Stewart Warner Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1959

123 N.L.R.B. 447 (N.L.R.B. 1959)

STEWART DIE CASTING DIVISION (BRIDGEPORT), ETC. 447
In view of the foregoing, we shall direct that an election be held
among the following employees of the Employer who, we find, con-
stitute, under the circumstances of this case, a unit appropriate for
purposes of collective bargaining within the meaning of Section
9(b) of the Act: All employees of the Employer working in or per-
manently assigned to operations in the boroughs of Brooklyn and
Queens, New York, excluding executives, superintendents, heads of
departments, foremen, skilled technical employees in the chemical
laboratories other than those who have by mutual agreement in the
past been included in the bargaining unit, confidential employees,
guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Stewart Die Casting Division (Bridgeport ) of Stewart Warner
Corporation and Stewart Die Casting Independent Union
Local #1, Petitioner. Cases Nos. 2-RC-9623 and 2-RC-9667.
March 27, 1959
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held in Case No. 2-RC-9623 be-
fore Sidney H. Levy, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.' Prior to this hearing the petition in Case No. 2-RC-9667,
which was filed on November 3, 1958, was dismissed by the Regional
Director because it covered the same issues as the petition in Case
No. 2-RC-9623. The Peitioner has filed a timely request for review
by the Board of this dismissal, contending, as does the Employer,
that these two petitions should have been consolidated for hearing.
As will appear hereinafter, the disposition of this request for review
is necessarily governed by the Board's decision with respect to Case
No. 2-RC-9623. Accordingly, these cases are hereby consolidated
for purposes of decision.
Upon the entire record in these cases 2 the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Intervenor contends that the Petitioner is not a labor or-
ganization within the meaning of Section 2(5) of the Act. The Peti-
' The Intervenor, International Union, United Automobile, Aircraft, and Agricultural
Implement Workers of America, UAW, AFL-CIO, was permitted to 'intervene on the basis
of its contractual interest in the employees involved herein.
P The Intervenor ' s motion to correct the transcript is hereby granted, in the absence of
specific objections thereto.
123 NLRB No. 52.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioner, which is newly organized, has been functioning through a
committee appointed by the membership at an organizational meet-
ing. This committee was empowered to take whatever steps were
necessary to form a new independent union. The facts that the
Petitioner is functioning informally and has not presented its con-
stitution and bylaws to a meeting of the membership are not con-
trolling. ire find that the Petitioner has been organized for the
purposes of bargaining collectively for its membership, and that it
and the Intervenor are labor organizations within the meaning of
the Act.3 The labor organizations involved claim to represent cer-
tain employees of the Employer.
The Intervenor's contention concerning the Petitioner's showing
of interest is without merit. The sufficiency of the Petitoner's
showing of interest is an administrative matter not subject to litiga-
tion and we are administratively satisfied that the Petitioner's show-
ing of interest is adequate 4
3. The question concerning representation :
The Employer and the Intervenor were parties to a collective-
bargaining agreement covering a unit of production and maintenance
employees at the Employer's Bridgeport , Connecticut, plant; this
agreement bore an expiration date of November 2, 1958 , and con-
tained the following dues-deduction provision :
(5) The Company will deduct from the pay of all members
of the Union employed by the Company any amounts due from
such employees to the Union as initiation fees or union dues if
the employee has executed a written direction to the Company
to make such deduction and payment for a period not exceed-
ing the life of this agreement . Such direction when given shall
be irrevocable during its term.
The Petitioner filed its petition in Case No. 2-RC-9623 on October
9, 1958, and its petition in Case No. 2-RC-9667 on November 3,
1958; in both petitions it sought an election in the existing produc-
tion and maintenance unit. Acting on the basis of information
furnished by the Petitioner, which gave him reasonable grounds
for believing that the Intervenor might be defunct and that the dues-
deduction provision might exceed the limits prescribed by Section
302 of the Act, the Regional Director issued a notice of hearing in
Case No. 2-RC-9623 . Thereafter , on November 12, the Regional
Director dismissed the petition in Case No. 2-RC-9667, for the rea-
son that it encompassed the same matters as the petition in Case
No. 2-RC-9623; as indicated above, the Petitioner seeks review of
that dismissal.
8 J. Sullivan & Sons Manufacturing Corporation , 105 NLRB 549.
6 0. D. Jennings & Company, 68 NLRB 516.
STEWART DIE CASTING DIVISION (BRIDGEPORT), ETC. 449
At the hearing, held on November 13, the contract containing the
above-quoted dues-deduction provision was introduced in evidence,
and the parties stipulated that as of that date no new contract had
been executed to replace the contract which expired on November 2.
No evidence was adduced, however, bearing on the question of
whether or not the Intervenor was defunct.
In connection with the reexamination and revision of its contract-
bar policies, the Board held that for contract-bar purposes there will
be a 60-day insulated period immediately. preceding and including
the expiration date of an existing contract, and that a petition filed
during that 60-day insulated period will be dismissed as untimely.5
The Board has also held that this rule does not, however, require dis-
missal of a petition so filed if the contract is no bar for other rea-
sons under Board rules.6 Thus, although the petition in Case No.
