The Vendo Co.

THE VENDO COMPANY 807 The Board has held that a union's request for a new contract was the equivalent of a new demand for recognition, which, when denied by the employer, raises a question concerning representation which the employer is entitled to have resolved by an election. The good faith of the employer in refusing to grant continued recognition, or the legality of its refusal under Section 8 (a) (5) of the Act, the Board has stated, are not properly before it in a representation proceeding.' Under the circumstances, 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. Accordingly, we deny the Union's motion to dismiss the peti- tion herein. 4. We find that all production and maintenance employees at the Employer's Baltimore, Maryland, food processing plant, excluding office clerical employees, guards, watchmen, professional employees,, truckdrivers, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act.' [Text of Direction of Election omitted from publication.] the settlement agreement and the posting of the notice , the Regional Director dismissed the unfair labor practice charges. The Union appealed this dismissal to the General, Counsel, and apparently such appeal is now pending . In these circumstances, we are of the opinion that it will best effectuate the policies of the Act to direct an election herein, even though an appeal from the dismissal of the unfair labor practice charges is pend- ing before the General Counsel. ( See McQuay, Incorporated, 107 NLRB 787 .) However, we shall make the Direction of Election herein contingent on the Employer 's compliance with the settlement agreement ; accordingly , we hereby direct the Regional Director to conduct such election at a time when he has determined that compliance by the Employer has been effected and that no intervening unfair labor practices make a free election im- possible ( See Inyo Lumber Company, 92 NLRB 1267 , 1268, footnote 2; Personal Prod- ucts Corporation, 108 NLRB 1129.) 2 Philadelphia Electric Company, 95 NLRB 71 ; Andrews Industries, Inc, 105 NLRB 946. 3 The 'unit found appropriate conforms to the unit certified by the Board in 1952 and described in the parties ' most recent agreement. THE VENDO COMPANY and INTERNATIONAL ASSOCIATION OF MACHIN- ISTS, DISTRICT LODGE No. 71, AFL, PETITIONER. Case No. 17-RC- 1832. November 8,1954 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William J. Cassidy, 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. 110 NLRB No. 126. 808 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved herein claim to represent cer- tain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to sever from the existing production and maintenance unit at Employer's operations at Kansas City, Missouri, all tool- and die-makers, template makers, modelmakers, toolroom machinists, and heat treaters. The Intervenor, United Steelworkers of America, CIO, and the Employer oppose severance of the requested unit for the reasons (1) the history of collective bargaining has been on a production and maintenance basis, even when Petitioner was the- bargaining representative 2 years ago; (2) except for the heat treat and template shops, there are no physical barriers between depart- ments; (3) all production and maintenance employees have the right to bid into any of these departments and approximately 50 percent of the incumbents, now sought by Petitioner were formerly production and maintenance employees, and, (4) maintenance duties performed by the group of employees sought by the Petitioner are necessary to the production process. The Employer is engaged in the manufacture of coin-operated vending machines and aircraft parts at its place of business located at Kansas City, Missouri. In 1949, Local Lodge No. 92 of the Peti- tioner was certified as the collective-bargaining representative of all production and maintenance employees. In 1952, the Intervenor was selected by the employees and certified by the Board as the rep- resentative of this plantwide unit which included approximately 550 employees. The Employer's factory is a 1-story brick building encompassing 358,000 square feet. There are no partitions or walls dividing this area except those which enclose the heat treat operators and the tem- plate makers. The employees sought herein are located within de- partments 77, 29, and 18. The Petitioner stated that it did not seek severance along departmental lines, but severance of a group of em- ployees, approximately 38, who it contends are highly skilled craftsmen with a community of interest separate from other plant employees. In department 77 are found tool- and die-makers, A and B, model- makers'A, modelmakers specialists, machinists (toolroom), a tool crib clerk, and a materials handler. A foreman who reports directly to the production manager is in charge of the tool- and die-makers and the model shop. The tool- and die-makers A, the highest classifica tion in the plant, work on jigs and fixtures and do machine work re- pairing shafts and bearings for the maintenance department. Tool- and die-makers B are employees who have transferred, usually from THE VENDO COMPANY 803 the machine shop, and are learning tool- and die-making. The work of a tool- and die-maker A and B is not limited to work