Foundry Manufacturers' Negotiating Committee

National Labor Relations Board - Board Decisions

May 21, 1953

104 N.L.R.B. 1102 (N.L.R.B. 1953)

1 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company time. It is clear, therefore, that the Petitioner's
telegram referred only prospectively to any future speech
that might be made, and not to the one which the Employer
had made 2 days before the telegram was sent . As the Em-
ployer made no speech after the telegram was dispatched,
the contingency upon which the Petitioner based its request
did not occur.
Accordingly, we find that the Petitioner's objections to the
election raised no substantial or material issue and we hereby
overrule them. As we have overruled the Petitioner's ob-
jections, and as the talley of ballots shows that no collective-
bargaining representative has been chosen, we shall dismiss
the petition.
ORDER
IT IS HEREBY ORDERED that the petition filed herein be,
and it hereby is, dismissed.
Chairman Herzog took no part in the consideration of the
above Second Supplemental Decision and Order.
FOUNDRY MANUFACTURERS' NEGOTIATING COMMITTEE,
CONSISTING OF BOWLER FOUNDRY; THE CLEVELAND
PUNCH & SHEAR WORKS CO., CITY FOUNDRY DIVISION;
THE CUYAHOGA FOUNDRY COMPANY; FULTON FOUNDRY
& MACHINE CO.; THE HILL ACME COMPANY; INTERNA-
TIONAL FOUNDRY COMPANY; MEECH FOUNDRY, INC.;
STANDARD ALLOY COMPANY, INC.; CRUCIBLE STEEL
CASTING COMPANY; MADISON FOUNDRY COMPANY and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, Petitioner . Case No . 8-RC-1854 .. May 21,
1953
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
On February 19, 1953, pursuant to a Decision and Direction
of Election' issued by the Board on February 5, 1953, an
election by secret ballot was conducted under the direction
and supervision of the Regional Director for the Eighth Region,
among the employees of the Employer in the unit found appro-
priate in the Decision. Upon completion of the election, a tally
of ballots was issued and duly served by the Regional Director
upon the parties concerned. The tally reveals that of approxi-
mately 975 eligible voters, 447 cast ballots for the Petitioner;
428 cast ballots for the Intervenor, International Molders &
Foundry Workers Union of North America, Local 218, AFL;
I Unpublished.
104 NLRB No 141.
FOUNDRY MANUFACTURERS' NEGOTIATING COMMITTEE 1103
3 cast ballots against the participating labor organizations;
26 ballots were challenged; and 3 were void.
On February 26, 1953, the Intervenor filed objections to the
conduct of the election. As there were a sufficient number of
challenged ballots to affect the results of the election, the
Regional Director, pursuant to the Board's Rules and Regula-
tions, conducted an investigation of the objections and of the
challenged ballots. On March 16, 1953, he issued and duly
served upon the parties a report on objections and challenged
ballots in which he found no merit in the Intervenor's objections,
and recommended that they be overruled. As to the challenged
ballots, he recommended that the challenges to the ballots of
20 voters '1 be sustained and that the challenges to the ballots
of 5 voters be overruled. The Regional Director further
recommended that the Board first pass upon the challenged
ballots as to which he had made recommendations that they be
sustained, and that if the Board should adopt his recommenda-
tions as to 11 or more of the latter ballots, thereby rendering
the results of the election determinative, the. Petitioner should
be certified as the bargaining representative of the employees
in the appropriate unit. Otherwise, the Regional Director
recommended that the Board make determinations with respect
to the other challenged ballots. The Intervenor filed timely
exceptions to the Regional Director's report.
Upon the basis of the Regional Director's report, the Inter-
venor's exceptions thereto, and the entire record in this case,
the Board4 makes the following supplemental findings:
The Objections
The Intervenor asserts, in effect, that the election was
invalid because the petition herein was untimely filed, alleging
that the Board erred in its finding that the contract was no bar
to an election. The Regional Director found that the Intervenor's
objections were lacking in merit, because the contract was no
bar for the reason stated in the Decision and Direction of
Election, and for the further reason that, in any event, the
"Mill-B" date 5 was at that time less than 30 days from the
date of the issuance of that Decision. In its exceptions, the Inter-
venor urges that the contract constituted a bar because it was
automatically renewed in accordance with its terms before the
petition was filed, contending that the Intervenor's notice to
SAnthony Chojnacki, Art (Archibald) Stevenson, John Roth, William Anderson, Ed Lisy,
Albin Merhar, Frank Merhar , Frank Steklassa , Joseph Wojciechowski, Hugh Young, Nicholas
Yoe, Anton Srozynski , Anton Kinkopf, Joseph Hlad, Joseph Jun, Stanley Kettner, Lawrence
Krivanek , James Krivanek, Anthony Zadnik, Jr., and Levi Lockett.
