The Wolfe Metal Products Corp.

National Labor Relations Board - Board Decisions

Dec 5, 1957

119 N.L.R.B. 659 (N.L.R.B. 1957)

THE WOLFE METAL PRODUCTS CORPORATION 659
in such conduct in connection with this contract, and contends that the absence of
such a phrase may raise the implication that its existing contract would be no de-
fense to such conduct.
Counsel for the Charging Parties object to the addition of such a phrase to the
cease-and-desist provision of any recommended order. They contend that this con-
tract would not be a valid defense to any conduct by Local 976-4 proscribed by
Section 8 (b) (4) (D) even with respect to Bush and its employees, and that this
contract is no more valid than the one mentioned by Judge Medina in his decision 3
granting the General Counsel's petition for an injunction in this dispute. They fur-
ther argue that the addition of such a phrase would raise the implication that this
contract permits Local 976-4 to engage in such conduct.
The General Counsel also contends that this contract would not render lawful
any conduct proscribed by Section 8 (b) (4) (D), engaged in by Respondent Local
976-4 with respect to Bush and its employees. However, he takes the position that
the validity of this contract as a defense to such conduct is not being litigated or de-
termined in this proceeding and that he does not wish at this time to foreclose Local
976-4 from asserting in the future whatever lawful rights it may have in connection
with this contract to engage in conduct deemed permissible under the Act. He
therefore has no objection to the addition of some language in the recommended
order which would preserve whatever lawful rights Local 976-4 may have in con-
nection with this contract, without at this time determining what those rights, if any,
may be.
I agree with the General Counsel that on the record before me no definitive de-
termination can be, nor need be, made of the validity of this contract, the nature and
scope of the work tasks covered by it, nor of the type of conduct in which Local
976-4 may lawfully engage under the Act in connection with this contract. Ac-
cordingly, I make no such determinations with respect to the contract in question.
It is true, however, as the Board has held,4 that under certain circumstances a union
may strike for the assignment of work tasks covered by contract in order to protect
its contract, without thereby violating Section 8 (b) (4) (D) of the Act. As the sole
purpose of a cease-and-desist order is to enjoin conduct violative of Section 8 (b) (4)
(D) of the Act, the Board has refused to delete from the cease-and-desist provision
of a Trial Examiner's recommended order the language "except insofar as any such
action is permitted under Section 8 (b) (4) (D) of the Act." 5 Under all the cir-
cumstances, I believe that it will effectuate the policies of the Act to assure all
parties that the cease-and-desist provision is without prejudice to the exercise by Re-
spondent Local 976-4 of whatever lawful rights it may have under the Act in con-
nection with its existing contract with Bush Terminal Company. For this reason, I
will add the following phrase to the cease-and-desist provision of my recommended
order: "except insofar as any such action by Local 976-4 is permitted under Section
8 (b) (4) (D) of the Act in connection with its contract with Bush Terminal Com-
pany, dated February 11, 1957."
[Recommendations omitted from publication.]
8242 F. 2d 808 (C. A. 2).
a Radio & Television Broadcast Engineers Union, etc., 114 NLRB 1354; National Associa-
tion of Broadcast Engineers, etc., 105 NLRB 355, 21st Annual Report of the National
Labor Relations Board, p. 21
5 United Association of Journeymen, etc. (Frank W. Hake), 112 NLRB 1097, 1102.
The Wolfe Metal Products Corporation and International As-
sociation of Machinists , District Lodge 116, Local Lodge 1756,
AFL-CIO, Petitioner. Case No. 6-RC-1969. December 5, 1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Relations Act, a hearing and a reopened hearing i were held before
1 By Board order of September 12, 1957, the proceeding was remanded to the Regional
Director to obtain further evidence on points deemed material by the Board.
119 NLRB No. 95.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elmer E. Hope and W. G. Stuart Sherman, hearing officers. The
hearing officers' rulings made at the hearings are free from prejudicial
error and are hereby affirmed .2
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 Jenkins].
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 organization involved claims to represent certain em-
