Oliver Machinery Co.

In the Matter of M. D. BALDWIN,'R. F. BALDWIN, FRANCES M. BALD- ; WIN, H. B. TUTHILL, V. M. TU1'HTLL, A. S. KURIcJIAN, CO-PARTNERS, DOING BUSINESS AS OLIVER MACHINERY COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE No. 475, AFFILIATED WITH TIM A.F.L. Case No. C-2483.-Decided February 1'd, 1943 Jurisdiction : machinery manufacturing industry. Unfair Labor Practices Collective Bargaining: parties stipulated that respondents refused to bargain with certified- union, which had requested it to bargain, because of respond- ents' claim that unit previously found appropriate by the Board was inappro- priate-Board found unit appropriate and accordingly found a refusal' to bargain. Remedial Orders : upon request, to bargain collectively. Unit, Appropriate for Collective Bargaining : unit established in prior repre- sentation case, confined to production employees at one of respondents' plants held appropriate notwithstanding respondents' contention that the unit should embrace two of its plants. Mr. Harold A. Crane field, for the Board. Mr. Stephen F. Dunn, of Grand Rapids, Mich., for the respondents. Mr. Carl Cederquist, of Grand Rapids, Mich., and Mr. Paul R. Hutchings, of Washington, D. C., for the Union. Mr. Eugene R. Thorrens, of counsel to the Board. a DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of,Machinists, Lodge No. 475, affiliated with the A. F. L., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its amended complaint dated December 17, 1942, against M. D. Baldwin, R. F. Baldwin, Frances M. Baldwin, H. B. Tuthill, V. M. Tuthill, A. S. Kurkjian, co-partners, doing busi- ness as Oliver Machinery Company, Grand Rapids, Michigan, herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, 47 N. L. R B., No. 62. 440 OLIVER MACHINERY COMPANY 441 within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the amended complaint accompanied by notice of hearing were duly served upon the respondents and the Union. With respect to the unfair labor practices, the amended complaint alleged in substance that on or about April 22, 1942, and thereafter, the respondents refused to bargain collectively with the Union as the exclusive representative of their employees within an appropriate bargaining unit, although the Union represented a majority of such employees; and that by such refusal, the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondents, the Union, and the Regional Attorney for the Seventh Region entered into a stipulation, dated December 30, 1942, waiving hearing and necessity for an Intermediate Report, proposed findings of fact, and other proceedings before the Board except the privileges of filing briefs and requesting oral argument, and agreeing that the Board may make findings of fact and conclusions of law and enter its Decision and Order upon facts agreed to in the stipulation and upon the record described therein.1 On January 9, 1943, the Board, acting pursuant to Article II, Sec- tion 36 (a), of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, transferred the case to itself. On the same day, the respondents filed a brief with the Board. Pursuant to notice, a hearing for the purpose of presenting oral argument was held before the Board in Washington, D. C., on Jan- uary 26, 1943. The respondents and the Union appeared by counsel and participated in the-argument. Upon the entire record in the case,'the Board snakes the following : FINDINGS OF FACT I. THE BUSINESS OF TIIE RESPONDENTS The respondents, a copartnership, having their principal office and place of business in Grand Rapids, Michigan, are engaged- in the manufacture. of woodworking machinery and machinery used in slic- ing and packaging bakery products. The principal raw materials used are iron, steel, and non-ferrous metals. Annually the respond- ents purchase for use in such manufacturing operations raw materials and other supplies valued in excess of $400,000, of which approxi- mately 80 percent in value is shipped to the respondents' plants from outside the State of Michigan. During a similar period, the respond- 1 In the stipulation the respondents denied the allegations of the amended complaint uth respect to the unfair labor practices and counsel for the Board agreed to accept such denial in lieu of an answer. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents sell finished products manufactured at said plants valued in excess of $1,000,000, of which approximately 90 percent in value is shipped to purchasers outside the State of Michigan. The respond- ents concede that they are engaged in commerce within the meaning of the Act and subject to the Board's jurisdiction. II. THE ORGANIZATION INVOLVED International Association of Machinists, Lodge No. 475, affiliated with the American Federation of Labor, is a labor organization ad- mitting to membership employees of the respondents. III. TIIE UNFAIR LABOR PRACTICES The refusal to bargain 1. The appropriate unit The respondents operate two machine shops in Grand Rapids, Michi- gan. Their main plant, called the Coldbrook plant, is about 1 mile distant from the other, known as the Baldwin Tuthill plant.' Upon a petition for investigation and certification of representatives filed by the Union on October 21, 1941, the Board, on March 12, 1942, issued its Decision and Direction of Ffection,3 finding that the em- ployees at the Baldwin Tuthill plant constitute an appropriate unit. The respondents deny the allegation of the, amended complaint that the employees at the Baldwin Tuthill plant constitute an appro- priate unit, and contend, as they did in the representation case, that the employees at the Baldwin Tuthill plant and at the Coldbrook plant together constitute the appropriate unit. In the representation case, the Board recognized, as the evidence showed, that the two plants were similar with respect to equipment, type of operations performed, and employee classifications; that the operations of the two plants were interdependent to a considerable degree and there was a substantial interchange of work between them; that both plants were operated through a single office located in the Coldbrook plant, and all personnel records were kept in that office ; and that general labor policy was determined in the company's main office. How- ever, we also found that no history of collective bargaining existed at the respondent's plants; that the Baldwin Tuthill plant, geo- 'The respondents also operate a foundry adjacent to the Coldbrook plant where cast- ings are made for use at the two machine shops. 