The Cleveland Welding Co.

In the Matter of THE CLEVELAND WELDING COMPANY and INTER- NATiONAI. ASSOCIATION OF MACHINISTS, DISTRICT 54 Cace No. 8--R-2041.-Decided April 10, 1946 Mr. A. F. McllInan, of Cleveland, Ohio, for the Company. Messrs. John Toth, Jr., and Howard Tausch, of Cleveland, Ohio, for the 1. A. M. Messrs. Jesse Gallag/u r° and Carl Hubbell, of Cleveland, Ohio, for the Federal Labor Union. Mr. b'aniuel M. knynard, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STAI EMENT OF THE CASE Upon a petition duly filed by International Association of Machin- ists, District .54, herein called the I. A. M., alleging that a question affecting commerce had arisen concerning the representation of em- ployees of The Cleveland Welding Company, Cleveland, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before John A. Hull, Trial Examiner. The hearing was held at Cleveland. Ohio, on February 13, 1946. The Company, the I. A. M., and Federal Labor Union No. 18671, AFL,' herein called the Federal Labor Union, appeared and partici- pated.2 All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. At the hearing and in its brief, the Federal Labor Union moved for the dismissal of the petition upon the grounds dis- cussed in Sections III and IV, infra. or reasons hereinafter stated, the motion is denied. The Trial Examiner's rulings made at the hear- ti At the hearing the Trial Examiner granted motions to correct all the papers in the proceeding to reflect the names of the Company and the Federal Labor Union as set forth above Although served with a copy of the Petition and Notice of Hearing , Metal Polishers Local #3, A. F of L , failed to appear at the hearing However, during the course of the hearing, the parties agreed that the members of this organization should be excluded in the event an election is held li7 N L. R. B., No. 30. 223 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Cleveland Welding Company is an Ohio corporation with its only plant located at Cleveland, Ohio, where it is engaged in the manufacture of tractor and truck rims, gear rings and other molded and welded hoops, and bicycles. Sales of the Company's products in the year 1945 were in excess of $7,500,000 at least 90 percent of which was shipped outside the State of Ohio. The principal raw material used is steel which is purchased to the Company's specifica- tions. The raw material used represents from 60 to 75 percent of the value of sales and about 60 percent of the raw materials is purchased from outside the State of Ohio. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Association of Machinists, District 54, is a labor organization, admitting to membership employees of the Company. Federal Labor Union No. 18671 is a labor organization, affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In November 1945, the I. A. M. requested the Company to recognize it as the representative of the employees in the Company's paint shop for collective bargaining purposes. The Company refused, stating it was under contract with the Federal Labor Union and did not know whether the Federal Labor Union or the I. A. M. represented the employees and therefore refused to bargain with the I. A. M. until such time as it had been certified by the Board in an appropriate unit. The contract involved herein contains an automatic renewal clause which provides for yearly renewal, in the absence of written notice of termination by either party at least 30 days prior to March 10. In view of the I. A. M.'s timely filing of its petition herein, the contract is not a bar .3 3 Matter of Mill B, Inc., 40 N L R. B 346. THE CLEVELAND WELDING COMPANY 225 A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the I. A. M. represents a substantial number of employees in the unit hereinafter found appropriate.4 At the hearing and in its brief, the Federal Labor Union moved to dismiss the petition on the ground that this is a jurisdictional dispute between two A. F. of L. unions and is, therefore, not a proper subject for determination by the Board. The dispute had at one time been submitted to the Cleveland Federation of Labor to be resolved by its procedures. Although the Board has often refused to assume jurisdic- tion in the case of jurisdictional disputes between two unions affiliated with the American Federation of Labor, we recognize the fact that the 1. A. M. at present is no longer affiliated with the American Federation of Labor. Accordingly, no reason of policy exists for the Board to refuse to assert jurisdiction.