Link-Belt Speeder Corp.

,In the Matter of LINK-BELT SPEEDER CORP. and UNITED FARM EQUIP- MENT AND METAL WORKERS or AMERICA, C. I. O. Case No. R-4991.-Decided April 7,194,3 Jurisdiction : power cranes, shovels, and drag lines manufacturing industry. Investigation and Certification of Representatives : existence of question : refusal to accord petitioner recognition because of prior certification and contract with a rival organization; prior certification in effect for more than one year, held no bar ; contract which would expire within 2 months, held no bar ; organization which submitted authorization, cards' dated more than a year ago, accorded place on ballot, in view of its prior representatives status ; election necessary. Unit Appropriate for, Collective Bargaining : production `and maintenance em- ployees with specified inclusions and exclusions ; personnel clerks whose duties were found to be of a confidential nature excluded; store record clerks who had interests' more in common with the personnel clerks and other clerical employees, excluded; service engineers whose functions were unrelated to employees within the unit, excluded; 'time clerks, included in view of their close association with the production employees ; watchmen, although pre- viously included in a contract with one of the organizations, excluded, in view of the change in their status from civilian watchmen to militarized guards. Pope & Ballard, by Mr. Henry E. Sey f arth, of Chicago, Ill., for the Company. Mr. H. E. Baker,.of Chicago, Ill., and Mr. Charles W. Hobbie, of Cedar Rapids, Iowa, for the C. I. O. Jordan cC Jordan, by Mr. Carl F. Jordan, of Cedar Rapids, Iowa, and Messrs. George Samuelson and Leonard Mattson, of Cedar Rapids, Iowa, for the A. F. of L. Mr. Harlan E. King, of Cedar Rapids, Iowa, for the Independent. Il1r. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly, filed by United Farm Equipment and Metal Workers of America, C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen concerning the representation of employees of Link-Belt Speeder Corporation, Cedar Rapids, Iowa, herein called the Company, the National Labor Relations Board pro- 48 N. L. R. B., No. 117. 992 LINK-BELT SPEEDER CORP. 993 vided for an' appropriate hearing upon due notice before Harry Brown- stein, Trial Examiner. Said hearing was held at Cedar Rapids, Iowa; on March 11, 1943. The Company, the C. I. 0., and ,International Association of - Machinists, Harmony Lodge No. 831, affiliated with the American Federation of Labor, herein called the A. F. of L., and Independent Allied Workers of Cedar Rapids, herein called the Inde= pendent, appeared, participated, and were afforded full opportunity to be heard,,to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The A. F. of L. moved at,the hearing to dismiss the petition filed by the C. I. O. Ruling on the motion was reserved for the Board. In view of the findings set forth in Section III, infra, the motion is hereby denied. The rulings of ,the Trial Ex- aminer made at the hearing are free from prejudicial error and are hereby affirmed. , On March 18 and 19, 1943, the Company and the A. F. of L., respectively, filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT . - I. THE BUSINESS OF THE COMPANY Link-Belt Speeder Corporation, an Illinois corporation, operates a plant in Cedar Rapids, Iowa, where it is engaged in the manufacture of power cranes, shovels, and drag lines. In its manufacturing opera- tions the Company uses material consisting principally of rolled steel, cast steel, and cast iron. The value of such material purchased an- nually by the Company for use in the Cedar Rapids plant exceeds $1,000,000. All the material is obtained from sources outside the State of Iowa. The sales value of the products of this plant annually exceeds $6,000,000, of which 95 percent represents the value of products shipped to points outside the State of Iowa. II. THE ORGANIZATIONS INVOLVED United Farm Equipment and Metal Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. International Association of Machinists, Harmony Lodge No. 831,- is a' labor organization affiliated with, the American Federation of Labor, admitting to membership employees of the Company. Independent Allied Workers of Cedar Rapids is an unaffiliated labor organization, admitting to membership employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION In October 1942 and again in January 1943, the C. I. O. requested the Company to recognize it as the collective bargaining representa- 994 DECISIONS , OF NATPONAL • LABOiR -RELATIO2i S BOARD tive'of the Company's employees. Each time the Company refused to grant the request, replying in substance that the Board had certi- fied the A. F. of L.• as the collective bargaining representative of its employees and that -it -had a contract with the latter organization. 'In support of its motion to dismiss the petition of the C. I. O., which has been referred to previously, the A. F. of L. stated, first, that the C. I. O. had failed to show the number and percentage of employees designating it as their representative and, secondly, that the Board had certified the A. F. of L. and the latter now had a contract with the Company. The second of the above grounds clearly has no merit. The Board certified the A. F. of L. on February 9, 1942.1 Obviously this prior certification, having been in effect for over a year, is' no bar to a present determination of representatives.' The contract to which the A. F. of, L. -and the Company have reference was entered into on May 26, 1942.' It provides that it shall remain in effect for 1 year and from year to year thereafter subject to being terminated pursuant to writ- ten notice by either party 30 days prior to the end of any yearly period. There has been no such notice. However, since the auto- matic renewal provision of the contract will not operate until April 26, 1943, and the contract will shortly have been in effect for 1 year '(on May 26, 1943), it does not preclude the Board from making an investigation and determining a bargaining representative for the purpose of negotiating a new contract for the period following May 26. 