Hocking Valley Manufacturing Co.

National Labor Relations Board - Board Decisions

May 27, 1946

68 N.L.R.B. 315 (N.L.R.B. 1946)

In the Matter of HOCKING VALLEY MANUFACTURING COMPANY and
DISTRICT 50, UNITED MINE WORKERS OF AMERICA , A. F. OF L.
Case No. 9-R-2042.-Decided May 27, 1946
Burr, Porter, Stanley & Treffinger, by Mr. Ralph E. Weaver, of
Columbus, Ohio, and Kennedy & Frost, by Mr. Leonard S Frost, of
Cleveland, Ohio, for the Company.
Mr. Stanley Denlinger, of Akron, Ohio, and Mr Harold Moon, of
Columbus, Ohio, for the Mine Workers.
Mr. John J. Brownlee, of Pittsburgh, Pa., and Mr Ward Walcott,
of Columbus, Ohio, for the Steelworkers.
Mr. Elmer P. Freischlag, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by District 50, United Mine Workers of
America, A. F. of L.,' herein called the Mine Workers, alleging that a
question affecting commerce had arisen concerning the representation of
employees of Hocking Valley Manufacturing Company, Lancaster, Ohio,
herein called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Harold M. Weston,
Trial Examiner. The hearing was held at Lancaster, Ohio, on February
26, 1946. The Company, the Mine Workers, and United Steelworkers
of America, C. I. 0., herein called the Steelworkers, appeared and par-
ticipated. All parties were afforded full opportunity to be heard, to ex-
amine anti cross-examine witnesses, and to introduce evidence bearing
on the issues. At the hearing, the Steelworkers moved to dismiss the
petition on the ground that an existing contract is a bar to a present
determination of representatives. The motion was referred to the Board.
For reasons stated hereinafter, the motion is hereby denied. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board.
3 The name appears as amended at the hearing.
68 N L R. B, No. 38.
315
316 DECTSTONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Hocking Valley Manufacturing Company, an Ohio corporation, with
its principal office at Cleveland, Ohio, and its only plant at Lancaster,
Ohio, is engaged in the manufacture of farm machinery and equipment.
During the year 1945, the Company purchased raw materials consisting
of cast iron , pig iron , steel castings, and bar steel, valued in excess of
$100,000, approximately 85 per cent of which represented shipments to
the Lancaster plant from points outside the State of Ohio. During the
same period, the Company manufactured finished products amounting
in value to over $100,000, over 85 percent of which represented ship-
ments to points outside the State.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, affiliated with the
American Federation of Labor, is a labor organization admitting to
membership employees of the Company.
United Steelworkers of America, affiliated with the Congress of In-
dustrial Organizations, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated January 4, 1946, the Mine Workers requested a col-
lective bargaining conference with the Company to negotiate a contract,
and stated that it represented all the production and maintenance em-
ployees of the latter. Without giving its reasons, the Company refused
to enter into negotiations. On January 9, 1946, the Mine Workers filed
its petition with the Board. The Steelworkers urges that a presently ex-
isting contract which will not expire until July 18, 1947, is a bar to this
proceeding. The Company takes no position in the matter.
Following the winning of a cross-check conducted by a Board agent
in April, 1945, pursuant to an agreement,2 the Steelworkers, on July
18, 1945, entered into a closed-shop collective bargaining contract with
the Company, "on behalf of itself and members of Local Union No.
3569,"3 for a term of 2 years, subject to automatic renewal for like
2 Case 9-R-1753.
3 The referei,ce to "members of Local Union No. 3569" in the preamble is not significant, in
view of the exclusive recognition clause and the further provision that membership shall be a
condition of employment.
HOCKING VALLEY MANUFACTURING COMPANY 317
periods thereafter . The agreement provided that the Company was to
negotiate working conditions, wage rates , hours of employment, or
grievances only through a committee appointed or elected by Local
Union No. 3569 or its successor. Among other provisions, the agreement
provided for the check-off of dues. The signatories to the contract
were the Company, the Steelworkers, and a committee representing Local
3569.
On December 27, 1945, a special meeting of Local 3569 was held at
which the members present unanimously voted to dissolve the Local.'
All officers of the Local and all members of the grievance committee re-
signed. The Company and the Steelworkers were thereupon notified
of the action taken. The charter, books, and supplies were returned to
the Steelworkers. Each member of the Local whose dues were collected
by check-off signed a separate notice which stated that the signer had
withdrawn his membership from the Local and directed the Company to
cease deducting union dues from his wages. Upon the receipt of these
notices, the Company stopped the check-off of dues.5 Petitions signed
by practically all the members of the Local, stating, in substance, that the
signers withdrew their membership from the Steelworkers and Local
3569 and revoking the authority of the Steelworkers or its representa-
tives to represent them, were sent to and received by the Company and
the Steelworkers about the first week in January, 1946.6
Since December 27, 1945, neither the Steelworkers nor Local 3569
has held any meetings of the employees. No new officers or grievance
committee members have been appointed or elected, and no grievances
