Whitin Machine Works

National Labor Relations Board - Board Decisions

Mar 30, 1948

76 N.L.R.B. 998 (N.L.R.B. 1948)

In the Matter of WI[ITIN MACIIINE WORKS, Ein.>LOYER and WILFORD
HENDERSON, HORACE DUMAS, Josrrli DAVIAU, PETITIONERS and IN-
TERNATIONAL MOLDERS &- FOUNDRY WORKERS UNION OF NORTH
AMERICA, LOCAL 113, AFL, UNION
Case No. 1-RD-6.-Decided March 30, 1948
Vaughn, Esty, Clark cfi Crotty, by Mr. George Mason, of Worcester,
Mass., and Cllr. Frank N. (Stone, of Whitinsville, Mass., for the
Employer.
Grant tC Angof, by Mr. Frederick Cohen, of Boston, Mass., for the
Petitioners.
Mr. Francis X. Lynch, of Somerset Center, Mass., for the Union.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, hearing in this case
was held at Whitinsville, Massachusetts, on December 24, 1947, before
Robert E. Greene, 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 the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Whitin Machine Works, a Massachusetts corporation with its prin-
cipal office and place of business in Whitinsville, Massachusetts, is
engaged in the manufacture, sale, and distribution of textile machinery
and repair parts. Annually, it receives from points outside the State
approximately 90 percent of its raw materials, which amounts in value
to more than $100,000, and it ships outside the State more than 90
percent of its finished products which amounts in value to more than
$150,000.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Boaid has delegated its powers in connection with this case to a
three-man panel consisting of the undersigned Board Members [ Houston , Reynolds, and
Gray]
76 N L 11 B, No 143
998
WHITIN MACHINE WORKS 999
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TIIE PARTIES INVOLVED
The Petitioners, three employees of the Employer, assert that the
Union is no longer the representative of the Employer's employees as
defined in Section 9 (a) of the amended Act.
The Union, a labor organization affiliated With the American Fed-
eration of Labor, was certified by the Board on May 9, 1945, as the
bargaining representative of employees of the Employer.
111. THE QUESTION CONCERNING REPRESENTATION
On May 9, 1945, as noted above, the Union was certified as the
bargaining representative of certain of the Employer's production and
maintenance employees. Thereafter, on October 1, 1945, the Em-
ployer executed an exclusive collective bargaining agreement with the
Union for the term of 1 year, with provision for renewal from year
to year thereafter unless written notice to terminate or modify was
given by either party not later than October 1st of any contract year.
The contract further provided that, after notice to terminate or
modify had been given, the agreement would continue in effect until the
parties entered into a new or amended agreement or until the Decem-
ber 31st next ensuing after the giving of the afore-mentioned notice,
whichever date was earlier. The last contract between the Employer
and the Union was executed on November 15, 1946, with October 1,
1947, as the automatic renewal date. On September 14, 1947, the
Union advised the Employer by telegram that it desired certain
changes in the contract and stated that the desired changes would
be forwarded at a later date. Thereafter no further action was taken
by the Union; it never forwarded the proposed changes, and no nego-
tiations Were ever held looking to a new contract. The instant peti-
tion was filed on October 28, 1947.
The Union contends that its 1946 contract with the Employer auto-
matically renewed itself on October 1, 1947, and constitutes a bar to
this proceeding. In this connection, the Union argues that since specific
changes were never requested, the telegram of September 14, 1947,
was without effect, and therefore failed to reopen the contract and
forestall the operation of the automatic renewal clause. We do not
agree with this contention. As stated in an earlier decision,- we be-
lieve that the contract was reopened and its automatic renewal clause
thus rendered inoperative by the telegram indicating that certain
2 Matter of Fab-Weld Corporation , 74 N L. R B 1364, and cases cited therein.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes were desired in the contract, notwithstanding the fact that
the desired changes were never actually negotiated. Accordingly, we
find that the contract of November 15, 1946, does not constitute a bar
to the instant decertification proceeding.3
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.
1V. THE APPROPRIATE UNIT
We find, in substantial accord with the stipulation of the parties,
that all persons employed in the Employer's foundry, core room, clean-
ing room, and pattern loft, except executives, superintendents, assist.
ant superintendents, foremen, assistant foremen, supervisors, pattern
workers, inspectors, time-study men, time keepers, checkers, office mark-
ers, clerical workers, watchmen and guards, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.4
V. THE DETERMINATION OF REPRESENTATIVES
In the election which we shall direct, we shall, for reasons stated
in an earlier proceeding,' place the name of the Union on the ballot,
although it has not complied with the registration and filing require-
ments of the Act, as amended. Under our policy, the Union will be
certified if it wins the election, provided" that at that time it is in
compliance with Section 9 (f) and (h) of the Act. Absent such com-
pliance, the Board will only certify the arithmetical results of the
election.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Whitin Machine Works, Whit-
insville, Massachusetts, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
' The Union also charged at the hearing that the Petitioners were instigated in the filing
of the instant petition by the non -complying United Steelworkers of America, CIO, who is,
it contends , the true Petitioner herein, and that therefore , the petition should not be enter-
tained by the Board . We find no merit in this contention . The desires of the subject
employees can be best ascertained by the election hereinafter directed
4 This is the identical unit provided for in Section 2 of Article 1 of the Employer's con-
tract with the Union.
6 Matter of Harris Foundry cC Machine Company , 76 N L. It B 118 The record discloses
that although the International has complied Local 113 has not compiled with the filing
requirements of the Act
WHITIN MACHINE WORKS 1001
Director for the First Region, subject to Sections 203.61 and 203.62,
of National Labor Relations Board Rules and Regulations-Series 5,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion 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 em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented by International Molders
& Foundry Workers Union of North America, Local 113, AFL, for
the purposes of collective bargaining.