Food Machinery Corp.

In the Matter of FOOD MACHINERY CORPORATION, EMPLOYER and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, A. F. L., PETITIONER Case No. 10-R-1716.-Decided February 7, 1947 Brown cC Brown, by Mr. Ray C. Brown, of Tampa, Fla., for the Employer. Mr. Draper Doyal, of Cincinnati, Ohio, for the Petitioner. Mr. Ira K. Jones, of Oldsmar, Fla., for the Intervenor. Mr. Lewis H. Uhnan, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Tampa, Florida, on August 8, 1046, before M. A. Prowell, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations I3oard makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Food Machinery Corporation, a Delaware corporation. is engaged in the manufacture, rental, and sale of agricultural machinery at its several plants throughout the United States. The Employer's Florida Division, which operates factories at Lakeland and Dunedin, Florida, is engaged in the manufacture, rental, and sale of citrus fruit, and vegetable machinery. The Dunedin plant is the only one involved in this proceeding. Between July 1, 1945, and June 30, 1946, the Employer purchased raw nnatei•Ials for use at its Dunedin plant valued at more than $250,000, of which approximately 90 percent represented shipment from points outside the State of Florida. During the same period, the Employer's finished products were valued at more than $500,000, of which approxi- mately 5 percent represented shipments to points outside the State. 72 N. L. R. B., No. 86. 483 484 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD We find that the Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. Citrus Machinery Workers Union, herein called the Intervenor, is an unaffiliated labor organization, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION Early in January 1946, the Petitioner requested recognition as bargaining representative for the Employer's foundry department employees, and on January 22, 1946, filed its original petition herein. On February 28, 1946, 16 of the approximately 18 employees engaged in the foundry department wrote a joint letter to the Employer re- questing that the Petitioner be recognized as their bargaining repre- sentative. On March 6, 1946, the Employer's president replied that he could not grant their request because the employees of the foundry department were covered by an existing contract with the Intervenor. At the hearing the Employer and the Intervenor both argued that their contract, dated February 1, 1944, and an alleged amendment thereto, dated June 11, 1946, bar a determination of representatives at this time. We cannot agree with this contention. The contract of February 1, 1944, is not one for a fixed term. It provides that it shall continue in full force and effect from year to year until ter- minated by either party after 6 months' notice. Since it is a contract of indefinite duration, and has been in effect for more than a year, it cannot, under well-established principles of the Board, bar a present determination of representatives.' The record reveals that the Employer and the Intervenor opened the contract of February 1, 1944, to negotiate changes in November 1945, and that the negotiations which followed were not concluded until June 11, 1946, when they signed a supplemental agreement. Whether the later agreement is considered an amendment to the 1944 contract, or a new contract, it cannot bar a determination of repre- sentatives at this time because it was executed after the filing of the petition herein.2 ' See Matter of 4ntaoch Foundry Dclco-Rend nivic,on of General Motors Corporation, 55 N. L R. B. 1419; Matter of Prosperity Company, Inc ., 55 N L. R. B 350 2 See Matter of American Norit Go , 66 N L R B. 1308 , Matter of The Meade Corpora- tion , 63 N. L R B. 1129 ; Matter of Radio Corporation of America, R. C. A Victor Division, 66 N L. R B 162; Matter of Roots-Connersville Blower Corp ., 63 N L. R. B 70. FOOD MACHINERY CORPORATION 486 We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, 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 Petitioner alleges that all employees of the foundry depart- ment of the Employer's Dunedin plant, excluding clerical and super- visory employees, constitute an appropriate bargaining unit. The Intervenor contends that only a plant-wide unit of all production workers at Dunedin is appropriate. The Employer argues that noth- ing less than a plant-wide unit of production workers can be appro- priate, but still holds to the view, expressed in a prior proceeding affecting its Lakeland plant,3 that the most appropriate unit is one which embraces the production employees of both its Florida plants. The record reveals that the Employer's operations at Dunedin are carried on in 3 principal buildings, where there are approximately 115 employees. The foundry department occupies one of these build- ings which is located from 40 to 60 feet from the other 2. It is under' separate supervision, and with the exception of 3 or 4 laborers who, are brought into the foundry for short periods when the moulten metal is being poured off, there is no appreciable interchange of employees between the foundry department and the other departments of the Dunedin plant. Under similar circumstances, where there has been no bargaining history on a broader basis, the Board has ruled that foundry department employees, as a homogeneous group composed primarily of members of a skilled craft, may properly constitute a: separate bargaining unit.h The Intervenor, however, argues that the history of collective bar- gaining at the Dunedin plant over a period of 5 years 5 demonstrates that the broad unit is the only appropriate one and precludes separate bargaining for the foundry department. As we have had occasion to. state, the Board, in deciding whether or not to conduct a self-deter- mination election for a group, essentially craft in nature, when there has been a history of collective bargaining on a broader basis, is con- fronted with the necessity of balancing two opposing interests. On the one hand, the interests of stability and certainty in labor relations. favor adherence to existing bargaining patterns; on the other hand, the cohesiveness and special interests of an essentially craft group 3 Matter of Food Machinery Corporation, 68 N L It. B 600. 