C. V. Hill & Co., Inc.

In the Matter of C. V. HILL & COMPANY, INC., EMPLOYER ana u 'i-n- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., PETITIONER Case No. 4-R-2719.-Decided February 10, 1948 Messrs. Harry F. Weiner, Louis S. Dreisbach, and Earl J. Kressler, all of Trenton, N. J., for the Employer. Mr. George F. Kane, of Trenton, N. J., Mr. Lawrence McNally, of New York City, and Mr. Samuel Rothbard, of Newark, N. J., for the Petitioner. Messrs. Donald B. Morton and Charles Dailey, both of Trenton, N. J., for the Independent. Mr. Stanley N. Lentz, of Philadelphia, Pa., for I. A. M. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in this case was held at Trenton, New Jersey, on July 24, 1947, before Sidney Grossman, 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 Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER C. V. Hill & Company, Inc., a New Jersey corporation, is engaged in the manufacture of refrigerators and refrigeration equipment at its sole plant, located at Trenton, New Jersey. The Employer an- nually purchases raw materials, consisting of steel and wood, valued in excess of $1,000,000, approximately 80 percent of which is shipped to its plant from points outside the State of New Jersey. The Em- ployer annually manufactures finished products valued in excess of $1,000,000, approximately 80 percent of which is shipped to points outside the State of New Jersey. 76 N. L. R. B., No. 24. 158 C. V. HILL & COMPANY, INC. 159 The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization, affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. C. V. Hill Mutual Benefit Society-Refrigerator Workers Union No. 1 (Independent), herein called the Independent, is an unaffiliated labor organization, claiming to represent employees of the Employer. International Association of Machinists, herein called the I. A. M., is an unaffiliated labor organization, claiming to represent employees of the Employer.' III. THE QUESTION CONCERNING REPRESENTATION The Employer has recognized the Independent as the representa- tive of its employees in a plant-wide unit since about 1934.1 From that time until 1941 the Employer and the Independent entered into verbal agreements. In June 1941 a consent-election agreement was entered into between United Electrical, Radio & Machine Workers of America, CIO, herein called the U. E., as petitioner, the Inde- pendent, and the Employer, but the petition was subsequently with- drawn and no election was held. Beginning in 1941 the Employer and the Independent entered into written recognition agreements. In June 1945 the U. E. again filed a petition. The Board held that the then current recognition agreement did not constitute a bar be- cause of the absence of substantive provisions, and an election was directed in a plant-wide -unit which the parties had stipulated was appropriate.2 The U. E., however, with Board approval, again with- drew its petition, and no election was held. On August 5, 1946, the Employer and the Independent entered into their first written con- tract containing substantive terms of employment, which provided that it was to be in effect for 1 year, with a 30-day automatic renewal clause. The Petitioner began to organize at the Employer's plant in about May 1946, and filed a representation petition with the Board in Octo- ber 1946. This petition was administratively dismissed on the ground that the August 1946 contract constituted a bar. On June 12, 1947, the Petitioner informed the Employer in writing of its claim to repre- sent a majority of the employees in the plant, and on June 13, 1947, At that time there were about 250 employees in the plant. There are now about 900. a Matter of C. V Hill ce Company, Inc., 64 N. L. R. B. 1109. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed its petition herein with the Board. On June 18, 1947, the Em- ployer replied in writing that it had a contractual relationship with the Independent which, in its opinion, precluded a determination of the bargaining representative at that time. On July 21, 1947, the Employer and the Independent entered into a written contract which provided that it was to be in effect for 3 years, and expressly super- seded-the August 1946 contract.3 The Employer and the Independent contend that their current con- tract constitutes a bar to the present proceeding. That contract was executed on July 21, 1947, after the filing by the Petitioner on June 13, 1947, of its petition in the instant proceeding. Accordingly, inasmuch as the filing of the petition preceded the execution of the July 21, 1947, contract, that instrument cannot, under well-established principles of the Board, constitute a bar to the proceeding.4 The Employer and the Independent have always negotiated on the basis of a plant-wide unit, and the Petitioner seeks a plant-wide unit. There is some dispute, however, between the Employer and the Inde- pendent on the one hand and the Petitioner on the other as to whether or not certain categories of employees should be included in such unit. The I. A. M. seeks a craft unit composed of tool and die makers, ma- chinists, and maintenance machinists. The Petitioner does not object to granting these employees an opportunity to select a craft unit, but the Employer and the Independent oppose severance of this group. The parties stipulated at the hearing that a question concerning representation existed by virtue of the conflicting unit claims. 