1943.3 - A statement of the Regional Director, introduced' in evidence at the hearing, supplemented by a statement of the Trial Examiner made at the hearing, indicates that each of the labor organizations repre- sents a substantial number of employees in the unit hereinafter found to be appropriate.4 Since we find that the C. I. O. represent's a sub- stantial number of the Company's employees, the first contention, of 'Matter of Link-Belt Speeder Company and International Association of Machinists, 'Local 831, 38 N. L. R. B 1034. The C. I 0 was not a party to this proceeding. 2 See Matter of LaPlant-Choate Manufacturing Co., Inc. and United Farm Equipment Workers Organizing Committee, Local 116, affiliated with the C. 1 0.,, ' 29 N. L. It. B. 40, 43, and cases cited therein. , I 8 Matter of The Goodyear Aircraft Corp. and Pattern Makers League of North America '(AFL), 45 N. L. It. B 369. 4 The ' statements of the Regional Director and the Trial Examiner are summarized in the following table Authorization Employees Signatures of Union signatures in the unit employees submitted in the unit C. 1.0 - 218 352 181 A. F of L 113 - 352 75 Independent---------------------------------------- 102 352 83 LINK-BELT SPEEDER 'CORP. 995 the A.F. of L. in support of its motion to dismiss the,C. I. O.'s petition has no merit. 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 parties stipulated that an appropriate unit would consist in part of all production and maintenance employees of the Company, 'including issue clerks,,stock clerks, and receiving clerks, but excluding ,office employees, engineering department employees, and full time su- pervisory employees (including full time foremen). The parties were not in agreement as to whether certain "confidential" employees, the service engineers, and the watchmen, should be included in the unit. "Confidential" employees The Company's production and maintenance employees, including approximately 30 issue, stock, and receiving clerks,5 number approxi- mately 350. In addition to such employees, there are some 30 em- ployees in the main office whom the parties agree to exclude from the unit and a like-number of plant clerical employees whom the Com- pany regards as confidential. The latter group consists of personnel clerks, store record clerks, and time clerks. The Company would exclude all three types from the production and maintenance unit on the grounds that they are confidential employees, that they perform strictly office work, and that many would not be located in the plant at all were the main office not congested. The C. I. O. and the Independent contend that these clerks are essentially production employees and do not perform con= fidential work. Both the latter organizations are agreed, however, that personnel clerks might be, excluded from the production and maintenance unit. The A. F. of L. takes no position as to the alleged confidential nature of the work of these employees, but agrees to exclude all clerks not engaged in some manual work. The personnel clerks and the store record clerks are situated in an office in the middle of the plant. The former keep the personnel records of the Company and are engaged in no manual labor. The latter keep records of the amount and cost of the materials coming into the plant, the materials going out of the plant, and the materials on hand. Some of the store - record clerks are engaged in manual labor in addition to their clerical work. The Company'contends that the time clerks, personnel clerks, and the store record' clerks not per- These clerks are engaged in manual labor approximately 75 percent of their time. 521247-43-vol. 48-64 996 DECISIONS OF NATIONAL LABOIR. RELATIONS BOARD forming any manual labor are excluded from the contract with the A. F. of L. as "confidential employees." The A. F. of L. does not dispute this contention. Both the personnel and the store record clerks are occasionally called to the main office in the performance of their duties. The record is not clear as to whose supervision they are under, indicating only that some clerks are responsible to the- cost accountant, others to the plant accountant, and still others to the general superintendent. Some 20' of these clerks have been placed outside the main office owing to crowded conditions therein. We find that the personnel clerks are clerical employees, and that their work, involving as it does access to records of employer-employee relationships, is of a confidential nature. We shall, therefore, exclude the personnel clerks from the appropriate unit. We shall exclude the store record clerks from the unit because the nature of their work and their proximity to the personnel clerks tends to give them more interests in common with the personnel clerks and other clerical employees, than with the production and maintenance employees. The Company employs approximately eight time clerks, who are situated at exposed- tables throughout the plant