O. F. Shearer & Sons

National Labor Relations Board - Board Decisions

Apr 5, 1951

93 N.L.R.B. 1228 (N.L.R.B. 1951)

1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0. F. SHEARER & SONS and NATIONAL MARITIME UNION OF AMERICA,
CIO, PETITIONER . Case No. 9-RC-108. April 5, 1951 .
Decision and Direction of Election
Upon a petition duly filed, a hearing was held before William A.
McGowan, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed 1
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 [Chairman Herzog and Members Houston and
Reynolds].
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 employees
of the Employer.
3. The question concerning representation :
The Employer and the Intervenor contend that a current collective
bargaining contract between them is a bar to this proceeding. This
contract was executed on August 10, 1950, for a term expiring August
1511952 .2
Section 11 of this contract.reads as follows:
A condition for continued employment of all workers covered
by this agreement shall be that, to the extent and in the manner
permitted by law, such employees shall become members of the
United Mine Workers of America, District No. 17, and the Union
agrees to admit them to such membership after they had worked
thirty (30 days). Nothing herein contained shall prevent the
management from employing persons not members of said union
at the time of such employment, if such employment is made sub-
ject to the above conditions. [Emphasis added.]
No election under Section 9 (e) of the Act was held to authorize the
foregoing provision. The Employer and the Intervenor urge that the
underscored phrase in this union-security provision places this case
within the Board's announced rule in the Schaefer, Wyckoff and
Barium cases.3 But in all of these cases the qualifying language
i At the hearing the Employer and the United Mine Workers of America, District No. 17,
the Intervenor, moved to dismiss this proceeding on the grounds : (a) That a subsisting
collective bargaining contract between them is a bar to this proceeding; and (b) that the
unit requested by the Petitioner is inappropriate. The hearing officer referred this
motion to the Board . For the reasons given in paragraphs numbered 3 and 4 below, this
motion is denied.
2 The petition herein was filed October 23, 1950.
$ Schaefer Body, Inc, 85 NLRB 195; Wyckoff Steel Company , 86 NLRB 1318 ; Barium
Steel and Forge, Inc, 88 NLRB 564.
93 NLRB No. 207.
0. F. SHEARER & SONS 1229
clearly postponed the effectiveness of the union-security provisions
until they should be authorized as provided in the Act. No such
qualifying language is contained in the questioned provision in the
instant case. The Board has repeatedly held that a union-security
provision of the type quoted, unauthorized by an election, is unlawful.'
We find that the contract between the Employer and Intervenor is not
a bar to the instant petition for certification.
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:
The Petitioner seeks to represent a unit of all the Employer's boat
and barge employees, excluding welders, burners, and laborers. The
Employer and the Intervenor contend that this unit is inappropriate,
and that to be appropriate the unit should also include all its shore-
side maintenance employees. The Petitioner, however, is willing, as
an alternative, to accept a unit determined by the Board to be appro-
priate.
Since 1941, the Employer and the Intervenor have had a series of
contracts covering a unit substantially the same as the one now claimed
by them to be appropriate. In May 1947, in a proceeding in which
these same parties participated,-' and in which the Petitioner made a
similar unit contention, the Board found appropriate a. unit which
included the "harbor men," a term which was understood by all the
parties to describe the shoreside maintenance employees. Since that
time, aside from possible changes in the specific maintenance cate-
gories," there have been no changes in the Employer's business or em-
ployment conditions.
In view of the collective bargaining history on the basis of a unit
including the Employer's shoreside maintenance employees, we find
that a unit including the Employer's welders, burners, and laborers
is appropriate.
4 Sono tone Corporation , 90 NLRB 1236; Anaconda Wire and Cable Company, 90 NLRB
No 5 We reject as without merit the Employer 's and Intervenor 's contentions that they
should have been permitted by the hearing officer at the hearing to explain the meaning
and the intent of the language used in this provision , and to prove that this provision
had not been enforced , relying on 0. B. Andrews Company, 86 NLRB 59. The principle
of that case , however, is not applicable here, as the provision involved herein is closely
similar to those appearing in the Sonotone and Anaconda cases, supra . Not only had
no union-security authorization election been held but, under existing circumstances, none
could be held , as the Intervenor had never complied with the filing requirements of
Section 9 ( f), (g), and (h) of the Act. The very existence of such an unauthorized
provision acts as a restraint upon those employees who desire to refrain from union
activities C. Hager & Sons Hinge Manufacturing Company, 80 NLRB 163.
° 0. F. Shearer & Sons, 73 NLRB 1231.
° The record indicates that, at some time during recent years , the Employer has
replaced its wooden boats and barges by metal ones . Hence, it had to replace its type
of maintenance men, who formerly were mostly carpenters , by metal workers , such as
welders and burners, who do all the repair and maintenance work on the Employer's
boats and barges The laborers do the cleaning and loading.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all the boat and shoreside employees at the Employer's;
Cedar Grove, West Virginia, dock, including mates,' welders, burners,.
and laborers, but excluding office and clerical employees, captains,
masters, and pilots, chief and assistant engineers, and all other super-
visors as defined in the Act," constitute a unit appropriate for the pur-
poses of -collective bargaining within the meaning of the Act.
[Text of Direction of Election omitted from publication in this,
volume.]
7 The parties agree that the mates on the Employer 's boats and barges do not possess
supervisory authority within the meaning of the Act.
8The record indicates that there are also several watchmen employed . There is no
description , however, of their actual duties or how their time is apportioned If these
watchmen spend more than 50 percent of their working time in guard duties , they shall.
be excluded from the unit . Radio Industries, Inc., 91 NLRB No. 124.
J. G. HOWARD LUMBER COMPANY and PLYWOOD AND VENEER WORKERS.
LOCAL UNIONS Nos. 3130 AND 3135 AFFILIATED WITH UNITED BROTH-
ERHOOD OF CARPENTERS AND JOINERS OF AMERICA (AFL), PETI-
TIONER. Case No. 10-RC-1062. April 5, 1951
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 John C. Carey, Jr.,
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 [Chairman Herzog and Members Murdock and Styles].
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 organization involved claims to represent certain em-
ployees 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 appropriate lniit :
The Petitioner requests a unit consisting of all production, main-
tenance, and lumberyard employees employed at the Employer' s plant
1 The petition was amended at the hearing to join Thomas H. Bishop and Otis A. Jones
as employers . In view of our decision herein, we find such jointure to be unnecessary.
93 NLRB No. 224.