2-RC-9623 was filed less than 60 days before the November 2 expira-
tion date of the existing contract, and was therefore untimely under
the rule of the Deluxe Metal case, the Regional Director nevertheless
properly- scheduled a hearing, on the petition, on the, basis of the in-
formation furnished by the Petitioner, in order that evidence might
be adduced bearing on the contract-bar issues.
The mere fact, however, that a hearing has been held on a petition
is not in itself sufficient to warrant the direction of an election on
the basis of a petition which is otherwise untimely because it was
filed during the 60-day insulated period. Rather, as the National
Brassiere case clearly implies, such a petition must still be dismissed
unless the record made at such hearing establishes that the existing
contract is in fact no bar for other reasons,' and such dismissal is
required, whether or not the issue of timeliness is specifically raised,
when, as herein, the existing contract is adduced in evidence; nor is
the necessity for dismissal in these circumstances obviated by the fact
that the hearing was not held until after the expiration date of such
contract. Accordingly, we shall consider whether the dues-deduction
provision removes the contract as a bar."
As set forth above, this clause provides:
(5) The Company will deduct from the pay of all members
of the Union employed by the Company any amounts due from
such employees to the Union as initiation fees or union dues if
the employee has executed a written direction to the Company
to make such deduction and payment for a period not exceeding
5 Deluxe Metal Furniture Company, 121 NLRB 995.
8 National Brassiere Products Corp ., 122 NLRB 965.
'In this connection , compare the rule with respect to premature petitions , as set forth
in Deluxe Metal Furniture Company , supra.
8 As noted above, no evidence was adduced bearing on the issue of defunctness.
50'8889-60-vol. 123-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the life of this agreement. Such direction when given shall be
irrevocable during its term.
Although this clause covers the checkoff of initiation fees as well
as dues, based upon a written authorization to be irrevocable for a
period not to exceed the life of the contract, the Board has held that
for purposes of applying the Keystone rule,' a checkoff clause is not
rendered defective for contract-bar purposes because it provides for
the deduction of initiation fees and assessments , as well as dues, or
because it fails to contain a specific reference to the statutory re-
quirements as to time limitations.10 We find, therefore, that the
foregoing clause does not remove the contract as bar . Accordingly,
as the record fails to establish that the contract in issue was not a
bar, we shall dismiss the petition in Case No. 2-RC-9623 as untimely
filed.
As we have decided to dismiss the petition in Case No. 2-RC-9623,
it is clear that the reason for the Regional Director's dismissal of the
petition in Case No. 2-RC-9667 no longer exists. Accordingly, we
shall grant the appeal from the Regional Director's dismissal of
the petition in Case No. 2-RC-9667, and shall reinstate that petition.
However, we shall not in this case follow our normal procedure of
remanding that petition to the Regional Director for hearing.- For
here, the parties involved in the two cases are the same and, unlike the
usual case, all matters pertinent to the disposition of this petition
were litigated at the hearing held on the earlier petition and it is
clear from the stipulation of the parties, noted above, that no con-
tract was executed which would bar this petition. Thus, remanding
this petition for a hearing would result in the needless expenditure of
time and money, whereas disposing of the petition in Case No. 2-RC-
9667 on the basis of the record made at the hearing held in Case No.
2-RC-9623 would serve to expedite the proceedings without prejudice
to any party.12 In these circumstances, we find that it would effectu-
ate the policies of the Act to decide Case No. 2-RC-9667 on the basis
of the record made at the hearing held in Case No. 2-RC-9623, which
we shall incorporate as the record in Case No. 2-RC-9667.
We find that in Case No. 2-RC-9667 a question affecting commerce
exists concerning the representation of employees of the Employer
within the meaning of Section 9(c) (1) and Section 2(6) and (7) of
the Act.
We find that all hourly and piece-rate production and maintenance
employees employed by the Employer at its plant in Bridgeport,
9 Keystone Coat, Apron & Towel Supply Company, 121 NLRB 880.
10 Was. Wolf Bakery, Inc., 122 NLRB 630.
u The Board's Rules and Regulations do not limit the scope of the Board's action upon
review of a Regional Director' s dismissal of a petition.
22 Cf. Carey Transportation, Inc., 119 NLRB 332.
AUTO VENTSHADE, INC. 451
Connecticut, excluding all guards, watchmen, all office clerical em-
ployees, and supervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act."
[The Board dismissed the petition in Case No. 2-RC-9623;
granted the Petitioner's appeal from the dismissal by the Regional
Director of the petition in Case No. 2-RC-9667; reinstated the peti-
tion in said case; and incorporated the record made at the hearing
held in Case No. 2-RC-9623 as the record in Case No. 2-RC-9667.]
[Text of Direction of Election omitted from publication.]
v The unit was stipulated by the parties.
Auto Ventshade , Inc. and International Union , United Auto-
mobile, Aircraft & Agricultural Implement Workers of
America, UAW-AFL-CIO, and its Local 472. Cases Nos. 10-
CA-2954 and 10-CA-3062. March 30, 1959
DECISION AND ORDER
On January 26, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act
and recommending that it cease and desist therefrom and take
certain action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting brief.'
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 Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and the brief filed by the Respond-
ent, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
modifications indicated in the Order.
' As the record, exceptions , and briefs adequately present the issues and positions of the
parties, the Respondent 's request for oral argument is hereby denied.
123 NLRB No. 54.