Precision Castings Co., Inc.

P In the Matter Of PRECISION CASTINGS CO., INC. and INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, CIO, LOCAL 704 Case No. R-4943.-Decided March 30, 1943 Jurisdiction : castings manufacturing industry. Investigation and Certification of Representatives: existence of question: re- fusal to accord 'petitioner recognition because of the alleged existence of a contract with a rival organization ; contract, no bar, when there was substan- tial doubt as to the continued existence of the contracting union ; contracting union accorded place on ballot in view of the doubt as to its continued existence ; election necessary. Unit Appropriate for Collective Bargaining : production, and maintenance work- ers; excluding executives, superintendents, foremen, assistant foremen and working foremen, the guards, the laboratory employees, and the office and clerical employees. Messrs. Hiscock, Cowie, Bruce, Lee, .and Mawhinuney, by' Mr. H. Duane Bruce, of Syracuse, N. Y., for the Company. Mr. Sidney H. Greenberg, of Syracuse, N. Y., and Mr. Neal East- man, of Fayetteville, N. Y., for the C. I. O. Mr. Carl R. Shanahan, of Syracuse, N. Y., for the Independent. Miss Viola James, of counsel to the Board. DECISION' AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by International Union of Mine, Mill & Smelter Workers, Local 704, affiliated with the Congress of Industrial • Organizations,, herein called the C. I. 0., alleging that a question affecting commerce had arisen concerning the representation of em- ployees of -Precision Castings Co., Inc., of Fayetteville, New York, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Francis V. Cole, Trial Examiner. Said hearing was held at Syracuse, New York, on February 24, and 25, 1943. The Company, the C. I. 0., and Pre- cision Employees Independent Union, unaffiliated, herein called the Independent, appeared, and participated. All parties were afforded full 'opportunity to be heard, to examine and cross-examine wit- 48 N L R. B, No. 97. 835 52129 7-43-vol 48-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings are free from prejudicial error and are hereby affirmed. On March 8 and 10, 1943, the Independent and the Com- pany, respectively, filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a New York corporation, is engaged at Fayetteville, New York, in the manufacture of die castings. During 1942, the Company used at its Fayetteville plant raw materials valued in excess of $1,000,000, approximately 75 percent of which represented shipments from points outside the State of New York. During the same period, the Company manufactured finished products valued in excess of $1,000,000, of which approximately 65 percent represented shipments to points outside the State of New York. For the purpose of this proceeding, the Company admits that it is engaged ,in com- merce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Union of Mine, Mill, & Smelter Workers, Local 704, affiliated with the Congress of Industrial Organizations, and Pre- cision Employees Independent Union ,,' unaffiliated, are labor organ- izations admitting to membership employees of the Company. III.TIIE QUESTION CONCERNING REPRESENTATION OA January 11, 1943, the C. I. O. notified, the Company' that it represented a majority of the employees and requested recognition as the bargaining agent. _On January 14, 1943, the Company refused the request on the grounds of an existing contract with the Inde- pendent. The Field Examiner's statement, introduced into evidence at the hearing, indicates'that the C. I. O. represents a substantial number of employees in the alleged appropriate unit., The Company and the Independent entered into an exclusive bar- gaining contract on November 24, 1941, effective for 1 year and from year to year thereafter in the absence of a 30-clay notice given by either party prior to the expiration of any yearly term. No notice of 'The Field Examiner reported that the C. I 0. submitted 479 applications for member- ship, dated between December 1942 and February 1943, with 13 undated; that all the applications bore apparently genuine original signatures , and that 437 signatures are the names of persons listed on the Company's pay roll of January 24, 1943, which contains 592 persons within the claimed unit. PRECISION CASTINGS CO., INC. 837 termination has been given. Both the Independent and the Company contend that the contract renewed automatically and is a bar to an election herein. The C. I. O. contends that before the renewal date transpired the Independent became defunct and further claims that 'the majority of the employees are now represented by the C. I. O. The Independent was organized in 1938, and ,in 1939 entered into, a series of contracts, the last being the contract here asserted as a bar. During 1941 and until May 1942, the Independent held regular monthly meetings, and claimed a membership of approximately 500 employees. However, there was an average attendance of only 50 to 60 persons at meetings during the major part of 1941, and from Octo- ber 1941 until May 1942, attendance further decreased to as few as 10 to 20 employees. No meetings were held from May until Septem- ber 1942. The October meeting was an annual meeting for the pur- pose of electing officers. Only 4 persons attended, and no election was held. At that time there were only 8 members who were not more than 6 months in arrears in the payment of - dues. Apparently the grievance - committee has not, functioned since' around September or OctOb6i'1942.