within the assigned area of the plant : he works in every department repairing fixtures, machines, and equipment. Illustrative of this type of work is that one tool- and die-maker might go to the assembly department and determine whether a riveting machine needed a new plunger or whether the tool itself was operating correctly; one might go to the press department to make minor adjustments or repair to a punch press, or work with a maintenance man in straightening a ram that was out of adjustment. After performing such work, he would make test runs to be sure the tool was operating properly before he went back to his department. Nor do these employees confine themselves to use of tools located in their area : tool- and die-men use machinery located in other departments and employees from the machine shop use machinery located in the tool and die shop. This situation is also applicable to employees of the model shop and the template shop. However, each classification of employee would be doing work of that classification, but using machinery located elsewhere in the plant. Modelmakers A build the sheet metal and machine parts model of the Employer's equipment from engineering prints. The Employer offered testimony that in practically every department in the plant, employees worked from blueprints. Fifty percent of the model- makers have progressed from other departments and classifications in the plant to this classification. One of the witnesses at the hearing was a modelmaker A who had begun work at Vendo in 1945 in the I shipping and receiving department where he worked for 10 months and then transferred to the spot welding department where he be- came a leadman. From there he became a setup man and then trans- ferred into the model shop as a modelmaker A where he remained only a short time before transferring into the aircraft department as a sheet metal man and form block builder. Later he came back to the model shop as a modelmaker A, where he has been for 21/2 years and is at the top of the A classification. He stated that no formal re- quirements or any sort of apprenticeship were necessary prior to be- 'coming a modelmaker. He further testified that work at various times had been slack in the model shop at which times numerous parts would be returned to the shop for reworking, such as increasing the diameter of a hole, which work could be done by any production man if he had a machine on which to do it. There are no modelmaker B'and-C classifications. Two modelmakers have been assigned to the engineering department to work on research projects. Although assigned to the engineers, they use some of the equipment in the model shop as the engineering department does not have adequate equipment for them. Even though they perform some of their work in the model shop, they remain 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the supervision of the engineers with the foreman of the model shop giving them instructions. A modelmaker specialist, in general, does not need as much super- vision as do modelmakers A. One modelmaker specialist came di- rectly from the punch press department into the model shop and progressed from modelmaker B through A to specialist; another was hired from the outside in B classification and progressed to the spe- cialist classification. Machinists (toolroom) spend over 60 percent of the time machining parts, of which 20 percent would be production parts, and may do repair jobs for maintenance or some jig and fixture work. A vacancy in this classification would likely be bid on by someone from depart- ment 18 where the machine tool operators and drill press operators are, who would go into the machinist classification at an increased pay rate but at the bottom of the classification. The tool crib clerk and a material handler, the cleanup man for de- partment 77, are not sought by the Petitioner due to their lack of skill. However, the Petitioner states that it will represent them if the Board includes them in the unit. In department 29 are the template makers A, B, and C, a template inspector, and a tool crib clerk. The top template makers work with plasters for aircraft parts, and the lower class template makers work on sheet metal templates, parts, or templates of less importance. The template inspector is selected from the other inspectors in the plant, and is given additional training to qualify him to determine whether the parts made in the template department are correct. The Petitioner does not believe the inspector or the tool-crib employee should be in- cluded in the unit as they are not skilled employees, but will repre- sent them if the Board finds otherwise. The foreman of the template department reports to the aircraft superintendent who reports, to the production manager of aircraft. In department 18 are the 2 heat treat operators whom the Peti- tioner seeks. They heat treat tools and dies, aircraft parts, and regu- lar production parts. A further qualification of this classification is that the operator be able to weld. Approximately 10 percent of the Lime of the heat treat operator's time is spent in welding, of which 25 percent would be tool welding. At the hearing, the parties stipu- lated that a wide gulf separated these employees from the other em- ployees