Ottawa Machine Products Co.

National Labor Relations Board - Board Decisions

May 26, 1958

120 N.L.R.B. 1133 (N.L.R.B. 1958)

OTTAWA MACHINE PRODUCTS CO. 1133
leased equipment and may be statutorily required to bargain for these employees
with their representative. Can it convincingly be said under these circumstances
that ACE was "wholly unconcerned" in that labor dispute? I think not. ACE's
interest is so direct and intimate that it must, in my view, be regarded in this pro-
ceeding as primary.
Nor, in my view, would it be tenable to hold that during the period from December
29, 1956, to January 8, 1957, when the Union's strike had been declared against
Max Rabl only, that the other Lessors were neutrals or wholly unconcerned in the
dispute. Each Lessor was an inextricable part of the ACE operational scheme, and
all, like spokes in a wheel, were bound to and serviced ACE identically. What the
drivers of one were prevented by a strike from doing for ACE, would have been
required by ACE to have been done by the drivers of all the others unless also
prevented by the Union. Each Lessor within the ACE framework was an alter ego
for the others. In this connection, it should here also be emphasized that Rabl's
dispute was the product of the State court litigation which disturbed the arrangement
between ACE and the Union whereby Rabl's drivers, as well as the drivers for all
other Lessors, were bargained for by ACE as its own employees. Each Lessor was
affected by this action in the same way, and all had the same intimate concern with
Rabl in the outcome of his dispute with the Union.
Because I find that ACE and the Lessors were not neutrals or wholly unconcerned
third parties in the Union's disputes in this proceeding with any of them, I conclude
that ACE and the Lessors were not shielded by Section 8 (b) (4) (A) and (B) from
the economic pressures exerted upon them by the Respondents in the course of these
disputes . The allegations of the complaint that the Respondents by such conduct
have violated the Act have consequently not been sustained 23
[Recommendations omitted from publication.]
23 The Respondents belatedly argued in their supplemental brief that ACE's contract
with Local No. 24 and the Central States Council contains a "hot-cargo" agreement which
justified the inducement of ACE employees to cease working alleged herein as unlawful. In
view of the disposition of the entire proceeding on other grounds, I find it unnecessary to
consider this unlitigated defense.
Ottawa Machine Products Co. and Ottawa Independent Union of
Tecumseh , Petitioner. Case No. 7-RC-3579. May 26,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Bernard Gottfried, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
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 here involved claim to represent certain
employees of the Employer.'
3. The Petitioner became a labor organization on February 26, 1957,
after employees of this Employer severed association with Allied
Independent Unions, affiliated with Confederated Unions of America 2
I United Brotherhood of Carpenters and Joiners of America, AFL-CIO, intervened in
this proceeding on the strength of an adequate showing of interest. Each union challenged
the status of the other as a labor organization. On the evidence presented we find that
both qualify as labor organizations within the meaning of the Act.
E In January 1957, Allied Independent Unions, hereinafter referred to as Allied, affili-
ated with Local 158, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Disapproval of this action brought about the disassociation
action by the employees and the formation of the Petitioner.
120 NLRB No. 151.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which had been certified in 1950. After the formation of the Peti-
tioner, the Employer granted recognition to, and substituted the name.
of the Petitioner for, that of Allied on the current contract covering
the period from December 3, 1956, until September 9, 1958. In view
of a putative schism situation the Petitioner filed the instant petition
requesting a determination of- representatives on September 11, 1957,
and when, at the hearing it became apparent that Allied had failed to
intervene or appear, the petitioner moved that its petition be amended
to one of a recognized representative seeking the status and benefits of
a certification.3 This motion was referred to the Board. In view of
the foregoing, we shall grant the motion to amend the petition.
The Employer and the Petitioner urge their current contract as a,
