Hughes Tool Co.

In the Matter of HUGHES TOOL COMPANY and INDEPENDENT METAL. WORKERS UNION, LOCALS 1 AND 2, CUA Case No. 16-R-1489.-Decided July 9, 19^G Andrews, Kurth, Campbell, and Bradley, by Messrs. F. L. Arulreu's and R. F. Burns, and Mr. Thomas M. Mobley, all of Houston, Tex., for the Company. Messrs. Torn M. Davis, T. B. Everitt, David J. Butler, and J. F. Moseley, all of Houston, Tex., for the Independent. Combs and Dixie, by Messrs. W. A. Combs and Chris J. Dixie: and Messrs. Frank A. Harvesty, Howard 7'. Curtiss, Charles E. Smith. 7'. D. Walker, F. T. Henry, E. M. Martin, and L. C. Dearman, all of Houston, Tex., for the CIO. Mr. C. L. Mulholland, of Dallas, Tex., for the Council. Mr. Warren H. Leland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Independent Metal Workers Union, Locals 1 and 2, CUA, herein collectively called the Independent, alleging that a question affecting commerce had arisen conceniiug the representation of employees of Hughes Tool Company, Houton, Texas, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Earl Saunders, Trial Examiner. The hearing was held at Houston, Texas, on May 3, 1946. The Company; the Independent; United Steelworkers of America, Locals 1742 and 24:17, CIO. herein col- lectively called the CIO; and International Association of Machinists and Houston Metal Trades Council, herein collectively called the Coun- cil, appeared and participated. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing both the CIO and the Council moved to dismiss the petition on various grounds. For reasons discussed in Section III, infra, the notions are hereby denied. 69 N. L. R B., No. 36. 294 HUGHES TOOL COMPANY 295 The CIO's request for oral argument is also denied. The Trial Exam- iner's rulings made at the hearing 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 1. THE BUSINESS OF THE COMPANY Hughes Tool Company, a Deleware corporation, is engaged at Houston, Texas, in the manufacture, sale, and distribution of specialized oil well drilling equipment. During 1945, the raw ma- terials purchased and used by the Company at its Houston plant ex- ceeded $1,000,000 in value, approximately 75 percent of which was received from points outside the State of Texas. During the same period the Company sold finished products exceeding $1,000,000 in value, approximately 75 percent of which was shipped to points out- side the State of Texas. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. It. THE ORGANIZATIONS INVOLVED Independent Metal Workers Union, Locals 1 and 2, affiliated with the Confederated Unions of America, are labor organizations ad- mitting to membership employees of the Company. United Steelworkers of America, Locals 1741 and 2457, affiliated with the Congress of Industrial Organizations, are labor organiza- tions admitting to membership employees of the Company. International Association of Machinists; and Houston Metal Trades Council, affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Independent as the exclusive bargaining representative of certain of its employees, until the Independent has been certified by the Board in an appro- priate unit. In 1941 the Independent was certified by the Board as bargaining Iepresentative of the Company's production and maintenance I The CIO contends that the Independent discriminates against its Negro members and, therefore, is not qualified under the Act to represent the Company's employees . We reject this contention , however, because the record in no way indicates that the Independent will not accord equal representation to its Negro members if it is certified by the Board as collective bargaining agent 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workers.2 And in December 1942 the CIO was similarly designated as the bargaining agent of substantially the same group of employee. Pursuant to the 1942 certification, the CIO and the Company enterea into a 1 year agreement on April 8, 1943, which provided, inter alia, that the CIO might take the disputed issue of maintenance of mein- bership before the War Labor Board for resolution. This issue, and apparently a number of others which were not mentioned in the contract, were shortly thereafter certified to the War Labor Board. In February 1944 the War Labor Board directed only that the con- tracting parties incorporate a maintenance-of-membership clause into their agreement. The Company's refusal to comply resulted in a brief strike, folloil 'ng which, in September 1914, the Army assumed control of the Company's plant 4 In November 1944 the War Labor Board issued a final directive, eliminating the provision relative to maintenance of membership, but requiring a prospective compulsory check-off of dues of employees who were members of the CIO as of October 7, 1943. There was compliance with this directive. In May 1944 the Board issued a Decision and Order in a complaint. cane initiated by the CIO,5 finding that the Company had violated Section 8 (5) of the Act by refusing in certain respects to bargain exclusively with the CIO as the representative of the Company's pro- duction and maintenance employees, and affirmatively ordering the Company to treat with the CIO as their sole bargaining agent. In March 1945 the Fifth Circuit Court of Appeals issued its decree en- forcing the Board's order in substantial measure.6 There is no evidence to indicate that the court's decree has not been obeyed. In November 1944, upon charges filed by the CIO,' the Board issued a complaint alleging that the Company had violated Section 8 (1) and (3) of the Act by maintaining a rule prohibiting the solicitation of union member ship on company time or property and the distribution of union literature, and by demoting six "supervisors" because of certain union activities on their part. A hearing was held on this matter in September 1945, and the Trial Examiner, in his Intermediate Report issued in March 1946, found that the Company had violated Section 8 (1) of the Act insofar as its rule prohibited the solicitation of union membership on company property during non-working time and that it had also violated Section 8 (3) of the Act by demoting the six "supervisors"; however, the Trial Examiner further found that 2 See Matter of Hughes Tool Company, 33 N L It . B 1089 ( Decision and Direction of Election) 3 See Matter of Hughes Tool Company, 45 N. L . It B 821 (Decision and Direction of Election). 