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. IV. THE APPROPRIATE UNITS; THE DETERMINATION OF REPRESENTATIVES 1. The craft unit The I. A. M. seeks to represent a unit of 11 employees consisting of 4 tool and die makers and 3 machinists in department 26, and 4 mainte- nance machinists in department 29. The Employer and the Inde- pendent, but not the Petitioner, oppose severance of this group. s Although the Independent has represented the respondent 's employees for about 14 years , it has never been certified by the Board. 4 Matter of Southern Advance Bag & Paper Co , rue, 75 N L R B 614; Matter of Consolidated Steel Corporation of Texas, 74 N L R B 204 ; Matter of Gordon W. Callender, et al, d/b/a Kohiman Bros . & Sugarman Company, 74 N. L. R. B 381 , Matter of Eicor, Inc., 46 N L. R B 1035. C. V. HILL & COMPANY, INC. 161 It is the function of department 26 to build, repair, and maintain tools and-dies.5 The maintenance machinists in department 29 repair machine tools for the entire plant. The work of the machinists in department 26 and of the maintenance machinists in department 29 is similar, the chief difference being that the machinists do their work almost exclusively in their own department, whereas the maintenance machinists work throughout the plant.6 All the employees whom the I. A. M. seeks to represent are highly skilled journeymen mechanics who have received extensive apprentice- ship training, have had at least 4, and in some cases far more, years of experience in their respective fields, and receive higher rates of pay than the production employees. Departments 26 and 29 are under separate immediate supervision. No other employees in the plant perform the same type of work as that done by these 11 employees. There'is no interchange with employees in other departments except in rare instances of emergency. It is clear from the foregoing facts that the employees in question forma homogeneous group with kindred interests distinguishable from those of the production and maintenance employees. Although the Board's Decision and Direction of Election in the proceeding arising in 19451 contemplated a plant unit, the -unit determination therein was based principally upon a stipulation of the parties rather than upon adjudication of a controversy.' The Board has never expressly found the craft unit sought herein to be inappropriate .9 These em- ployees have for a number of years been members of, held office in, and been represented by, the Independent, and apparently acquiesced in their inclusion in a plant unit. These employees, however, have never had an opportunity in a Board election to express their desires as to separate representation. We have frequently held that tool and die makers and machinists, with duties similar to those performed by the G The only other category in this department is an are and gas welder The I A M does not desire to represent him and the other parties agree he should be included in the plant unit 6 Although Plant Manager Dreisbach testified that the machinists in department 26 spent part of their time in productive machine work, he admitted that the type of work they do is wholly unlike other productive work done in the plant, and is performed in the same general location where the machinists do their other work See footnote 2, above. s See Matter of Johnson City Foundry it Machine Works, Inc, 75 N L R B. 475 Even if the Board had done so, it would not alter the result herein inasmuch as the Act, as amended, provides in Section 9 (b) that "the Board shall not . . (2) decide that any craft is inappropriate . on the ground that a different unit has been estab- lished by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation " The Employer argued against severance of the craft unit on the ground, among others, that the Labor-Management Relations Act, 1947, had not yet become effective at the time of the hearing, and stated that if that Act were operative, "We wouldn't have any argument " The above-quoted prohibition is applicable, however, to the Board's determina- tion in this proceeding Cf Matter of Prate-Form Corset Company, 75 N. L R B. 174. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees herein concerned, constitute an identifiable skilled craft group, and there is no indication that such groups, when established as collective bargaining units, do not function successfully to promote harmonious labor relations 10 These employees should therefore be given an opportunity to demonstrate in a Board election whether they desire separate representation or continued inclusion in a plant unit. Under these circumstances, we shall direct an election among the employees in this group, as well as among the employees in the pro- duction and maintenance group described below, and shall make no unit determinations pending the outcome of these elections. 