Marshall Stove Co.

In the Matter of - MARSHALL STOVE COMPANY and UNITED STEEL, WORKERS OF AMERICA, CIO Case No. 10-R-1140.Deeided July 15, 1944 Mr. Lindsey ill. Davis , of Nashville , Tenn., for the Company. Mr. William Dumn, of Nashville, Tenn ., for the C. I. O. Messrs. Shelley lValdon and Draper Doyal, of Cincinnati, Ohio, for the Molders. Mr. Herbert 0. B. King and Miss Virginia Lee Roberts, of Chat- tanooga, Tenn., and Messrs. Russ O'Neal and Edward Winters, of South Pittsburg, Tenn.,' for the Stove Mounters. Mr. William C . Paisinger. Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by United Steelworkers. of America, CIO, herein called the C. I. 0., alleging that a question affecting Commerce had arisen concerning the representation of em- ployees of_ Marshall Stove Company, Lewisburg, Tennessee, herein called•tlI Company, the National Labor Relations Board provided for an.-appropriate hearing upon due notice before T. Lowry Whittaker, Trial Examiner. Said hearing was held at Lewisburg, Tennessee, on May 22, 1944. The Company, the C. I. O. International 'Molders and Foundry Workers Union of North America, Local No. 170 A. F. of L:, herein called the Molders, and Stove Mounters International Union, Local No: 14, A. F. of L., herein called the Stove Mounters, the latter two organizations being herein collectively referred to as the A. F. of L. Unions, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to file briefs with the Board.- At the hearing the A. F. of L. Unions moved to dismiss the petition on the grounds that (1) their bargaining contract with the company is'a bar to this proceeding, and (2) the C. I. O.'s evidence of representation with respect to the employees within'the '57N.L.R B., No. 71. 375 '376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit it alleges to be appropriate is not substantial enough to raise a question concerning representation. The Trial Examiner reserved ruling upon this motion for the Board. For reasons stated in Section III, infra, we hereby deny the motion. The Trial Examiner's rulings made at the hearing are free from prejudicial error aiid-are hereby affirmed. ` Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Marshall Stove Company is a Tennessee corporation having its prin- cipal office and place of business at Lewisburg, Tennessee, where it is engaged in the manufacture of cast iron and magnesium castings. During the last 12 months the Company purchased raw materials con- sisting of iron, steel, magnesium, coal, equipment, machinery, and sup- plies valued in excess of $500,000, of which approximately 60 percent was shipped to its Lewisburg, Tennessee, plant from points outside the State, of Tennessee. For the same period the Company's finished_prod- ucts consisting of stoves, stove parts, magnesium castings and magne- sium casting parts, were valued in excess of $800,000, of which ap- proximately 90 percent was shipped to points outside the State of Ten- nessee. The Company admits, and we find,' that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Steelworkers of America, is a labor organization affiliated' with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. . International Molders and Foundry Workers Union of North Amer= ica, Local No.. 170, and Stove'Mounters International Union of North America, Local No. 14, are labor organizations affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE-QUESTION CONCERNING REPRESENTATION From August 1938 to about June 16, 1943, the Company operated under several consecutive collective bargaining contracts with the. Molders and the Stove Mounters; respectively. By virtue of the afore- said contracts the Molders was recogiiiked as the exclusive bargaining - representative of all employees of the Company engagedin the produc- tion of castings and the Stove Mounters was recognized as the ex- MARSHALL STOVE, COMPANY 377 'elusive bargaining agent of those employees of the Company engaged in certain' manufacturing operations which follow the production of castings. The respective terms of each set of contracts ran for rela- tively parallel periods of time. On June 16, 1943,, the A. F. of L. Unions, jointly entered into a contract with the Company covering a single bargaining unit comprised of the two groups of employees who had theretofore been bargained for as separate units. This latter contract provided that it should remain in effect until June 16, 1944. It also contained a provision that, "Either party desiring to change the terms of this agreement shall notify the other party in writing sixty (60) days before expiration of this agreement, otherwise this agreement continues from year to year." , - On or, about January 17, 1944, the C. I. O. notified the Company that it represented a majority of the employees within an alleged ap- propriate bargaining unit and requested the Company not to enter into a new contract or renew the current bargaining agreement with the A. F. of L. Unions pending a determination of representatives,by the Board. By letters dated April 15 and 17, 1944, respectively, the Molders and the Stove Mounters, separately informed the Company that they desired to renew their contract with the Company for an additional year pursuant to the automatic renewal 'clause: On, April 20, 1944; the C. I. O. filed the amended petition herein. The A. F. of L. Unions contend that the contract of June ,16, 1943, as renewed for an additional year constitutes a bar to a pres- ent determination