Rock-Ola Manufacturing Corp.

National Labor Relations Board - Board Decisions

Apr 4, 1951

93 N.L.R.B. 1196 (N.L.R.B. 1951)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ROCK-OLA MANUFACTURING CORPORATION and LOCAL 18B, UNITED
FURNITURE WORKERS OF AMERICA ( CIO), PETITIONER . Case No.
13-RC-1671. April 4, 15-51
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 Joseph A. Butler,
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 Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3. The intervenor, Independent Phonograph & Woodworkers Union,
herein called the Independent, and the Employer urge that their
current contract which has an expiration date of August 31, 1951, is
a bar to the petition herein which was filed November 9, 1950. The
Petitioner contends there is no contract bar, on the ground that the
contract contains an illegal union-security clause and because of a
schism in the ranks of the Intervenor.2
After the Intervenor's certification as bargaining representative
on December 15, 1948, a union-authorization election was held January
14, 1949, and on January 24, 1949, the Intervenor was certified by the
Board as authorized to make or enforce certain types of union-security
agreements.3 The current contract executed August 31, 1950, contains
the following provision in Article 1, Section C :
The Employer agrees that any present regular employee, fall-
ing within the bargaining unit, who is now a member of the
Union, or who after this date becomes a member, must as a condi-
tion of employment, maintain membership in good standing... .
'At the hearing Petitioner refused to concede that the Intervenor, Independent Phono-
graph & Woodworkers Union, is a labor organization within the meaning of the Act,
because of a provision in its constitution under which the Intervenor could arbitrarily
exclude certain employees from membership on the ground of character . We find no
merit in this contention . The Board has held that it will not inquire into a labor
organization 's constitution , absent proof it will not accord effective representation. The
Visking Corp ., 90 NLRB 1006.
The International Brotherhood of Electrical Workers, Local 1031, ( AFL) intervened
for the sole purpose of having its name on the ballot should the Board order an election.
IIn view of our holding herein that the contract is not a bar because of the illegal
union-security provision , we do not find it necessary to consider the question of the
alleged schism.
3 Case No. UA 2264.
93 NLRB No. 195.
ROCK-OLA MANUFACTURING CORPORATION - 1197
Because this provision requires, as a condition of employment, main-
tenance of membership in the Union on the effective date of the pro-
vision rather than "on or after the thirtieth day following the be-
ginning of such employment or the effective date of such agreement,
whichever is the later . . ." the provision exceeds the limited form of
union security permitted by Section 8 (a) (3) of the Act 4 However,
the Intervenor urges that the union-security clause, quoted above, is
nevertheless valid because, under Article VI, Section B,' of the con-
tract, new employees do not become "regular" employees until the
expiration of a 60-day probationary period. We do not agree that
this provision satisfies the requirements of the statute as the pro-
vision does not afford an escape period to those individuals who were
regular employees on the effective date of the contract.' As the pro-
vision is contrary to law, it is immaterial that a union-authorization
election has been held.7 Accordingly, we find that the contract is not
a bar to a present determination of representatives."
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 comprising all production, maintenance
employees, and cafeteria employees excluding toolroom employees and
other employee categories. The Employer and the Intervenor would
also include the toolroom employees.
The record shows that the toolroom employees have been separately
represented by the International Association of Machinists (IAM),
Lodge 113, since 1942 and that separate contracts were entered into
for these employees from 1942 to 1948. In January 1948, the IAM,
District 8 became the bargaining representative for a production and
maintenance unit, from which the toolroom employees were excluded.
The toolroom employees were also excluded from the production and
+TPorthington Pump and Machines/ Corporation , 93_NLRB 527
"New employees shall be considered as probationary for a period of sixty ( 60) days.
Up to the expiration of the probationary period or at any time prior thereto , the Company
shall be the sole judge as to whether any probationary employee shall be continued in
employment Probationary employees continued in employment after the probationary
period shall have expired shall be considered regular employees Such employees shall
not acquire any seniority rights during the probationary period but , if continued in
employment after the same have expired , the seniority of such employees shall commence
with the original hiring date."
9 Monroe Browne and Leonard Rurup, d /b/a McCoy Truck Tire Recap Company, 93
NLRB 667
7 Aeroil Products Company, Inc, 86 NLRB 639.
The Petitioner urges as an additional gound for declaring the contract invalid the
fact that the contract covered the " tool room employees" although the union-authorization
election unit excluded these employees from that election . As we find that the election
could not authorize the illegal union -security provision , we have no occasion to pass
on this question.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inalntenance unit for which the Intervenor was certified on December
14, 1948, and from the voting group ,participating in the union-au-
thorization election on January 14, 1949. The last contract between
Lodge 113 and the Employer covering these employees expired in
April 1949. At that time, the Employer laid off a considerable nuin-
ber of tool and die workers due to a change in production, and the
contract was not renewed. Thereafter, the toolroom employees were
specifically covered in the Intervenor's current 1950 contract. In
February 1951, prior to the hearing, the IAM filed a disclaimer of
any interest in the toolroom employees. The toolroom employees
may properly be included in a broad production and maintenance unit,
and although they constitute a craft group for whom ordinarily a
self-determination election would be directed, the Board has held that
.the principle, of self-determination for craft groups does not apply,
where there is no union seeking to represent the crafts separately.e
Accordingly, we shall include them in the unit.
We find that all production and maintenance employees, toolmakers
and toolroom employees, and cafeteria employees excluding all office
and clerical employees,1° professional employees, watchmen, guards,
and all supervisors as defined in the Act constitute a unit appropriate
for purposes of collective bargaining within the meaning of Sec-
tion (9) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
0 Boeing Airplane Company, 86 NLRB 368.
'° The parties agreed , in conformity with the provisions of the current contract, that
all clerical employees whether employed in the office or in the plant should be excluded