2. The production and maintenance unit The Employer and the Independent maintain that the finding of an appropriate production and maintenance unit should conform with the unit described in their 1947 contract, which includes "all production and maintenance employees at the Company's plant in Trenton, New Jersey, except office employees, foremen and assistant foremen, salaried factory clerks, salaried inspectors, salaried service mechanics, and salaried cafeteria employees." The Petitioner agrees with the general composition of this unit, but, would include therein the salaried non- supervisory inspector, and would exclude therefrom certain hourly paid cafeteria employees and the guards. The Employer's plant consists of about 15 buildings, divided into 35 departments, in which are employed about 900 employees, approxi- mately 725 of them hourly paid production and maintenance employ- ees. In charge of these employees are a plant manager, 2 superintend- ents, and a number of foremen and assistant foremen, all of whom, pursuant to agreement by the parties, are excluded from the unit. There is agreement also as to the exclusion of office employees, who generally work in a separate building under separate supervision ; of salaried factory clerks, who are part of the pay-roll department under office supervision although they work, in the shop, where they act as timekeepers; 11 of salaried inspectors (except the salaried non-super- visory inspector, discussed below), who have supervisory duties ; of salaried service mechanics, who service equipment sold to customers, and who work almost exclusively outside the plant; and of salaried cafeteria employees, which category has reference to the chef, who supervises other cafeteria employees. There are a number of employ- 10 See Matter of E L Bruce Company, 74 N L. R B. 1354 , Matter of Armstrong Bros. Tool Co, 74 N. L R B. 1361 "The parties agree to the inclusion of four hourly paid factory clerks, two of whom are shipping clerks and two who perform record-keeping functions in their respective de- partments in connection with the processing operations therein , all of whom work under factory supervision These clerks will therefore not be excluded. C. V. HILL & COMPANY, INC. 1E3 ees classified as leaders or leadmen in some departments who have no supervisory duties or authority, and who, pursuant to agreement by the parties, are not excluded from the unit . There remain for dis- position the following categories of employees : The salaried non-supervisory inspeetor.There are 11 inspectors in the plant , 10 hourly paid and 1 salaried, all of them responsible to the salaried foreman inspector .12 All parties agree to the inclusion of the hourly paid inspectors , who devote all their time to general pro- duction inspection , and who may reject work but are not authorized to make reports with respect to employees whose work they reject. The salaried inspector earns about $10 per week more than the hourly paid inspectors , and about $5 per week less than the foreman. He spends about 50 percent of his time performing the same duties as the other 10 inspectors , and the balance of his time inspecting and grading the quality of lumber purchased by the Employer . The Employer admits that this inspector is not a supervisor, and that his work varies little from that of the other supervisors , but maintains that he should be excluded because he grades lumber and reports on this work directly to management. The Independent agrees with the Employer , but the Petitioner seeks the inclusion of this inspector . Inasmuch as he has no supervisory duties , and his inspection work is generally similar to that of the other inspectors, we shall include him as well as the hourly paid inspectors in the unit.13 Cafeteria helpers.-The cafeteria is operated under the super- vision of a, chef, who has two hourly paid cafeteria helpers to assist in the operation of the cafeteria. The Employer and the Inde- pendent would include the cafeteria helpers in the- unit but the Petitioner contends that they should be excluded on the ground that its experience has demonstrated that it is impractical to include such employees in a production and maintenance unit. The Petitioner agrees, however , with the Employer and the Independent as to the inclusion of an employee classified as a cafeteria helper in depart- ment 35, who is responsible not to the chef but to the foreman of his department , and who devotes more than 50 percent of his time to working as a janitor, the balance of his time being spent dis- tributing food to employees throughout the plant . All the cafeteria helpers earn an hourly rate comparable to that of other unskilled employees in the plant , are subject to the same general working conditions, and enjoy the same benefits as do other employees. They have been included by the Employer and the Independent in the 12 The August 1946 contract excluded all inspectors. The July 1947 contract excludes salaried inspectors. 13 Although most of the employees in the plant unit are hourly paid, the truck drivers, who are salaried, are included without objection. 781902-48-vol 76-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract unit. There does not appear to be any union in the plant which organizes cafeteria helpers exclusively through which these employees might obtain an opportunity for representation. Under all these circumstances, we shall include in the plant unit the two cafeteria helpers who work in the cafeteria 14 - Guards.-There are five guards in the plant. The Employer and the Independent would include them in the unit, but the Petitioner contends that they fall within the prohibition of Section 9 (b) of the Act, as amended.'