Baker & Co., Inc.

In the Matter of BAKER & CO^IIPANY, INC., and INTERNATIONAL I ASSOCIATION OF MACHINISTS, AFL Case No. 2-R-5829.-Decided January 31, 1946 Mr. Karl Huber, of Newark, N. J., for the Company. Messrs. Samuel R. Isard and Lawrence Trwimpore, of Newark, N. J., for the TAM. Rothbard, Harris cfi Oxfeld, by Mr. Samuuel L. Rotiibard, of Newark, N. J., and Mr. James L. Geng, of Newark, N. J., and Mr. James M. Davidson, of Kearny, N. J., for the CIO. Mr. John A. Nevros, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OE THE CASE Upon 'an amended petition, duly filed by International Association of Machinists, AFL, herein called the IAM, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Baker & Company, Inc., Newark, New Jersey, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert A. Levett, Trial. Examiner. The hearing was held at Newark, New Jersey, on Oc- tober 4 and 5, 1945. The Company, the TAM, and Precious Metal Workers Union, Local No. 668, International Union of Mine, Mill & Smelter Workers, CIO,' herein called the CIO, appeared and partici- pated? All parties were afforded full opportunity to be heard, to examine and cross-examine witness, and to introduce evidence bear- ing on the issues. At the beginning of the hearing, the CIO moved to dismiss the petition on the ground that the TAM had not presented current evidence of substantial interest. The Trial Examiner re- ferred the motion to the Board. For reasons stated in Section III, infra, the motion is denied. The Trial Examiner's rulings made at I The motion of the CIO to intervene was granted at the commencement of the hearing 2 The IAM waived the right to object to any election which may be ordered herein on the basis of the charges filed in Cases Nos 2-C-5771 and 2-C-5890. 65 N L. It. B., No. 110. 646 BAKER & COMPANY, INC. 647 the hearing 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 1. THE BUSINESS OF THE COMPANY Baker & Company, Inc., a New Jersey corporation, having its prin- cipal office in Newark, New Jersey, operates six plants in Newark and East Newark, New Jersey, all of which are involved in this proceed- ing. The Company is engaged in the refining and manufacturing of precious metals. During the year 1944, the Company purchased raw materials valued in excess of $1,000,000, of which approximately 75 percent came from sources outside the State of New Jersey. During the same period, the Company's sales of finished products exceeded $1,000,000 in value, of which approximately 75 percent represented shipments to points outside the State. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. THE ORGANIZATIONS INVOLVED International Association of Machinists, and Precious Metal Work- ers Union, Local No. 668, International Union of Mine, Mill & Smelter Workers, affiliated with the Congress of Industrial Organizations, are labor organizations admitting to membership employees of the Company. III. THE QUESTION CONCTRNING REPRESENTATION By letter. dated July 31, 1945, the IAM advised the Company that it represented a majority of the employees of the Company and re- quested a conference to negotiate a contract. The Company replied by letter dated August 3, 1945, stating that the employees referred to by the TAM were covered by an existing contract with the CIO. On December 21, 1944, the CIO and the Company entered into a collective bargaining contract effective retroactively from September 3, 1943, to September 3, 1945. The contract was automatically renew- able for an additional year thereafter, unless either party served notice of termination at least 30 days prior to September 3, 1945. By letter dated July 17, 1945, the CIO gave notice that it desired to amend its agreement with the Company for the purpose of incorporat- ing such amendments in a new written agreement. A new agreement was executed thereafter by the Company and the CIO on October 1, 1945, effective from September 3, 1945, to September 3, 1946. Inas- much as the IAM, by its letter of July 31, 1945, gave timely notice of 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its claim, and because the CIO took effective action to prevent the automatic renewal of the December 21, 1944, agreement, we find, and the parties concede, that neither the original contract nor the subse- quent agreement is a bar to this proceeding. A statement of a Board agent, introduced into evidence at the hearing, indicates that the IAM represents a substantial number of employees in the unit hereinafter found appropriate.3 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 The parties agree that all production and maintenance employees at the Company's six plants, including the employees enumerated in Appendix A attached hereto, but excluding the employees enumerated in Appendix B attached hereto, constitute an appropriate unit. The only disagreement among them involves certain working foremen, the IAM desiring to include them, and the Company and the CIO wishing to exclude them. There are 19 working foremen who are in dispute 4 The Company and the CIO would exclude these employees as