9Steve Janetka , Carl Arndt, Howard Hanson, Richard Hauck Smith, and John Skrovan
For the reason stated in footnote 8, infra, the Regional Director made no recommendation
concerning the challenged ballot of Albert Evans.
4 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this case to a three- member panel [Chairman
Herzog and Members Houston and Murdock].
S See Mill-B , Inc., 40 NLRB 346.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reopen, served upon the Employer pursuant to the reopening
clause, did not forestall renewal of the agreement.
We do not agree. The agreement was to remain in effect for
a 1-year period commencing May 1, 1951, and for yearly
periods thereafter, absent a 60-day writtei notice before any
anniversary date of a desire to terminate, or modify its pro-
visions, or to negotiate a new contract. On February 23, 1952,
the Intervenor served its notice to reopen the contract. The
instant petition was filed on December 2, 1952. On December
8, 1952, the parties, as a result of negotiations held pursuant
to the Intervenor's notice, executed an.agreement providing,
inter alia, for modification of the wage and vacation clauses of
the 1951 contract. In view of the foregoing, we affirm our prior
findings that the Intervenor's timely notice to reopen effectively
forestalled the automatic renewal of the 1951 contract, and that
the 1952 agreement, executed 6 days after the filing of the
instant petition, cannot operate as a bar.6 Accordingly, we
find that the Intervenor's objections and exceptions do not raise
any material or substantial issues . We therefore adopt the
Regional Director's report and, in accordance therewith,
overrule the objections.
The Challenged Ballots
The Petitioner challenged Anthony Chojnacki, Art (Archibald)
Stevenson, John Roth, William Anderson, Ed Lisy, Albin Merhar,
Frank Merhar, Frank Steklassa, Joseph Wojciechowski, and
Hugh Young on the ground that they are supervisors. The
Regional Director's investigation discloses that these 10
individuals are employed as foremen by the Fulton Foundry
& Machine Co. All are paid on an hourly basis, receiving from
$1.95 to $2.10 per hour, and, with the exception of Lisy,
Albin Merhar, Steklassa, and Wojciechowski, a monthly bonus
of approximately $50 paid only to foremen. Each has from
about 4 to 35 men working under his immediate supervision.
All assign work to their subordinates and have the authority
to transfer and grant them time off. All likewise have the power
to discipline employees working under them.
The Regional Director found that all 10 foremen are super-
visors within the meaning of the Act, and recommended that the
challenges to their ballots be sustained. The Intervenor con-
tends in its exceptions that the Regional Director erred in
finding that these foremen are supervisors. It asserts that
they are highly skilled journeymen who, because of the charac-
ter of their work, are required to direct their lesser skilled
subordinates, which factor does not make them a part of
management. It does not appear, however, that the Intervenor's
exceptions either controvert the Regional Director's findings
as to the actual duties or authority of these foremen, or raise
any substantial issue of fact with respect thereto. In view of
6 Peters Sausage Company, 95 NLRB 740; Evening News Publishing Company, 93 NLRB
1355; and Monarch Silver King, Inc., 94 NLRB 295.
FOUNDRY MANUFACTURERS' NEGOTIATING COMMITTEE 1 105
the undisputed facts found by the Regional Director, as set
forth above, we find that Chojnacki, Stevenson, Roth, Anderson,
Lisy, Albin Merhar, Frank Merhar, Steklassa, Wojciechowski,
and Young are supervisors within the meaning of the Act.
Accordingly, we shall adopt the Regional Director' s recom-
mendations and sustain the challenges to their ballots.