-' The guards are hourly paid and are re- sponsible to the foreman of department 35. They are uniformed and wear special badges, but are not armed or deputized. They are stationed at the gate, and their responsibility is confined to the gate. Although they have no greater responsibility than other em- ployees to protect the safety of persons on the Employer's property, they have a duty to prevent unauthorized persons from entering the plant or from carrying company property out of the plant, and to report disorderly conduct of employees at the gate. We shall there- fore exclude the guards.16 Watchmen.-There are three watchmen in the plant, one working on each of the three shifts. They are hourly paid, are responsible to the foreman of department 35, wear the same badges as do other employees, and are not uniformed, armed, or deputized. They patrol the plant, particularly during the shut-downs between shifts, and report through an A. D. T. clock system. As plant-protection em- ployees, they perform the normal duties of such employees, including the enforcement of rules designed to prevent fire, theft,. or other damage to the property of the Employer. All the parties agreed to include these watchmen in the unit. Prior to the amendment of the Act, the Board readily permitted non-monitorial watchmen, such as these, to be included in production and maintenance units when the parties so desired. As stated above, however, Section 9 (b) (3) now provides: That the Board shall not . . . decide that any unit is appro- priate for such purposes if it includes, together with other em- ployees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the em- ployer or to protect the safety of persons on the employer's prem- ises; but no labor organization shall be certified as the representa- 11 See Matter of The Procter & Gamble Manufacturing Co., 64 N L. R. B . 1555; Matter of General Cable Corporation, 62 N L. R B 437 15 This section provides that "the Board shall not . . . ( 3) decide that any unit is appropriate . . . if it includes , together with other employees , any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises . . . - 16 Matter of Young Patrol Service, 75 N L R B. 404 C. V. HILL & COMPANY, INC. 165 tive of employees in a bargaining unit of guards if such organiza- tion admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards. These employees have a duty to protect property of the Employer against theft, whether by employees or by "other persons" who might gain access to the plant. They therefore fall within the definition of the individuals whom the Board is now prohibited from including in units with other employees. In view of the terms of the declaration by Congress in Section 9 (b) (3), we have no choice but to disregard the agreement of the parties as to the watchmen, and exclude them, as well as the guards, from the production and maintenance unit. Under all these circumstances, we shall direct an election among the employees in the group of production and maintenance employees de- scribed below, as well as in the group sought by the I. A. M. We shall make no final determination at this time with respect to the appropri- ate unit or units. Our determination will depend, in part,.upon the results in these separate elections. Accordingly, we shall direct elections among the employees at the Employer's plant in Trenton, New Jersey, in the following voting groups: (1) All tool and die makers, machinists, and maintenance machin- ists, in departments 26 and 29, excluding all supervisory employees; (2) All production and maintenance employees, including in- spectors and cafeteria helpers, but excluding office employees, foremen and assistant foremen, salaried factory clerks, salaried supervisory inspectors, salaried service mechanics, salaried cafeteria employees, guards, and watchmen. DIRECTION OF ELECTIONS 17 As part of the investigation to ascertain representatives for the purposes of collective bargaining with C. V. Hill & Company, Inc., Trenton, New Jersey, elections 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 Fourth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- Series 5, among the employees in the voting groups listed 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 17 Any participant in the elections directed herein may, upon its prompt request to and approval thereof by the Regional Director, have its name removed from the ballot. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election , and any employees on strike who are not entitled to reinstatement , to determine (a) whether the employees in voting group ( 1) desire to be repre- sented by International Association of Machinists , or by International Union, United Automobile, Aircraft & Agricultural Implement Work- ers of America, C. 1. 0., or by C. V. Hill Mutual Benefit Society -Ref rig- erator Workers Union No. 1 (Independent ), for the purposes of collective bargaining, or by none, and (b) whether the employees in voting group (2) desire to be repre- sented by International Union, United Automobile , Aircraft & Agri- cultural Implement Workers of America, C. I. 0., or by C. V. Hill Mutual Benefit Society-Refrigerator Workers Union No. 1 (Inde- pendent), for 'the purposes of collective bargaining, or by neither.