Locke, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1950

92 N.L.R.B. 864 (N.L.R.B. 1950)

In the Matter of LOCKE, INCORPORATED, EMPLOYER and UNITED
ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA (UE),
PETITIONER
Case No. 5-RC-685. Decided December 00, 1950
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before David C. Sachs,
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
has delegated its powers in connection with this case to a three-
member panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds : 2
1. The Employer is engaged in commerce within the meaning
of the Act.
i The hearing officer referred to the Board the Employer ' s motion to dismiss the petition
for the following reasons : ( 1) The organizer who filed the petition on behalf of the
Petitioner , although not an officer of the Petitioner or its local , did not sign a non-
Communist affidavit ; ( 2) there is in existence a local of the Petitioner , namely Local 120,
which is not in compliance with Section 9 (f), (g), and ( h) of the Act; (3) the Petitioner
is "fronting" for Local 120, which is the real party in interest ; and (4 ) the showing of
interest' is inadequate because the employees who signed the Petitioner 's membership
cards were allegedly confused as to whether the persons soliciting the signatures were
representatives of the Petitioner or Local 186 , United Construction Workers of America,
affiliated with the United Mine Workers of America , herein called the UCW. There is
nothing in the Act which requires persons filing a petition to file a non -Communist
affidavit . Moreover , we have repeatedly held that compliance is a matter for administra-
tive determination and is not litigable at the hearing . Mentz Television , Inc., 92 NLRB
29. Local 120 , which did not come into existence until after the filing of the petition
herein , is now in compliance with the filing requirements of the Act . We find no merit
in the Employer ' s contention that the petition was void ab initio, and therefore any
subsequent compliance cannot render the petition valid. United States Gypsum Company,
86 NLRB 200 ; United States Gypsum Company , 81 NLRB 310 ; United States Gysum
Company, 79 NLRB 451 ; Lane Wells Company, 79 NLRB 252 . The showing of interest is
a matter solely for administrative determination . We are satisfied that the Petitioner has
made a proper and adequate showing of interest . In any event , the election will afford the
employees an opportunity to express their desire as to a bargaining representative. S. H.
Kress & Co., 92 NLRB 15 ; Radio Industries , Inc., 91 . NLRB No. 124 . The Employer's
motion to dismiss the petition is hereby denied.
2 On November 16, 1.950 , subsequent to the hearing in this case , the American Federation
of Labor, herein called the AFL, filed a motion with the Board for permission to intervene,
and to have its name placed on the ballot in any directed election . Inasmuch as it
appears that the AFL secured its designations after the close of the hearing , the motion
is hereby denied . White Sewing Machine Company, 89 NLRB 1284 ; General Electric
Company, 89 NLRB 726.
92 NLRB No. 126.
864
LOCKE, INCORPORATED 865
2. The Petitioner and the Intervenor , International Union of Elec-
trical , Radio and Machine Workers, CIO , are claiming to represent
certain employees of the Employer.
3. A 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.
4. The parties agree that a unit consisting of all production and
maintenance employees at the Employer 's Baltimore , Maryland , plant,
excluding office and clerical employees , salaried clerks working in
the plant , guards, professional employees , and supervisors, is ap-
propriate for the purposes of collective bargaining . The Petitioner
and International Union of Electrical , Radio and Machine Workers,
CIO (IUE-CIO), herein called the Intervenor , contend, however,
that six employees classified as watchmen should be included in the
unit. The Employer contends that these watchmen are guards as
defined in the Act, and should be excluded:
Although the watchmen are neither uniformed nor armed, their
primary duty is to safeguard the Employer 's property against damage
by employees or other persons , and to enforce the Employer 's rules and
regulations to protect the Employer 's property and the safety of
persons on the Employer 's premises . They do no production or main-
tenance work . Two of the watchmen spend all of their time in watch-
ing at the Employer's gate and checking employees and other persons
as they enter and leave the property . The others make rounds and
punch clocks as well as watch the gate. We find that all six watch-
men are guards within the meaning of Section 9 (b) (3) of the
Act. Accordingly , we shall exclude them from the unit.,'
We find that all production and maintenance employees at the
Employer's Baltimore , Maryland, plant , excluding all office and cleri-
cal employees , salaried clerks working in the plant , watchmen, guards,
professional employees , and supervisors , constitute a unit appropriate
for the purposes of collective bargaining , within the meaning of Sec-
tion 9 (b) of the Act.
5. The parties disagree with respect to the voting eligibility of
former strikers . The Employer contends that the Board should
determine the issue in this proceeding , and that former strikers not
reinstated before the close of the Board's usual eligibility period
should not be eligible to vote. The Intervenor contends that all strik-
ers should be permitted to vote, even if they have been replaced.
3 C & A Lumber Company, 91 NLRB 909 ; Niagara Mohawk Power Corporation, 91
NLRB 607 ; Southland Mannlacturin¢ Company , 91 NLRB No . 38; Humboldt Full
,Fashioned Hosiery Mills , Inc., 90 NLRB No. 99.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . '
The Petitioner takes the position that this issue need not be determined
at the present time, but should be taken up, if necessary, as part of
post-election procedure on challenges.
Since 1943, the collective -bargaining representative for the em-
ployees involved herein has been the United Construction Workers of
America, herein called the UCW.4 On July 11, 1950, the employees
engaged in an economic strike which was settled on July 20. The
employees were notified by the Employer and the UCW of the settle-
ment, and were told to return to work. At the time of the strike there
were 913 employees in the unit. On July 26, there were 913 employees,
consisting of approximately 600 strikers who had returned to work,
and the rest replacements. During the next few weeks the Employer
continued to employ strikers whenever vacancies occurred.
Toward the end of August, the Employer sent letters and telegrams
to about 100 strikers who had previously requested their jobs, offering
them jobs. Only about 10 percent of these responded to the requests.
At the present time there are over 1,000 employees in the unit. About
750 of the 913 employees who were on the payroll at the time of the
strike went back to work for the Employer. As of October 10, 1950,
705 of these employees were still working for the Employer.
The record shows that all employees hired to fill the jobs of strikers
who did not return to work were permanent replacements, and were
absorbed into the Employer's working force in the same manner as
any other employees. All strikers not now employed at the plant have
been replaced by permanent employees and are not entitled to rein-
statement. Because strikers who are not entitled to reinstatement are
not eligible to vote, and qualified replacements of economic strikers
have acquired employee status at the Employer's plant, we find no
merit in the Intervenor's position. We therefore find that strikers who
have not returned to work at the Employer's plant are ineligible to
vote.5 We shall restrict eligibility to employees working at the plant
during the usual eligibility period, subject to customary limitations
and additions set forth in the Direction of Election.
[Text of Direction of Election omitted from publication in this
volume.]
4 The most recent contract between the Employer and the UCW expired on August 31,
1950.
a Cf. The Taylor-Winfield Corporation, 90 NLRB 1011 ; Rowe-Jordan Furniture Cor-
poration, 81 NLRB 190.