The Harvester War Depot, Inc.

In the Matter of THE HARVESTER WAR DEPOT, INC. and TIIE BROTHER- HOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN In the Matter of THE H-\RVESTER WAR DEPOT, INC.' and BROTHERHOOD OF RAILROAD TRAINMEN Cases Nos. 8-R-1745 and 8-R-1753, respectively -Decided June 18,1945 Mr. Robert E. Dickman, of Chicago , Ill., and Mr. J. D . Russell, of To- ledo. Ohio, for the Company. Messrs. B. B. Robertson and William C. Lash , of Cleveland , Ohio, for the Enginemen. Messrs. A. F. Whitney and William C. Lash, of Cleveland , Ohio , for the Trainmen. Messrs. David A. Guberman and No Erwin, of Toledo, Ohio , for the CIO. Mr. Paul Bisgyer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon separate petitions duly filed by The Brotherhood of Locomotive Firemen and Enginemen , herein called the Enginemen , and Brotherhood of Railroad Trainmen, herein called the Trainmen , each alleging that a question affecting commerce had arisen concerning the representation of employees of The Harvester War Depot , Inc., Toledo , Ohio, herein called the Company , the National Labor Relations Board consolidated the cases and provided for an appropriate hearing upon due notice before Louis S. Belkin, Trial Examiner . Said hearing was held at Toledo , Ohio, on March 8, 1945. The Company , the Enginemen , the Trainmen , and United Whole- sale, Warehouse and Delivery Employees , Local 363, affiliated with United Retail, Wholesale and Department Store Employee, of America , C. I. O.. . i Name as amended at the hearing 62 N. L. R. B., No. 68. 520 THE HARVESTER WAR DEPOT, INC. 521 herein called the CIO, 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. 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. At the hearing the CIO moved to dismiss the petitions apparently on the ground that the proposed units were inappropriate. Ruling on the motions was reserved for the Board. For reasons hereinafter appearing, the motions are granted. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Harvester War Depot, Inc., is an Ohio corporation operating at Rossford, Ohio, an ordnance depot owned by the United States Govern- ment on a cost-plus-fee basis. At this depot, the Company receives, processes, stores, packs, and ships ordnance supplies for the United States Army. All materials handled are the property of the Government. The total amount of business done by the Company at this depot exceeds $100,000 per year. The Company does not deny, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Brotherhood of Locomotive Firemen and Enginemen, and Brother- hood of Railroad Trainmen, are labor organizations admitting to member- ship employees of the Company. United Wholesale, Warehouse and Delivery Employees, Local 363, affili- ated with United Retail, Wholesale and Department Store Employees of America, in turn affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE ALLEGED APPROPRIATE UNITS The Enginemen petitions for a unit of engine service employees, and the Trainmen petitions for a unit of yard conductors and brakemen. The CIO contends, in effect, that in view of the history of collective bargaining on a depot-wide basis, the proposed units are inappropriate. The Company takes no position. In connection with its activities, the Company operates a private railroad confined solely to depot property for the purpose of facilitating the move- ments of material within this area. Engaged in such work under the super- vision of the yardmaster are 14 engiueuien and firemen sought by the 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enginemen, and 23 conductors and brakemen sought by the Trainmen! The depot tracks connect with 2 common carriers from whose lines freight trains are switched into depot property by depot locomotives, and to whose lines cars are delivered by depot locomotives for transportation to ultimate destinations. Within the depot the railroad employees, acting under orders from either the yardmaster or warehouse foremen, move and "spot" freight cars at designated warehouses and "pads" where they are either loaded or unloaded by other employees.' In addition, the Company utilizes motor trucks and "doodle bugs" to transport materials within the depot, as well as cranes to load and unload freight cars. Quite obviously transportation is an integral part of the operations of the ordnance depot run by the Company.' Shortly after the Company took over the operation of the ordnance depot from the Army, the CIO, in August 1943, commenced its organizing activi- ties at the request of the Company's employees, among whom were railroad Workers. Thereafter, the CIO, having won a consent election held on November 18. 1943, was certified by the Board pursuant to a "Stipulation for Certification Upon Consent Election" as the exclusive representative of all depot employees, including the railroad workers sought by the Engine- men and Trainmen, with certain unimportant exceptions' Although no for- mal notice of the pendency of that proceeding was given to the Enginemen, which claims it had at that time a committee at the depot, the Enginemen admittedly was aware of the contemplated election and did not intervene or protest to the inclusion of railroad employees in the voting unit.' More- over, a number of railroad employees voted in the election. On March 14, 1944, the CIO concluded a 1-year contract with the Coln- pany covering the employees in the unit in which it was certified.' The agreement provided for maintenance of membership and an escape period Yet, a number of railroad employees who were members of the CIO did not avail themselves of the escape clause, and other railroad employees subse- quently hired joined this organization. At the time of the hearing the CIO 2 The qualifications for these jobs are not as stringent as those required of railroad employees on common carriers and, while some of the depot railroad employees have had prior experience with common carriers in their particular work, others have not ' Unlike the practice prevailing on lines of common carriers , many of these orders aie verbal Fui thermore , railroad movement within the depot is not controlled by a mechanical system such as that used by common carriers i In this respect the facts in Matte, of Sot lice/and Paper Company, 55 N L R B 8, aie plainly distinguishable . There the employer was engaged in processing paper box hoard and manufacturing paper cartons and paper specialties Only incidental to its principal operations the employei retained the services of motor truck driveis who carried materials and manufactured products to and from its plants over the highways between Kalamazoo and other cities , and locally between its plants railroad terminals , customers, and suppliers. 