Utica Structural Steel, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1949

86 N.L.R.B. 1261 (N.L.R.B. 1949)

In the Matter Of UTICA STRUCTURAL STEEL, INC., EMPLOYER and ME-
CHANICS EDUCATIONAL SOCIETY OF . AMERICA, PETITIONER
Case No. 3-RC-328.Decided November 4., 194.9
DECISION
AND
DIRECTION OF ELECTION
. Upon a petition duly filed, a hearing was held before John C. Mc-
Ree, 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Murdock].
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 involved claim to represent certain em-
ployees of the Employer.
3. The question concerning representation :
A local of the Intervenor , International Association of Bridge,
Structural and Ornamental Iron Workers, A. F. L., has been the
contractual representative of the employees sought by the Petitioner
since 1938 . In May 1949 , both the Employer and the Intervenor gave
timely notice that they wished to change their contract of August 6,
1948, which was to expire on July 31 , 1949.1 On July 29, 1949, the
Employer and Shopmen 's Local 593 , of the Intervenor executed a
memorandum agreement which purported to extend the contract for
another year . On the same day, the Petitioner made its claim for
recognition as the bargaining representative of the Employer's
employees.2 .
On August 4, 1949, the Employer and Local 593 signed a formal
agreement , effective as of August 1, 1949, which , except for minor
changes suggested by the vice president of the Intervenor, who was
I Although the local was the signatory party, it was the International which sent the
notice to the Employer and received the notice from the Employer.
2 In view of our disposition of the case , it is unnecessary to determine whether the
memorandum, agreement was signed before or after the Employer was first apprised of
the Intervenor ' s claim for recognition.
86 N. L. R. B., No . 137. 1261
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present, contained the same terms as the August 6, 1948, agreement.
The contract was then forwarded for approval to the Intervenor.
George Cooper, International representative of the Intervenor, testi-
fied that the agreement had to be approved as to form by the Inter-
national, and that no agreement could be "fully negotiated" until
such approval was obtained. The Intervenor approved the contract
and returned it to the Employer by August 9, 1949. Under these cir-
cumstances, we find that the contract was not finally executed until
after the Petitioner had made its claim for recognition.3 Therefore,
the contract does not constitute a bar to the instant proceeding, and the
motions of the Employer and the Intervenor to dismiss on this ground
are hereby denied.
Accordingly, 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 :
In accordance with the stipulation of the parties, we find that all
the production and maintenance employees at the Employer's Utica,
New York, plant, excluding truck drivers, outside erection employees,4
office and clerical employees, watchmen, guards, professional em-
ployees, superintendents, foremen, assistant foremen, and other su-
pervisors, 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 pay-roll period immediately preceding the date of
this Direction of Election, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated prior
' Matter of Quaker State Oil Refining Corp. (McKean Plant), 81 N. L. It. B. 611; Matter
of. Sprague Electric Co., 81 N. L. It. B. 410.
* The outside erection employees are represented by a different local of the Intervenor.
All the parties stipulated to their exclusion from the unit herein involved.
UTICA STRUCTURAL STEEL, INC. 1263
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 Mechanics
Educational Society of America, or by Shopmen's Local 593, Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers,e A. F. L., or by neither.
At the hearing the Intervenor indicated that it wished Local 593 to appear on the ballot.