Allenv.Smith, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1951

96 N.L.R.B. 230 (N.L.R.B. 1951)

IG
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
they could not agree whether certain employees should be classified
as production employees., The Petitioner would include the sewing
machine mechanic ; the Employer would exclude him, contending
that he is not a production but a maintenance employee. As the
duties of this mechanic are primarily the oiling and repairing„of the
production machines, we find that he is a maintenance employee and
will exclude him. The Petitioner wants the shipping clerk, the jan-
itor, and the part-time janitor excluded. because they are not within
its jurisdiction. The Employer, contends they should be included as
production employees. The shipping ,clerk works in the stockroom
and also in an area that is a part of the production department. In
addition to performing the usual duties associated with his job classi-
fication, he also places stock on the stockroom shelves and into car-
tons for shipment. We find that he is a production employee and will
include him.' The janitor spends only about 25 percent of his time
at his janitor, duties, and the other 75 percent helping the shipping
clerk. The latter duties involve carrying boxes, packing and seal-
ing cartons, receiving goods, and doing regular department work.
As the janitor spends a major portion of his time in production work,
-we will include him. However, as the part-time janitor works at
exclusively janitorial tasks, we will exclude him as a maintenance
employee.
Accordingly, we find that all production employees at the Em-
ployer's plant at 1005 East 14th Street, Los Angeles, California, in-
eluding the shipping clerk and janitor, but excluding the sewing
machine mechanic, the part-time janitor, guards, and supervisors
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
([Text of Direction, of Election omitted from publication in this
volume.]
ALLEN V. SMITH, INC. and CONGRESS OF INDUSTRIAL ORGANIZATIONS,
PETITIONER. Case No. 19-RC-826. September 18, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was heldL-before Julius N. Draznin, ,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
gas delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Reynolds].
96 NLRB No. 37., °
ALLEN V. SMITH, INC. 231
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 employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Employer and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 551, AFL, herein
called the Intervenor, contend that their current contract constitutes
a bar to this proceeding. The Petitioner contends that the contract
is a premature extension of an earlier agreement, and therefore can-
not operate as a bar to a petition timely filed with relation to-the orig-
inal contract term.
The record shows that on July 20, 1948, the Employer and the In-
tervenor entered into a contract, to be effective from July 1, 1948, until
June 30, 1949, "and from year to year thereafter, unless either party
opens the contract by written notice to the other party at least sixty
(60) days prior to the anniversary date of the contract." On April
28, 1949, the Intervenor gave notice to the Employer of its desire to
open the contract for adjustment of hours, wages, and working condi-
tions. Thereafter, from time to'time during 1949 and 1950, the par-
ties engaged in bargaining negotiations, but no further agreement
was executed until January 1951. In the interim, the Employer con-
tinued to give effect to the provisions of the 1948 contract except
that during 1949, by agreement with the Intervenor, it reduced the
wage rates of the women employees. On January 26, 1951, the par-
ties executed their current contract, which provides that "all the terms
and provisions of the last writtep agreement entered into between the
parties shall continue in full force and effect, excepting that the
modifications as hereinafter contained shall supersede the provisions
in such prior agreement which they are intended .to modify."' By
its terms, this contract is to continue until June 30, 1952, and from
year to year thereafter in the absence of 60-day written notice by either
party. On April 27, 1951, after the signing of the 1951 contract, the
petition herein was filed.
The Petitioner argues that the 1948 contract was automatically
renewed in 1949 and 1950 and was prematurely extended, in January
1951, by the execution of the present contract. We find, however, that
the notice given by the Intervenor to the Employer on April 28, 1949,
effectively forestalled automatic renewal of the 1948 contract, and that
' The modifications related to wages and vacations.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it therefore expired on June 30, 1949, in accordance with its terms.
Accordingly, we reject the Petitioner's contention that the present con-
tract constitutes a, premature extension of the 1948 contract.
As the Petitioner filed its petition after-the execution of the current
contract, the latter would ordinarily be a bar. The Petitioner con-
tends, however, that the contract cannot serve as a bar because it con-
tains an illegal union-security provision. The provision in question,
which was contained in the 1948 contract and was incorporated by
reference in the 1951 contract, is as follows :
1. The Employer agrees to keep in his employ only members in
good standing with the Union. New employees not holding mem-
bership in the Union at the time of their employment shall make
application within fifteen (15) days after having been employed.
Such new employees shall become Union members within forty-
five (45) days as a condition of their continued employment.
The first fifteen (15) days aforementioned shall be considered
a trial period and any employee may be discharged by the first
party during the said fifteen (15) days trial period for any
reason whatsoever.
However, the contract specifically states that
Paragraph One of this, agreement [the union-security pro-
vision] has been entered, into subject to the requirements of the
Labor Management Relations Act of 1947 or any amendments
thereto. Upon compliance of the provisions of the said Act the
said provisions of Paragraph One is to continue in full force and
effect. 0
In our opinion, this language defers operations of the union-security
provision until the requirements of the Act with respect to a union-
shop election shall have been met. No union-security election has ever
been held. At the present time, therefore, the union-security provision
is inoperative, and therefore does not render the contract ineffective as
a bar to an election.2
Accordingly, as the current contract between the Employer and the
Intervenor will not expire until June 30, 1952, we find that it is a bar
to a present determination of representatives. We shall therefore
dismiss the petition.
Order
It is hereby ordered that the petition filed herein be, and it hereby is,
dismissed. -
2 H. Muehlstein and Co ., 93 NLRB 1273. '