supervisors. The IAM would include them on the grounds that they do not have the direct or final authority to hire or discharge, and that they perform manual labor a substantial percentage of the time. In the latter connection it is the IAM's view generally that only those working foremen who perform manual labor for less than 50 percent of their time are to be excluded s Each working foreman is responsible either to a depart- 8 The Field Examiner reported that the IAM submitted 252 authorization cards, of which 143 are dated between May and August 1945, 104 are dated January 1945, and 5 are undated. There were approximately 700 employees in the alleged appropriate unit at the time of the filing of the petition , but the record indicates that at the time of the hearing there were approximately 532 employees in the unit sought. At the hearing, the CIO moved to dismiss the petition , contending that the IAM has failed to make a showing of present substantial representation . We find no merit to the CIO's contention See Matter of Anderson Brothers Lumber Company , 64 N. L. R. B. 986; Matter of Consolidated Vultee Aircraft -Corporation, 64 N L. R. B. 400; Matter of Jasper Chair Company, 63 N L R. B . 632 ; Matter of Brad Foote Gear Works, Inc., 60 N. L. R. B. 97. The CIO relies upon its contract to support its claim of interest * The parties are not in dispute with respect to the following working foremen : working foreman, set-up man ; working foreman, piercing room ; working foreman , melting ; working foreman, power press ; and working foreman, wire drawer. Unlike the working foremen hereinafter discussed , these five working foremen admittedly possess no authority to effect changes in the status of any subordinates or effectively recommend such action . We shall, therefore, include them in the unit, in accordance with the stipulation of the parties. In this group of employees , about whom there is no dispute , are A Schnell , assistant production department head and working foreman, weaving room, in the Manufacturing Department ; W. Thal , working foreman , Special Products Department ; and N. Vitelli, working foreman , production , in the Spinnerette Department . There is, however, some inconsistency in the IAM 's position in this respect. Thus, it would include J. Vocasek, who, like Thal is a working foreman`ln the Special Products Department and devotes, as does Thal, approximately 40 percent of his time to manual operations. BAKER & COMPANY, INC. 649 ment head or to an admittedly supervisory non-working foreman. The working foremen direct the operations of groups numbering up to 30 employees and devote from 10 to 90 percent of their time at physical or manual work, depending upon the department, the num- her of employees under their direction, and the nature of the work performed. All but 5 of the 19 working foremen in dispute are paid on an hourly basis at rates substantially higher than the highest paid workers under their direction, and those paid on a salary basis receive substantially higher compensation than the workers under their super- vision. These working foremen have the authority effectively to rec- ommend the hire, discharge, or disciplining of their subordinates, and also make recommendations as to efficiency ratings, merit raises, and lay-offs. In addition, the current contract between the Company and the CIO, which was executed October 1, 1945, excludes from its cov- erage ". . . non-working and working foremen who have the right to hire or fire or the right to effectively recommend such action ..." 6 Under all the circumstances, we find that the working foremen in dispute are supervisory employees within our usual definition, and accordingly, we shall exclude them. We find, in accordance with the agreement of the parties and our foregoing determination, that all production and maintenance em- ployees of the Company at its Newark, New Jersey, and East Newark, New Jersey, plants including the employees enumerated in Appendix A attached hereto, but excluding the employees enumerated in Ap- pendix B attached hereto, working foremen (except the five working foremen listed in Appendix A), and all or any other supervisory em- ployees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recom- mend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.7 6 whether or not working foremen were included or excluded from the unit in previous agreements is not clear from the record . On the one hand the parties stipulated that the working foremen who are now in dispute were excluded in the agreement between the Com- pany and the CIO, executed December 21, 1944, as well as in prior agreements from 1937 to 1944 between the Company and an independent labor organization known as the Mutual Welfare Association. On the other hand the attorney for the Company stated at the hear- ing that "under the contract which expired September 3, 1945, all working foremen in the Company were covered by the agreement irrespective of where they might be located in the Company," and counsel for both the CIO and the IAM concurred . In addition, peti- tioner's brief states that "these foremen were all originally part of the respondent's so- called bargaining unit during the term of the agreement dated December 21, 1944 . . " Although the Company apparently does not employ foremen,as such, but has "nonworking foremen" and "working foremen," the agreement dated December 21, 1944, in describing the unit covered , states merely that it shall not include ". .. foremen who have the right to hire and fire . . .. 