of representatives. We cannot agree with this contention. , It is the established policy of the Board that a bargaining contract -executed or renewed after the employer has received notice that a rival union challenges the contracting union's status as the exclusive bargaining representative is no bar to a-determination of representa- tives.1 Therefore, since it is undisputed that the Company received notice of the C. I. O's claim of representation prior to the renewal date of June 16, 1943, contract, we find that the contract is not a bar to an immediate determination of representatives. _ We also find, contrary to the contention of, the A. F. of L. Unions, that -the statement prepared by a Field Examiner v,f the Board, in- troduced into,evidence at the hearing, indicates that the' C. I. O. represents a substantial number of employees within the unit here- inafter found to be appropriate.2 'Matter of CraddocA-Terry Shoe Cori), 55 N L R. B 1406 1 The Field Examiner reported that the C I. 0 submitted 208 application for membership cards bearing the names of persons whose names appear on the Company's pay roll of February 26, 1944, which contains the names of 52S, persons within the unit it alleges to be appropriate. The A. F. of L.'Unions rely upon their contract with the Company to substantiate 'their respective representation claims. According to the, Field Examiner's report, the aforesaid 378 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD 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 Contentions of the parties .'The C. I. O. seeks a single plant-wide production and maintenance unit while the A. F. of L. Unions contend that the employees of,the Company within their respective jurisdictions comprise two separate appropriate units. The Company takes a neutral position. The Company's plant Until recently the Company was engaged in, the manufacture of stoves ,arid stove parts; however, within the past 2 years its, plant was converted for the purpose of-producing magnesium castings for aircraft motors and gun turrets. Before conversion, the Company's plant consisted of two separate buildings, approximately 30 feet apairt, known as the north and south plants. The north plant housed the foundry in which gray iron castings for stoves were produced and the south plant contained the stove assembly operations. Since the Company has been engaged in war production, the alley-way between the north and south plants has been covered in order to provide more operating space, so that now all the Company's operations are per- fornied.urider a single roof. In converting from the manufacture of gray iron castings to magnesium castings the Company's operations have undergone both functional and physical changes involving new processes, 'rearrangement of departments, employment of new person- nel, and the addition of a number of new departments. As a result of this, operational expansion many of the Company's older em- ployees,.because of their skill and experience, have been promoted and transferred to new or different departments. - History of collective bargaining As previously mentioned in°Section UI, supra, prior to the execution of their joint bargaining contract of June 16, 1943, the Molders and the Stove Mounters each represented a group of the Company's em- ployees pursuant to the provisions of successive separate collective bargaining agreements dating back to August 1938. The Molders' contract unit consisted of all employees engaged in the production of castings while the Stove Mounters represented all employees engaged in manufacturing operations subsequent to the production of castings pay roll lists 184 persons in the unit sought by the Stove Mounters and 310 persons in the unit which the Molders alleges to be appropriate. 'MARSHALL STOVE COMPANY '379- The employees comprising the Molders ' unit, while not strictly a craft group, were for the most part employed ' in the north plant, and the employees in the Stove Mounters' contract unit worked in the south plant. Under the Company's present operational set-up the , A. F. of L. Unions found it difficult to adhere to departmental lines in identi- fying their respective units . This was especially true with respect to the new departments which the Company found it necessary to create. As a result the A. F. of L . Unions jointly executed the contract -of June 16, 1943. Throi gh6ut`t,his contract the A .'F. of L. Unions are referred to as the "Union." Section III of the contract reads as follows : The employees, recognized as the appropriate unit for collective bargaining , are generally those engaged in the production and processing of magnesium castings ; Molders, Core Makers, Chill Department Workers, Core Assemblers , Melters, Pourers, Shake- out, Knock-out, Sandblast , Band Saw , Rough Lathe, Boring Mill, Drill Press, Chip, Heat Treat , Inspection , Dip, Rotary File, Grind, Polish, Buff; Final Sandblast, Pack and Stencil, Ship, Pressure Test, Chrome Pickle, Impregnating , Repair Department Workers; and Receiving Labor, excepting Plant Guards , Inspec- tors, Supervisors , Timekeepers, clerical employees, officials, Laboratory Personnel and Executives.. The contract further provides that "any jurisdictional disputes between unions or crafts will be adjusted between unions or crafts . .." The contract also expressly acknowledges the Company's right to "employ, transfer or promote persons of its own selection . .." It provides for a single plant grievance committee composed of three, employees, of which no more than one shall come from any department. Wage scales appear under the heading, "rates," in an appendix to the contract. All other provisions of the contract such'as hours of employment, over- time, and.other conditions of employment, are set out generally for all employees. The A. F. of L. Unions contend that the long history of collective bargaining 'among the Company's employees on the basis of two separate units militates against the establishment of the single plant- wide unit sought by the C. I. O. They -argue that, although they en- tered into a single bargaining agreement with the Company on June 16,1943, they have maintained their separate identities and the separa- tion of their units has been recognized under this contract.