Union Steam Pump Co.

UNION STEAM PUMP COMPANY 689 Union Steam Pump Company and International Union of Oper- ating Engineers, Local #547, AFL-CIO, Petitioner Union Steam Pump Company and International Association of Tool Craftsmen, affiliated with National Independent Union Council, Petitioner. Cases Nos. 7-RC-3381 and 7-RC-3384. July 12,1957 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Iris H. Meyer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Mem- bers Murdock and Rodgers]. Upon the entire record in these cases, the Board finds : 1. The Employer, a Michigan corporation, is engaged in the manu- facture of pumps and pumping equipment at its plant located in Battle Creek, Michigan. The Employer takes no position on the question of the Board's jurisdiction over it. The record shows that, during the year 1956, the Employer's direct out-of-State purchases amounted to approximately $1,500,000 in value and that, during the same period, the Employer shipped finished products directly to points outside the State valued at approximately $3,500,000. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding.' 2. The labor organizations involved herein are labor organizations within the meaning of Section 2 (5) of the Act, and claim to represent certain employees of the Employer.' 3. The Employer and the Intervenor contend that a contract be- tween them operates as a bar to both petitions herein. The record shows that the Employer and the Intervenor executed an agreement to run from March 1, 1956, to March 1, 1957, and from year to year thereafter absent 60 days' written notice by either party of a desire 1 The hearing officer referred to the Board motions made by the Employer and the Inter- venor at the hearing to dismiss the above petitions on the grounds of (a) contract bar, and (b) inappropriate unit. For reasons stated hereinafter in paragraphs numbered 3 and 4 of the text, respectively, these motions are hereby denied. ' Jonesboro Grain Drying Cooperative , 110 NLRB 481. 3 Lodge 446, International Association of Machinists, AFL-CIO, herein called the Intervenor , was permitted to intervene in this proceeding on the basis of its contractual interest. 118 NLRB No. 79. 450553-58-vol. 118-45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to modify or to terminate the contract. By letter dated December 29, 1956, but not received by the Employer until December 31, 1956, the Intervenor notified the Employer that it wished to reopen the contract to negotiate modifications. The Operating Engineers and the Tool Craftsmen filed petitions seeking units of certain employees of the Employer on January 15 and January 18, 1957, respectively. The Employer and the Intervenor were still carrying on negotiations for a new contract at the date of the hearing.' In determining the Mill B date of a contract, or day on which auto- matic renewal becomes effective, the Board includes the termination date-the day preceding the first day of the new contract term-and counts each calendar day in applying the contract notice provision.-' To effectively forestall automatic renewal, the notice must be received prior to the Mill B date,' and, in construing contract provisions which forestall automatic renewal clauses, the Board has held that the time- liness of a notice to reopen or to terminate an agreement depends upon the date on which such notice is received rather than on the date upon which it is mailed.' In the case at bar, therefore, the Mill B date was December 31, 1956, and the last day on which timely notice to forestall automatic renewal could be given was December 30, 1956. As the Employer did not receive the Intervenor's notice to reopen the contract until December 31, 1956, the Board would ordinarily find that the contract had automatically renewed itself and hence constituted a bar to an election. However where, as here, the contracting parties have waived the untimeliness of a notice to modify or terminate a contract and have negotiated for a new contract, the Board has held that the parties are precluded from urging the old contract as a bar to a petition filed, as here, after the Mill B date.' As no new agreement was executed between the Employer and the Intervenor prior to the filing of the petitions in this proceeding, we find that there is no contract bar. Accordingly, we find that questions affecting commerce exist concern- ing the representation of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.' 4 The old contract has been continued indefinitely pending the execution of a new agree- ment , although the Intervenor has reserved the right to terminate it at any time upon the giving of 5 days' notice in the event that the parties do not agree on new terms. 5 Bethlehem Pacific Coast Steel Corporation , 114 NLRB 1197 ; Koenig Brothers, Inc., 108 NLRB 304. 6 Ibid. See also Williams Laundry Company, 97 NLRB 995. 7 Koenig Brothers, Inc., supra ; Belle-Moe, Inc., 81 NLRB 6. 8 Diamond Printing Company, 109 NLRB 112 ; The Carter's Ink Company, 109 NLRB 1042. 9 The Intervenor also contends that the petition in Case No . 