Mason & Hanger-Silas Mason Co.

National Labor Relations Board - Board Decisions

May 20, 1963

142 N.L.R.B. 699 (N.L.R.B. 1963)

MASON & HANGER-SILAS MASON COMPANY 699
Mason & Hanger-Silas Mason Company and United Plant Guard
Workers of America, Petitioner . Case No. 23-RC-1955. May
20, 1963
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 C. L. Stephens, 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 a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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 Petitioner seeks a unit, as amended at the hearing, compris-
ing, with certain exclusions, all security guards employed by the Em-
ployer at its Medina facility, San Antonio, Texas. The Employer con-
tends that the Petitioner is not qualified under Section 9(b) (3) of
the Act to represent a unit of guards because it is fronting for another
labor organization, the Independent Security Guards Association,
herein called the Independent, which assertedly was affiliated with the
International Association of Machinists, a nonguard union.' We find
no merit in this fronting contention.
As more fully discussed hereinafter, the Independent had been
certified as the representative of the employees in the requested unit,
and its certification was thereafter revoked because of such affiliation.
The record establishes that after the revocation of its certification on
July 31, 1962, the Independent, for all intent and purposes, became
defunct. Thus, after July 31, 1962, the Independent's officers ceased
to serve in that capacity and no further meetings of its membership
were held. The Independent's treasury was turned over to Inter-
national Association of Machinists in to to, in payment for legal fees
and other services rendered to the Independent, and the Independent
no longer claimed to represent any of the employees involved herein.
Neither the Independent nor the International Association of Ma-
chinists took any part in the Petitioner's organizational campaign
'The Employer also declined to stipulate that the Petitioner is a labor organization
within the meaning of the Act. As the record establishes that the Petitioner was orga-
nized for the purpose of dealing with employers on behalf of plant protection employees
regarding grievances, labor disputes, wages, rates of pay, hours of employment, and con-
ditions of work and that the employees it represents participate in its organization and
functioning, we find no merit in this contention. Mound City Yellow Cab Company, 132
NLRB 484.
142 NLRB No. 83.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the employees sought herein, which commenced sometime after
July 31, and these unions have had no other connection with the
Petitioner. None of the individuals who were officers of the Independ-
ent are officers of the Petitioner. The record also shows that since
the revocation of the Independent's certification, the Employer has
received no request from any union other than the Petitioner seeking
to represent its guards. The regional director of the Petitioner
testified, without contradiction, that the Petitioner has had no con-
tact with the Independent and the International Association of Ma-
chinists; that the Petitioner admits to membership only guards; and
that it is not affiliated with any other labor organization. As the record
contains no evidence that the Petitioner is acting on behalf of the
Independent or that there is any other relationship between them, we
find that the Petitioner is not fronting for the Independent, and that
it is a labor organization fully qualified to represent the employees
herein.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
On February 5, 1962, the Independent filed a petition in Case No.
23-RC-1854 (not published in NLRB volumes) seeking to represent
employees in the same unit of guards as is involved herein. The
Regional Director directed an election, which was held on March 8
and 9, 1962, and on March 19, 1962, the Independent was certified
as the collective-bargaining representative of said employees. On
July 31, 1962, the Regional Director, upon learning of the affiliation
of the Independent with the International Association of Machinists,
a nonguard union, revoked the certification. The instant petition was
filed on August 13, 1962. This petition was dismissed by the Regional
Director on August 22, 1962, for the reason that within a 12-month
period an election had been held among employees in the same bargain-
ing unit. On appeal, the Board, on December 20, 1962, reversed the
Regional Director's dismissal , reinstated the petition, and directed
that the Regional Director conduct a hearing to resolve substantial
and material issues as to the validity of the election previously held
in the same bargaining unit.
The Employer contends that the petition herein should be dismissed
under Section 9(c) (3) 2 of the Act as a valid election was conducted
during the preceding year in the same bargaining unit. The Petitioner
asserts that the election of March 8 and 9, 1962, was invalid because of
the subsequent revocation of the certification issued to the Independent,
and therefore Section 9(c) (3) does not bar the holding of another
2 Section 9(c) (3) provides in relevant part: "No election shall be directed in any bar-
gaining unit or any subdivision within which , in the preceding twelve -month period, a
valid election shall have been held "
MASON & HANGER-SILAS MASON COMPANY 701
election. We find it unnecessary to decide whether the prior election