sought, but the Petitioner contended that they possessed a high degree of skill and should be included in the requested unit. However, it is willing to represent the unit with or without this classi- fication. Other employees in this department whom Petitioner does not seek are the machine shop employees, tool operators A and B, and drill press operators A and B. The foreman of this department re- THE VENDO COMPANY 811 'ports to the superintendent of fabrication who reports to the pro- duction manager. Although the Employer has no formalized training program, pro- gression appears to equal on-the-job training. Opportunity is given all employees to bid on all vacancies. The evidence reveals that in order to qualify for the right to bid on vacancies in the classifications sought, there are two requisites : a "know-how" and desire to do the job, and seniority. No craft experience or schooling is required, but if an employee bidding has displayed any aptitude for the particular job, he is given a 40-hour trial period to prove his ability to perform the work. At times the Employer has had to hire employees from the outside to fill some classifications. Such an employee would be hired in the -classification needed if he had had experience and was physically fit, and he would be given the same trial period given transferees to de- termine whether or not he could perform the work, the foreman of the department usually making the determination. The tool- and die-makers, A and B, the modelmakers, A, the model- maker specialist, the toolroom machinists, and the template makers, Al B, and C, appear to perform work involving a high degree of skill. As they compose an identifiable and distinctive craft group embrac- ing all the employees of the same type within the plant, we find that they may, if they so desire, sever from the existing production and maintenance unit. We further find that the Petitioner has tradition- ally represented such a craft group.' The record, in our opinion, fails to establish that heat treat opera- tors possess sufficient skill to entitle them to inclusion in the above craft group. Nor shall we include the tool crib clerk, the material handler, or the template inspector as they are clearly not craftsmen. Accordingly, we shall direct an election in the following group of 'employees to determine whether or not they desire to be represented by the Petitioner separately : All tool- and die-makers, toolroom ma- ,chinists, modelmakers, modelmaker specialist, and template makers, ,.at Employer's operation at Kansas City, Missouri, but excluding heat treat operators, the tool crib clerk, the material handler, the template inspector, and all other employees, guards, and supervisors as defined in the Act. If a majority of the employees in this group select the Petitioner, they will be taken to have indicated their desire to constitute a sepa- rate unit, which the Board finds, under the circumstances, to be ap- propriate for purposes of collective bargaining, and the Regional Di- rector is instructed to issue a certification of representatives to the Petitioner for such unit. If a majority vote for the Intervenor, they 1 See Western Electric Company, Incorporated, 108 NLRB 396. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will be taken to have indicated their desire to remain a part of the existing plantwide unit of production and maintenance employees, and the Regional Director is instructed to issue a certification of re- sults of election to that effect. [Text of Direction of Election omitted from publication.] REYNOLDS METALS COMPANY and UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, AFL, LOCAL UNION No. 109, PE- TITIONER. Case No. 10-RC-.787. November 8, 1954 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John S. Patton, hear- ing 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. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9- (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner, United Brotherhood of Carpenters and Joiners of America, AFL, Local Union No. 109, seeks a unit of all production and maintenance employees at the Employer's Sheffield , Alabama, parts division plant. The Employer agrees with this ,unit contention. The Aluminum Workers and the Trades Council contend that separate units of production employees and maintenance employees, which they presently represent, are appropriate. The I. A. M. agrees that a production and maintenance unit is appropriate, but is willing to, participate in any election ordered by the Board. Between 1945 and early 1950 the parts division plant, then known as the reynalite division , produced metal laths and corrugated roof - ing for civilian consumption . In early 1950, the plant was placed on a standby basis. It remained inoperative until the summer of 1 International Association of Machinists, AFL, Lodge No. 1189, hereinafter . referred to as the I . A. M. was allowed to intervene on the basis of a showing of interest. Alu- minum Workers International Union, Local Union 200-210, hereinafter referred to as the Aluminum Workers , and Muscle Shoals Building and Construction Trades Council, AFL, hereinafter referred to as the Trades Council, intervened on the basis of current con- tractual interests. 110 NLRB No. 130.