Johnston City Foundry & Machine Works, Inc.

In the Matter of JOIINSTON CITY FOUNDRY & MACHINE WORKS, INC., EMPLOYER and INTERNATIONAL MOLDERS & FOUNDRY WORKERS UNION OF NoRTII AMERICA, A. F. L., PETITIONER Case No. 10-R-P765.-Decided December 10, 1947 Air. Clarence W. 13ralley and Miss M. A. Ross, both of Johnson City, Tenn., for the Employer. Mr. Claude L. Dudney, of Chattanooga, Tenn., and Mr. E. F. Dean, of Johnson City, Tenn., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Johnson City, Tennessee, on August 8, 1947, before Charles M. Paschal, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 1 Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE EMPLOYER Johnson City Foundry S, Machine Works, Inc., a Tennessee corpo- ration, is engaged in the manufacture, assembly, sale, and distribution of grey-iron, machine parts, structural steel products, ornamental and miscellaneous iron works, and related products at its plant in John- son City, Tennessee. During the past year, the Employer purchased raw materials valued in excess of $100,000, of which 33 percent was shipped from points outside the State of Tennessee. During the same period, the Employer sold finished products valued in excess of $500,000, of which approximately 15 percent was shipped to points outside the State. ' The Employee 's motion to dismiss the petition on the ground that the Petitioner has failed to comply with the filing requirements in Section 9 (f) and ( h) of the Act is denied inasmuch as the Petitioner has in fact complied with these requirements. 75 N. L. R. B., No. 60. 475 -476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. TIIE ORGANIZATION INVOLVED 2 The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of the employees in the unit sought herein on the ground that the Board's certification of the United Construction Workers, U. M. W. A., herein called the UCW, on November 26, 1946, constitutes a bar to this proceeding. It further contends that this peti- tion should be dismissed because the UCW's certification is protected by Section 103 of the Act, as amended.3 Inasmuch as the anniversary date of the UCW's certification has now passed, it is unnecessary for us to pass upon the merit of these contentions. Accordingly, we find that there is no bar to a present determination of representatives. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Employer's plant at Johnson City, Tennessee, is operated in 4 departments : a foundry, a structural steel shop, a machine shop, and an ornamental iron works shop. The Petitioner, seeks a unit of all workers in the foundry, including molders, coremakers, molder help- ers, coremaker helpers, molder and coremaker apprentices, chippers, chipper helpers, cupola tenders, cupola charges, shake-out men, ma- chine molders, grinders, and general foundry laborers, but excluding crane operators, pattern makers, flask makers, watchmen, clerical employees, and all supervisory employees. The Employer's primary position is that a plant-wide unit is appropriate, as previously found 2 The United Construction Workers, U. AT w A, was served with a copy of the Notice of IIearing, but it failed to appear at the hearing i Sec. 103, effective August 22, 1947, provides as follows : No provisions of this title shall affect any certification of representatives or any determination as to the appropriate collective-bargaining unit, which was made under section 9 of the National Labor Relations Act prior to the effective date of this title until one year after the date of such certification or if in respect of which a collective- bargaining contract was entered into prior to the effective date of this title , until the end of the contract period, of until one year after such (late, whichever first occurs JOHNSON CITY FOUNDRY & MACHINE WORKS, INC. 477 by the Board.4 Its alternative position is that pattern makers, flask makers, and crane operators should be included, if the Board should find appropriate a unit of foundry workers. It appears that no effective bargaining resulted from our prior de- termination as to the appropriate bargaining unit.-5 In such a case, especially where the certified labor organization has failed to appear at the hearing or otherwise to voice an objection, as in the present case,' we do not hold our prior unit finding to be controlling.? The foundry and the structural steel shop are located in separate buildings; the remaining departments are housed together. All 3 buildings are in the same general area. The foundry employs about 40 of the 120 employees in the plant. Under the general supervision of a superintendent and assistant superintendent, there is a foreman for each of the 4 departments. The foremen have authority to hire and discharge. All employees are paid on an hourly basis and have the same general conditions of employment. No appreciable inter- change of employees takes place between the foundry and the other departments. Of the total amount of raw material used in the machine shop, 25 to 30 percent represents castings forwarded from the foundry for further processing; similarly, 5 percent of the ornamental iron shop's raw materials consists of castings forwarded from the foundry; and no such castings are forwarded from the foundry to the structural steel shop. Under these circumstances, we find that the foundry employees, as a homogeneous group, constitute an appropriate unit.8 As indicated above, the parties disagree with respect to the following classifications, which the Petitioner would exclude because, it asserts, they are traditionally claimed by other craft organizations : Pattern maker and flask maker: The record shows that there is one employee in each of these categories.9 The pattern maker is a rela- tively high-paid skilled employee who, constructs patterns for the molders to make castings. The flask maker, however, is considered 4In Matter of Johnson Caty Foundry it Machine Works, Inc., 71 N. L. R B. 825, the Board certified the UCW to represent all production and maintenance employees of the Employer, including truck drivers and watchmen , but excluding office, technical and admin- istrative employees , and all supervisors. 