'Matter of Oliver Machinery Co., Baldwin Tuthill Division and International Associa- tion of Machinists, Lodge No 475, affiliated weth A. F. L., 39 N. L. R . B. 722. At the time of the representation proceeding the business of the employer was operated as a Michigan corporation . Sometime thereafter, the corporation was dissolved and a co- partnership was formed . In all other respects, the business enterprise involved in the representation case and herein is identical Hereinafter we refer to the corporation and to the copartnership interchangeably as the-respondents: OLIVER MACHINERY COMPANY 443 graphically separated from the Coldbrook plant, had a superintend- ent, assigned exclusively to it, who handled personnel problems and had authority to hire employees ; that there was no substantial tempo- rary interchange of employees , but, in fact, there existed a policy against such interchange ; and that only the employees at the Bald- win Tuthill plant were organized for the purpose of collective bargain- ing. Under the circumstances , we concluded that self-organization and collective bargaining should not be denied to employees at the Baldwin Tuthill plant "merely because under other circum- stances a unit including employees at both plants might be deemed appropriate." '' In the instant case, the respondents do not dispute the facts found by.the Board in the representation proceeding . However, they con- -tend that the Board erred in its conclusion that the employees at the -Baldwin Tuthill plant constitute an appropriate unit. In support ,of their contention , the respondents cite, among others, the Board's -decision in Matter of Triangle Publications, Inc., and Chicago Edi- torial Association , Federal Union 21690,5 decided May 13, 1942, where, -in 'dismissing a petition for investigation and certification of repre- sentatives, we rejected a request for a unit composed of radio pro- -gram checkers in the editorial department of a magazine publisher, on' the ground that the nature of the checkers' work was indistin- -guishable from that of other employees in the editorial department. The respondents argue that the Triangle case represents a departure from the viewpoint expressed by the Board in the representation case from which the instant proceeding stems. The cases are plainly dis- tinguishable . Pursuant to Section 9 (b) of the Act , the Board may properly find that a subdivision of an employer, craft, or plant con- stitutes an appropriate unit. In exercising its authority , however, the Board has refused= to -set apart as-aA, appropriate , unit any subdi- vision or group of employees the nature of whose work is indistinguish- able from that of other employees or whose work is not functionally co- herent and distinct., In observance of this policy the Board has recognized the unity of interests and functions of editorial workers in the publishing industry and the frequent interchange of duties among , such employees. Consequently, as in the Triangle case, the * In its Decision, the Board also stated that its finding that the employees at the Bald- win Tuthill plant constitute an appropriate unit did not preclude'a later determination that a larger unit is 'appropriate "when organization had extended to employees at the Coldbrook plant." At the oral argument before the Board in this proceeding, counsel for the respondents conceded that organization for the purpose of collective bargaining had not been extended to employees at the Coldbrook plant. ° 40 N. L. R. B. 1330. ° Cf. Matter of Carnegie-Illinois Steel Corp., et at. and Local Union 466, I. B. E TV., et al., 34 N. L. R. B. 40; Matter of The New York Times Company and American Newspaper Writers Association, et al, 32 N. L. R. B., 928; Matter of The National Sanitary Company and International Brotherhood, of Foundry Employees, Local 101, (Independent), 31 N. L. R. B., 824. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board has refused to entertain petitions of labor organizations seek- ing to break down into artificial subdivisions traditional editorial- staff employees. On the other hand, as here, the Board has enter- tained petitions for separate plant representation of employees being- organized on an industrial basis on the principle that organization of the employees has not been extended beyond such plant. In no case, however, has this principle been applied to the determination as. an appropriate unit of an arbitrary and artificial grouping of em- ployees. The Triangle case, therefore, does not represent a departure-. from policies theretofore established'by the Board. The respondents further contend that circumstances have changed since the conclusion of the hearing in the representation proceeding- and that the present situation emphasizes the merit of the respond- ents' contention as to unit. As a result of the changed circtim- stances,7 there is greater similarity between the two plants as to type of operations, equipment, and employee classifications now than at the time of the hearing in the representation case. In our Decision, however, we considered the similarity between the two plants in making our unit determination, and for that purpose we treated the two plants as being similar with respect to type of operations, equip- ment, and employee classifications. Nevertheless, we have reviewed our decision of the appropriate unit in the light of the ' contention advanced by the respondents and the evidence in the case now before us, and we see no reason to alter our previous