° 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 ; THE DETERMINATION OF REPRESENTATIVES The I. A. M. contends that the employees of the Company's paint shop should be included in the unit with the production and maintenance employees which it now represents. The Federal Labor Union con- tends that, based on the past history of collective bargaining in the plant, the employees of the paint shop constitute an appropriate unit. Since 1934, the Company has been under joint contract with the I. A. M. for production and maintenance employees, with the Federal Labor Union for employees of the paint shop, and with the Metal Polishers Union for metal polishers and platers. Prior to the war, the Company manufactured bicycles. With the advent of the war, the facilities of the Company were principally utilized for war work, with the intermit- tent manufacture of bicycles on a small scale to take up any slack in war production due to changes in Government specifications. The record discloses that at the time the Company was converting to war work 4 The Field Examiner reported that the I. A. M submitted 62 authorization cards, bear- ing the names of 58 employees listed on the Company's pay roll of December 18, 1945 ; that the cards are dated December 1945 , and that on January 4, 1946, 65 persons were em- ployed in the appropriate unit The Field Examiner also reported that the approximate number of additions to the appropriate unit during the 2-month period preceding December 18, 1945, was 65. At the hearing, the Company stated that there were between 70 and 80 employees in the appropriate unit at the time and that when the plant is in full production, approximately 125 will be employed in the appropriate unit Federal Labor Union relies on the joint contract between the Company and the I. A. M. and the Metal Polishers Union and itself as evidence of its interest in the proceeding S Matter of Federal Knitting Mills Co , 3 N. L It. B. 257; Matter of Interlake Iron Corporation, 2 N. L. R B. 1036. 692148-46-vol 67-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was an informal agreement between the Company, the Federal Labor Union, the Metal Polishers Union and the I. A. M. that employ- ees laid off from their usual employment because of conversion would be absorbed in some other capacity ; that the I. A. M. would accept employees transferred to production and maintenance on transfer cards or would accept their membership books; and that such employees would pay dues to the I. A. M. It was further agreed that upon recon- version to peacetime production, such employees would return to their original employment and be represented by their former bargaining agent.' When work in the paint shop was reduced at the outset of the war, all employees in the paint shop, with the exception of six or eight, were transferred to the production department, joined the I. A. M. and accordingly were bargained for by the I. A. M. In the fall of 1945 when the Company began to transfer these employees back to the paint shop, they remained members of the I. A. M. and the I. A. M. sought to bargain for them. The Federal Labor Union contends that since the, employees have now returned to the paint shop, they should be repre- sented by the Federal Labor Union. Although we ordinarily regard the history of collective bargaining as very persuasive in determining the appropriate unit, we think that factor is overbalanced by other considerations in this case. In instances where there has been a suspension of a former collective bargaining unit for a number of years due to conversion from peacetime activities to war work, the Board has held that such past collective bargaining is not controlling and has considered the question of the appropriate units de novo. In some cases, appropriate units varying from the pattern of prior collective bargaining have been found.7 In this case there was a virtual, if not complete, suspension of the activities of the paint shop during the war years. Furthermore, the collective bargain- ing history in this case has not been predicated upon any prior deter- minations in which the Board has passed upon the appropriateness of the unit. In°our opinion, the evidence points to the propriety either of a unit of production and maintenance employees with the paint shop em- ployees included, as sought for by the I. A. M., or of a separate unit of paint shop employees, as contended for by the Federal Labor Union. Favoring the establishment of the all inclusive unit are the following facts : The work of the paint shop is closely integrated with the produc- 6 Although the I A M did not admit the latter aspect of the agreement , it seems most plausible that this would he a part of the agreement. 7 Matter of Kittinger Company, Inc. 65 N I. R B , 1215 , Matter of Hurley Machine Division of Electric Household Utilities Corporation , 64 N L . R B 1181 ; Matter of LV R Arthur & Company, Incorporated, 65 N L R B 1113. Matter of Packard Motor Car Company . Toledo Diresion, 65 N L It B 1005 . Matter of Hussncan -Lepanier Com- pany . 