4 Not until August 1945 did the Army relinquish control. 5 See Matter of Hughes Tool Company , 56 N. L. R. B. 981. 6 See Matter of Hughes Tool Company v. N. L R. B , 147 1' (2d) 69 (C. C A. 5) 'Case No 16-C-1158 HUGHES TOOL COMPANY 297 the Company had not interfered with the rights of its employees with respect to its rule regulating the distribution of union literature. This case is presently before the Board for decision. After the hearing before the Trial Examiner, the CIO, in October 1945, filed additional charges with the Board averring that the Com- pany had contravened Section 8 (3) of the Act by terminating the employment of Robert O. Nelson. These charges, now pending, are apparently based upon the Company's allegedly unlawful action in enforcing against Nelson its rule proscribing solicitation of union membership. On January 21, 1946, the CIO called a strike at the Company's plant, which lasted until April 8, 1946. That day the Company and the CIO executed a collective agreement. At the time the contract was drawn, it is clear from the record, the CIO and the Company had tentatively agreed jointly to request the Board for permission to with- draw all pending unfair labor practice charges in order to facilitate the holding of an election by the Board within 6 months of the execu- tion of the contract. Significantly, the agreement of April 8, 1946, provides, in part, as follows : If an election is not held to determine the proper bargaining agent and if such bargaining agent is not certified by the National Labor Relations Board within 6 months from the effective date of this contract, and if, in the opinion of the Company, such failure to hold an election and certify the proper bargaining agent is caused in whole or in part by the Union, or if the Union or any of its members have contributed to such failure, this contract may be immediately terminated at the election of the Company by giving of written notice to the Union of its desire to terminate same . . . . and if another, other than the present bargaining agent, shall win the election, this contract will automatically be terminated. The Independent filed its original petition herein in September 1945, and in April 1946 it filed an amended petition. At the hearing the CIO urged the dismissal of the Independent's petition on the grounds, inter alia, that it has an existing contract with the Company which envisions a period of tranquility for 6 months from April 8, 1946, before an election can be held; that it has not had an adequate opportunity since its 1942 certification by the Board to obtain for the employees it represents the benefits of col- lective bargaining; and that there are pending unfair labor practice charges against the Company which it filed with the Board. The Council also sought to dismiss the petition because of the pending unfair labor practice charges against the Company. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are constrained to disagree with the CIO's construction of the contract of April 8, 1946. Considering the background against which it was executed and its specific language, the agreement, we are satis- fied, does not preclude an election for 6 months following its effective date. On the contrary, the only valid conclusion which can be reached is that its terms envisage a speedy redetermination of repre- sentatives within 6 months of its execution. Nor, in view of this expressed intention of the contracting parties, can the CIO be heard to say for any of the reasons it sets forth that an election should not now be conducted. For, when it bound itself to the contract, the CIO, we are convinced, waived the right to protest an immediate determination of representatives predicated upon any equities it may then have possessed. Moreover, insofar as the CIO may have encountered any delay in securing for the employees sub- stantial benefits of collective bargaining because of the proceedings before the War Labor Board, we note that the final directive issued by that agency as long ago as November 1944, was given full effect. And as regards the Company's earlier refusal to bargain in certain re- spects, there is no evidence of non-compliance with the court's decree, now more than 1 year old, which in large measure enforced the Board's order requiring exclusive bargaining with the CIO." It is true that the Council, which is not a party to the contract of April 8, 1946, also contends that no election should be held in the face of the pending unfair labor practice charges. But in view of the nature of the charges, the fact that the CIO is the charging union and not the Council, and the peculiar circumstances present in this case, we are impelled to reject the Council's contention. Almost 4 years have elapsed since the Company's employees were last afforded an opportunity to register their choice of a bargaining representative. Under all the circumstances we think that they should now be given this right. 