing officer's rulings made at the hear-
ing 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 Styles].
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, Upholsterers' International
-Union of North America, AFL, are labor organizations claiming to
.represent certain employees of the Employer.
3. The question concerning representation :
The Employer and the Intervenor contend that their current bar-
gaining contract constitutes a- bar to this proceeding. The contract
was executed by the parties 1 on November 1, 1948, to be effective for
1 year, and for successive 1-year periods thereafter until amended or
terminated pursuant to written notice given by either party at least
t60 days prior to the termination date of the contract or any extension
.thereof. On November 1, 1949, no such notice having been given, the
parties executed a written extension of the contract to November 1,
1950. Thereafter the petition herein was filed.
1 The Intervenor signed the contract through its agent , Local #560.
89 NLRB No. 177.
1388
NEW ENGLAND CASKET COMPANY, INC. 1389
The contract provides, in part, as follows :
The Employer may hire any help it wishes in the open market
provided no member of the Union who is qualified in all respects
is unemployed, and that any new help so hired shall join the
Union within thirty (30) days after the date of hiring and shall
remain in good standing in the Union thereafter as a condition of
continued employment.
The Employer agrees to cooperate with the Union in securing
new help.
In the event that any of the present crew have been dismissed
under this Article and there is no available skilled labor other
than those dismissed men, it is agreed that they may be reem-
ployed on condition that they renew their good standing in the
Union within one (1) month from the date of reemployment and
the Union agrees to cooperate to the end that such reinstatement
may be facilitated, but conditions of reinstatement are to be left
in full charge of the Union.
.By requiring the Employer to give preference in hiring to members
.of the Intervenor, this provision goes beyond the limited form of
union-shop agreement permitted, under certain conditions, by Section
8 (a) (3) of the Act.' It is therefore unlawful, despite the fact that,
.at the time of the execution of the contract, the Intervenor's agent,
Local #560, had been duly authorized, by an election conducted under
Section 9 (e) (1) of the Act, to enter into such an agreement .3 For
-this reason, we find that the contract is not a bar to a present determi-
-nation of representatives.
Accordingly, we find that a question affecting commerce exists con-
-cerning 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 all employees of the Employer, exclud-
-ing salesmen, engineers, firemen, office help, foremen, and all guards,
professional employees, and supervisors.4 The Employer and the
Intervenor would also exclude truck drivers. -
The Employer manufactures caskets at East Boston, Massachusetts.
It has approximately 43 employees in the proposed unit.
The truck drivers-the only employees in dispute-deliver the Em-
ployer's products; they do no production work, and are the only
S American Export Lines, Inc., 81 NLRB 1370 ; Louis Dix, an individual doing business as
.Hickey Cab Company, 88 NLRB 327.
8 Case No. 1-UA-1938.
Except for the exclusion of guards and professional employees , this unit is the same as
the unit described in the contract between the Employer and the Intervenor.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who drive the Employer's trucks. For 6 or 7 years, under-
successive contracts between the Employer and the Intervenor, they
have been included in the same bargaining unit with the other em-
ployees involved herein; but the Intervenor now wishes to exclude-
them on the ground that their inclusion might lead to a jurisdictional
dispute. In view of the bargaining history, and the further fact that,
no labor organization is seeking to represent the truck drivers as a,
separate group, we shall include them.
We find that all employees of the Employer at its plant at East.
Boston, Massachusetts, including truck drivers, but excluding sales-
men, engineers, firemen, office help, foremen, and all guards, profes--
sional employees, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the.
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
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 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
Industrial Union of Marine. and Shipbuilding Workers of America,
C. I. 0., or by Upholsterers' International Union of North America,
AFL, or by neither.