5 Case No 8 -R-1266, initiated by Teamsteis Local No 974, affiliated with international Broth i hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America (A F L ) - 6It does not appear from the record whether the Trainmen also had a irpresenlative at the depot at that time 7 This contract is not raised as a bar THE HARVESTER VAR DEPOT, INC . 523 had 12 out of 14 enginenien and firemen, and 18 out of 23 conductors and brakemen as members in good standing.' There are 2 railroad employees on the 5-man grievance committee established by the CIO contract, 1 of whom is also a member of the executive council of the amalgamated local representing the depot The record discloses that the railroad employees have apparently been satisfied with the representation accorded them by the CIO, participating li1 various benefits secured through its efforts The CIO obtained, among other things, two general wage increases totaling 18 cents per hour in ^x hich the railroad workers shared, and has handled the grievances of all employees It is clear from the record that from 1943 until recently, when the Enginemen and Trainmen first sought recognition from the Company,' railroad employees deliberately merged their interests with those of other depot employees, and sanctioned their representation by the CIO. Upon all the facts related above, we are not persuaded to alter a pre- viously established unit underlying a pattern of collective bargaining which has apparently created and maintained harmony between the Company and its employees. Accordingly, we find that the proposed units are inappro- priate for the purposes of collective bargaining.' IV. THE ALLEGED QUESTIONS CONCERNING REPRESENTATION Since, as we have held in Section III, above, the bargaining units sought by the Enginemen and the Trainmen are inappropriate for the purposes of collective bargaining, we find that no questions affecting commerce have arisen concerning the representation of employees of the Company within the meaning of Section 9 (c) of the National Labor Relations Act. We shall, therefore, dismiss the petitions. ORDER Upon the basis of the above findings of fact and the entire record m the a The Enginemen submitted to a Boaid Field Examiner 8 authorization cards of enginemen and firemen whose names appeared on the pay roll of January 30, 1945, and the Trainmen submitted 12 authorization cards of conductors and brakemen whose names appeared on the same pay roll The Field Examiner repotted that these cards were undated except foi 3 submitted by the Trainmen which were dated January 1945. Testimony at the hearing indented that the undated cards were signed about October 15, 1944. I In about February 1943 when the Army was operating the depot , the Enginemen sought recog- nition as the bargaining representative of enginemen and firemen, which the Army declined to grant. The record, however, does not disclose whether the Trainmen also requested iecognition 10 See Matter of United States Sugar Co; poration, 61 N L R B 215, and Matter of Phelps Dodge Corporation, 54 N L R B 1341 We note that Matter of Jones & Laughlin Steel Corporation, 54 N L R B 679, Matter of St Johns River Shipbuilding Company, 59 N L R B 415, and Matter of Phelps Dodge Corpora- tion (Morencs Branch), 40 N. L R B 180, are cited in the dissenting opinion In the Jones & Laughlin case, a complaint proceeding , there was no problem of whether to carve a segment from a plant unit in which the Board had already certified a labor organization and which underlay a compelling bargaining history, moreover , the employees there found to constitute an appropriate unit were engaged in transportation merely incidental to the employer ' s main operations. And in neither of the two remaining cases was there a controlling history of collective bargaining. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, the National Labor Relations Board hereby orders that the petitions for investigation and certification of representatives of employees of The Harvester War Depot, Inc., Toledo, Ohio, filed by The Brotherhood of Locomotive Firemen and Enginemen, and Brotherhood of Railroad Train- men, be, and they hereby are, dismissed. MR. GERARD D. REIi.LY, dissenting: I would order elections in the two units proposed in the petitions of the railway labor organizations. It is clear from the record that the employees in these units are eng4ged solely in the movement or the facilitation of the movement of rolling stock owned by common carriers on tracks of standard gauge. _ Therefore, it seems to nie their duties are as distinctly a part of the transportation industry as the duties of the truckers in Sutherland Paper" or the duties of the tugboat men on the barge lines of Jones & Laughlin Steel Corporation12 In each of these cases, the Board created separate units of transportation workers, rejecting the contention in one instance that the history of collective bargaining had made an employer-wide unit appro- priate ; and in the other case that the nature of the steel industry was such that craft bargaining was inappropriate. The rationale of those decisions is equally compelling here " 11 Matter of Sutherland Paper Company, 55 N L R B 38 12 Matter of Jones & Laughlin Steel Co) poi ation, 54 N L R B 679 "See also Matter of St Johns River Shipbuilding Company, 59 N L R B 415, Matter of Phelpv Dodge Corporation (Aforenct Branch), 40 N L R. B 180.