- While bargaining history is relevant and often persuasive in de- termining the appropriate unit, it is but one of the factors to be con- sidered and, under all the circumstances in this case, we are convinced that it,is not conclusive. The conversion to war production has pro- duced changes so fundamental that the past history of bargaining can- not be considered as controlling the determination of the appropriate DSO DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit. It- is clear that -all the Company departments are functionally interdependent. The record supports the conclusion that, under the 'Company's present operational set -up, the bargaining units previously established by collective bargaining agreements have lost their identi- 'ties,and may no longer be considered appropriate. It is apparent that, this fact was also recognized by the, contracting parties when they negotiated their last contract. Furthermore, the A. F. of L. Unions have indicated their willingness'to continue their joint agreement for another year. Accordingly, we find, that, a single plant-wide unit is -appropriate for the purposes of collective bargaining. There remains for consideration the specific composition of the unit. At the hearing the parties based their contentions as to the ap- propriate unit upon a current classified pay roll of the Company which 'was introduced into evidence. The C.'I. O.'s proposed unit includes all employees' in the Sand Conditioning Department, Core Department, Molding Department, Pour and Shakeout Department, Melting Department, Maintenance Department, Pattern Department, Reclaim Department, Rough Cleaning Department, Gate Removing Department, Heat Treat Department (except junior clerks), Rotary Filing Department, Final Operations Department, Shipping Depart- ment, Receiving Department (except clerks-stockroom, clerks-stock- .room beginners and clerk-receiving), Carpenter Shop, Stove Repair Parts Department, and General Factory Department (except matron :and laboratory employees), of the Company, but excludes militarized guards and watchmen, employees of the Experimental Department, Lay-out and`Dimensional Department, and Personnel Department, office clerical help, timekeepers, general foremen, foremen class I, fore- '',men class Ih, shift foremen and all supervisors with authority to recommend hiring and discharging. . A combination of the,units sought by the A. F. of L. Unions coincides substantially with the single knit which the C. I. 0. claims -is appropriate. The parties, however, disagree with respect to the inclusion of certain employee classifica- tions in the appropriate unit. We shall discuss each of these disputed categories below : Head sand mix operator: This employee works in the sand con- ditioning department. He is in charge of about 12 employees and has authority effectively to recommend their discharge. He spends the majority of his working time supervising the work of these em- ployees whose function- it is to, run tests on sand, and the remainder -of the time he conducts special tests on the 'sand for, moisture content and permeability. He reports directly to the general foreman of the department. The C. I. 0. 'is the- only interested party who desires his inclusion. In view of his apparent supervisory 'authority, we' shall exclude the -head sand^mix operator from the appropriate unit. MARSHALL STOVE COMPANY 381 Melting control operator: This position is held by a female'em ployee in the Melting Department. She works in the foundry and sits in a chair beside an electric control switch and a dial which records. the temperature of the melting pot. It-is her- duty to note the tem= perature indicated on the dial and to inform the melting helpers whether or not more heat should be applied"to the melting pot. The; operator is paid an hourly wage and has no supervisory duties. - She- is under the supervision of the foreman in charge of the melting- operation. The Company desires her exclusion on the grounds that, her duties are purely clerical. The C. I. 0: and the A. F. of L. Unions would include her in the appropriate unit. Since her duties are, closely connected with the production of castings, we shall include the- malting control operator in the appropriate unit. Welder: The welder in dispute is in charge of the` new Reclaim, Department of the Company. He exercises a high degree of skill in- the performance of his welding duties. He supervises four employees,, has authority to recommend' their discharge, spends approximately 75 percent cf his working time in supervising and the remaining 25. percent performing wekliug operations, and reports directly to the- plant superintendent. His pay is comparable to that of a, shift forve- tnan. , The C. I. 