7-RC-3381 should be dis- missed on the ground that the Operating Engineers is violating the no-raiding provisions of the AFL-CIO constitution. We reject this contention as lacking in merit, as the Board has heretofore held that the fact that a petition violates the no-raiding clause of the AFL-CIO constitution is no ground for the dismissal of a petition. See Minute Maid Corporation, 117 NLRB 68; F. C . Russell Company, 116 NLRB 1015 ; Minneapolis Star and Tribune Company, 115 NLRB 1300 , and cases cited therein. UNION STEAM PUMP COMPANY 691 4. In Case No. 7-RC-3384, the Tool Craftsmen seeks to sever a unit of the Employer's toolroom employees (department 15) from the existing production and maintenance unit currently represented by the Intervenor. The Employer and the Intervenor contend that the Tool Craftsmen is not a traditional union for the purposes of repre- senting the group of employees sought, within the meaning of the American Potash decision,1° and contend further that, in any event, the employees in the toolroom department do not constitute a unit which may be severed on any basis. We reject the contention that the Tool Craftsmen does not meet the "traditional union" test as being without merit, as the Board has previously found that this same Petitioner is a traditional union for purposes of representing employees such as those sought here," and the Board will take official notice of these decisions. As to the question of the appropriateness of a unit of the Employer's toolroom employees, the record shows that department 15, the tool- room department, and department 16, the milling department, are located on a balcony overlooking the main floor of the Employer's plant which is devoted primarily to production work. Located on the main level is the cutter-grinder crib, a segment of department 15, which has recently been transferred there from the balcony. The old cutter-grinder crib on the balcony partially separates departments 15 and 16. The personnel of department 15 consists of 4 toolmakers, 4 machine repairmen, 1 toolroom grinder, 1 tool grinder, crib, and 1 tool crib at- tendant. The toolmakers and machine repairmen are craftsmen and employ such tools as mills, lathes, grinders and shapers, work to close tolerances, often from blueprints, and perform their duties with a minimum amount of supervision. The toolmakers build other tools such as jigs, fixtures, boring bars, templates, and cutting tools. The machine repairmen spend a considerable amount of their time in the production departments, although they perform no production work, and make parts for disabled machines which cannot be otherwise re- paired, often working from plans which they themselves have origi- nated. The machine repairmen are qualified toolmakers, and the em- ployees in each of these two classifications at times perform the work of the other classification, depending upon the workload. The tool- room grinder grinds cutting tools which have been preformed, while the tool grinder, crib, employee reconditions the cutting edges of small io American Potash d Chemical Corporation, 107 NLRB 1418. n Crosley & Bendix Home Appliance Division, Avco Manufacturing Corporation, 115 NLRB 245; Bendix Aviation Corporation, Pioneer-Central Division, 114 NLRB 118; Cessna Aircraft Company, 114 NLRB 1191 ; J. I. Case Company, 112 NLRB 796; International Harvester Company, Farmall Works, 111 NLRB 606; Friden Calculating Machine Co., Inc., et at., 110 NLRB 1618. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production tools such as drills, reamers, sink point tools, double end tools, face mills; and slotting mills. The Employer considers the work done by these two employees to be skilled work, and it is not per- formed by any of the production machinists. The tool crib attendant issues tools such as drills, reamers, files, and micrometers to production machinists and is responsible for their storage when they are returned to the crib. The 11 above-described employees constitute the employee-comple- ment of department 15, and are all under the immediate supervision of the toolroom department foreman, who supervises no other employees. The toolmakers and the machine repairmen receive the same rate of pay, which is substantially greater than that received by the produc- tion machinists. As to interchange with other employees, the record shows that the 4 toolmakers have worked in department 15 for mini- mums of 4, 12, 21, and 30 consecutive years, respectively, and that the 4 machine repairmen have worked in department 15 for minimums of 12, 12, and 20 consecutive years, respectively.12 The Emplorer and the Intervenor question the appropriateness of the requested unit on various grounds, including (a) the lack of an apprenticeship program in the toolroom; (b) interchange of tool- room employees with employees in other departments; (c) the pres- ence of craftsmen outside the requested unit who possess skills similar to those of the employees sought; and (d) the fact that one of the employees classified at a toolmaker engages in some production work in that he works on the "heat treat" operation part of his time. As to (a), the fact that the Employer has no apprenticeship pro- gram and that journeyman standing or special training is not re- quired for employment in the toolroom department as a toolmaker or machine repairman does not militate against the appropriateness of a departmental unit of toolroom employees with typical toolroom functions, such as is here sought by the Tool Craftsmen.13 Further- more, the allegation of interchange is not supported by the record facts, already discussed. With respect to (c), even assuming that there are production machinists outside the toolroom department who possess and exercise skills similar to those of the toolmakers and ma- chine repairmen, such factor does not preclude severance of the tool- makers and machine repairmen on a departmental basis.14 Finally, the fact that a toolmaker spends part of his time engaged in the "heat treat" operation, a production process, does not render the de- "The toolroom grinder, the tool grinder, crib, and the tool crib attendant have toolroom seniority of 2, 1, and 2 years, respectively. " 'Warner Electric Brake & Clutch Company, 111 NLRB 268. 