66 N. I. R B 1331 THE CLEVELAND WELDING COMPANY 227 tion and maintenance departments. The paint shop is actually a part of the production line and is "sandwiched in" between the production and assembly departments of the Company. The parts are conveyed to the paint shop on conveyers, mostly; the parts are sprayed and painted and striped by the paint shop employees, go through the dryer and then go to the bicycle assembly. The paint shop is not separate from the rest of the building and the working conditions and hours of its employees are similar to those of the rest of the employees. The pay scale in the paint shop is practically the same as that in the rest of the plant. These painters are not considered in the same class as regu- lar journeymen painters in the building trades, and there is evidence that not too great skill is required to perform the tasks involved. In other industries the Board has included painters in production and maintenance units, or has permitted the employees self-determination elections.,' On the other hand, the Board has often found that the painters com- prise a well-defined craft group and may constitute a separate appro- priate unit .9 The paint shop has a separate foreman; painters are paid at an hourly rate of pay, whereas machinists in the production department are usually paid on piece work. The polishing shop is in a somewhat similar position to the paint shop and it is represented by the Metal Polishers as a separate unit. Furthermore, prior to the war, (and technically during the war years, since the contract was still in existence and there were in the paint shop six to eight employees), the Federal Labor Union bargained for the employees of the paint shop. Under the circumstances, our determination of the appropriate unit will depend, in part, upon the desires of the employees themselves expressed in the election hereinafter directed. If at such election, the employees of the paint shop 10 select the I. A. M., they will thereby have indicated their desire to constitute a single bargaining unit with maintenance and production employees ; otherwise, they will have indicated their desire to be a separate bargaining unit. Matter of Master Industries , Inc, 63 N L. R B 521: Matter of The B F. Goodrich Company, 59 N L R B . 1477; Matter of J. S Abercrombie Company, 58 N. L. R. B 1013, Matter of Basic Magnesium, Incorporated, 55 N. L R B . 380 ; Matter of Kennecott Copper Corporation , 51 N L. R. B 1140 ; Matter of Santa Fe Trails Transportation Com- pony, 7 N L. R B 358, Matter of La Plant-Choate Manufacturing Co., Inc , 13 N. L. R B 1228 ; Matter of Hamilton Realty Corporation, 10 N L R. B 858 , Matter of Caldwell Lawnmower Company, 14 N L R B 38. Matter of Coos Bay Lumber Company, 14 N. L R B. 1206 : Matter of Butler Motors, Inc, 28 N. L R B 1254 ; Matter of Mack- International Motor Truck Corporation, 31 N L It. B 424 , Matter of Glidden Buick Corporation, 32 N L R B 226 ; Matter of Gardner-Denver Company , 44 N. L. R. B 1192 9 Matter of Carbide and Carbon Chemicals Corporation , 56 N. L. R. B. 779 ; Matter of Brown Shipbuilding Company, Inc, 60 N L R B. 196 , Matter of United States Cartridge Company, 49 N. L. R B 77 , Matter of Atlas Powder Company , 41 N L R B 127 ; Matter of Denver Automobile Dealers Association . 10 N L R B 1173 i0 At the hearing the I A. M. and the Federal Labor Union stipulated that any election directed should be among the employees of the paint shop only. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall direct that the question concerning representation which has arisen be resolved by an election" by secret ballot among all em- ployees of the paint shop, excluding all salaried supervisors and other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status- of employees, or effectively recommend such action, who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations arid additions set forth in the Direction. 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, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Cleveland Welding Company, Cleveland, Ohio, 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 Eighth 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 em- ployees in the voting group described 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 present themselves in person at the polls, 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 elec- tion, to determine whether they desire to be represented by Interna- tional Association of Machinists, District 54, or by Federal Labor Union No. 18671, AFL, for the purposes of collective bargaining, or by neither. 'x The company representative testified that between 70 and 80 are employed in the paint shop at the present time and that , when the plant is in full production , approxi- mately 125 will be employed in that department Inasmuch as more than half of the regular complement is now employed , we shall not delay our direction of an election