'O. and the A. F. of- L. Unions would include this- welder in the appropriate unit, while the Company desire's his ex-- elusion. Since it appears that his duties bring him within our cus- tomary definition of supervisory employees, we' shall exclude- the welder in charge of the Reclaim Department from the appropriate unit Production clearers: The Company employs a number of-high-School' boys in its General Factory Department who are classified as produc- tion chasers. Certain special castings must be produced within, a limited time and it is the duty of the production chasers to follow upa each special casting to see that it receives special and immediate at- tention on the production line. They report to the plant superinten- dent. In the performance of their duties the production chasers keep a running record of each special casting. The Company contends that they should be excluded from the appropriate unit because of their'.- clerical duties. The C. I. O. and A. F. of L. Unions- desire that the production chasers be included in the'unit. 'Since it appears thahtheir duties and interests are closely related to production,.we,shall inchul-v the production chasers in the appropriate unit. Inspectors and inspectors-junior: These employees are listed as-part of the General Factory .Department, but are assigned throughout the, plant to regular stations for the purpose of checking castings for de- fects. They work under the supervision of the- chief inspector and,, in connection with their inspection duties, they keep records and' report defects to the chief inspector who in turn, reports-to.the'foremant 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in charge-of the particular job reported. .Experience and skill is the only factor differentiating inspectors from inspectors-junior. Neither of these classifications of employees has authority to make recommenda- tions affecting' the production workers pay or. employment status. They are transferred from station Jo station throughout the plant. The C. I. O. desires their inclusion iii the appropriate unit. The Com- 'pany seeks their exclusion on the ground that they are It part of man- agement. The A. F. of L. Union do not take a positive position with respect to these employees. Since inspectors and inspectors-junior work in the plant in close proximity to the production workers,. have no supervisory authority'ancl are in no respect part of management, we :shall include them in the appropriate unit. In view of the foregoing facts and upon the entire record in the case, we find that all'employees of the Company ernployed'in the Sand Con- ccitioning Department (except the head sand mix operator), Core De- partment, Molding, Department, Pour, and Shakeout Department, Melting Department(including the meltingc'ontrol operator), Mainte- nance Department, Pattern Department, Reclaim Department (except Welder), Rough Cleaning Department, Gate Removing Department, Heat Treat Department (except junior clerks), Rotary Filing De- partment, Final Operations Department, Shipping , Department, Receiving Department (except clerks-stockroom, clerks-stockroom beginners and clerk-receiving)', Carpenter Shop, Stove Repair Parts Department, General Factory Department (except matron and labora- tory employees, but including production chasers and inspectors and inspectors-junior), excluding militarized guards and watchmen, em- ployees of the Experimental Department, Lay-out and Dimensional I)epartmerit, and Personnel Department, office clerical workers, time- keepers, general foremen, foremen class I, foremen class II, shift fore- men, and all other supervisory employees' with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. . , V. THE DE1ERMINATION 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 the Direction of Election herein, subject' to the limitations ',an, and additions ' set forth in the Direction.3 ' ,s At the healing the C I. 0 and the A. P of L Unions requested that their names appear on the ballot as heiemafter set forth in the Direction of Election MARSHALL STOVE COMPANY 383 'We shall place the A. F. of L. Unions jointly on the ballot and if they are selected by a majority of the employees voting in the election hereinafter directed, they will be jointly certified as the single repre- sentative of the employees comprising the appropriate unit. 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 3, it is hereby DIRECTED (hat,-as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with,Marshall Stove ,Company, Lewisburg, Tennessee, an election by secret ballot shall be conducted as early as:possible, but not later than thirty (30) days from, the di to of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, 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 pre- sent themselves in person at the polls, but excluding any who have since quit or been discharged for cause, and have not been rehired or rein- stated prior to the date of the election, to determine whether they desire to be represented by United Steelworkers of America, CIO, or by I•i- ternational Molders and Foundry Workers Union of North America, Local No. 170, A. F. of L., a'id Stove Mounters Union of North Amer- ica, Local No. 14, A. F. of L., jointly, for the purposes of collective bargaining, or by neither. Mn. GEnArn D. REILLY took no part in the consideration of the above Decision and Direction of Election.