was valid within the meaning of Section 9 (c) (3), since we believe that
in the circumstances of this case the direction of an election is now
appropriate, even assuming the validity of the prior election.
Here, the petition has been processed, a hearing has been held, and
1 year has now elapsed since the prior election. These circum-
stances are substantially the same as the circumstances in TVeston
Biscuit Company, 117 NLRB 1206. There, although the petition was
filed more than 5 months before the end of the 12-month period pro-
vided for under Section 9(c) (3), the Board directed an immediate
election on the ground that the petition was processed, a hearing had
been held, and 12 months had already elapsed. In support of its
conclusion that the direction of an election was then appropriate, the
Board stated: "To dismiss the petition at this time would subject the
Board to an immediate repetition of the proceeding as a new petition
could be timely filed as soon as a decision in this case issues." This
statement is directly applicable with respect to the instant case, as
the Petitioner, on March 11, 1963, more than 12 months after the prior
election herein, filed a new petition seeking an election in the same
unit as that involved herein. Thus it is clear that dismissal of the in-
stant petition would also result in the immediate repetition of the
proceeding.
Nor, in our opinion, does Vickers, Incorporated, 124 NLRB 1051,
require dismissal of the petition at this stage of the proceeding. There,
the Board established the rule that a petition, filed more than 60 days
prior to the anniversary date of a valid election held in the same unit
in which no bargaining representative was selected, must be dismissed
forthwith. In compliance with that rule, the petition herein was
initially dismissed by the Regional Director. Vickers did not, how-
ever, deal with the situation involved herein, where the untimely peti-
tion, dismissed by the Regional Director, was reinstated by the Board,
on appeal, because of the questions concerning the validity of the prior
election; nor did it bar the continued application of Weston Biscuit,
supra, to circumstances such as those present herein.
Under all the circumstances, accordingly, and as such election will,
in any event, not be held within the period prohibited by Section
9 (c) (3) of the Act, we shall direct an immediate election.'
4. The following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
8 Our decision herein is consistent with the Board ' s policy , in applying its contract-bar
rules, of directing an election where, notwithstanding the prematurity of the petition, a
hearing has been conducted and the Board 's decision would Issue on or after the 90th day
preceding the expiration date of the contract . See Deluxe Metal Furniture Company,
121 NLRB 995, 999.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All security guards employed at the Employer's Medina facility,
San Antonio, Texas, excluding guard lieutenants, all other employees,
and supervisors as defined in the Act'
[Text of Direction of Election omitted from publication.]
4 The parties , who are in basic agreement as to the appropriate unit, stipulated at the
hearing that guard lieutenants are supervisors within the meaning of the Act and should
be excluded from the unit.
Weyerhaeuser Company and General Truck Drivers , Chauffeurs,
Warehousemen & Helpers, Local 270, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men & Helpers of America , Ind., Petitioner . Case No. 15-RC-
2654. May 20, 1963
DECISION ON REVIEW AND ORDER
On January 28, 1963, the Regional Director for the Fifteenth Re-
gion issued a Decision and Direction of Election in the above-entitled
proceeding. Thereafter, the Employer and the Intervenor,' in ac-
cordance with Section 102.67 of the Board's Rules and Regulations,
as amended, filed with the Board timely requests for review on the
ground, inter alia, that the Regional Director erroneously found the
existing contract between the Employer and the Intervenor not to
constitute a bar to the petition? By telegraphic order dated March 1,
1963, the Board granted the requests for review, and stayed the elec-
tion. Thereafter, the Employer and the Intervenor filed briefs.
American Federation of Labor and Congress of Industrial Organiza-
tions (AFL-CIO) filed an amicus brief.
The Board 3 has considered the entire record in the case with
respect to the Regional Director's determination under review, and
makes the following findings :
The Employer and the Intervenor urge, as a bar to the petition
herein, their contract executed on March 27, 1961, which was to be
effective retroactively from January 19, 1961, for a period of 2 years.
They contend that the petition, filed on December 5, 1962, during
the insulated period of the agreement, was untimely and should be
dismissed. The Regional Director found that the contract contained
'International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO.
2 The Employer, as an additional ground for review, alleged that the delegation of
authority is unconstitutional and that Section 3(b) of the Act and the Board 's Rules and
Regulations are in conflict with the Administrative Procedures Act. For the reasons
stated in Wallace Shops, Inc ., 133 NLRB 36, we agree with the Regional Director that
these contentions lack merit.
9 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 Rodgers , Fanning,
and Brown].
142 NLRB No. 82.