Sprague Electric Co.

III the Matter Of SPRAGUE ELECTRIC COMPANY, EMPLOYER and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, PETITIONER Case No. 1-RC-293.-Decided January 31, 1949 DECISION ANU DIRECTION OF ELECTION Upon a petition duly filed, a hearing 1 was held on May 27, 1948, before a hearing officer of the National Labor Relations Board. Pur- suant to an order of the Board, a supplemental hearing was held on November 3, 1948, for the purpose of permitting the Employer to in- troduce evidence concerning the pattern of bargaining in the fixed electrical condenser industry, which the hearing officer had erroneously excluded at the first hearing. Otherwise the rulings of the hearing officer are free from prejudicial error and are hereby affirmed 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in the case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. I Textile Workers of America, C. I. 0, the petitioner In Case No. 1-RC-315, with which the petition herein had previously been consolidated , participated in the original hearing. At the request of the Textile Workers, the Board severed the cases and permitted the Textile Workers to withdraw Its petition. The Textile Workers did not participate in any subsequent proceedings. 7 International Union, United Automobile , Aircraft and Agricultural Implement Workers of America , C. I. 0., had been given notice of the original hearing, but had failed to appear. It moved to intervene at the supplemental hearing, but made no showing of in- terest In the unit sought by the Petitioner. The bearing officer granted the Automobile Workers leave to intervene to a limited extent , but the representative of the Automobile Workers left at the opening of the hearing . We have held that intervention is not permissible after a case has been heard , where the party seeking intervention had notice of the hearing but did not move to intervene and had not acquired a showing of interest at the time of the hearing. The hearing officer's ruling permitting the Automobile Workers to Intervene was therefore erroneous. Matter of United Boat Service Corp., 55 N. L. R. B. 671 ; Matter of Grand Central Airport, 70 N. L. R. B. 91. In view of the fact, however, that the Automobile Workers did not avail itself of the opportunity to participate in the supplemental hearing, the hearing otecer's error in permitting intervention was not prejudi- c1a: to any of the parties to this proceeding. • Houston , Murdock, and Gray. 81 N. L. R. B., No. 71. 410 SPRAGUE ELECTRIC COMPANY 411 2. The Petitioner and Independent Condenser Workers' Union, Local No. 2 of North Adams, Massachusetts, hereinafter called the Intervenor, are unaffiliated labor organizations claiming to represent employees of the Employer. 3. The question concerning representation : The Intervenor and the Employer entered into negotiations for a renewal of their existing contract on February 9, 1948. The renewal contract was reduced to writing on March 16, 1948, but, due to diffi- culties in obtaining its ratification by the Intervenor's membership, the contract was not executed until April 7, 1948. The Petitioner, by letter dated March 17, 1948, notified the Employer of its claim to rep- resent certain employees, and, on March 19, 1948, filed the petition herein. As the contract between the Intervenor and the Employer was not finally executed until after the filing of the petition, it is not a bar to this proceeding.3 We find that a question affecting commerce exists 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. 4. The appropriate unit : The Petitioner seeks a unit composed of all the Employer's tool and die makers, machinists, their helpers and apprentices, and the tool crib attendant, excluding the toolroom stock clerk, employed at the three buildings of the Employer's plant in North Adams, Massachu- setts. The Employer and the Intervenor contend that the plant-wide unit, on the basis of which they have been bargaining since 1937, is the only appropriate unit. The parties agree to the exclusion of all the Employer's office, clerical, and professional employees, guards, and supervisors. Of the employees sought by the Machinists, 29 work at the Em- ployer's Beaver Street Building, 10 at its Brown Street building, and 1 at its Marshall Street building. In each of these buildings, they work in a machine shop separated from the other departments in the building by either walls, partitions, or stairs.4 A general foreman is in charge of all machine shop operations. The Beaver and Brown Street shops are under the immediate super- vision of assistant foremen who report to the general foreman. The sole employee at the Marshall Street machine shop is a machinist who works under the supervision of the general foreman, and takes his • Matter of Eicor, Inc., 46 N. L. R. B. 1035. 4 At the time of the hearing, a molding machine operated by a production worker had been located In the Brown Street machine shop for about 8 months. The machinists In that shop had protested against this machine being located there. There Is ,no evidence In the record as to why it was put there, nor as to whether or not its position there was temporary or permanent. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day-to-day direction as to which machines need attention from the production foreman at the Marshall Street building. In interview- ing an applicant for employment in the machine shop, the general foreman determines whether the applicant has the necessary technical qualifications, while the personnel manager determines whether his general qualifications are acceptable. Work in the machine shops is largely devoted to the making of dies, tools, jigs, and fixtures needed in the Employer's production work, and to repairs on the Employer's production machinery which cannot be made in the production department. The machinists fre- quently leave their machine shop to repair machinery elsewhere in the building, and, if the need arise, in other buildings of the En ployer's plant. All parties agree that the work done by the employees sought by the Petitioner is highly skilled and requires extensive training. Em- ployees entering the machine shop are given a 4-year training course, at the end of which they receive certificate of qualification from the Employer. Thereafter, they may be further promoted to jobs as tool and die makers. Employees transferring to the machine shop from other departments are given credit for any mechanical experience they may have accumulated. This experience credit does not neces- sarily coincide with the length of time the transferred employee has been with the Employer. The only transfers from the machine shop to other departments have been those in which machine shop employees were promoted to super- visory positions or accepted available employment in other parts of the plant when they were laid off from the machine shop. In the latter case, they have been transferred back