Kearney & Trecker Corp.

In the Matter Of KEARNEY & TRECKER CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA (UAW-CIO) Case No. 1,9-R-673.-Decided' JanuaPy 19, 1945 Lam from, Tighe, Englehard c0 Peck, by Mr. Leon B. Lam from, of Milwaukee, Wis., and Mr. C. F. Enroth, of West Allis, Wis., for the Company. Messrs. Max Raskin and Franklin E. Blake, of Milwaukee, Wis., for the CIO. Mr. George Gratz, of Milwaukee, Wis., and Mr. P. L. Siemiller, of Chicago, Ill., for the IAM. Messrs. D. C. Monte and Charles R. Kramp, of Milwaukee, Wis., for the EIU. Mr. G. Hallstrom, of Chicago, Ill., for the Pattern Makers. Mr. Julius Kirle, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly-filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica (UAW-CIO), herein, called the CIO, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Kearney & Trecker Corporation,' West Allis, Wisconsin, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before John R. Hill, Trial Examiner. Said hearing was held at Milwaukee, Wisconsin, on November 30, and December 1, 1944. The Company, the CIO, the International Association of Machinists, District No. 10, A. F. of L., herein called the IAM, the Employees Independent Union at Kearney & Trecker Corporation (CUA), herein called the EIU, and the Pattern Makers League of North America; Milwaukee Association, A. F. of L., The Company was incorrectly designated in the petiiton and the Notice of Hearing as "Kearney-Trecker Corporation ." This designation was amended at the hearing, -without objection , to "Kearney & Trecker Corporation." 60 N. L. R. B., No. 28. 148 KEARNEY & TRECKER CORPORATION 149" herein called the Pattern Makers,' appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on ,the issues. At the hearing the Company moved to dismiss the petition, or in the alternative, to have the election stayed until the cessation of hostilities and the return of its employees in the armed services. Rul- ing on the motion was reserved for the Board. For reasons stated, the motion is hereby denied.3 The Trial Examiner's, -rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Subsequent to the hearing the Company filed a request with the Board for oral argument. The request is hereby denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Kearney & Trecker Corporation, a Wisconsin corporation, with its plant located at West Allis, Wisconsin, is engaged in the manufacture of milling machines and related parts. During the year 1943 the Company used raw materials consisting of gray iron, steel castings, and various other metals and materials, of an approximately value of $13,000,000, approximately 50 percent of which came from points out- side the State of Wisconsin. During the same period the Company manufactured finished products of an approximate value of $50,000,000, approximately 95 percent of which was shipped to purchasers out- side the State of Wisconsin. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), affiliated with the Congress of Industrial Organizations, is a labor organization admit- ting to membership employees of the Company. International Association of Machinists, District No. 10, affiliated with the American Federation of Labor, is a labor organization ad- mitting to membership employees of the Company. Employees Independent Union at Kearney & Trecker Corporation, affiliated with the Confederated Unions of America, is a labor organi- zation admitting to membership employees of the Company. 2 The Pattern Makers was served with Notice of Hearing and appeared at the hearing to protect its interests . The parties agreed to exclude the pattern makers and pattern maker's apprentices from the appropriate unit and as a result thereof the Pattern Makers evinced no furher interest in the hearing. 8 We have considered a similar contention in other cases and found it to be without merit. See Matter of Mine Safety Appliances Co., Gallery Plant, 55 N. L. R. B. 1190. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the CIO as the exclusive bargaining representative of certain of the Company's employees until the CIO has been certified by the Board in an appro- priate unit.4 A statement of a Board agent introduced into evidence at the hear- ing, indicates that the CIO represents a substantial number of em- ployees in the unit hereinafter found appropriate.' We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties are in substantial agreement that the appropriate unit should comprise all the production and maintenance employees at the Company's West Allis, Wisconsin, plant, including those em- ployees listed in Appendix A, but excluding those employees listed in Appendix B.6 - The parties disagree as to,the following specific categories : 4 On May 12, 1942, the Company and EIU entered into a collective bargaining contract which provided that it should be in force until 3 months after the declaration of an armistice or