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 parties are in agreement that the appropriate unit is substan- tially the same as that found by the Board in its previous determina- 8 The CIO in its motion to dismiss , further asserted that confusion. passion, and preju- dice among employees at the Company' s plant , generated by its recent strike, precludes the probability of a free and fair election at the present time. We find no merit in this asser- tion Nor do we find merit in the CIO's additional contentions that the petition should be dismissed because the current contract provides for a job evaluation plan which only the CIO is competent to administer, and because the Independent did not honor its picket lines during the strike. HUGHES TOOL COMPANY 299 tion.9 But the Company and the CIO contend that dispatchers and timekeepers, classifications created since the Board's last certification, should be excluded from the unit, whereas the Independent and the Council would include them. Dispatchers: There are approximately 75 employees in this classi- fication, which has been in existence for approximately 1 year. They are paid a salary and are responsible directly to the manager of pro- duction control. They lay out the work, determine the type of work to be performed and estimate the time required for the work, give directions as to what machines are to be run, study production methods and make recommendations for productive efficiency. They also occasionally check with the machine work supervisors to assure prog- ress of the work according to schedule, make minor arrangements for reworking scrap materials, and expedite work on specific orders. It is clear from the record that the dispatchers, of whom many have had previous education in technical engineering, require specialized train- ing in production-control methods. They must be familiar with the technical features of the Company's over-all production activities. The Company has not been able to promote its rank and file workers to the position of dispatchers, but has been required to recruit these employees, for the most part, from the outside. In view of the fore- going facts, particularly the quasi-technical status of the Company's dispatchers, we are of the opinion that these employees should not be included in a unit with the production and maintenance employees. Thus, we shall exclude the dispatchers from the unit hereinafter found appropriate. Thnekeepers: There are approximately 20 employees in this classi- fication, which has been in existence for approximately 2 months. They obtain attendance time and production reports from foremen and dispatchers, and by checking the machines on which the work is being clone. They transmit their reports to the timekeepers located in the general office who, in turn, compile a record of these reports so that production costs can be recorded. In consonance with our gen- eral practice of not including timekeepers in units of production and maintenance workers, we shall exclude the Company's timekeepers front the unit hereinafter found appropriate io We find that all production and maintenance employees of the Com- pany at its Houston, Texas, plant, including Class C. colored em- ployees in the maintenance department, and those assigned to the general machine shop and inspection department; janitors, janitresses, and matrons; Class C. colored common laborers working in the forge B See footnote 3, xupra All parties agree, however, to include non-supervisory garage employees, who were previously excluded. The classifications of cafeteria employees, station-wagon drivers and parking-lot girls no longer exist 10 See Matter of Bell Airciaft Corporation (Geoigia Dtu8ion), 54 N L It B 1095 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shop and in the heat-treat and foundry shop departments ; employees classified on the Company 's books as F and E employees ; the colored employees working in the pattern shop ; shipping-department em- ployees; material control-department employees ; shop clerks; ma- chinists, mechanics, helpers, and laborers attached to the engineering department ; the colored truck drivers in the maintenance department; and garage employees ; but excluding executives , clerical, office, and professional employees, dispatchers; timekeepers ; instructors in the industrial relations department; printing-shop employees ; personnel- department employees ; sales-department employees, other than those employed in the shipping department ; accounting-department em- ployees, other than shop clerks ; day office porters; production -depart- ment employees ; engineers, draftsmen, chemists , metallurgists, and clerical employees of the engineering department ; and all supervisory employees with authority to hire, promote , discharge , discipline, or otherwise effect changes in the status of employees , or effectively recom- mend such action, 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 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and 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 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 Hughes Tool Company, Houston, Texas , an election by secret ballot shall be con- ducted 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 Sixteenth 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 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 HUGHES TOOL COMPANY 301 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 Independent Metal Workers Union, Locals 1 and 2, CUA; or by United Steel- workers of America, Locals 1742 and 2457, CIO; or by International Association of Machinists and Houston Metal Trade Council, for the purposes of collective bargaining, or by none.