to the machine shop when work was again available there. Seniority in the Employer's plant is on a departmental basis, and the machine shop is treated as a department for that purpose. The machine shop is also treated as a departmental unit for pay-roll purposes. Machine shop employees are paid on an hourly basis, as are 50 percent of the other employees of the Employer, but their hourly pay scale is the highest in the plant. The facts set forth above establish that the machine shop employees constitute an identifiable, homogeneous, skilled, craft group. The Employer, however, contends that the establishment of a separate bargaining unit for these employees is inappropriate on the ground, among others, that here, as in the National Tube case,5 the work of the craft employees sought to be severed is an integral part of the produc- tion process. We do not agree. The Employer maintains that its 9 Matter of National Tube Company, 76 N. L. R. B. 1199. SPRAGUE ELECTRIC COMPANY 413 product is "custom-made," and that its competitive position in the industry depends largely on the speed with which it can make deliver- ies, which, in turn, depends on the ability of the machine shops con- stantly to retool and repair the Employer's production machinery. It does not follow, however, that the machine shop employees are engaging in such a repetitious performance of indispensable assembly line operations as to bring them within the doctrine enunciated in the National Tube case.- Although the machine shop employees occa- sionally make unusually complicated containers or unavailable parts for the Employer's final product, this work constitutes a limited and infrequent participation in the production scheme, which does not detract from the over-all craft characteristics of their jobs 7 Neither their machine tool work nor their occasional participation in the pro- duction process therefore, requires the inclusion of the machinists in the plant-wide unit if their severance as a craft group is otherwise proper. The Employer also contends that the bargaining history at its plant requires continuation of the plant-wide unit. This history shows that the employees sought by the Petitioner have participated in and been benefited by the activities of the Intervenor, which has had contracts with the Employer since 1937 on the basis of a plant- wide unit. At a Board proceeding in 1944,8 the parties thereto agreed, and the Board found, that the plant-wide unit was appropriate. The Board at that time directed an election in which the Intervenor and the United Electrical Workers participated, and in which the In- tervenor was victorious. As the employees sought by the Petitioner, however, have never been given an opportunity to express their prefer- ence for representation in a plant-wide unit or in a separate craft unit, we do not deem this past collective bargaining history a bar to permitting them to make this choice now." Finally, the Employer contends that the history of bargaining in the fixed electrical condenser industry has established a pattern of bargaining on a plant-unit basis. To substantiate this contention, the Employer showed at the supplemental hearing that there are 31 manu- facturers of fixed electrical condensers in the United States, of which 5, including the Employer, manufacture 75 percent of the total output. Of these, 4, including the Employer, have collective bargaining agree- ments covering all production employees, including machine shop em- ployees. The fifth Employer is unorganized, but deals on a plant-wide Matter of Hunter Packing Company, 79 N L. R B. 150; Matter of United States Rubber Company, 81 N. L. R. B. 17. Cf Matter of Ford Motor Company, 78 N. L. R. B. 887. ' Matter of Mergenthaler Linotype Corp., 80 N. L. R. B. 132. Matter of Sprague Electric Company, 57 N. L. R. B. 691. 9 Matter of Continental Can Company, 76 N. L. R. B. 131 ; Matter of Seeger Refrigerator Co., 80 N. L. R. B. 586. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis with a committee of its employees. Of the remaining 26 fixed electrical condenser manufacturers, 2 were shown to be bargaining on a plant-wide basis. There was no showing as to the remaining 24. Furthermore, of all the instances of plant-wide bargaining cited by the Employer, in only 4 plants, including its own, had Board election been held. In 2 of these, the parties had consented to an election in a plant-wide unit; and in the other 2, the parties had stipulated as to the appropriate unit. We are not persuaded by this evidence that collective bargaining in the fixed electrical condenser industry has been so universally conducted on a plant-unit basis as to preclude the establishment of the Employer's machine shop employees in a separate craft unit. Under the circumstances set forth above, we find that all the Em- ployer's tool and die makers, machinists, their helpers and apprentices, the tool crib attendant, and the toolroom stock clerk,10 excluding office, clerical, and professional employees, guards, and supervisors, constitute an identifiable, homogeneous, craft group, which may con- stitute an appropriate unit if the employees in that group so desire n However, we shall not make a final unit determination pending the outcome of the election directed below. If, in this election, the em- ployees in the group described above select the Petitioner as their bargaining representative, they will be taken to have indicated their desire to constitute a separate bargaining unit. If, however, they se- lect the Intervenor, they will be taken to have indicated their desire to remain a part of the existing plant-wide unit. DIRECTION OF ELECTION 12 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Sprague Electric Company, North Adams, Massachusetts, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the First Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the voting group described in paragraph numbered 4, 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 10 Although the Petitioner requested his exclusion at the hearing, we shall include the toolroom clerk because of his close association with the skilled employees, whose community of interest and physical segregation he shares . Matter of Robertshaw-Fuiton Controls Company (American Thermometer Company), 77 N. L. R. B. 316. 11 Matter of Dazey Corporation , 77 N. L. It. B. 408, and cases cited therein. 22 Any participant in the election directed herein may , upon its prompt request to, and approval thereof by, the Regional Director, have its name removed from the ballot. SPRAGUE ELECTRIC COMPANY 415 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, and also excluding employees on strike who are not entitled to reinstate- ment, to determine whether they desire to be represented, for purposes of collective bargaining, by International Association of Machinists,, or by Independent Condenser Workers' Union, Local No. 2 of North, Adams, Massachusetts, or by neither.