4 This unit is substantially the same as the unit covered by the current contract between the Company and the CIO. 650 DECISIONS QF NATIONAL LABOR RELATIONS BOARD 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 Election 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 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Baker & Company, Inc., Newark, New Jersey, an election by secret ballot shall be con- ducted 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 Second 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 appropriate 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 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 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 International Association of Machinists, or by Precious Metal Workers Union, Local No. 668, International Union of Mine, Mill & Smelter Workers, CIO, for the purposes of collective bargaining, or by neither. APPENDIX A Spinnerette Department 'Toolmaker A Toolmaker Specialist Janitor Sharpener Group - Leader - In- spector Sharpener Spinnerette Department-Con. Piercer Foot Piercing Inspector Polisher Spinnerette Operator BAKER & COMPANY, INC. Spinnerette Department-Con. Working Sub-Foreman Plater Measurer Cleaning Operator Punch Press Operator Working Foreman, Set-up Man Working Foreman, Piercing Room Contact Department Production Control Clerk Production Lay-out Clerk Inspector Toolmaker Wire Operator General Receiving Clerk Receiving and Filing Clerk Janitor Powder Metal Helper Electrical Research Helper Assembler Roller Soldering & Brazing Furnace Operator Soldering & Brazing Assembler Composite Welder Resistance Welder Melter Helper Pickler Rivet Maker Power Press Operator Production Machinist Slitter Bench Lathe Operator Shaper Plater-Helper Working Foreman, Melting Working Foreman, Power Press Chemical Laboratories Chemical Refining Operator Refining Melter Janitor 651 Maintenance ci Miscellaneous Stock Clerk Clerk Painter Millwright Carpenter Electrician Laborer Pipefitter's Helper Pipefitter Box Maker Laundry Fireman Receiving Clerk Stores & Supply Clerk Ass't Head of Stores 9 Perpetual Inventory Clerk Elevator Operator Janitor Cleaning Woman Truck Driver Sweeps Department Operator Laborer Manufacturing Department Diamond Die Polisher Melter & Annealer Janitor Wire Drawer Tubing Maker Rolling Mill Operator Platinumsmith Weaver Spinner Polisher Metal Forger Bench Lathe Operator Machinist Toolmaker Composite Welder Working Foreman, W i r e Drawer " The parties agree that the working sub-foreman has no supervisory authority within the Board 's customary definition of the term. 9 The assistant head of stores is not a supervisory employee within the Board's customary definition of the term. 652 DECISIONS OF NATIONAL Settings Department Punch Press Operator Melter Polisher Jeweler Steel Engraver Toolmaker Janitor Special Products Department Inspector Factory Clerk Stock Clerk Timekeeper & Material Con- trol 10 Storekeeper Truck Driver Janitor Assembler Utility Operator Machinist ' Lathe Operator Furnace Brazing Operator Receiving Clerk LABOR RELATIONS BOARD Platinum Melting Department Melter Dental Manufacturing Depart- ment Janitor Toolmaker Swage Operator Bench Hand Rolling Mill Operator Punch Press Wire Drawer Packer Tooth Pin Operator Melter Inspector Shellac Operator Furnace Builder Special, Machine Operator Plastic Mixer Reflector Department Grinders & Polishers 'APPENDIX B Executives Department Production Heads Department Heads Assistant Department Produc- tion Heads Assistant Department Heads Non-working Foremen Head of Stores Ass't Production Department Head and Working Foreman, Weaving Room W. Thal, Working Foreman, Special Products Department Draftsman Professional and Technical Em- ployees Guards Office Workers Office Clericals Nurses Vault Clerks - Precious Metal Shipping and Receiving Clerks 11 10 The timekeeper is employed in the special products department, has nothing to do with the pay roll or hours worked by employees for purposes of compensation , and is primarily a methods man who maintains records on production output u The precious metal shipping and receiving clerks maintain shipping and receiving records of an extremely detailed nature. They are salaried employees having the same general privileges and benefits enjoyed by office employees, are directly supervised by office- executives , and are under the same direct supervision as the vault clerks. Their interests are dissimilar from the ordinary shipping and receiving clerks , whom the parties agree to include, and there is no contact between the respective groups of employees.