The Board agent challenged Nicholas Yoe, Anton Srozynski,
and Anton Kinkopf because their names did not appear on the
list of eligible voters. The Regional Director reported that
these employees, who are classified as watchmen, spent a
relatively small portion of their time maintaining coke fires
and checking thermostat controls and the remainder in making
hourly rounds, checking on ADT clocks, and guarding the
Company's property against fire and theft. He found that they
are guards and recommended that the challenges to their
ballots be sustained.
No factual issue with respect to the duties of these watchmen
is raised by the Intervenor's exceptions. The Intervenor merely
disputes the Regional Director's conclusion that they are
guards, and asserts that they have been included in the bar-
gaining unit in the past and were deemed eligible to vote in a
union-shop authorization election. As the Intervenor has offered
no evidence to support its contention that these watchmen are
not employed as guards, we shall adopt the Regional Director's
recommendation and sustain the challenges to the ballots of
Yoe, Srozynski, and Kinkopf. It is immaterial that they have
been included in the bargaining unit, or were considered
eligible to vote in a union-shop authorization election, in the
past.'
As no exceptions were filed to the Regional Director's
recommendations that the challenges to 7 other ballots be
sustained and that the challenges to 5 of the 6 remaining
ballots8 be overruled, we hereby adopt them and sustain the
challenges to the ballots of Joseph Hlad, Joseph Jun, Stanley
Kettner, Lawrence Krivanek, James Krivanek, Anthony Zadnik,
Jr., and Levi Lockett, and overrule the challenges to the ballots
of Steve Janetka, Carl Arndt, Howard Hanson, Richard Hauck
Smith, and John Skrovan. However, as the 5 ballots, the
challenges to which have been overruled, are not sufficient in
number to affect the results of the election, we shall not direct
that they be opened and counted. Because the Petitioner has
obtained a majority of the valid votes counted plus the chal-
lenged ballots herein found to be valid, and as the remaining
challenged ballot cannot affect the results of the election, we
shall certify the Petitioner as the bargaining representative
of the employees in the appropriate unit.
7Sonotone Corporation, 100 NLRB 1177. Cf. American Dyewood Company, 99 NLRB 78.
8 The Regional Director made no investigation nor recommendation concerning the eligi-
bility of Albert Evans, the sixth voter in this category, because he is the subject of an unfair
labor practice charge in Case No. 8-CA-805, which had not been resolved on the date of the
issuance of the Regional Director's report.
1 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that International Union, United
Automobile, Aircraft & Agricultural Implement Workers of
America, CIO, has been designated and selected by a majority
of employees of the Employer in the unit heretofore found
appropriate as their representative for the purposes of bargain-
ing, and that pursuant to Section 9 (a) of the Act, the said
organization is the exclusive bargaining agent of all such
employees for the purposes of collective bargaining with
respect to rates of pay , wages, hours of employment, and
other conditions of employment.
LARIS MOTOR SALES, INC. and DALL NOLDER, Petitioner
and INTERNATIONAL ASSOCIATION OF MACHINISTS,
LODGE 1060, DISTRICT 63, AFL
LARIS MOTOR SALES, INC. and FRED VARLICKI, Petitioner
and INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, AUTOMOTIVE CHAUFFEURS, PARTS &
GARAGE EMPLOYEES, LOCAL 926, AFL. Cases Nos.
6-RD-83 and 6-RD-84. May 21, 1953
DECISION , ORDER , AND DIRECTION OF ELECTION
Upon petitions for decertification duly filed under Section
9 (c) of the National Labor Relations Act, a hearing was
held before Joseph C. Thackery, hearing officer . The hearing
officer's rulings are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the National Labor Relations Board has
delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Murdock
and Peterson].
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 Petitioners, employees of the Employer, assert
that the Unions are no longer the representatives of certain
employees of the Employer, as defined in Section 9 (a)
of the Act. The Unions are labor organizations which are the
currently recognized representatives of the employees in
question.
3. In Case No . 6-RD-84, the Union contends , among others,
that the petition should be dismissed on the ground that the
Petitioner , Varlicki , is admittedly a supervisor . The Peti-
tioner urges his right to file the petition on the ground that
he became a member of the Union upon the demand of the
Employer's representative who stated that the Union in-
sisted upon Varlicki' s membership in the Union.
104 NLRB No. 142.