Essex Wire Corp.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondents have not engaged in unfair labor practices within the meaning of the Act by discharging and refusing to reinstate Joseph L. Sala. [Recommendations omitted from publication in this volume.] ESSEX WIRE CORPORATION, CHICAGO TRANSFORMER DIVISION and INTER- NATIONAL ASSOCIATION OF MACHINISTS, LODGE 1234, AFL, PETITIONER ESSEX WIRE CORPORATION, CHICAGO TRANSFORMER DIVISION and INTER- NATIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER. Ca8e8 Nos. 8-RC-1794 and 8-RC-1814. January 16,1968 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, 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 this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. The Employer moved to dismiss the petition in Case No. 8-RC- 1794 on the ground that its current contract with International Brotherhood of Electrical Workers, AFL, Local 1623, herein called the Intervenor, is a bar to the proceeding. On September 12, 1952, the Petitioner wrote a letter to the Employer claiming recognition on behalf of "tool and die makers, machinists, and other tool room em- ployees." The petition, filed 4 days later, describes the unit sought as "all tool room employees." On September 30, 1952, the Employer and the Intervenor executed a contract covering all the employees in the plant. At the hearing which followed, it appeared clearly that the unit sought is the usual machine shop group. The Employer argues that the employees sought at the hearing are not the ones requested by the Petitioner, and that therefore it had a right to make a contract with the Intervenor covering the various mechanic categories in the machine shop. This argument rests en- tirely on the fact that there exists in the plant an enclosure, called the "tool room" by the Employer, situated adjacent to its conventional machine shop. One or two toolroom crib attendants work in this 102 NLRB No. 40. ESSEX WIRE CORPORATION 333 enclosure, and distribute tools to the machine shop employees as well as to other employees in the plant. In addition, there is a regular machine shop consisting of 6 tool and die makers, 2 apprentices, and 15 machinists, first and second class. It is clear that the Petitioner's knowledge of the Employer's organizational nomenclature was limited when it filed the petition, and that at all times it intended to claim recognition for the machine shop unit. Its letter of September 12 so stated. In contrast with the Petitioner's scant knowledge of the plant's departmental organization, the Employer fully realized that the claim was for the machine shop, for its contract with the Inter- venor, executed about a week after the Petitioner's demand, explicitly excludes the machine shop unit.' The amendment of the petition at the hearing, by which the phrase "machine shop employees" was sub- stituted for "tool room employees," was made merely to substitute a more precise job title; it did not constitute a substantial change? Consequently, the amendment did not create a new petition or affect the timeliness of the original filing. As the contract was made after the petition was filed, it is not a bar to a present election. The Employer also moved to dismiss the petition in Case No. 8-RC- 1814 on a contract-bar basis. In support of this contention, it argues that a telegram sent by the Petitioner on September 24, before the contract with the Intervenor was made, did not constitute a proper claim for recognition. In pertinent part, the telegram reads as follows : Please be advised International Association of Machinists in- tend to file petitions for representation election in near future for all production and maintenance employees of your plant. We find no merit in the Employer's contention as to the import of this telegram. No particular form of words is necessary to apprise an employer of a claim to representation. Whatever the words used, they are to be viewed in the light in which they are uttered. Applying this test, we have no doubt that a reasonable person in the place of the Employer would readily understand that the Petitioner's telegram was tantamount to an assertion that it claimed a majority representa- tion of the employees involved. As such, the telegram was sufficient to create a question concerning representation, unless the failure to file a petition within 10 days vitiated the effects of the telegram s I Section 3 of the contract reads : "The parties agree that whereas a petition for cer- tification has been filed on behalf of the Machine Shop employees in the plant , that in the event it is determined that such employees should not be included in this unit that this contract shall be deemed not to include the Machine Shop employees provided the remainder of this contract shall not be affected thereby. In the event the Machine Shop employees are included in this unit such employees shall be governed by the terms of this contract." 2'W. E. Caldwell Company, 81 NLRB 1131. S Bauer-Schweitzer Hop and Malt Company, 72 NLRB 1223 ; cf. Clayton d Lambert Mfg. Co., 101 NLRB 107. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The technical defects in the Petitioner's demand, which were remedied in the formal petition, certainly did not prejudice the Employer, and are no basis for a valid objection. In further support of the motion to dismiss the petition in Case No. 8-RC-1814, the Employer and the Intervenor contend that more than 10 calendar days elapsed between the Petitioner's request for recognition and the filing of the petition, and that therefore, under the General Electric X-Ray doctrine, the contract executed on Sep- tember 30 is a bar to this proceeding.4 The record shows beyond any doubt that the telegraphic claim was delivered either late in the evening of September 24, or on September 25. The petition was filed October 6. Whether the Employer received the telegram on the evening of the 24th or on the 25th, it is clear that the petition was filed within 10 days of the claim. The 10th day following the claim fell on Saturday, October 4, and the petition was filed on the following Monday. As the Board has held, the Petitioner is entitled to any additional time made necessary by the fact that the Board's offices are normally closed Saturdays and Sundays.5 Accordingly, the mo- tion to dismiss the petition in Case No. 8-RC-1814 is denied. 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. 4. The main unit issue in these cases arises from the request of Petitioner-Local 1234, for a unit limited to the employees of the machine shop department. The Employer and the Intervenor oppose this unit on the grounds that the employees are not craftsmen and that they have heretofore been represented on a plantwide basis. Petitioner-IAM agrees with Local 1234. In this plant, located at Zanesville, Ohio, the Employer produces transformers and parts for radio and television. The machine shop is located on the second floor of a three-story building and is fenced off, as are most of the other departments of the company. Working in the machine shop, under the supervision of the machine shop foreman, are approximately 6 tool and die makers, 2 apprentices, and 15 machinists, first and second class. The primary responsibility of the machine shop employees is to maintain, service, and repair, and to make new parts for, all of the company's diversified machinery. The Employer maintains a formal 4-year on-the-job training pro- gram for the machine shop employees; the apprentices participate by working with the other machinists and tool and die makers. While the tool and die makers spend the majority of their time repairing 4 General Electric X-Ray Corp , 67 NLRB 997. 6 Standard Nut and Bolt Company, 92 NLRB 412. The record contains no evidence supporting the Employer 's assertion that it may have received the telegraphic claim as early as September 23. ESSEX WIRE CORPORATION 335 dies, they devote about 15 percent of their time making new dies. A minimum of 4 years' experience is required to progress to the tool- maker classification. There is no interchange between the machine shop group and other employees. Like most maintenance craftsmen, the machinists spend most of their time throughout the plant exer- cising their special skills wherever need arises; they do no repetitive work. Since 1949 the machine shop group has been represented by the Intervenor as part of a plantwide production and maintenance employee unit. It is clear that these machinists, tool and die makers, and apprentices comprise an identifiable, homogeneous group, with interests separate from those of other plant employees. The Board has held that such craftsmen may be separately represented, if they so desire, despite their previous inclusion in a broader bargaining unite They may also, of course, continue to be a part of the existing plantwide unit. We shall, therefore, make no unit determination now, but shall await the results of the elections to follow. We shall direct separate elec- tions in the following voting groups : (a) All machine shop employees at the Employer's Zanesville, Ohio, plant, excluding all other employees, the toolroom attendant,' office clerical employees, guards, professional employees, and all super- visors as defined in the Act. (b) All production and maintenance employees at the Employer's Zanesville, Ohio, plant, excluding office employees, time-study em- ployees,8 machine shop employees, tool designers, nurses, guards, engi- neering employees, professional employees, and all supervisors as defined in the Act. If a majority of the employees in voting group (a) select a union different from that selected in voting group (b), they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the elections is instructed to issue a certification of representatives to that labor organization for such group, which the Board in such circumstances finds to be a separate unit appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication in this volume.] "United ,States Time Corp , 86 NLRB 724. 7 Contrary to the request of Petitioner -Local 1234, we have excluded the toolroom attendant from this voting group because his interests are not centered in the machine shop. The toolroom is not physically a part of the machine shop . It is under separate supervision and its attendant services employees in many departments outside the machine shop. See Johns-Manville Products Corp ., 98 NLRB 748. 8 At one point in the record the Petitioner-IAM Indicated that it might want time-study employees included in the unit if they exercise the same authority as production workers, but that if they have power to change rates of pay, they should be excluded . Towards the close of the hearing, it agreed to their exclusion. The record contains no facts relating to the duties of these employees. As they have been excluded in past contracts , we have excluded them according to the Employer's request. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER STYLES took no part in the consideration of the above De- cision and Direction of Elections. MEMBER MURDOCK, dissenting in part : While in agreement with my colleagues as to the disposition of other issues in this case, I must register my dissent from their refusal to dismiss the petition in Case No. 8-RC-1814. In my opinion, the ambiguous and inadequate statement of claimed interest, or less, made by the Petitioner in that case is on its face insufficient to con- stitute a proper claim for recognition. Such a claim for recognition is, of course, of vital necessity to the Petitioner's cause in this proceeding. The contract executed between the Employer and the Intervenor on September 30 antedates the filing of the petition. The petition, accordingly, under our well- settled contract bar rules, must be dismissed unless a proper claim for recognition was made prior to the execution of the contract .9 This Board has consistently held that a petitioner, under such circum- stances, must have indicated clearly that it claimed to be the repre- sentative of a majority of employees in the appropriate unit 10 While it is true, as suggested by my colleagues, that "no particular form of words is necessary" to apprise an employer of a claim to be ma- jority representative, it is nonetheless essential that a claim to that status is made clear in some fashion. The Petitioner in Case No. 8-.RC-1814, however, merely indicated an "intent" to file petitions "in [the] near future" with no mention of any present contention that it represented a majority of the production and maintenance em- ployees. Nor can such a majority claim be inferred from the lan- guage of the telegram which, at most, amounts only to a notification that an organizing drive was proceeding which might result in a future petition.n It is presumed that most unions active in this coun- try, in an organizing situation where voluntary recognition cannot be acquired, have an "intent" to file a petition with this Board should success in an election appear possible at any time in the course of organization. This intent may or may not be realized but, in any event, is a far cry from an assertion of present substantial interest or majority support. ° Subject, of course, to the 10-day rule enunciated in General Electric X-Ray Corporation, 67 NLRB 997. 10 See Pittsburgh Corning Corporation, 79 NLRB 1040. See also Clayton and Lambert Manufacturing Comany, 101 NLRB 107. Although the language in the latter case might be construed to indicate that an intent to file a petition with the Board was sufficient claim , I believe such an interpretation is erroneous unless read to mean a notification that a petition was actually being presented to this agency. Bauer-Schweitzer Hop ct Malt Co., et at., 72 NLRB 1223, relied upon by the majority, is clearly distinguishable. There the Petitioner had held contracts with the employer and the Board found its notices to be assertions that "the Petitioner continued to be" the majority representative. u The Board has frequently held that organizing efforts themselves do not constitute such a claim. See The Baldwin Company, 81 NLRB 927, and cases cited therein. SPENGLER-LOOMIS MANUFACTURING COMPANY 337 The Board has previously emphasized that even a proper claim of majority representation, under these circumstances, must be sup- ported by the filing of a petition within 10 days to be valid. This is so because the "mere naked claim of representation . . . places no onus on the claimant to substantiate its claim and thus gives rise to no inference of substantial interest." [Emphasis supplied.] 12 The fundamental interest of this Board is thus in ascertaining that con- tracts are not nullified without a clear and substantial contest between claimants to majority representation at the time of the execution of the agreement. In the instant case, however, the majority position of the Intervenor had not even been questioned by a bare assertion of majority status on the part of the Petitioner at the time of the contract execution. Under these facts, and when the challenging union fails to contest the majority position of the incumbent organi- zation to even this limited extent, I do not believe that the processes of the Act or the stability of bargaining relationships is aided by striking down the contract and directing an election. Accordingly, I would dismiss the petition in Case No. 8-RC-1814. 2 General Electric X-Ray Corporation, supra. SPENGLER-LOOMIS MANUFACTURING COMPANY amid INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, C. I. O. Cases Nos. 13-CA-915 and 13-RC-17X. January 19,1953 Decision and Order On July 10, 1952, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the petition in Case No. 13-RC-1732 be dismissed. Thereafter, the Union filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman Herzog and Members Styles and Peterson]. 2 The Respondent did not file exceptions to the Intermediate Report. The Union excepted only to the failure of the Trial Examiner to recommend that the election be set aside. 102 NLRB No. 47.