The Pipe Machinery Co.

In the Matter of TILE PIPE MACHINERY COMPANY, EMPLOYER and P. M. CO. INDEPENDENT UNION, PETITIONER Case No. 8-R-2642.-Decided February 19, 1948 Stanley & Smoyer, by Mr. Eugene B. Schwartz, of Cleveland, Ohio, and Messrs. E. T. Benninghoff and Arthur Giebner, of Cleveland, Ohio, for the Employer. Messrs. C. J. Koubek and Wilbur Flack, of Cleveland, Ohio, for the Petitioner. Messrs. Howard Tausch and Nick Charo, for the Intervenor. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Cleve- land, Ohio, on June 11, 1947, before John A. Hull, 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 The Pipe Machinery Company, an Ohio corporation, is engaged in the manufacture of gauges, pipe threading machinery, small tools, and dies at Cleveland, Ohio. During the past fiscal year the Em- ployer purchased raw materials exceeding $150,000 in value, more than 50 percent of which represented shipments from points outside the State of Ohio. During the same period the Employer sold prod- ucts valued in excess of $500,000, of which more than 50 percent rep- resented shipments to points outside the State of Ohio. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. TIIE ORGANIZATIONS INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer. 76 N. L. R. B., No. 37. 247 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists, District 54, herein called the Intervenor, is a labor organization claiming to represent employ- ees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of its employees until the Petitioner has been certified by the Board in an appropriate unit. 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 UNIT The parties are in substantial agreement that all production and maintenance employees, including inspectors and shipping and re- ceiving clerks, but- excluding office clerical employees, uniformed guards, and the nurse, constitute an appropriate unit.' The parties are in dispute, however, concerning the inclusion of the following categories of employees : Shop accountants: The Employer and the Petitioner maintain that shop accountants should be excluded from the unit, whereas the In- tervenor seeks their inclusion. The Employer has not had shop ac- countants in its employ since December 1946, nor does it expect any employees to be engaged in shop accounting or similar work in the future. Under these circumstances, we shall not, at this time, make any determination with respect to this employee category.2 Working foremen; the chief inspector: The Employer and the Peti- tioner would include working foremen and the chief inspector in the unit. The Intervenor desires their exclusion. The working foremen and the chief inspector formerly spent almost all their time in super- visory work. At present, the working foremen spend a majority of their time in production work. However, the record shows that the working foremen prepare merit rating sheets which determine whether or not employees will be given pay increases, and that the chief in- spector and all working foremen have the right effectively to recom- mend the hire, discharge, promotion, discipline, and changes in work- ing conditions of employees in their departments. The working fore- men and the chief inspector are, therefore, supervisors. We shall exclude them from the unit. We find that all production and maintenance employees of the Employer at its Cleveland, Ohio, plant, including inspectors and a There are approximately 110 employees in the appropriate unit. 2 Matter of Curtiss-Wright Corporation, 63 N. L. R. B. 207. THE PIPE MACHINERY COMPANY 249 shipping and receiving clerks, but excluding office clerical employees, uniformed guards,' the nurse, the chief inspector, working foremen and all other supervisors constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. V. TIDE DETERMINATION OF REPRESENTATIVES ° Although an economic strike,' called by the Intervenor, has been in effect at the Employer's plant since February 17, 1947, it appears that the Employer has replaced some of the strikers and that the plant has continued to operate. All parties request an immediate election despite the currency of the strike. They differ only as to the date to be used in determining eligibility to vote in the election. The Petitioner requests that the Board use the date of the strike to determine eligibility to vote, the Intervenor urges the use of the pay-roll immediately be- fore the strike, and the Employer requests the use of the pay roll immediately preceding the Direction of Election, which is the custo- mary Board eligibility date. Hitherto the Board has permitted both economic strikers and their replacements to vote,' irrespective of a striker's right to reinstatement, except that replacements hired after an unconditional application by the strikers to return have not been eligible to vote.6 However, Sec- tion 9 (c) (3) of the Act, as amended, now provides that "Employees on strike who are not entitled to reinstatement shall not be eligible to vote." Although the above quoted language clearly indicates that only those employees who are entitled to reinstatement shall be eligible to vote, it is apparent that we cannot accurately determine at this stage of the proceeding which of the striking employees have been validly replaced and which individuals are still entitled to reinstate- ment. To do so will require ascertaining the facts as of the date selected to test voting eligibility. Board experience in dealing with related eligibility issues has demon- strated the advisability in such circumstances of proceeding with an election forthwith, of using a current pay roll, and of permitting affected individuals to cast ballots under challenge with the proviso that their ballots shall not be counted unless the results of the election s Although the record does not indicate whether there are any guards or watchmen in the agreed unit, such employees, if any, shall be excluded from the unit found appropriate. Matter of C. V. Hill & Company, Inc., 76 N L R. B. 158. 4 The General Counsel, on January 5, 1948, sustained the Regional Director' s dismissal for lack of merit of Case No. 8-C-2172, in which the Intervenor charged the Employer with certain unfair labor practices. "Matter of The Rudolph Wurltitzer Company, 32 N. L. It. B. 163; Matter of Columbia Pictures Corporation, et al., 64 N. L. R. B. 490. "Matter of Kellburn Manufacturing Company, 45 N. L. R. B. 822. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make it necessary to do so. We think the same technique is indicated -here. In the event that the counting of the challenged ballots would affect the results of the election, the question as to which of these bal- lots shall be opened and counted must await a further investigation concerning the employment status of the individual strikers and their replacements. Accordingly, we shall direct an immediate election, permitting all employees to participate who were employed during the pay-roll period immediately preceding the date of this Direction. All persons hired since February 17, 1947, the date of the strike, and all strikers shall be deemed presumptively ' eligible to vote, subject to challenge. DIRECTION OF ELECTION s As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with The Pipe Machinery 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 Di- rector for the Eighth Region, and subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations-Series 5, and to our determination in Section V, supra, among the 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 were on strike at that time and employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those em- ployees who have since quit or been discharged 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 P. M. Co. Independent Union or by International Association of Machinists, District 54, for the purposes of collective bargaining, or by neither. MEMBER REYNOLDS took no part in the consideration of the above Decision and Direction of Election. 7 By permitting strikers and their replacements to cast ballots , as we did in the Wurlstzer case, supra, we are not to be taken as reiterating the doctrine in that case, upon which Section 9 ( c) (3) of the amended Act has had considerable impact. We are merely using this technique to lay the basis for ascertaining the active employment status of the strikers and their replacements. Nothing in this Direction should be construed as indicating that the Board has prejudged in any respect any of the questions which may be drawn into issue by a challenge to the eligibility of certain voters, including such questions as whether (1) a new employee is a permanent replacement, (2) a striking employee has been validly replaced , or (3) any employee's position no longer exists by reason of its permanent discontinuance for economic reasons Matter of Longhorn Roofing Products , Inc, 67 N L R . B. 84 , Matter of Geitich Tanning Company, 59 N. L. R. B. 1183. 8 Any participant in the election herein may , upon its prompt request to, and approval thereof by , the Regional Director , have its-name removed from the ballot.