4 See Matter of Neptune Meter Company , 67 N L. It. B. 949 , Matter of Magnus Metal Division of National Lead Company, 66 N. L. It. B. 496; Matter of Textile Machine Works, 65 N L R B 1030 6 The first collective bargaining contract in the Employer 's Florida Division was exe- cuted with the Intervenor in May 1941 , and covered all of the production workers at Dune- din and the prospective citrus machinery workers at Lakeland This agreement remained In effect until the contract of February 1, 1944, was executed. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD often indicate the appropriateness of a unit limited to members of such a group. Of necessity no hard and fast rule can be laid down in advance as an absolute guide in determining when one or the-other of these policy considerations is to prevail. In the present case the record reveals that the original bargaining unit was established by the consent of the parties and that the Board has never previously considered the composition of a bargaining unit at the Dunedin plant. The Petitioner did not attempt to organize the foundry there until April 1945, and since no other labor organization claimed to represent the foundry employees separately before that time, no consideration was given to the establishment of a separate foundry unit when the 1941 and 1944 contracts were executed. Fur- ther, a representative of the Intervenor admitted at the hearing that it no longer had any members in the foundry department, and two foundry department employees testified that despite the closed-shop provisions contained in the 1944 contract,' they had paid no dues to the Intervenor in 1946 and had only reinstated their membership in 1945 for a long enough period to qualify for vacation privileges. As stated above, the foundry department employees constitute an essentially craft group in an industry in which the Board has estab- lished similar units. We do not believe that under the circumstance here present, bargaining on a more inclusive basis is sufficient in itself to deny the foundry department employees the opportunity of de- ciding at the present time whether they desire to continue to be repre- sented as part of the plant-wide production unit, or whether they desire to bargain as a separate unit. The Employer further argues, that it would be inadvisable to con- duct an early election among the foundry department employees in- asmuch as it contemplates moving all its manufacturing operations to its Lakeland plant. This same argument was made in the prior proceeding involving the Employer's Lakeland plant. There, the Board found an early transfer to be impossible because of the Em- ployer's inability to procure housing facilities at Lakeland for its Dunedin employees. We are not persuaded, on the record in the in- stant case, that the date of the proposed transfer is any more certain now than it was at the time of our prior decision. In accordance with the foregoing, we shall direct that an election be held in the following voting group : all foundry department em- ployees, excluding clerical employees and all supervisory employees 6 Due to the passage of the "Anti -Closed-Shop Amendment " to the Florida Constitution, deletion of the closed-shop provision in the 1944 contract was one of the matters consid- ered when the 1946 agreement was being negotiated ; however, the closed-shop provision was not deleted when final agreement , concerning changes in the contract , was reached in 1946. 1 See ca--s cited in footnote 4, supra. FOOD MACHINERY CORPORATION 487 with authority to hire, promote , discharge, discipline, or otherwise effect changes in the status of employees , or effectively recommend such action. We shall make no determination of the unit issue until the results of the election have been disclosed . If the foundry de- partment employees select the Petitioner , they will be taken to have indicated their desire to be established as a separate bargaining unit; if they select the Intervenor , they will be taken to have indicated their desire to remain a part of the existing plant-wide production unit. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Food Machinery Corporation, Dunedin, Florida, 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 Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-- Series 4, among the employees in the voting group described in Sec- tion IV, above, who were employed during the pay-roll period innme- diately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacatiomor 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 dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by International Molders and Foundry Workers Union of North America, A. F. L., or by Citrus Machinery Workers Union, for the purposes of collective bargaining, or by neither. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election.