The Dewey-Shepard Boiler Co., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1947

74 N.L.R.B. 200 (N.L.R.B. 1947)

In the Matter of THE DEWEY- ST-IEPARD BOILER CO., INC., EMPLOYER
and PERU EMPLOYEES ASSOCIATION , PETITIONER
Case No. 13-R-4286.-Decided June 18,1947
Mr. Guy D. Arnold, of Peru, Ind., for the Employer.
Mr. William D. Bennett, of Peru, Ind., for the Petitioner.
Mr. Robert Kirkwood, of Indianapolis, Ind., and Mr. Elvis Swan,
.of Fort Wayne, Ind., for the Intervenor.
Mr. Roy 0. Goldin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Peru,
Indiana, on April 30, 1947, before Gustaf B. Erickson, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. At the hearing the Intervenor
moved to dismiss the petition on the grounds, in effect, that the Pe-
titioner is not a labor organization within the meaning of the Act,
and that the Intervenor's contractual relationship with the Employer
bars a present determination of representatives. The hearing officer
referred these motions to the Board for ruling thereon. For reasons
stated hereinafter, these motions are denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF TILE EMPLOYER
The Dewey.-Shepard Boiler Co., Inc., a corporation, is engaged in
the manufacture of steel boilers and water heaters at its Peru, Indiana,
plant. During the year 1946, the Employer purchased raw materials
valued at approximately $38,000, of which more than 50 percent
represented shipments to its plant from sources outside the State of
Indiana. During the same period, the Employer sold finished prod-
ucts valued at approximately $85,000, over 50 percent of which repre-
sented shipments to points outside the State.
74 N L . R. B., No. 40.
200
THE DEWEY-SHEPARD BOILER CO., INC. 201
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization, claiming to
represent employees of the Employer.'
United Electrical, Radio and Machine Workers of America and its
Local 925, herein called the Intervenor, are labor organizations affili-
ated with the Congress of Industrial Organizations, claiming to repre-
sent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to recognize either the Petitioner or the
Intervenor as the exclusive bargaining representative of employees
of the Employer until either is certified by the Board in an appro-
priate unit.
On December 22, 1945, the Employer and the Intervenor entered
into a collective bargaining agreement which provided, inter alia, that
it was to remain in full force and effect for a period of 1 year and was
thereafter to be continued for a similar period unless notice of termi-
nation was given by either party at least 30 days before December 22,
1946. On March 22, 1946, the contract was opened for wage negotia-
tions in accordance with its terms and as a result new wage scales
were embodied in the contract. On December 10, 1946, because of an
impending shut-down the Employer and Intervenor executed a memo-
randum of agreement providing that "the labor agreement dated De-
cember 22, 1945, shall continue in full force and effect for such time as
the plant is down for reconversion. Negotiations of a new contract
shall be started at such time as production is again in effect." The
plant closed on December 23, 1946 2 On March 6, 1947, the Petitioner
wrote to the Employer, requesting recognition as the bargaining agent
of its employees, and on March 10, 1947, filed its petition herein. On
March 15, 1947, the Employer notified its employees to return to work
upon the reopening of the plant, and on March 17, commenced opera-
tions again.
I As previously noted , the Intervenor moved to dismiss the petition on the ground that
the Petitioner is not a labor organization within the meaning of the Act We find no merit
in this contention Although the Petitioner is newly formed and does not yet have a con-
stitution and by laws , the record discloses that it has applied for a State charter , that it
was organized for the purpose of bargaining collectively in behalf of employees of the unit
sought herein , that it has obtained authorization cards from the Employer ' s employees
and that it has held membership meetings at which officers have been elected In view of
the foregoing , we find that the Petitioner is a labor organization within the meaning of
Section 2 (5) of the Act See Matter of Ripley Manufacturing Company, 72 N L R B.
559 ; Matter of Gielow Incorporated, 60 N. L R . B. 1477, and Matter of Air Reduction
Sales Company , 58 N L. R. B 522
8 The record discloses that the shut-down was caused by a shortage of raw materials and
the installation of new type machinery to improve the Employer ' s operations.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the Intervenor contended that the contract and
memorandum of agreement are currently in effect and constitute a
bar to a present determination of representatives. The Employer,
however, took the position that under the terms of the memorandum of
agreement, dated December 10, 1946, the contract was to expire upon
the reopening of the plant and that it did thereafter expire when the
plant reopened on March 17, 1947.
We are of the opinion that there is no contractual bar to this pro-
ceeding. It is clear from the terms of the memorandum of agreement
that the contract was to be extended only for such time as the plant
was down for reconversion and inasmuch as the plant reopened on
March 17, 1947, there is currently no contract in effect which may bar
a. current determination of representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act. 3
IV. Tl-TE APPROPRIATE UNIT
We find, in accordance with the agreement of all the parties, that
all production and maintenance employees of the Employer, exclud-
ing office and clerical employees, and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such ac-
tion, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The parties are in disagreement with respect to the eligibility to^
vote of five individuals who were employed by the Employer at the
time the plant shut clown. The Employer and the Petitioner assert
that they are "temporarily laid off employees" and therefore are eli-
gible to participate in the election. The Intervenor takes the posi-
tion that their status is too indefinite and that therefore they should
not be permitted to vote.
The record discloses that the Employer reopened its plant, on March
17, 1947, with 11 employees and that the 5 individuals mentioned
above were among those notified to return. Upon the basis of senior-
ity, these individuals would have been entitled to immediate employ-
3 At the hearing, the Intervenor contended that the Petitioner had failed to make a
showing of representation and that such evidence was essential to the hearing The
hearing officer properly refused to permit the introduction of evidence on this matter
The Board has frequently held that the matter of showing of representation is purely an
administrative one and is not the subject of inquiry at a heaung See Matter of 0 D.
Jennings & Company, 68 N L R B 516 ; Matter of Salisbury Axle Division, Spicer Mana-
factnrang Corporation , 69 N L R B 658 , and Matter of Perfection Garment Company,
72 N. L . R. B 210. Moreover , we are administratively satisfied as to the adequacy of the
Petitioner ' s showing.
THE DEWEY-SHEPARD BOILER CO., INC. 203
ment, but because they were apparently unwilling to relinquish their
employment elsewhere, they waived their seniority in favor of other
employees and did not return. 4 Although these individuals are still
listed as employees on the records of the Employer and the Employer
stated that it intends to recall them as soon as raw materials become
available, it would appear that the return of these individuals is
highly speculative. That this is so stems from the fact that the Em-
ployer indicated that he had no assurance from these individuals that
they would return to work if again requested to do so and from the
further fact that the Employer was unable to predict if and when it
would obtain the additional raw materials. In view of the foregoing
and based upon the entire record, we find that the individuals con-
cerned are ineligible to vote in the election directed herein.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot, subject to the
limitations and additions set forth in the Direction.
DIRECTION OF ELECTION 5
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Dewey-Shepard Boiler
Co., Inc., Peru, Indiana, 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
Director for the Thirteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Sections 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, and to our determination in Section V, s upi°a, 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 vacation or tempor-
arily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding 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, to determine whether or not they desire to be represented
by Peru Employees Association or by United Electrical, Radio and
Machine Workers of America, and its Local 925, CIO, for the pur-
poses of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
' Six other workers, who were also given notice to ietuin to work , did not waive their
seniority , but tendered their iesignations
5 Any participant in the election herein may, upon its prompt request to, and approval
thereof by , the Regional Director , have its name removed from the ballot