Eclipse Fuel Engineering Co.

In the Matter of ECLIPSE FUEL ENGINEERING COMPANY and APPLI- ANCE INDUSTRIES UNION (NOT AFFILIATED) Case No. 1-3-R-2835.-Decided January 4, 1946 Mr. Stanton E. Hyer, of Rockford , Ill., for the Company. Mr. Edward J. Fahy, of Rockford, Ill., for the Independent. Messrs. E. V. Rooee and Harold A. Benson, of Rockford , Ill., for the CIO. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Appliance Industries Union (not affiliated), herein called the Independent, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Eclipse, Fuel Engineering Company, Rockford, Illinois, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Leon A. Rosell, Trial Examiner. The hearing was held at Rockford, Illinois, on September 20, 1945. At the commencement of the, hearing, the Trial Examiner granted a motion of United Electrical, Radio & Machine Workers of America, C. I. 0., hereinafter called the CIO, to intervene. The Company, the Independent, and the CIO appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues. At the hearing, the CIO moved for dis- missal of the petition. For reasons set forth in Section III, infra, the motion is denied. The Trial Examiner's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Eclipse Fuel Engineering Company is an Illinois corporation en- gaged in the manufacture of gas-fired steam generators and other gas 65 N. L. R. B., No. 30. 679100--46-vol. 65-12 159 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment. The Company maintains its plant and office at Rockford, Illinois. During the fiscal year ending June 1, 1945, the Company purchased materials valued in excess of $100,000, approximately 50 percent of which was transported to its plant from points outside the State of Illinois. During the same period, the Company manufac- tured goods valued in excess of $100,000, of which approximately 95 percent was shipped from its plant to points outside the State of' Illinois. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Appliance Industries Union (not affiliated) is a labor organization admitting to membership employees of the Company. United Electrical, Radio R Machine Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about December 30, 1944, the Independent requested recog- nition from the Company as the representative of certain of its em- ployees. The Company refused such recognition in the absence of certification by the Board. On May 28, 1942, subsequent to a consent election held under Board auspices, the CIO was designated as the collective bargaining repre- sentative of the employees involved herein.' Between that time and November 15, 1943, the Company and the CIO were engaged in nego- tiations in an effort to arrive at a collective bargaining agreement. Matters agreed upon between the parties were reduced to writing and put into effect; some disputed matters were submitted to the War Labor Board and others to arbitration panels, and the consequent determinations, when issued, were also reduced to writing and effec- tuated.' However, these agreements were not incorporated into a signed contract. On November 15, 1943, an arbitrator appointed by the War Labor Board directed the parties to execute a contract retro- actively effective as of August 27, 1942, and terminating on May 27, 1944. However, due to delays caused in effectuating the general wage increase which had previously been directed by the War Labor Board, a formal agreement was not executed by the parties until March 1944. I Case.No 13-R-1270. 2 Among these were determinations concerning union security, vacations , and grievance procedure . The determination with respect to wages was not executed until later, when, as hereinafter indicated, a contract was executed between the parties. ECLIPSE FUEL ENGINEERING COMPANY 161 This agreement recited, inter alia, that it was to remain in effect for a yearly term subsequent to May 27, 1944, in the absence of notice by either party of a desire to change or terminate the agreement given thirty (30) days prior to any expiration date. . , Prior to April 27, 1944, both'parties gave timely notice of a desire to make changes in the existing agreement. Shortly thereafter, sev- eral employees of the Company notified it that they no longer desired to be represented by the CIO. The Company thereupon notified the CIO that it had doubts as to its majority status, and refused to nego- tiate with it with respect to a new agreement. The CIO again resorted to the processes of the War Labor Board which directed the Com- pany to negotiate with the CIO; the Company's appeal from this directive was denied in November 1944. Despite the directive and the denial of its appeal, the Company still refused to negotiate with the CIO regarding a new agreement; the CIO filed another applica- tion before the War Labor Board based upon this refusal, which is still pending before that agency. As previously noted, in December the Independent served notice of its representation claim. The CIO contends, in effect, that the doctrine of the Allis Chal- mers case 3 is applicable to this proceeding, asserting that it has actually enjoyed the fruits of collective bargaining for a 2-month period rather than the customary 1 year, and that there are matters between it and the Company currently pending before the War Labor Board. However, the facts previously set forth amply dem- onstrate that the CIO is not a newly recognized agent, and that it has enjoyed substantial collective bargaining rights on behalf, of the Company's employees for a considerable period of time. Thus, the provisions of the contract as finally executed between these parties, including the provisions regarding wages, were either the confirmation of conditions of employment then existing between the parties, or put into effect retroactively for the full 21-month term of the contract. In view of these circumstances we find no merit in the CIO's contention.4 A statement of a Board agent, introduced into evidence at the hearing, indicates that the Independent represents a substantial num- ber of employees in the unit hereinafter found appropriate.' 8 Matter of Allis-Chalmers Manufacturing Company, 50 N. L. R. B. 306. 4 See Matter of Federal Screw Works, 61 N. L. R. B. 387; cf. Matter of Thompson Prod- ucts, Inc., 60 N. L. R. B. 885. The Field Examiner reported that the Independent submitted 19 authorization cards bearing the names of persons appearing upon the Company's pay roll of August 9, 1945. There are 42 employees in the appropriate unit. The interest of the CIO in this proceeding is established by its 1944 agreement with the Company 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 We find, in substantial accordance with the agreement of the parties, that all production and maintenance employees, excluding, officers of the Company, office and clerical employees, and all super- visory employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees, or effec- tively recommend 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 the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby r DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Eclipse Fuel Engineering Company, Rockford, Illinois, an election by secret bal- lot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth 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 the employees in the unit found appro- priate 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 laid off, and including em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding those employees who have ECLIPSE FUEL ENGINEERING COMPANY 163 since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the,election, to determine whether or not they desire to be represented by Appliance Industries Union (not affiliated), or by United Electrical Radio & Machine Workers of America, C. I. 0., for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.