proper where they punch time or job cards which the production employees present to them, "and just handle that particular phase of timekeeping." They have no occasion to work in the main office, but merely turn in the time cards there. The time clerks are responsible in part to the fore= men of the, production department where they are situated, particu- larly in that they must keep the proper time records for that depart- ment. We find that the aforesaid functions performed by the time clerks are not of a confidential nature, and that unlike the personnel and the store record clerks, the time clerks are in constant association with the production employees because of their location throughout the plant proper.' We shall include the time clerks in the appropriate unit. Service engineers The Company has six service engineers, three of whom have their headquarters in Chicago and seldom report to the Cedar Rapids plant. The Company, the C. I. 0., and the A. F. of L. agree to exclude them ; only the Independent contends that they should be included. The service engineers travel out in the field giving instructions as to the operation of machinery installed by the Company and rendering repairs. When in the field, all, are under the supervision of the Chicago office.' The three men who report to the Cedar Rapids plant perform miscellaneous jobs about the plant when they are not'in the field. Such work amounts to approximately 15 percent of their-total LINK-BELT SPEEDER CORP. 997 monthly working hours. All six men are paid on a salary basis, even .when working in the plant. According to the undisputed testimony of the Company's vice president and plant manager, the service engi- neers have never been included in a collective bargaining contract. We find that the functions of the service engineers are quite unre- lated to those of the production and maintenance employees, and that, because the major part of the work of the former is performed in the field away from the supervision of the Cedar Rapids plant, they. have interests wholly apart from those of the production and maintenance employees., We shall exclude the service engineers from the appropri- ate unit. Watchmen The Company employs three inside watchmen and one yard watch- man. The Company.would exclude the watchmen; the C. 1. 0. and the A. F. of L. would include them ; and the Independent takes no definite position. These men are on duty only at night. All of them make hourly rounds which take approximately 15 minutes out of every hour. The three inside watchmen perform ordinary janitor chores in between rounds. At present the watchmen are covered by the A. F. of L. con- tract. However, in October 1942, they were sworn in as civilian auxil- iaries of the Military Police by the United States Army. They were not armed or uniformed at the time of the hearing, but the Company expressed an intention to arm and uniform them in the near future. In view of the change in their status from civilian watchmen to militarized guards, we shall exclude the watchmen from the appro- priate unit We find that all production and maintenance employees of the Com- pany, including issue clerks, stock clerks, receiving clerks, and time clerks, but excluding office employees, engineering department em- ployees, full-time supervisory employees (including full time fore- men), personnel clerks, store record clerks, service engineers, and watchmen, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation' which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction of Election herein, subject to the limitations and additions set forth therein. The A. F. of L. contends that the name of the Independent should not appear on the ballot in any election which the Board may direct because the Independent has,made no substantial showing of repre- 998 DECISIONS OF NATIONAL LABOR RELATION'S BOARD sentation among the Company's employees. The authorization cards submitted by the Independent were dated from January 28, 1940, to December -16,'1941. While under certain circumstances we might re- gard such cards as insufficient proof of aepresent representation, in view of the special circumstances existing in the instant proceeding we are persuaded that the Independent should be accorded a place on the ballot 6 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 Relations 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 represent- atives for the purposes of collective bargaining with Link-Belt Speeder Corporation, Cedar Rapids, Iowa, 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 supervi- sion of the Regional Director for the Eighteenth 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 em- ployees 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 present themselves 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 the C. I. 0., by International Association of Machinists, Local No. 831, or by Inde- pendent Allied Workers, for the purposes of collective bargaining, or by none.7 9 Thus , the Independent was the collective bargaining representative of the Company's employees from 1937 to 1941 Just over a year ago, on January 22, 1942 , it lost an elec- tion to the A. F. of L by the close vote of 109 to 132. Since that time the Independent has held irregular Imeetings on the average of once every 2 months, which have been attended by 7 to 10 employees. ° The names of the labor organizations are set out in the 'Direction in accordance with expressions of the unions made at the hearing as to how they desired their respective names to appear on the ballot.