5 The parties stipulated at the hearing that , since its certification by the Board on No- vember 26 , 1946 , the UCw has never bargained with the Employer , or made any attempt of any kind to meet or confer with the Employer Moreover , it is noted that the parties were in agreement as to the appropriate unit in the prior proceeding , so that the Board's finding on that issue was in essence based upon their consent, rather than an adjudication of a controversy. 7 Matter of Bethlehem Steel Company, 64 N. L. R. B. 352, 354 ; cf. Matter of C. A. Dun- ham Company, 74 N. L R. B 212 8 Matter of C. A. Dunham Company, 74 N. L. R. B. 212 , ef. Matter of International Shoe Company, 74 N L. It. B. 464. 1 John Hartley and Walter Morris , respectively. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unskilled and is paid at approximately the same rate as are similarly unskilled foundry employees. His duties are to construct the flasks which are used to make the molds. Both employees work in the pattern shop, which is located in a separate building attached to the foundry, but which is supervised by the foundry foreman. The Peti- tioner does not admit to membership pattern makers, but it does some- times admit flask makers. We shall exclude the pattern maker, whose standing as a member of a distinct and highly skilled craft sets him apart from the foundry employees. However, except for the separate location, there is little to distinguish the interests and conditions of employment of the flask maker from other unskilled employees of the foundry, and we shall, therefore, include hint. Crane operators : One such operator is employed full time during the 'day; one other operator is employed in this capacity for 2 hours at night and as a sand-cutter for the remaining 5 hours. Their job of assembling various raw materials in cupolas is not considered skilled. The record shows that the day operator works under the supervision of the foundry foreman and exercises no supervisory authority himself. The night operator, however, "looks after" 4 other employees who are there with him, but possesses no authority to hire, discharge, or disci- pline these employees, or effectively recommend such action. We find that the crane operators do not responsibly direct other employees; and we are of the opinion that their interests are substantially similar to those of the other foundry employees. We shall, therefore, include o them. We find that all foundry workers of the Employer, including mold- ers, coremakers, molder helpers, coremaker helpers, molder and core- maker apprentices, chippers, chipper helpers, cupola tenders, cupola charges, shake-out men, machine molders, grinders, flask makers, crane operators, and general foundry laborers, but excluding pattern makers, watchmen, foundry foremen, clerical employees, and all supervisors 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 At the hearing, some question was raised with respect to the voting eligibility of the following employees, all of whom are included in the unit for purposes of collective bargaining to the extent that they hold foundry jobs : 10 10 At the hearing, the problem as to these employees was discussed in terms of their inclu- sion in the "unit." It is apparent, however, that they are foundry workers and are included in the unit as such, at least part time The only seal question,'therefore, is ,Nhether they are eligible to participate in the selection of a collective bargaining representative for the foundry workers. JOHNSON CITY FOUNDRY & MACHINE WORKS, INC. 479 Willard Davis, who spends 4 hours of the day performing the duties of a chipper helper and 4 hours hauling coke to the foundry from the yard. Herbert Head, who spends 45 minutes of each hour as a shake-out man and the remaining time leaking the rounds as a night watchman.1' Dave Leach, who is regularly employed as a molder but who supple- ments his earnings by acting as a watchman on holidays. Frank Campbell, who is employed as a helper in the foundry 4 hours of the work day and spends the remainder of the day hauling coke to the foundry. Ernest Smith, who supplements his full time employment in the foundry by working as a night watchman on Saturdays. The above-named employees, who spend at least 50 percent of their time working in the foundry, clearly have a substantial interest in the employment conditions of the foundry and in the outcome of the elec- tion. We find, therefore, that they are eligible to vote.- Dallas Miller, who is classified as a molder-trainee and yardman and is required to serve an apprenticeship of 1,000 hours in each capacity. At the time of the hearing he was employed in the yard where he "'[got] up iron for the cupola." It is apparent that this employee is primarily a folmclry worker, and that his training assignment to .t job outside the foundry proper, if that assignment is not already com- pleted, is in the nature of a temporary detail. We shall permit him to vote in the election.13 • Brady Hughes, who is employed as a night watchman for 5 hours each work day and as a sand-cutter for the remaining 2 hours. This employee's primary occupation is clearly that of night watchman and we find that he is, therefore, ineligible to vote 14 We shall direct that the question concerning representation which has arisen be resolved by means of an election by secret ballot, subject to the limitations and additions sit forth in the Direction. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Johnson City Foundry & Ma- chine Works, Inc., Johnson City, Tennessee, an election by secret ballot shall be conducted as early as possible, but not later than thirty 11 All the watchmen at the plant perform the limited duties of protecting property from fire and theft. They are not armed or deputized, and have no authority over other employees. 12 Matter of Swift and Company, 58 N. L. R. B 657, 661. 13 See Matter of Quick Industries, Incorporated, 71 N. L R. B 949 ; Matter of Seruel, Inc , 58 N. L. R. B 5.' 11 Matter of Marcellus M. Murdock, 67 N. L. R B 1426, 1427. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Tenth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations-Series 5, 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, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to de- termine whether or not they desire to be represented by International Molders & Foundry Workers Union of North.America, A. F. L., for the purposes of collective bargaining.