The Broderick Co.

National Labor Relations Board - Board Decisions

Aug 17, 1949

85 N.L.R.B. 708 (N.L.R.B. 1949)

In the Matter of THE BRODERICK COMPANY HEADER-PRESS DIVISION
EMPLOYER and MUNCIE DIE SINKERS LODGE No. 170 OF THE INTERNA-
TIONAL DIE SINKERS CONFERENCE, PETITIONER
Case No. 35-RC-146.-Decided August 17, 1949
AMENDED DECISION
ORDER
AND
DIRECTION OF ELECTION
On March 22, 1949, the National Labor Relations Board issued a
Decision and Direction of Election 1 herein, finding that a contract
dated August 2, 1948, between the Employer and the Intervenor 2 did
not constitute a bar. Thereafter, on April 4, 1919, the Employer filed
a Motion for Reconsideration, alleging that the Board's decision was
based upon a misinterpretation of the effect of such contract, and
that it properly should constitute a bar. On May 6, 1949, the Board
issued an Order to Show Cause, ordering all parties to state in writing
why the Board should not vacate and set aside its Decision and Direc-
tion of Election. On May 23, 1949, the Petitioner filed a brief upon
the Order to Show Cause, urging that the Board should not vacate
its decision and contending, among other things, that the contract of
August 2, 1948, contains illegal matter which will prevent it from act-
ing as a bar. On May 23, 1949, the Intervenor filed a statement sup-
porting the Employer's contentions. On May 26, 1949, the Employer
filed a reply to the Petitioner's brief.
Upon review of the record and arguments in this case, we are of
the opinion that our original decision erred in its reasoning that the
agreement of August 2, 1948, would not constitute a bar because it was
executed prior to the expiration date of the 1947 contract.3 Since the
1 Unpublished.
z United Steel Workers of America, CIO.
Insofar as the original Decision and Direction of Election is inconsistent with this
decision , it is hereby amended.
85 N. L . R. B., No. 130.
708
THE BRODERICK COMPANY 709
1947 contract was in fact terminable at will,' it at no time constituted a
bar,5 and in the absence of conflicting claims to representation the par-
ties were free to enter into the 1948 agreement which, being for a defi-
nite term, would ordinarily bar the instant petition.,
However, as already noted, the Petitioner contends that the 1948
agreement contains the same unlawful provisions that originally were
included in the 1947 contract. Such provisions of the 1947 contract
are quoted in part below :
Section 2: Membership in the Union shall be required as a con-
dition of employment for all employees as defined in Section 1.
Section 3: All new employees * * * shall as a condition of
employment, maintain their membership in the Union for the
duration of the Collective agreement in which this provision is
incorporated.
The pertinent clauses of the August 2, 1948, agreement provide :
H. Membership in the Union a condition of Employment
The following provisions shall take effect as of midnight
December 1, 1948, or at any time thereafter during the life of the
June 2, 1947 agreement, as extended hereby, but only if and when
it may take effect in accordance and consistent with the provisions
of Federal Law :
Membership in the Union shall be required as a condition of
employment for all employees as defined in Section 1 of said agree-
ment dated June 2, 1947.
III. Checkoff
As of December 2, 1948, the first three paragraphs of Section 3,
Union Security, of the said agreement dated June 2, 1947, are
amended to read as follows :
From and after July 1, 1948, and during the term of this agree-
ment of June 2, 1947, as extended, the Company will checkoff
monthly dues (not to exceed $2 per year), assessments (not ex-
Such contract contains the following language , which we now construe as making
it terminable at will :
This agreement shall remain in full force and effect for eighteen ( 18) months from
date unless either party gives forty ( 40) days written notice by registered mail to
the other party of termination or modification of this Agreement , whereupon the
same shall be terminated after said forty ( 40) days.
E Matter of Mid-Continent Coal Corporation , 82 N. L . R. B. 261.
Matter of Magnolia Petroleum Company, 57 N . L. R. B. 1714.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding $2 per year) and initiation fees (not to exceed $3), each
as designated by the international secretary-treasurer of the
Union, as membership dues in the Union on the basis of indi-
vidually signed voluntary checkoff authorization cards in the
forms hereto attached marked Exhibits A and B. Exhibit A
(Form 100-0) will have been used with respect to employees in
the employ of the Company prior to July 1, 1948. Exhibit B-
(Form 500) will have been used with respect to employees em-
ployed subsequent to July 1, 1948, and during the term of the
agreement of June 2, 1947, as extended.
In view of the two latter clauses, above quoted, it appears to us that
the unlawful provisions of the 1947 contract were carried forward into
the 1948 agreement, that those provisions remained effective until
December 2, 1948, and that they were in effect at the time the petition
was filed.7 The Employer urges that even if these unlawful provi-
sions were carried forward into the 1948 agreement, they are saved by
the Act," since the 1947 contract was entered into prior to its enactment.
We find no merit in this contention. We construe Section 102 s of
the Act as permitting the Employer and the Intervenor the choice of