ployees of the Employer.
3. The Employer contends that the petition should be dismissed
because the Petitioner's showing of interest was obtained almost en-
tirely by the efforts of supervisors. The Petitioner contends that the
individuals involved are not supervisors, and that in any event it
has a sufficient showing of interest even if the cards of the alleged
supervisors are excluded.
The three individuals involved are Kozak, Hornyak, and Keefer.
As to the first two of these, we think it is clear that they are super-
visors within the meaning of the Act? The matter is not clear as to
Reefer but, in the view we take of the case, it is not necessary to deter-
mine his status.
The record indicates that the Petitioner's organizational activities
took place during a fairly short period. Employee Wagner first con-
tacted the Petitioner and arranged a meeting on June 23, 1957, at
which its representatives appeared. About 10 of the Employer's
employees attended; 4 the meeting was addressed principally by
Wagner and a union representative. In the course of the meeting
Hornyak espoused the Petitioner's cause vigorously. The general
tenor of his remarks was that the Employer would not treat the em-
ployees fairly, that their seniority would do them no good, that their
only hope was to join the Petitioner, and that if they did not do this
soon they might not have another chance because they might be fired.
These remarks were made just before authorization cards were handed
round. In addition to this activities at the meeting, Hornyak had
spoken to employees in the plant several days before, and shortly
afterward he visited the homes of three employees to persuade them
to sign.
The Petitioner's showing was 12 cards. Ten cards were signed
at the meeting, including the cards of Kozak and Hornyak, and pos-
2 The Employer 's motion to dismiss the petition was referred to the Board . For the
reasons set forth in paragraph 3, infra, the motion is granted.
3 Both these individuals are in charge of the automatic screw department , which operates
on a two-shift basis. They can effectively recommend hiring, discharge, and transfer, and
have done so.
4 The Employer 's total complement at this time was 17, including Kozak, Hornyak,
and Keefer.
LLOYD A. FRY ROOFING COMPANY 661
sibly that of Keefer. It would therefore appear that if the cards in
which Hornyak's solicitation is involved are eliminated, the Peti-
tioner's showing is not adequate. The Board has held that such
solicitation by supervisors does, in fact, impair a petitioner's show-
ing.5 As the Petitioner's showing is, under these circumstances, inade-
quate, we shall dismiss the petition.
[The Board dismissed the petition.]
6 See, for example, Desilu Productions, Inc., 106 NLRB 179.
Lloyd A. Fry Roofing Company and International Longshore-
men's and Warehousemen's Union (Ind.), Petitioner. Case No.
20-RC-3307. December 5, 1957
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the
Board on August 2, 1957,1 an election by secret ballot was conducted
on August 26, 1957, under the direction and supervision of the
Regional Director for the Twentieth Region of the National Labor
Relations Board among the employees in the unit found appropriate
by the Board. The parties were furnished a tally of ballots which
shows that of approximately 26 eligible voters, 20 cast ballots for
the Petitioner, and 4 cast ballots against the Petitioner.
Thereafter, the Employer filed timely objections to conduct affecting
the results of the election. In accordance with the Rules and Regula-
tions of the Board, the Regional Director caused an investigation of
the objections to be made and, on October 16, 1957, issued and served
on the parties his report on objections, in which he found that the
objections are without merit and recommended that they be over-
ruled and that the Petitioner be certified as the exclusive bargaining
representative in the unit found appropriate by the Board. The
Employer filed timely exceptions to the Regional Director's report
as it relates to the Employer's second objection and requested a
hearing on that objection.
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Mem-
bers Rodgers, Bean, and Jenkins].
The Employer's second objection stated that the Petitioner had
promised, and misrepresented, to the employees of the Employer that
in the event they were organized by the Petitioner, and there should
be a subsequent strike, the Petitioner would supply waterfront work
'Not reported in printed volumes of Board Decisions and Orders.
119 NLRB No. 94.