peace with the Axis Powers. Neither the Company nor the EIU contends that the presently existing contract constitutes a bar to a present determination of represenatives The Field Examiner reported that the CIO submitted 861 membership cards ; that the names of 762 persons appearing on the cards were listed on the Company 's pay roll as of September 22, 1944, which contained the names of 2,464 employees in the unit claimed ; and that of the cards, 1 was dated in August 1941, 1 In January 1942, 7 in 1943, 199 from January to June 1944, 304 from July to November 1944, and 250 were undated. The IAM submitted 241 cards ; the names of 230 persons appearing thereon were listed on the Company's pay roll as of September 22, 1944, and of the cards, 11 were dated in dune 1944, 20 from July to November 1944, and 199 were undated. At the hearing the IAM submitted an additional 251 cards, of which 6 were dated in May 1944, 5 in Septem- ,ber 1944, 51 in October 1944, and 189 in November 1944 The CIO also submitted at the hearing an additional 50 cards, of which 47 were dated in November 1944, and 5 were undated The Company objected to the admission of these additional cards in evidence on the ground that the cards liad not been checked against the pay roll. We find the ob- jection of the Company to be without merit. As we have frequently stated, authorization of membership cards are required not as proof of the precise number of employees who desire to be represented by a labor organization, or as a basis for determining the appro- priate representative, but simply to provide a reasonable safeguard against the indiscrimi- nate institution of representation proceedings by labor organizations which might have little or no membership in the unit claimed to be appropriate. See Matter of Sylvania Electric Products, Inc, 59 N. L. R. B. 1298 The EIU relies on its contract as proof of its representation Interest. e Altliough the Company does not contend that its contract with the EIU is a bar to an election in the instant proceeding, it, nevertheless, maintains that the Board has no, authority to alter the unit as fixed by the contract between the Company and the EIU and that any such alteration would deprive the Conipariy of property without due process of law. We find no merit to this contention. The existence of a previous contract does not necessarily fix the appropriate bargaining unit, but is merely one element in' the total situation to be considered along with many other relevant factors. See Matter of Clyde Mallory Lines, 15 N. L. R. B. 1008. 0 KEARNEY & TRECKER CORPORATION 151 Plant lay-out men. The Company employs two plant lay-out men nn the plant-maintenance department (Department 74), who are ,paid on an hourly basis, and spend approximately 60 percent of their time over a drafting board in the office of the general foreman of the plant maintenance department, where they prepare drawings, indicating the location of the machinery in the plant, and sketches and specifications for alterations to the building. The remaining 40 ,percent-of their time is spent taking measurements in the plant to assist them in the making of these drawings. The CIO and the Company would exclude them, while the IAM and EIU would include them. Since the duties of these plant layout men appear to be similar to those of the draftsmen in the engineering department whom the parties would exclude, we shall exclude them. Sign painters and sign hanger (Sign Painting Department-De- partment 88). The Company employs two sign painters and one sign hanger in the sign painting department from the IAM and EIU would include; the CIO exclude, while the Company takes no position. These employees are hourly rated. They paint and supply signs for the War Production Drive Committee to stimulate war production within the plant. Two of these employees were transferred from other departments for this work, while the third was hired from the outside. Although the outline of their work is given to them by the War Production Drive Committee, they receive authorization for their supplies and material from the head of the sign painting department who is also head of the safety division and the management member of the War Production Drive Committee. The Company also employs production (spray) painters and painters in the plant 'maintenance department whom the parties have agreed to include. We are of the opinion that the interests of the sign painters and the sign hanger are similar to those of the other painters, whom the parties agreed to in- clude; we shall include them. Time clerks. The, Company employs 22 time clerks 7 in its various departments who work at desks adjacent to the foreman's office, check and keep the time of the production employees, are paid on a salaried basis, and are responsible to the paymaster who is the head of the pay- roll department. Their duties are almost exclusively clerical. The CIO and IAM would include them, while the EIU and the Company would exclude them. We shall exclude them.8 Receiving clerks (Receiving and Stores Department-Department 60). The Company employs two receiving clerks who work in the office of the general foreman, to whom they are responsible; are paid on 4 The terms time clerks and timekeepers appear to be used synonymously in the record. 