Kennedy-Van Saun Manufacturing and Engineering Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1953

105 N.L.R.B. 575 (N.L.R.B. 1953)

KENNEDY-VAN SAUN MFG. AND ENGINEERING CORPORATION 575
meeting to call a special meeting on February 28, 1953, for
the purpose of voting on disaffiliation from Local 1157, CIO.
The February 28 meeting was also held in the AFL hall
and attended by 3 representatives of the AFL, 2 of whom
spoke on the motion to disaffiliate from the CIO. Forty of
the Employer's seventy-seven employees in the unit covered
by the Intervenor's contract, attended and voted unanimously to
disaffiliate from Local 1157, CIO, and to affiliate with the AFL.
Thereafter, on March 11, 1953, at a meeting called by the AFL,
officers were elected and a charter was issued to its new
Local 1157.
The Petitioner contends that the foregoing events have given
rise to such confusion and uncertainty with respect to the
status of the bargaining representative at the Employer's plant
as to warrant the Board directing an election at this time under
the "schism doctrine." We do not agree. The disaffiliation
meeting and the preliminary meeting thereto were held at the
petitioning Union's hall, and it is clear that at all times repre-
sentatives of the Petitioner actively assisted the dissident
employees in their efforts at disaffiliation. From these facts,
the Board concludes that the Petitioner's control over the dis-
affiliation proceedings were of such nature as to preclude
application of the schism doctrine.' Furthermore, the In-
tervenor still functions and is ready, able, and willing to ad-
minister the contract.
Upon the basis of the foregoing and on the entire record in
this case, we find that the current contract between the
Intervenor and the Employers bars the determination of
representatives at this time. Accordingly, we shall dismiss
the petition.
(The Board dismissed the petition.]
3See Bendix Products Division, Bendix Aviation Corporation, 98 NLRB 1180; Boyle-Midway,
Inc., 97 NLRB 895.
KENNEDY-VAN SAUN MANUFACTURING AND ENGINEER-
ING CORPORATION and UNITED STEELWORKERS OF
AMERICA, CIO, Petitioner. Case No. 4-RC-1930. June 12,
1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Herbert B.
Mintz, hearing officer. The hearing officer's rulings made at
105 NLRB No. 75
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hearing are free from prejudicial error and are hereoy
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, Murdock, and
Peterson].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for
the following reasons:
The Employer and the Intervenor (Foundrymen, Machinists
and Erectors Union) contend that a contract entered into be-
tween them on January 2, 1952, with an expiration date of
December 31, 1953, constitutes a bar to this proceeding. The
Petitioner asserts that the contract is not a bar because it
contains an alleged illegal union-security provision. The dis-
puted provision reads as follows:
III - UNION MEMBERSHIP AND RIGHT TO HIRE
The right to hire any [employees] of any classification
shall remain with the Employer, provided nevertheless,
that no [employee] shall be employed by the said Company
without first obtaining from the said prospective [employee]
a written statement (a form to be prepared by the Union)
agreeing that upon the passing of the probationary period
or within thirty (30) days after becoming permanently
employed that said prospective [employee] will become a
member of the Union.
The Company agrees to employ only persons in good
standing in the Union, providing nevertheless, that the
Company shall not be considered as violating this para-
graph of the Agreement unless it employs a person not in
good standing in the Union for more than thirty (30) days
after receiving written notice from the Union that such
person is not in good standing.
' The hearing officer referred to the Board the Employer's motion to dismiss the petition
on the ground that the Regional Director set the case for hearing before an investigation
was made as to the Petitioner's showing of interest The motion is hereby denied Although
Section 9 (c) (1) of the Act specifies no more than that the petition shall allege that the union
represents a substantial number of employees, the Board requires that the union informally
submit proof of its claim prior to the hearing, for the purpose of screening out frivolous
petitions The manner, method, and procedure employed by the Board in making such in-
vestigation is a matter for administrative determination and we perceive no prejudice
visited upon the Employer herein. In fact, the Regional Director conducted an investigation
before the hearing, which was begun before the notice of hearing was issued, and we are
satisfied that the Petitioner's showing of interest was adequate. See J. I. Case, Co , 95
NLRB 1493, enforced 201 F. 2d 597 (C. A. 9), Pacific Gas and Electric Company, 97 NLRB
1397 The Borden Company, 103 NLRB No 143.
STURTEVANT MILL COMPANY 577
In support of its contention that the above clauses are unlawful
because they do not conform to the union-security limitations
imposed by Section 8 (a) (3) of the Act, the Petitioner argues that
new and old employees are not given the required 30-day grace
period in which to join the Intervenor. We do not agree. It is
clear that the second paragraph gives all employees the re-
quired 30 days for acquiring or retaining union membership
before sanctions may be imposed for nonmembership in the
Intervenor. The first paragraph requires all new employees,
as a condition of employment, to signify their intention in
writing to join the Intervenor upon the expiration of their first
30 days of employment. While this requirement is not specif-
ically authorized by the Act, it is noted that the prospective
employee is not required prematurely to pay dues or actually
apply for membership; nor does he otherwise incur any obliga-
tion incident to membership. Realistically viewed, the applicant
for employment is prospectively agreeing only to abide by the
contract, which provides that if his employment continues after
the expiration of 30 days, he is required to join the Intervenor.,
In these circumstances, we do not find that the union-security
provision constitutes an unlawful condition of employment. We
therefore find that the contract operates as a bar to an imme-
diate election and we shall dismiss the petition.3
[The Board dismissed the petition.]
,Cf. New Castle Products, Incorporated, 99 NLRB 811, wherein the Board held invalid
a provision which required new employees to "signify their intention to become members
[of the Union] by signing applications and becoming initiated," at the time of hiring.
3At the hearing the Petitioner also contended that the contract.is no bar because it in-
cluded guards within the bargaining unit. We find no merit in this contention, as the record
shows that guards are not included in the unit. Moreover, assuming the correctness of the
Petitioner's claim, it is not sufficient to remove the contract as a bar. See American Dye-
wood Company, 99 NLRB 78.
STURTEVANT MILL COMPANY and LOCAL 501 OF THE
INTERNATIONAL ASSOCIATION OF BRIDGE , STRUC-
TURAL, AND ORNAMENTAL IRON WORKERS , AFL, Peti-
tioner and LODGE 264 OF DISTRICT 38, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL. Case No. l-RC-3089.
June 12, 1953
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 Robert S.
Fuchs, 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
105 NLRB No. 73.