` "Oil January 15, 1943,' a special membership -meeting was called and attended by 38 persons who, on the payment of $1 each, were allowed voting privileges. They voted 31 to 7 to affiliate with the C. I. O. There have been no meetings since that date. We are of the opinion that the record raises a substantial doubt as to the continued existence of the Independent, and, accordingly, we find that the contract is not a bar to an election.2 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 C. I. Q. seeks a unit of all production and maintenance workers, excluding foremen, assistant foremen,. and laboratory, office and clerical employees. The Independent contends that the appropriate unit should consist of the employees covered by its contract.' The Company apparently contends that the appropriate unit should in- clude all the employees except executives, superintendents, and fore- men. The parties were in dispute as to several classes of employees falling within the above-named inclusions and exclusions. 2 See Matter of National Lead Compatiy and National Council of Gas, Coke & Chemical Workers , etc., 45 N L . R B. 182 ; and Matter of National Battery Company and Interna tional Brotherhood of Electrical Workers, Local Union B-1192, 28 N L. R B 826 3 The unit dehned in the contract is. "All persons who are paid on an hourly rate, exclu- sive of foremen and assistant foremen ; and such salaried employees who are not foremen,_ efficiency clerks, accountants, auditors, engineers, or metallurgists." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant, foremen • and working foremen: The C. J. 0. and the Independent would exclude assistant foremen, whom the Company apparently would include. The C. I. O. and the Company would include working foremen; the Independent prefers the Board to de- cide on their inclusion or exclusion. There are 25 working foremen. They have the authority, to recommend hiring and discharging. Both groups of foremen were excluded by the contract 4 We find that they should be excluded. There are six militarized guards, one of whom is the chief guard. Since they, perform specialized plant-protection duties and were ap- parently not covered by the contract, we shall exclude them. There are four laboratory employees, including a metallurgist, a chemist, and two assistants. The C. I. O. would exclude all four; the Independent would exclude only the metallurgist; the Company would include all four. They spend the major portion of their time in a laboratory, and their duties are of a technical nature. They had no union representative to handle their grievances under the contract. We shall exclude the laboratory eftiployees. Office and clerical employees: There are approximately 62 office and clerical employees located in the main office. ' Some are hourly paid employees and some are on a salary. The C. I. O. would exclude all of them. The Company would include all but the personnel manager and the office, manager. The Independent would include all except about 16, identified as engineers, accountants, auditors, efficiency clerks, the personnel, manager and his assistant, the paymaster, the office manager, and the metallurgist.5 In addition to these employees, there are 12 hourly paid factory clerks located in offices throughout the 'factory, whom the C. I. O. Would exclude and whom the Inde- pendent and the Company would include.' Although all of these em- ployees except those in a supervisory capacity were covered by the contract, they have not been represented under the contract for some time. We shall follow our customary practice and, exclude the office employees and the clerical employees, both in the office and in the factory. We find that all production and maintenance workers, excluding executives, superintendents, foremen, assistant foremen and working foremen, the guards,. the laboratory employees, 'and the office and clerical employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4 The assistant foremen were specifically excluded ; the working foremen were not. Ilow= ever , counsel for the Independent stated that neither the working' foremen nor guards were members of the Independent Apparently they handled their grievances individually. 5 The metallurgist w as included in this group as well as in the laboratory group. PRECISION CASTINGS CO., INC. 839 V. THE DETERMINATION OF REPRESENTATIVES Although the continued existence of the Independent is in doubt, we shall nevertheless accord it a place on the ballot. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period immediately pre- ceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested, in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions 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 represents- tives.for the+purposes of collective bargaining with Precision Castings Co., Inc., Fayetteville; New York, an election 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 Third Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the unit found, appropriate in Section IV, above, who were employed 'during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who preseritthem'selves in person at the polls, but excluding those employees who have since quit or been discharged for cause, to determine whether they desire to be represented by International Union- of Mine, Mill & Smelter Workers, Local 704, affiliated with the Congress of Industrial -Organizations,, or by Precision Employees Independent Union for the purposes of collective bargaining, or by neither. 1