8 See Matter of Ingersoll 'Millinq Machine Company, 59 N L R B 251 ; Matter of Sullivan Drydock & Repair Corporation, 56 N L R B 582 •, 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a salaried basis', and whose duties are concerned entirely with the paper work necessary to the proper receipt of material. The CIO and IAM would include them, while the Company and EIU would exclude them. We shall include-them.,, Shipping clerk (Department 50). The Company employs one ship- ping clerk whom the CIO, IAM, and EIU would include and the Company exclude. He is on the shipping department pay roll, is paid on an hourly basis, and performs the customary duties of such an em- ployee, including determination' of the type of packing= required' and the method of shipment. While the shipping clerk receives instruc- tions from and is responsible to the traffic manager, he performs sub- stantially all of his duties in the shipping department, going to the traffic manager's office solely to impart or receive information pertain- ing to bills of lading or other shipping papers.1° Although the Board has stated that it will include clerical employees in a unit comprised primarily of production and maintenance employees where it appears that they work in the plant and are in close contact with and under the same supervision as the latter," it did not intend to.indicate thereby that the criteria thus adopted are the sole prerequisites to such in- clusion. Where the duties and interests of clerical employees, are more closely aligned to those of the production employees than to the office clerical employees, the propriety of including them in the unit is not necessarily offset by the fact that they fall generally under office supervision. We are of the opinion that the duties of the shipping clerk, like those of the receiving clerks whom we have above included, are sufficiently identifiable with those of the production and mainte- nance employees to warrant his inclusion in the same unit; we shall include him. Indentured apprentices (except pattern maker's apprentices). The Company employs 20 indentured apprentices who are in training to become journeymen mechanics. These apprentices are minors em- ployed by the Company under contracts of indenture subject to the approval of the State Industrial Commission of Wisconsin, are ro- tated throughout various departments in the plant, attend schools of instruction, are paid more than the minimum wages prescribed by the State Industrial Commission, and participate in the Company's incentive wage plan. These apprentices are under the direction of the departmental foremen as to machine operation instructions and _ work, but not as to discipline, which is retained by the apprentice supervisor and the general foreman. The CIO and the IAM would 0 See Matter of Goodman Manufacturing Company, 58 N. L R. B. 531. '0 While the present shipping clerk's precedessor was on the office pay roll , his duties included elements in addition to those of the present shipping clerk. These additional duties have since been assumed by the assistant traffic maanager. 11 See footnote 9, supra. 11 KEARNEY & TRECKER CORPORATION 153 include them, while the EIU and the Company would exclude them. We shall include them.12 Power plant employees. The Company employs eight operating engineers, three firemen, and one helper in the power plant, under the supervision of the chief.engineer who has been excluded by agreement' of the parties, are on the salaried or office pay roll, and have not been previously bargained for by the EIU. The operating engineers main- tain the power plant equipment, including the stokers, furnaces, com- pressors, and generators. The firemen whose duties are confined to the operationnof the boilers, check the hoppers, the coal, the pressure and water level. They are assisted by the helpers. The Company would exclude them solely because they are paid on a salaried basis. The CIO and the IAM would include them, while the EIU would exclude them. We are of the opinion that the interests of the power plant employees in the instant proceeding lie with the production and maintenance employees. Accordingly, we shall include them. We find that all production and maintenance employees of the Com- pany's West Allis, Wisconsin, plant, including indentured appren- tices (except pattern maker's apprentices), power plant employees, sign painters and the sign hanger (Department 88), receiving clerks (Department 60), shipping clerk (Department 50), and those em- ployees listed in Appendix A, but excluding plant lay-out men (De- partment 74), time clerks, employees listed in Appendix B, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. - V. THE DETERMINATION OP 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 Elec- tion herein, subject to the limitations and additions set forth in the Direction. The Company contends that, contrary to the present practice of the Board, provision be made for balloting by former employees now in the military services. For reasons stated in the Mine Safety Appli- ances Co. case,13 we reject this contention. 