Bendix Aviation Corp.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees as to union activities However, to characterize the acts of the Employer as "spying" is not warranted by the conversation between two supervisory employees overheard by Nunn The ascertaining by the Employer that Cruson was the believed leader of the union organizational activites could have been obtained from General Foreman Segura who was voluntarily informed by Cruson that union organization was bring considered Consequently the discharge of Cruson is not regarded as establishing that his activities were necessarily reported to the Employer in order to secure a $35 reward IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Employer set forth in section III above, occurring in con- nection with its operations described in section I, above, leave a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent Employer has engaged in unfair labor prac- tices, it will be recommended that the Respondent Employer cease and desist there- from and take certain affirmative and remedial action designed to effectuate the policies of the Act Since the discharge of Cruson was clearly a violation of Section 8 (a)( I) of the Act and was aimed at discouraging the exercise of the em- ployees' rights guaranteed by Section 7 of the Act, as well as in violation of Section 8(a) (3) of the Act, it will be recommended that the Employer make Cruson whole in accordance with the Board's usual policies, for wage losses incurred as a con- sequence of his discharge during the period from December 12, 1958, until the date that Cruson is offered unconditional reinstatement to his former employment at the Dallas plant of the Employer It will also be recommended that the Employer take steps consistent with the recommendations indicated herein with respect to interrogating employees as to their union activities and threatening to fire employees for organizational activities On the basis of the foreging findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 International Molders and Foundry Workers of North America, AFL-CIO, Local #2, is a labor organization within the meaning of Section 2(5) of the Act 2 Fort Worth Steel and Machinery Company is an employer within the meaning of Section 2(2) of the Act 3 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, including the discharge of Dwahn Doyle Cruson, and interrogation of employees as to union activities and threatening to discharge employees because of union activities, the Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 4 By discriminating in regard to the hire and tenure of employment of Dwahn Doyle Cruson, thereby discouraging membership in a labor organization, the Em- ployer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication I Bendix Aviation Corporation and United Tool and Model Work- ers (Ind,), Petitioner. Case No. 3 RC-.215 November 25,1959 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 Naimark, hearing officer The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 125 NLRB No 47 BENDIX AVIATION CORPORATION 381 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Bean, Jenkins, and Fanning]. 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 theAct2 4. The appropriate unit : The Petitioner seeks to sever a group of employees in the toolroom and the model shop from the existing production and maintenance unit, which has been represented by the Intervenor for several years. The Employer and Intervenor contend that the unit sought is inappro- priate either on a craft or departmental basis. The toolroom: The toolroom, which is known as department 9135, is located on the second floor of the plant in an enclosed area. Its function is to fabricate, sharpen, alter, and repair tools and fixtures, and contains jig bores, grinders, lathes, drill presses, shapers, milling machines, etc. There are some 53 employees in the toolroom, including 16 toolmakers A, 4 toolmakers B, 2 toolmaker leaders, a toolroom machinist, 2 tool and cutter leaders, 10 tool and cutter sharpeners A, 4 tool and cutter sharpeners B, 4 repair machinists, 2 machine repair leaders, and several machine cleaners, machine oilers, crib clerks, and a scrap salvager. The toolroom is supervised by its own foreman, and is part of the manufacturing division. The Petitioner seeks to repre- sent only the toolmakers and machinists in the toolroom. Although the Employer has no formal apprenticeship program, toolroom em- ployees are required to have sufficient training and experience to do the work. Some have been hired from the outside while others have been upgraded from the ranks of qualified production workers. The tool cutters and sharpeners work in a separate area in the tool- room. They grind and make tools for cutting purposes and work from drawings in the same way as the toolmakers, the only difference 1 The Intervenor, United Steelworkers of America, AFL-CIO, and the Employer de- clined to stipulate that the Petitioner is a labor organization within the meaning of the Act. The evidence shows that Petitioner was organized in June 1959 for the purpose of representing toolmakers and modelmakers , that the chief officers' have been elected and are functioning and that a constitution and bylaws are in the process of being drafted. We therefore find that Petitioner is a labor organization . See Silvino Giannasca, d/b/a Imperial Reed t Rattan Furniture Co., 117 NLRB 495, 496. 2 The Intervenor contends that its current 3-year contract, which will expire October 15, 1959, is a bar. Under the Board's rules, a petition filed at any time during the third year of a 3-year contract is timely. Pacific Coast Association of Pulp and Paper Manu- facturers, 121 NLRB 990 . As the petition was filed August 8, 1959, before the expiration of the third year, we find that the contract is not a bar to this proceeding. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being that the former make tools for cutting materials whereas the latter make tools for holding parts. The repair machinists install, maintain, and repair simple and complicated machine tools of all kinds. They must be able to read blueprints, layouts, and sketches and understand technical data supplied by the ma,nufa turer. The tool cutters and sharpeners have their own inunediate supervision on the day shift and are under the general foreman on the night shift. The repair machinists are under the general foreman on the day shift and under the toolroom foreman on the night shift. As in the case of the toolmakers, there is no formal apprenticeship program, but these men must be qualified and experienced in their field. The remaining classifications in the toolroom include the crib at- tendants who perform the usual tasks of this classification and the machine oilers and cleaners who are under the general foreman of the toolroom, take their assignments from him and also work in other parts of the plant, cleaning and oiling machines. The testimony shows they have alwaysbeen considered as part of the toolroom force. There is also a scrap collector, who merely reports to the toolroom but works almost entirely throughout the plant collecting scrap and hauling it away. He is not considered as part of the established toolroom personnel. The model shop: This shop is located some 50 feet from the tool- room, and is also enclosed. Its main function is to make prototypes, but it also fabricates special orders. It employs modelmakers and experimental machinists who use the same kind of machines and possess the same skills as the toolmakers and machinists in the tool- room. It has its own foreman on the first shift. The second shift works under the general foreman. It is considered part of the engineering department. Department 500: This is a special shop located directly across the hall from the toolroom. It contains jig bores and jig grinders and is engaged in custom and special work, which would not be economical to make on the main production lines. The record shows that the machinists in this shop have comparable skills, classifications,, and wage rates as those in the toolroom. Although it appears from the evidence that this department is virtually a machine shop and no other employees duplicate the work done by the employees, the Peti- tioner does not seek to represent them. As indicated above, the Employer does not have a formal apprentice- ship training program. It hires skilled men with sufficient experience to perform the required task. Although the evidence shows that the three shops referred to above are separate departments, it is clear that the three groups of employees BENDIX AVIATION CORPORATION 383 are engaged in closely related functions and that their classifications are largely similar. In view of the foregoing, we find that the unit sought by the Petitioner, limited to the model shop and to a segment of the toolroom, is inappropriate.3 However, we find that the entire toolrooin, the model shop, and department 500 employees comprise a functionally distinct and homogeneous departmental group, who may, if they so desire, constitute a separate appropriate unit.4 As the Peti- tioner is a labor organization newly organized for the purpose of representing these classifications of employees, we shall permit the toolroom, model shop, and department 500 employees to determine whether they desire to be represented separately by the Petitioner. The unit which may be found appropriate herein is larger than the unit requested by the Petitioner. However, in view of the sufficiency of the Petitioner's showing of interest in the larger unit, we shall direct an election among the following employees at the Employer's Utica, New York, plant.5 All employees in the toolroom including toolmakers, machinists, tool cutters and sharpeners, repair machinists and their leadmen, machine cleaners, machine oilers, and crib clerks, all employees in the model shop including crib clerks, and all employees in department 500 but excluding the scrap collectors,e office clerical employees, profes- sional employees, foremen, guards, all other employees, and all super- visors as defined in the Act. If a majority vote for the Petitioner they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director conducting the election directed herein is in- structed to issue a certification of representatives to the Petitioner for the unit described above, which the Board, under such circumstances finds to be appropriate. In the event a majority do not vote for the Petitioner, they will be taken to have indicated their desire to remain part of the existing unit and the Regional Director will issue a certi- fication of results of election to such effect. [Text of Direction of Election omitted from publication.] 3 Cf. Dana Corporation, 122 NLRB 365 , where the Board excluded the cutter sharpeners from a toolroom unit. In the Instant ease, we find that the cutter sharpeners have comparable skills with the toolmakers and machinists in the toolroom, and therefore have a sufficient community of interest to warrant their inclusion in the same unit with the latter. 4 Lear, Inc., 123 NLRB 713. 6 The Regional Director is authorized to permit the withdrawal of the petition without prejudice upon timely request of the Petitioner. Radio d Television Station, WFLA ( The Tribune Company), 120 NLRB 903, 905, footnote 8. 6 As the scrap collector is not considered part of the toolroom and works practically all the time outside the toolroom , we find he has no community of interest with the em- ployees in the toolroom and shall exclude him from the voting group for which an election is herein directed.