C. H. Dutton Co.

In the Matter of C. H. D LITTON COMPANY and UNITED PAPER , NOVELTY & Toy WORKERS INTERNATIONAL UNION, C. I. O. Case No. R-4674'.-Decided March, 11, 1943 Jurisdiction : steam boilers and castings manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition; automatic renewal conti act, held no bar to a determination of representatives, although no notice was given by contracting parties prior to its renewal date and rival union's claim to representation was given subsequent to the renewal date but prior to the expiration date, when ,contracting parties during the period following the notice given by the rival organization and prior to the date when any renewed contract would have become operative, entered into negotiations and contemplated that a new agreement would be entered into supplanting the old ; election necessary. ,Unit' Appropriate for Collective Bargaining : (1) all employees working in the boiler shop of the Company with specified exclusions; (2) all employees of the Company exclusive of the boiler shop employees and other specifically named categories ; determining factor desires of employees ; determination of, dependent upon elections.., Mr. Donald B. Sharpe, of Kalamazoo, Mich., for the Company. Mr: Ralph E. Swagler, of New York City, for the United. Mr. R. V. Farrenkopf, of Hammond, Ind., for tre Boilermakers. Mr. John Kole, of Kalamazoo, Mich., for the Teamsters. 111r. Laois Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petition duly filed by-United Paper, Novelty & Toy Workers International Union, C. I. 0., herein called the United, alleging that a question affecting commerce had arisen' concerning the representa- tion of employees-of C. H. Dutton Company, Kalamazoo, Michigan, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Harold A. Cranefield, Trial Examiner. Said hearing was held at Kalamazoo, Michigan, on December 16, 1942. At the commencement of the hear- ing, the Trial Examiner granted motions 6f International Brother- hood of Boilermakers, Iron Ship Builders, Helpers and Welders of 48 N. L. R. B, No. 7. 27 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, Local 374, herein called the Boilermakers, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 7, herein called the Teamsters, to intervene.- The Company, the United, the Boilermakers, and the Teamsters ap- peared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On January 9, 1943, the Board issued an order reopening the record and remanding the proceeding for the purposes of further hearing. Pursuant thereto a further hearing was held on February 13, 1943, at Kalamazoo, Michigan, before Harold A. Cranefield, Trial Examiner. The Company, the United, and the Boilermakers appeared, partici- pated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the further hearing are free from prejudicial error and are hereby affimed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY C. H. Dutton Company is a Michigan corporation with its principal place of business at Kalamazoo, Michigan, where it is engaged in the manufacture of steam boilers and castings. From July 31, to October 31, 1942, the Company used raw materials valued at about $160,000, approximately 90 percent of which was shipped to it from points out- side the State of Michigan. During the same period the Company manufactured products valued at about $400,000, approximately 90 percent of which was shipped to points outside the State of Michigan. The Company admits that it is engaged in commerce within the mean- ing of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED United Paper, Novelty & Toy Workers International Union is a labor organization affiliated with the Congress of Industrial Organiza- tions, admitting to membership employees of the Company. International Brotherhood of Boilermakers, Iron Ship Builders, Helpers and Welders of America, Local 374, is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership employees of the Company. ' The Teamsters intervened because it is a party to a contract with the Company. How- ever, said contract does not cover any of the employees involved herein. C. H. DUTTON COMPANY 29 III. THE QUESTION CONCERNING REPRESENTATION On October 1, 1941, the Company and the Boilermakers entered into an exclusive contract. The contract was for a term of 1 year and provided that it should be renewed thereafter from year to year unless 30 days' notice was given by either party thereto prior to any annual expiration date. No such notice was given on September 1, 1942, and the contract was automatically renewed at that time. On September 9, 1942, the Boilermakers advised the Company that it desired that negotiations be commenced with the view of entering into a new con- tract. On September 10, 1942, the United notified the Company that it claimed to represent a majority of the Company's employees, includ- ing the employees covered by the Boilermakers' contract. On Septem- ber 15, 1942, the Company advised the Boilermakers that inasmuch as another labor organization was claiming to represent its employees it could not discuss any contract terms with the Boilermakers until the matter of representation was determined. The same day the Com- pany advised the Michigan State Labor Mediation Board of its problem. Sometime between September 15 and 25, 1942, a representa- tive of the Michigan State Labor Mediation Board advised the Com- pany that it would be proper for it to negotiate with the Boilermakers. On September 25, 1942, the Company met with the Boilermakers at which time the Boilermakers presented a proposed contract. No agreement was reached at that meeting with respect to the new pro- posals. On September 30, 1942,.the Company and the Boilermakers again met, at which time the Company presented counterproposals. . On October 29, 1942, the United filed its petition herein. On October 30, 1942, the Company terminated all negotiations with the Boiler- makers because of the pendency of the petition. No new agreement of any kind has been entered into between the Boilermakers and the Company. The Boilermakers contends that its contract of October 1, 1941, was renewed on September '1, 1942, and constitutes a bar to a present deter- mination of representatives and urges that the petition with respect to the employees covered by the alleged renewed agreement be dismissed. The Company stated at the further hearing that its position was 'strictly neutral and that it had no objection to the