12 See Matter of Allis-Chalmers Manufacturing Company, 54 N. L. R. B. 1487. 13 See footnote 3, supra. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company employs two Marquette University engineering stu- dents working on a part-time basis, as distinguished from those work- ing under a cooperative arrangement whom the parties have agreed to exclude.14 The parties are in agreement, and we find, that these part-time employees have a sufficient interest in the results of the election to justify their participation therein. Accordingly, we find them eligible to vote. 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 Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Kearney & Trecker Corporation, West Allis, Wisconsin, 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 Thirteenth 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 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 part-time students; employees who did not work during the said pay-roll period because they were ill or on vaca- tion 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 dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO), or by International Association of Machinists, District No. 10, A. F. of L., or by Employees Independent Union, for the purposes. of collective bargaining, or by none of said organizations.15 CHAIRMAN MILLIS 'took no part in the consideration of the above Decision and Direction of Election. 14 See Appendix B. 15 The CIO , IAM, and EIU requested that they be designated on the ballot as set forth above The request is hereby granted. KEARNEY & TRECKER CORPORATION 155 APPENDIX A Alignment Scrapers Arbor Press Operators Box Makers Cable Splicers Chippers Cranemen Crane Operators (Yard) Disc Grinders Electricians Fillers Garage Mechanics Helpers Heat Treaters Inspectors Janitors Laboratory Helpers Machine Cleaners Machine Oilers Machine Repairmen Material Controller (Department 21) Nick Grinders (Gears) Painters (Spray) Production Clerk (Department 20) Platers Pattern Storage Helpers (Depart- ment 68) Sanders Shot Blasters Sawmen Set-up Men Shipment Checkers (Department 50) Shop Clerks (Departments 35, 42, and 44) Stock Order Clerks (Department 63) Straightening Press. Operators Testers Tool Keepers Tool Makers (Bench) Tractor Drivers Truck Drivers Washing Machine Operators Arbor Inspectors Assemblers Bench Hands (Machine Shop) Blacksmiths Burr Filers Carpenters Chip Disposal Employees Crane Inspectors Crane Repairmen Firemen (Department 60) Gear Inspectors Group Leaders Hitchers Induction Hardening Machine .Operators Jig Room Clerks ( Department 64) Lay-Out Men (Departments 28 and 62) Machine Flushers Machine Operators Material Handlers Millwrights Painters (Brush) Plumbers & Steamfitters Polishers Pattern Clerk ( Department 68) Pattern Shellacker (Department 68) Sand Blasters Salvage Inspectors - Scrapers Sheet Metal Workers Shipment Packers Sweepers Stock Control Clerks (Depart- ment 60) Stationary Grinder Operators Straighteners (Department 30) Tool Grinders Toolroom Machine Operators Truckers ( Electric) Truckers (Hand) Washing Booth Employees (De- partment 42) Welders 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APF%NDIX B- Allemployees employed in the following Departments: 77 (Engineering) 79 (General Factory) 80 (Purchasing) - 81: (Cost and Payroll) 82 (Methods and Standards) 83 (Planning) 84 (Safety) 85 (Sales) Office Clerical Employees 16 85A (Traffic) 85B (Production Service) 86 (Administrative) 87 (Personnel Relations) 87 (Medical) and 88 (Employment) 89 (Sub-contract) Industrial Pattern Makers and Pattern Maker's Apprentices Expediters Students employed under co-operative agreement with Marquette University Engineering School Apprentice Supervisor (Department 78) Tool Supervisor Chief Engineer (Department 69-Power Plant) General Foremen Assistant Foremen 11 Listed as office employees are engineers, draftsmen, secretaries , stenographers, ac- countants , bookkeepers, bookkeeping machine operators , general office machine operators, general office clerks, cost clerks, file clerks, production clerks, pricing clerks, purchasing clerks, sales correspondent, technical servicemen, telephone operators , time-study engineers, tool designers , traffic clerks, typists, billing clerks, Personnel Department men, general supervisory group and management.