have been presented to the Company by the Steelworkers or the Local
in behalf of the employees. Also since December 27, 1945, and up to the
time of the hearing, the Steelworkers had not demanded of the Com-
pany that it enforce the check-off or closed-shop provisions of the con-
tract either with respect to old employees or those hired since January
1, 1946. The Steelworkers appointed an administrator of Local 3569 on
or about January 15, 1946, to serve until new officers were elected, but
there is no evidence in the record to indicate either a revival of the
Local or any other affirmative action by the administrator.7
The foregoing facts indicate that Local 3569 has ceased to function
as a representative of the employees of the Company. The contract is
There is no evidence in the record as to the number of members present at the meeting
The Steelworkers moved at the hearing that the Board instruct the Company to check-off
the dues of its employees and hold them in escrow pending the final decision of the Board The
motion was referred to the Board The Board has no authority to force compliance with the
terms of the contract, and the motion is hereby denied.
" The petition to the Steelworkers bore 66 signatures and the petition to the Company bore
67 signatures
* A letter dated January 22 , 1946, was sent by the District Director of the Steelworkers to
the Company requesting negotiations for a wage increase , and was received after notice of the
filing of the petition. The Company did not reply to the letter,
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not being administered on behalf of the employees; it cannot be inter-
preted and enforced through the application of its grievance procedure,
or altered to meet changing circumstances by the process of collective
bargaining. Under these circumstances, we find that the contract is
not a bar to the present proceeding.8
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Mine Workers represents a subsantial number
of employees in the unit hereinafter found appropriate.9
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accordance with the agreement of the par-
ties , that all production and maintenance employees of the Company,
excluding watchmen, shop and office clerical and salaried employees,
foremen, assistant foremen, and all other 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 bargain-
ing within the meaning of Section 9 (b) of the Act 10
V. THE DETERMINATION OF REPRESENTATIVES
The Mine Workers urges that the pay roll of January 15, 1946, be
used to determine the eligibility of the Company's employees to vote,
inasmuch as there have been some discharges and lay-offs since that
date which might be unfair labor practices. The Steelworkers requests
the regular pay-roll date. Whether discharges or lay-offs are in violation
of the Act are properly to be determined in proceedings under Section
10 of the Act. These employees, in any event, may vote subject to
challenge. We shall, therefore, deny the request of the Mine Workers,
and shall adhere to our customary practice in fixing the eligibility date
for voting purposes.11
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among employees in
the appropriate unit who were employed during the pay-roll period
See Matter of Container Corporation of America, 61 N. L R. B. 823, and cases cited therein.
0 The Field Examiner reported that the Mine Workers submitted 110 cards, 72 of which
bore the names of employees listed on the Company's pay roll. There are approximately 81
employees in the appropriate unit.
The Steelworkers made no attempt to show any present membership, but relies on its
contract with the Company to establish its interest.
10 This is substantially the same unit covered by the contract of July 18, 1945.
11 See Matter of Technical Marine Maintenance Co., Inc., 65 N L. R. B. 364.
HOCKING VALLEY MANUFACTURING COMPANY 319
immediately preceding the date of the Direction of Election herein, sub-
ject to the limitations and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Re-
lations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Hocking Valley Manu-
facturing Company, Lancaster, Ohio, 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 Ninth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who present
themselves in person at the polls, but excluding 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
they desire to be represented by District 50, United Mine Workers of
America, A. F. of L., or by United Steelworkers of America, C. I. 0.,
for the purposes of collective bargaining, or by neither.
MR GERARD D. REILLY, concurring specially :
Although I agree with the decision of my colleagues in this case, it
seems to me unnecessary to enter into any extended discussion of the
reasons for not regarding the contract as a bar to an immediate elec-
tion.12
The facts recited by the majority in their decision show that after the
contracting Steelworkers local became defunct, the Company recognized
the fact and no longer enforced or recognized the contract as binding and
furthermore has not urged it as a bar to these proceedings.
We therefore are confronted with a situation where both of the con-
tracting parties have dissolved the contract and no valid and existing
instrument remains as a bar. This is clearly distinguishable from the
circumstances in the cases cited herein, as in those cases only one of the
contracting parties sought to escape its contractual obligations.
12 See my dissents in the Matter of Container Corporation of America, 61 N L. R B 823,
and Matter of News Syndicate Co., Inc., 67 N. L. R B 1178.