holding of an elec- tion at this time to determine the bargaining representative of its employees. We conclude that the actions of the Boilermakers and the Company between September 9 and 30, 1942, as set out above, constitute a waiver by both parties of their right to assert that the, October 1, 1941, con- tract was renewed and constitutes a bar to this proceeding. It is clear that the parties during the period of negotiations following September 9 and prior to October 1, 1942, when any renewed contract would '30 DECISIONS OF NATIONAIi LABOR RELATIONS BOARD have become operative, and for some. time thereafter, contemplated that a new agreement would be entered into supplanting the old. They in effect therefore treated the September 9 notice by'the Boiler- makers as timely and mutually waived the term of the 'old contract providing that, in the absence of notice 30 days prior to October 1, 1942, the old contract would be renewed for another year. Statements ,of the Regional Director and the Trial Examiner, intro- duced into evidence during the hearings, indicate that the United and the Boilermakers each represents a substantial number of employees in the unit alleged by each to be appropriate.- We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Boilermakers contends that all employees in the boiler shop of the Company, excluding clerical and managerial employees, constitute an appropriate unit. The United contends that all employees of the Company, including employees claimed by the Boilermakers, but ex- cluding clerical and managerial employees, employees covered by a contract between the Company and the Teamsters, employees covered by a contract between the Company and International Molders and Foundry Workers Union of North America, Local 388, herein called the Molders, and plant-protection employees, constitute an appro- priate unit. The Company took no position with respect to the appropriate unit or units. The contract between the Boilermakers and the'Company covered the employees claimed by the Boilermakers. , Evidence was intro- duced at the hearing which tends to show the appropriateness of the unit urged by the Boilermakers. On the other hand, evidence show- ing the integrated nature of the Company's operations indicates the propriety of including the employees in the boiler shop in a single unit with the employees claimed by the United. In this situation, we shall permit the scope of the bargaining unit or units to be determined in part by the results of separate elections. 2 The Regional Director reported that the United presented 75 membership application cards bearing apparently genuine signatures of persons whose names appear on the Com- pany's pay roll of November 15, 1942. There are approximately 127 employees in the unit urged by the United The Trial Examiner reported that the 'Boilermakers presented evidence indicating that it represents 31 employees whose names appear on the Company's pay roll of November 15, 1942. There are 63 employees in the unit claimed by the Boiler- 'makers. The Trial Examiner reported that the United presented 44 membership applica- tion cards bearing apparently genuine signatures of persons whose names appear on the Company's pay roll of November 15, 1942, and who are in the unit urged by the Boiler- makers. C. H. DUTTON COMPANY 31 On the basis of the entire record and in accordance with the fore- going findings of fact, we shall order elections among the employees of the Company within the groups described below : (1) All employees working in the boiler shop of the Company, excluding clerical and managerial employees , to determine whether they desire to be represented by the United, or by the Boilermakers, for the purposes of collective bargaining , or by neither. (2) All employees of the Company, excluding clerical and mana- gerial employees, employees presently covered b^ contracts between the Company and the Teamsters and Molders, persons employed in the boiler shop, and plant-protection employees, to determine whether or not they desire to be represented by the United for the purposes of collective bargaining. As stated above, there will be no final determination of the appro- priate unit or units pending the results of the elections . If the ma- jority in each group selects the United they will together constitute P. single appropriate unit. If the persons in the boiler shop choose the Boilermakers that group will constitute a -separate appropriate unit. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot among the em- ployees who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS By 'virtue of and pursuant ' to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain repre- sentatives for the purposes of collective bargaining with C. H. Dutton Company, Kalniazoo, Michigan, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction , under the direction and supervision of the Regional Director for the Seventh Region, acting in this mat- ter as agent for the National -Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among all em- ployees in, the groups described below, who ,were employed during the pay-roll period immediately preceding the date of this Direction, 32 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD including employees who did not work during such pay-roll period because,they were ill or on vacation or temporarily laid off, and in- cluding employees in the armed forces of the United States who pre- sent themselves in person at the polls, but excluding any who have since quit or been 'discharged for cause: (1)' All persons employed in the boiler shop of the Company, ex- cluding clerical and managerial employees, to determine whether they desire to be represented by United Paper, Novelty & Toy Workers International Unior?, affiliated with the Congress of Industrial Or- ganizations, or by International Brotherhood of ,Boilermakers, Iron Ship .Builders, Helpers and, Welders of America, Local 374, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. (2) All employees of the Company, excluding clerical andmana- gerial employees, employees presently covered by contracts between the Company and the Teamsters and Molders, persons employed in the boiler shop, and plant-protection employees, to determine whether or not they desire to be represented by United Paper, -Novelty & Toy Workers International Union, affiliated with the Congress of Indus- trial Organizations, for the purposes of collective bargaining.