Lee-Mark Metal Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 13, 1949

85 N.L.R.B. 1299 (N.L.R.B. 1949)

In the Matter of LEE-MARK METAL MFG. Co.,' EMPLOYER and ROSARIO
TINE, PETITIONER and LOCAL 155, UNITED ELECTRICAL, RADIO &
MACHINE WORKERS OF AMERICA, CIO, UNION
Case No. 4-RD-35.-Decided September 13, 1919
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, a hearing was held
before John.H. Garver, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.2
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 [Members Houston, Reynolds, and
Murdock].
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 The Petitioner claims that the Union no longer represents the
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
The Union and the Employer entered into an agreement effective
July 5, 1947, for a term of 1 year 3 On July 5, 1948, the parties ex-
ecuted a supplemental agreement which, among other things, extended
the term of the original contract until July 5, 1949, and thereafter
from year to year, unless either party gave to the other written notice
of desire to change or terminate at least 60 days prior to the anniver-
sary date. By letter dated May 3, 1949, the Employer notified the
Union of its desire to terminate the contract as of July 5, 1949, stating
that it intended to negotiate a completely new agreement and con-
eluding: "We shall be pleased to meet with you at our mutual con-
' The Employer 's name appears as amended at the hearing.
2 Local 155, United Electrical, Radio & Machine workers of America, CIO, herein called
the Union , failed to appear at the hearing although duly notified thereof.
3 The contract provided for automatic renewal from year to year thereafter , unless
written notice of desire to modify was given by either party to the other 30 days before
the anniversary date.
85 N. L. R. B., No. 213.
1299
857529-50-vol. 85-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
venience to discuss the new contract." As of August 10, 1949, the
date of the hearing, the Employer had received no reply to this letter.
Section 9 (c) (1) (A) (ii). of the amended Act empowers the
Board to investigate a petition for' decertification of a "labor organ-'
ization which has been. certified or is being currently recognized" by
the employer. In the instant case, while the Union has not been
certified, the Employer's letter of May 3 contained an invitation to
continue the parties' previous contractural relationship, and this in-
vitation has never been withdrawn. We are therefore of the opinion
that the Union is "currently recognized" by the Employer as the
representative of its employees. Accordingly, the requirements of
Section 9 (c) (1) (A) (ii) of the Act have been met, and we shall
direct an election .4
4. All employees of the Employer, excluding office employees and
supervisors as defined in the Act, constitute a unit appropriate for .
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act .5
DIRECTION OF ELECTION a
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by se-
cret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not.been rehired or re-
instated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by Local 155, United Electrical, Radio & Machine Workers of
America, CIO.
' We do not construe either the Union ' s failure to answer the Employer ' s letter of May 3
or its failure to appear at the hearing as an unequivocal disclaimer of interest by the
Union . Matter of Baltimore Luggage Company, Case No. 5-RD-21, issued March 23,
1 949; Matter of California Knitting Mills , d/b/a Hollyvogue Sportswear, 77 N. L . R. B. 574.
This is substantially the unit which was covered in the contract between the Union
and the Employer.
" The Union is not presently in compliance with the requirements of Section 9 (f), (g).
and (h ) of the Act . Accordingly , If the Union wins the election and it has not complied
with such requirements , the Board will certify only the arithmetical results of the election.