either allowing their 1947 contract to remain in status quo, thus sav-
ing its unlawful provisions for its term, or of renewing or extending
it subsequent to the enactment of the Act, and by such action subject-
ing the new or amended contract to the proscriptions of the Act.10
Under the circumstances, we conclude that the agreement of August
2, 1948, contained unlawful clauses which were in effect at the time
the petition herein was filed, and we therefore find that it is no bar to
the present determination of representatives."- Accordingly, with the
amendment above-mentioned, the Board's original Decision and
Direction of Election is hereby affirmed.
i The petition herein was filed on September 28, 1948.
8 Section 102 , Labor Management Relations Act, 1947.
° Such section provides :
No provision of this title shall be deemed to make an unfair labor practice any
act which was performed prior to the date of the enactment of this Act which did
not constitute an unfair labor practice prior thereto, and the provisions of section
8 (a) (3) and section 8 ( b) (2) of the National Labor Relations Act as amended
by this title shall not make an unfair labor practice the performance of any obliga-
tion under a collective -bargaining agreement entered into prior to the date of the
enactment of this Act, or ( in the case of an agreement for a period of not more
than one year ) entered into on or after such date of enactment , but prior to the
effective date of this title , if the performance of such obligation would not have
constituted an unfair labor practice under section 8 (3) of the National Labor
Relations Act prior to the effective date of this title, unless such agreement was
renewed or extended subsequent thereto . ( Emphasis supplied.)
10 Construing the 1948 agreement as an extension of the 1947 contract , its unlawful
clauses are not saved because the extension occurred subsequent to the passage of the
Act. If it be a new contract , its unlawful clauses are not saved because it was entered
into after the enactment of the Act.
11 Matter of Hughes Aircraft Company, 81 N. L. it. B. 867.
THE BRODERICK COMPANY
ORDER
711
IT IS HEREBY ORDERED that the Motion filed herein by the Employer
be, and it hereby is, denied.
As our original decision was unpublished, we are incorporating
herein the portion of that decision which contains our unit findings.
The Petitioner requested a unit composed of all employees working
on dies or parts of dies at the Employer's Header-Press Division
located at Muncie, Indiana.
The Board has on numerous occasions found that die makers and
machinists together may constitute an appropriate unit, notwithstand-
ing a history of collective bargaining on a broader basis 12 In the pres-
ent instance, there is nothing in the record to indicate that the em-
ployees sought herein differ substantially from the usual group of
die makers and machinists to whom the Board has customarily ac-
,corded the opportunity of separate representation; nor are the machine
maintenance duties of such employees so integrated with those of
production or other maintenance employees as to preclude their sever-
ance from a plant-wide unit 13 We find that the employees requested
by the Petitioner may, if they so desire, constitute a separate unit,
notwithstanding a history of collective bargaining on a broader basis.
However, we shall not make any unit determination at this time, but
shall first ascertain the desires of these employees as expressed in the
election hereinafter directed. We shall direct an election among all
the employees working on dies or parts of dies at the Employer's
.Header-Press Division at Muncie, Indiana, excluding office and cler-
ical employees, guards, professional employees, and supervisors, as
defined in 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
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
72 Matter of Robertshaw-Fulton Controls Company, 77 N. L. R. B. 316; Matter of
General Motors Corporation, Guide Lamp Division, 81 N. L. R. B. 210.
13 The maintenance duties performed by the die shop employees sought herein are
not of a repetitive and regular nature, and are not indispensable to assembly line opera-
tions, as were the duties of the electricians in the case of Matter of Ford Motor Company
(Maywood Plant), 78 N. L. R. B. 887, cited by the Employer in support of its contention
that the unit requested by the Petitioner is inappropriate because of the functional inte-
gration of the the shop employees with the production operations of the Header-Press
plant.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board Rules and Regulations, among the employees
in the unit herein found appropriate, 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 reinstated 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 Muncie Die Sinkers Lodge,
No. 170, of the International Die Sinkers Conference, or by United
Steel Workers of America, CIO,14 or by neither.15
CHAIRMAN HERZOG and MEMBER HOUSTON took no part in the con-
sideration of the above Amended Decision, Order, and Direction of
Election.
14 Inasmuch as the Intervenor has achieved compliance with Section 9 (f), (g), and
( h) of the Act since the hearing, .it will be accorded a place on the ballot.
15Any participant in the election directed herein may , upon its prompt request to, and
approval thereof by, the Regional Director , have its name removed from the ballot.