14 Cessna Aircraft Company, 114 NLRB 1191 ; Spaulding Fibre Co., Inc., 111 NLRB 237; Bucyrus-Erie Company, 110 NLRB 314. UNION STEAM PUMP COMPANY 693 partmental unit as a whole inappropriate or 11 prevent his inclusion in the unit. Accordingly, we find no merit in these contentions. In view of the foregoing, particularly the separate supervision of the toolroom employees, the absence of interchange between them and other employees, and their specialized function in the Employer's operation, we find that the employees in the Employer's toolroom (department 15) constitute a functionally distinct and homogeneous -traditional departmental group which may constitute a separate ap- propriate unit for the purposes of collective bargaining if they so desi re.10 The toolroom grinder, who works in the toolroom itself, and the too] grinder, crib, who works in the cutter-grinder crib on the main floor of the plant, are under the immediate supervision of the tool- room foreman. The Board has historically included tool grinders in a departmental unit of toolroom employees." Accordingly, we shall include these employees in the toolroom department voting group. The tool crib attendant, located in the tool crib adjacent to de- partment 15, admittedly does not possess the skills of other toolroom employees. However, the Tool Craftsmen is seeking to sever a de- partmental unit, not a craft unit. As the tool crib attendant is under the immediate supervision of the toolroom foreman, and the tool crib is virtually an adjunct of this department, we find that his interests are closely allied with those of the other toolroom employees, and we shall include him in the toolroom department voting group.18 In Case No. 7-RC-3381, the Operating Engineers seek to sever a unit of all employees in the Employer's maintenance department, in- cluding firemen, electricians, millwrights, and welders. The Em- ployer and the Intervenor oppose the severance of these employees. As they constitute a multicraft group, they may not be severed en masse from the existing plantwide unit.19 Nor, except for the fire- men, may any one of the classifications within that group be severed by the Operating Engineers, as it is not the historical and traditional bargaining representative for such classifications.20 There are four employees classified as firemen who work in the Employer's boilerroom and whose duties are to produce steam, pump 15 Cessna Aircra ft Company, supra ; St. Louis Car Company, 108 NLRB 1388. I" See cases cited in footnote 11; supra. 11 Bendix Aviation Corporation, Pioneer-Central Division, 114 NLRB 118 ; John Deere Planter Works of Deere it Company, 107 NLRB 1497. is United Screw it Bolt Company, 100 NLRB 1308; Kwikset Locks, Inc., 116 NLRB 1648; Burroughs Corporation, 116 NLRB 1118. The record shows that there is another tool crib attendant who works on the night shift. However, this individual is under production department supervision , and spends but approximately 25 percent of his time functioning as a tool crib attendant, performing production work the balance of the time. Accordingly, we shall exclude him from the tool- room department voting group. 19 National Aniline Division, Allied Chemical and Dye Corporation, 102 NLRB 129, 132. 21 American Potash it Chemical Corporation, 107 NLRB 1418. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD water, and compress air to be used throughout the remainder of the plant. These firemen are supervised by the same foreman who super- vises the other maintenance employees, but are separately located, have separate locker and washrooms for their use, and work with the welders, electricians, and millwrights only when the latter employees are engaged in performing maintenance repair work in the boilerroom. Although the boilerroom employees are not craftsmen, the Board has often found that they comprise an appropriate departmental unit.21 In view of the foregoing, and as the Operating Engineers has histori- cally and traditionally represented boilerroom units, we find that the firemen may constitute a separate appropriate departmental unit if they so desire?2 We find on the basis of the entire record in this case that the following groups of employees at the Employer's plant located in Battle Creek, Michigan, may constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, if they so desire: (a) All employees in the Employer's toolroom department (depart- ment 15), including the toolroom grinder, the tool grinder, crib, and the tool crib attendant, but excluding the night tool crib attendant, all other employees, guards and supervisors as defined in the Act; (b) All firemen in the Employer's boilerroom, excluding welders, electricians, millwrights, all other employees, guards, and supervisors as defined in the Act. We shall not, however, make final unit determinations at the present time. If a majority of the employees in voting group (a) or (b), above, vote for the Tool Craftsmen or Operating Engineers, respec- tively, they will be taken to have indicated their desire to constitute a separate bargaining unit, and the Regional Director conducting the election is instructed to issue a certification of representatives to the Tool Craftsmen or Operating Engineers, as the case may be, for such employees which the Board, in such circumstances, finds to be an appropriate unit for purposes of collective bargaining. On the other hand, if a majority of the employees in voting group (a) or (b), above, do not vote for the Tool Craftsmen or Operating Engineers, respectively, these employees shall remain a part of the existing unit and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Elections omitted from publication.] 21 Ibid, at page 1425. za Accordingly, we find no merit in the Employer's and the Intervenor's contentions that this petition should be dismissed on the grounds that ( 1) the Operating Engineers is not a traditional union for purposes of representing these employees , (2) the unit is inappropri- ate because it is based upon extent of organization , and (3 ) the unit is inappropriate for severance on a departmental basis.