bar to an election herein. Because under Board policy an employer
may not successfully urge a current contract as a bar to a petition for
certification brought by the contracting union, we find no merit in the
-Employer's. position 4 Similarly, where a contracting union files a
petition with the Board for certification, but thereafter raises its con-
tract with the employer as a bar to an election following the interven-
tion in the proceeding of a rival labor organization, the Board will
refuse to find that the incumbent union's contract constitutes a bar.'
Accordingly, we find no merit in Petitioner's position and find that
there is no bar to a determination of representatives by reason of the
existing contract.e ,
The Petitioner permitted its compliance with Section 9 (g) of the
Act to lapse after the hearing herein and has not yet renewed com-
pliance, nor did it follow the certificate of intent procedure established
by the Board 7 to enable a petitioner to safeguard a proceeding during
any temporary lapse of compliance. Under such circumstances .a peti-
tion becomes subject to dismissal. However, the Intervenor entered
the proceeding with a showing of interest sufficient to support.its,owil
petition and thus is entitled to the status of a cross petitioner for the
purposes of maintaining this proceeding and obtaining an election.
a See General Boo Company, 82 NLRB 678 , and subsequent cases applying the principle
established therein. -
The Petitioner does not desire an election but, rather , asks the Board to declare it the
certified union under the 1950 certification of Allied . This positions is diametrically
opposed to its motion to amend the petition for, as the certified bargaining representative,
it could not properly maintain a General Box type petition ( Botany Mills, Inc., 101 NLRB
293), and such a finding would require denial of the motion to amend . However, as it
was Allied , rather than the local group from which Petitioner was formed , who was the
certified agent we find that Petitioner is not the - certified agent. See Acme-Evans Com-
pany, Inc., 90 NLRB 2107, 2110.
4 See , e g., Natona Mills, Inc ., 97 NLRB 11 , 12; Bell Aircraft Corporation, 9S
NLRB 1277.
B See Puerto Rico Cement Corporation , 97 NLRB 382, footnote 1; Dongan Electric Mfg.
Co., 116 NLRB 1440, footnote 3.
, In view of this finding it is unnecessary to pass upon the multiple issues concerning
the existence or nonexistence of schism or defunctness urged as reasons for removing
application of the Board 's contract bar rules.
7 Monsanto Chemical Company, 115 NLRB 702. .
CLEAVER-BROOKS MFG. CORPORATION 1135
Under these circumstances we shall direct an election on the basis of
the cross petition, treating the Petitioner as though it were the inter-
venor in this proceeding.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer with-
in the meaning of Section 9 (c) (1) and Section 2 (6) and (7)` of
the Act.
4. We find that the following employees of the'Employer constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: All production, maintenance,
and toolroom employees at the Employer's plant, Tecumseh, Michigan,
excluding time-study men, methods engineers, office and plant clerical
employees, professional employees; guards, and all supervisors as
defined in the Act.
[Text of Direction of Election 8 omitted from publication.]
s The Petitioner 's appearance on this ballot shall be conditioned upon its renewal of
compliance with Section 9 (g) of the Act within 10 days after the issuance of the
Decision and Direction of Election and no election shall be scheduled to be held prior
thereto.
Cleaver-Brooks Mfg. Corporation and United Steelworkers of
America, AFL-CIO and Claire A. Houk , Thomas Zivkovich,
Carl J. Holston , and Carl R . Olson and United Steelworkers of
America, AFL-CIO and Employees' Independent Union of
Cleaver-Brooks Mfg. Corporation, Party to the Contract. Cases
Nos. 13-CA-2399, 13-CA-2400,13-CA-2400(a), 13-CA-2400(b),
13-CA-2400 (c), and 13-CA-2425. May 26, 1958
DECISION AND ORDER
On October 29, 1957, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, a brief in support of the excep-
tions and a reply brief, and the Charging Parties filed a brief in
support of the Intermediate Report.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
1 The Respondent has requested oral argument. In our opinion the record, exceptions,
and briefs fully present the issues and the positions of the parties. Accordingly, the
request is demgd
120 NLRB No. 152.