determination., We now find in accordance with our previous determination that all production employees at the Baldwin Tuthill plant, including apprentices, but excluding supervisory, clerical, engineering, and plant protection employees and truck drivers, constitute a unit ap- propriate for the purposes of collective bargaining. We further find that said unit insures to the employees of the respondents the full benefit of the right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit Pursuant to the Board's Decision and Direction of Election, dated March 12, 1942, an election by secret ballot was conducted under the 'r It was stipulated , in substance, that manufacture of baking -machinery has been re- duced and manufacture of woodworking machinery has been increased at the Baldwin Tuthill plant , thus making production of the latter type of machinery currently the principal industry at both plants. 8 At the oral argument before the Board , counsel for the respondents abandoned the position taken in their biief that the proceeding should be dismissed in view of the re- spondents ' good faith in uiging a contention with respect to unit contrary to that deter- mined by the Boaid In any event, we find` no-merit in such a position Good faith in these circumstances is immaterial. OLIVER MACHINERY COMPANY 445 direction and supervision of the Regional Director for the Seventh Region (Detroit, Michigan), among the employees in the aforesaid' appropriate unit. Based upon the results of the election, the Board, on April 15, 1942, issued its Certification of Representatives,9 certi- fying the Union as the exclusive representative of the employees in said unit. - The Certification clearly establishes the majority status of the Union, and this is not questioned by the respondents. We find that, on and at all times after April 15, 1942, the Union was the duly designated bargaining representative of a majority of the employees in the aforesaid appropriate unit, and that, pursuant' to the-provisions of Section 9 (a) of the Act, the Union was on April- 15, 1942, and at all times thereafter has been and is now the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The parties have stipulated in substance, and we find, that on April 15, 1942, and at all times thereafter, although requested by the Union, the respondents refused to bargain with the Union as the exclusive representative of the employees in the unit hereinabove found appropriate on the ground that such unit was inappropriate. We find that, on April 15, 1942, and at all times thereafter, the respondents have refused to bargain collectively with the Union as the exclusive representative of their employees in an appropriate unit and have thereby interfered with, restrained, and coerced their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since we have found that the respondents have engaged in unfair labor practices, we will order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondents have refused to 9 40 N. L. R. B 578. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain collectively with the Union as the exclusive representative. of their employees in the appropriate unit. We will , therefore, order that the respondents , upon request, bargain collectively with the Union. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists , Lodge No. 475, affili- ated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 ( 5) of the Act. 2. All production employees employed by the respondents at the Baldwin Tuthill plant, including apprentices , but excluding super- visory, clerical , engineering, and plant protection employees and truck drivers, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the Act. 3. International Association of Machinists, Lodge No. 475, affiliated % with the American Federation of Labor, was on April 15, 1942, and at all times thereafter has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargain- ing, ivithin the meaning of Section 9 (a) of the Act. 4. By refusing on April 15 , 1942, and at all times thereafter, to bargain collectively with International Association of Machinists; Lodge No. 475, affiliated with the American Federation of Labor, as the exclusive representative of all the employees in the aforesaid appro- priate unit, the respondents have engaged in and are engaging in unfair labor practices , within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices af- fecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents , M. D. Baldwin, R. F. Bald- - win, Frances M. Baldwin , H. B. Tuthill, V. M. Tuthill, A. S. Kirkjian, OLIVER MACHINERY COMPANY 447 co-partners, doing business as Oliver Machinery Company, Grand Rapids, Michigan, and their agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Association of Machinists, Lodge No. 475, affiliated with the American Federation of Labor, as.the exclusive bargaining representative of all production employees at the Baldwin Tuthill plant, including apprentices, but excluding supervisory,•clerical,.enbineering,,and plant protection em- ployees and truck drivers ; (b) Engaging in any like or related acts or conduct interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage rn concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, as guaranteed in Section 7, of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Associa- tion of Machinists, Lodge 475, affiliated with the American Federation of Labor, as the exclusive representative of all production employees at the Baldwin Tuthill plant, including apprentices, but excluding supervisory, clerical, engineering, and plant protection employees and truck drivers; (b) Post immediately in conspicuous places at the Baldwin Tuthill plant, Grand Rapids, Michigan, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the con- duct from which they are ordered to cease and desist in paragraphs 1 (a) and (b) of this Order and (2) that the respondents will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Seventh Region within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith.