F. N. Burt Co., Inc.

F. N. BURT COMPANY, INC. 1115 F. N. Burt Company, Inc. and District No. 76, International Association of Machinists, AFL-CIO, Petitioner F. N. Burt Company, Inc. and Book Binders and Bindery Workers Local 17-34, AFL-CIO, Petitioner. Cases Nos. 3-RC- 2270, 3-RC-2303, and 3-RC-2285. March 2, 1961 DECISION, DIRECTION, AND ORDER Upon a petition duly filed in Case No. 3-RC-2270 under Section 9(c) of the National Labor Relations Act, a hearing was held before George J. McNamara, hearing officer, and the proceeding was there- after transferred to the Board. Upon. the subsequent filing of the petitions in Cases Nos. 3-RC-2303 and 3-RC-2285, the Board ordered the record in the. earlier case reopened and remanded it to the Re- gional Director for the purpose of consolidation with the other two cases and for completion of the record. A consolidated hearing was held before the same hearing officer. The hearing officer's rulings made at the hearings are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, 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 represen- tation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer operates through two separate divisions for the manufacture of its principal products, setup paper boxes and folding cartons. Manufacturing operations were formerly carried on in sepa- rate plants in Buffalo, New York, but in 1959 all operations were moved into a new plant in a nearby town. Since 1947 District 50 has represented all production and maintenance employees of the setup paper-box division, and Amalgamated Lithographers of America i The Petitioner in Cases Nos. 3-RC-2270 and 3-RC-2303 is referred to herein as IAM, and the Petitioner in Case No. 3-RC-2285 is referred to as Book Binders . District 50, United Mine Workers of America, Local 13249 (herein called District 50) intervened on the basis of its contractual interest in all the employees involved. Book Binders and United Paper Makers and Paper Workers , AFL-CIO ( herein called Paper Makers), were permitted to intervene in Case No. 3-RC-2303 on the basis of their showings of interest. The Employer, IAM, and District 50 objected to the interventions of Book Binders and Paper Makers on the ground that their intervention at the consolidated hearing occurred during the insulation period of the then current contract between the Employer and District 50. We find no merit in these objections. The contract is not alleged to be a bar to any of the three petitions, since all were timely filed prior to the insulation period preceding the termination date of the contract . As the interventions took place during the pendency of an unresolved question concerning representation raised by the petition in Case No . 3-RC-2303, we find that they were timely. See Marinette Paper Company, 127 NLRB 1319, and Wisconsin Electric Power Company, 107 NLRB 1204, footnote 11. 130 NLRB No. 120. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has represented all employees in the folding carton division. The instant proceedings involve only the employees in the setup paper- box division. In Case No. 3-RC-2270, IAM seeks to sever a unit of machine shop employees from the production and maintenance unit which District 50 currently represents. In Case No. 3-RC-2303 it seeks a production and maintenance unit excluding the machine shop employees. The Book Binders in Case No. 3-RC-2285 seeks to sever a unit of paper- cutters from the existing bargaining unit. The IAM petitions: The Employer and District 50 contend that the unit of machine shop employees which IAM wishes to sever is inap- propriate either on a craft or departmental basis. There are about 450 employees in the setup paper-box division, of whom about 30 are employed in the machine shop. The machine shop is in a sepa- rate enclosed area of the plant and is supervised by its own foreman. It contains lathes, drill presses, shapers, grinders, and other types of machine tools necessary for the full performance of the jobs as- signed to the machinists. Much of the production machinery in this division has been designed by the Employer for its particular use and has been built in its own machine shop. The machinists are en- gaged almost exclusively in maintaining, repairing, and building production machinery for the plant. They work in the machine shop, going into production areas only to dismantle, repair, or set up pro- duction machines. There is no interchange between machine shop and production employees, and the former's seniority is based on their service in their own area. There are no other employees in the 'di- vision who exercise comparable skills . There are four employees assigned to the machine shop, under the supervision of its foreman, who do nonmachinist work-a welder, a sheet metal worker who makes guards for machinery, a stock clerk, and a sweeper. The Em- ployer admits that for the most part the machinists exercise craft skills, but contends that severance is not warranted here because the work of the division is highly integrated; the long bargaining history on a divisionwide basis; alleged differences between its plant and other plants in the area which are in the same business; and because rigid application of the American Potash formula would be an abdi- cation of the Board's power to determine the circumstances under which severance should be granted. We find no merit in these con- tentions. It is clear that the machine shop employees, including the four employees engaged in auxiliary work there, comprise a func- tionally distinct and homogeneous departmental group who may, if they so desire, constitute a separate appropriate Unit .2 We also find that IAM is a traditional representative for such a group. The fact that a union initiates a craft severance petition, rather than the em- 2Bendix Aviation Corporation, 125 NLRB• 380, and Lear, Inc., 123 NLRB 713. F.. 'N. BURT COMPANY, INC. 1117 ployees themselves, does not indicate that the Board is abdicating its function of determining what is an appropriate unit for sever- ance. The Board permits severance only where, as in this case, the unit petitioned for has met the applicable Board standards. The Employer and District 50 also contend that IAM, by filing a petition for a production and maintenance unit, has taken action in- consistent with its petition for severance of the machine shop, and that consequently, the latter should be dismissed. We agree. We hold that a labor organization cannot, in the same proceeding, seek to sever a craft group from a production and maintenance unit and, simultaneously, seek to represent the production and maintenance employees. The reason for craft severance lies in the needs of skilled craftsmen for a bargaining representative which by history, tradition, and ex- perience is equipped to devote its undivided efforts and loyalties to the special problems peculiar to the specific craft involved. Such a repre- sentative is clearly in the best position to serve and advance the in- terests of the craftsmen. Moreover, as the Board pointed out in the American Potash case,' it is clear that Congress, by its enactment of Section 9 (b) (2) which sanctions the craft severance principle, recog- nized the fact that the specific community of interests among mem- bers of a skilled craft outweighs the community of interests that exists among employees in general. The dual position of the IAM in the present case is repugnant to the reasons underlying the craft severance principle, and is inimical to the interests of the employees. Thus, the IAM, by filing its first petition for craft severance, implied that it was specially equipped to represent the craft employees separate and apart from the representa- tion which they and the other employees were then receiving, and that, therefore, two units should exist where originally there was one. However, by its second petition for the production and maintenance employees, the IAM necessarily takes the position that the separate representation of the craft is not essential. Rather, it seeks merely to oust the incumbent union in whole or in part. We see no warrant for permitting this under the guise of the craft severance doctrine. Further, were the Board to process both petitions filed by the IAM, election procedures inimical to the interests of the employees would have to be established. For neither the group of craft employees nor the group of production and maintenance employees can know, at the time they would be asked to make a choice, whether the IAM will be accepted, or rejected, by the other group. If it is true-and we be- lieve it is-that the interests of the two groups are in certain respects divergent, then certain knowledge of what the other group will do when it votes is vital to assure an intelligent choice by either. More- 8 American Potash & Chemical Corporation, 107 NLRB 1418 , at 1420. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over, if voting with a clear choice thus obscured, the employees of both groups should select the IAM as their bargaining representative, the IAM would be granted separate unit certifications. Whether, in view of their divergent interests, either group will then get the "best" rep- resentation appears to us to be open to considerable doubt. Accordingly, consistent with Board precedent,' we would require the IAM to elect between the craftsmen and other employees, and would permit it to engage in only one election, as explained hereafter. The Book Binders petition: In Case No. 3-RC-2285, the Book Bind- ers seeks to sever a craft unit of papercutters from the existing pro- duction and maintenance unit. The Employer, District 50, and the Paper Makers contend that the requested unit is inappropriate because the papercutters are not craftsmen. IAM does not oppose Book Bind- ers unit but is agreeable to including the papercutters in the production and maintenance unit which it seeks if the Board finds that the paper- cutters are not a severable group. Department 17 in the setup paper-box division of the Employer's operations is referred to as the papercutting department. It has 13 employees who are separately supervised by their own foreman. Six of them operate guillotine cutting machines. Book Binders contends that only the guillotine cutting machine operators are skilled crafts- men. A guillotine cutter consists of a flat table bed, ranging in size from 38 to 72 inches, over which a large knife is suspended. The operator places printed or imprinted paper stock on the flat bed, sets the rear guide bar to the proper dimensions by means of a measurement indi- cator, scaled to sixteenths of an inch, trues up the stock, and activates .the motor which operates the knife. The operator follows written in- structions as to the number of strips to be cut, then places these strips side by side, adjusts the machine to the new dimensions and cuts again. Skillful operation of the cutters involves proper setting of the measure- ment dial, adjusting for various types of stock so as to stay within the allowable tolerances, and speed. The cutters' wages are based to some extent on the quantity of work produced. They are classified as cut- ters A or B. Vacancies for cutter B jobs are posted in the plant and may be filled by production workers who then progress to the A grade when a vacancy occurs, rather than when they reach any particular level of skill. There is no apprenticeship program for cutters in the * See Hollingsworth cE Whitney Division of Scott Paper Company, 115 NLRB 15; International Paper Company, 115 NLRB 17; American Radiator and Standard Sanitary Corporation (Louisville Works), 119 NLRB 204. It is true that the Hollingsworth case is distinguishable from the instant case. But it is distinguishable only in a superficial , factual sense. The Hollingsworth case, like the others cited above, recognized the basic "inconsistency" in the position of a union that seeks to represent, in separate units, the craft employees and the production and mainte- nance employees of the same employer. F. N. BURT COMPANY, INC. 1119 plant. Other cutting machines in the department are preset, requir.- ing.little or no adjustment by the operators. The Board has indicated in a few- cases that papercutters are skilled craftsmen but it has never set out the facts on which such conclusion was based.' However, the record made in this case satisfies us that the papercutters in the setup paper-box division do not exhibit the range of skills, the long period of training, or the high degree of judg- ment and manual dexterity which the Board's decision in the Amer- ican Potash case, 107 NLRB 1418, makes a prerequisite for severance on a craft basis.' Thus, the cutters operate one basic machine, the guillotine cutter, nor does it appear that there are in fact other types of papercutting machines which require greater skill. The job pre- supposes the ability to follow a written layout or diagram, to add and subtract, and to set an indicator for predetermined measurements. The amount of individual adjustment or tolerance permitted does not appear to be,beyond the capabilities of a production worker who has had a short period of on-the-job training. Based on the fore- going, we find that the papercutters are not craftsmen, and we shall, therefore, dismiss the Book Binders petition in Case No. 3-RC-2285. The Book Binders also intervened in IAM's petition for a produc- tion and maintenance unit, based on the same showing of interest among the papercutters which supported its own petition for sever- ance. As we are holding that the papercutters are not entitled to severance, we also find that they remain part of the overall unit which District 50 presently represents. Its showing of interest for em- ployees within that unit is sufficient to support its intervention, and we shall accord it a place on the ballot if an election in the produc- tion and maintenance unit is eventually held. The Employer's mo- tion to dismiss Book Binders' intervention is denied. DIRECTION AND ORDER In accord with our finding that the petitions of the IAM may not be processed concurrently because they are based on inconsistent the- ories, IT IS HEREBY ORDERED that the Regional Director for the Third Region ascertain from the IAM whether it wishes to proceed to an election in a voting group of machine shop employees, including the welder, sheet metal worker, sweeper, and stock clerk, or whether it prefers to participate in an election for a production and mainte- 6 The Rainbow Lithographing Company, 69 NLRB 1383 , and Royal McBee Corporation, 117 NLRB 741 . In Reynolds Metal Company, 127 NLRB 986, the Board stated, inci- dentally to another issue, that a unit of papercutters which had been established by a consent election was based on craft considerations . Cf., however, The Evening News Association, 116 NLRB 1385, holding that a papercutter ' s skills were not those of a craftsman. 6 We note that the United States Employment Service in its Dictionary of Occupational Titles classifies the work of papercutters as being semiskilled. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nance unit, including the machine shop employees and plant, clerical employees, but excluding office clerical and professional employees, guards, and supervisors as defined in the Act, employed in the Em- ployer's setup paper-box division at its plant at Cheektowaga, New York. If the IAM advises the Regional Director that it wishes to. proceed with an election in the machine shop group, the Regional Director is hereby authorized to issue a notice of election for such group in accord with the Board's customary practice. Upon receipt of such advice from the Regional Director, we shall dismiss the petition in Case No. 3-RC-2303. If the IAM, however, advises the Regional Director that it wishes to participate, together with the intervening unions, District 50, Book Binders, and Paper Makers, in an election for t'he. production and .maintenance unit, the Regional Director is hereby authorized to issue a notice of election for such unit in accord with the, Board's customary practice. Upon receipt of such advice. from the Regional Director, we shall dismiss the petition in Case No. 3-RC-2270. [The Board dismissed the petition filed in Case No. 3-RC-2285.]. MEMBERS FANNING and KIMBALL, dissenting : We cannot agree with the decision of the majority that the action of the IAM in seeking to sever a machine shop department while at the same time seeking to represent a production and maintenance unit, excluding the machine shop, constitutes inconsistent action either as a matter of principle or on the basis of established Board precedents.. The IAM filed a timely petition for severance of the machine shop, shortly before the Employer's bargaining agreement with District 50,, the incumbent representative was due to expire. Its petition was ac- companied by at least a 30 percent showing _ of interest among the employees of the machine shop. The IAM shortly thereafter filed a petition for the production and maintenance unit, excluding those em- ployees who were the subject of its first petition. Here also, the IAM evidenced a.substantial showing of interest among the employees in-- volved. Obviously, the concurrent petitions were necessitated by the Board's contract-bar policies, since the IAM would have been too, late to file a petition in the larger unit if it had had to wait for an elec- tion in the machine shop group first. Given this situation, the IAM, a traditional represetative for machine shop employees, is being told by the majority that it can either seek to represent the machine shop or the production and maintenance unit, but may not seek to represent them both. This places undue emphasis on the fortuities and acci- dents of timing. If the IAM had filed a petition for severance, had won that election, and had been certified for a machine shop unit, would the majority then restrict it from attempting to attain a status F. N. BURT COMPANY, INC. 1121 as bargaining representative for the remaining employees at the plant? - To our knowledge, the Board has never denied a craft union the privi- lege of representing other types or classes of employees , but as a mat- ter of course has left it to the good sense of the employees themselves,. whether they wish to be represented by such a union. In this case,, however, the majority is apparently unwilling to leave to the em- ployees the right to choose whether to retain the incumbent representa tive or to select a new representative. The majority decision characterizes the actions of the JAM as. inconsistent since it first sought to represent the craft employees sepa- rately, but, by filing its second petition, has impliedly taken the posi - tion that separate representation of the craft employees was not, essential. We do not believe that the IAM has done anything of the. sort. It has offered its skills and services to the free choice of the: employees by seeking to represent them in two separate units, both- of which the Board has always recognized as appropriate . If the craft. employees believe that their interests can best be served through'repre- sentation of the IAM, they should be permitted to so decide ; if, being: in possession of all the facts, they prefer to be represented by IAM,. whether or not it also represents the other employees, the choice is. theirs to make, not the Board's. We cannot agree with the majority istatement that the IAM "merely- seeks to oust the incumbent union in whole or in part ." But regard- less of the TAM motive, it is the employees who are the best judges as, to who can best represent them . To deny employees such an oppor- tunity because of an ill-defined belief that the IAM is somehow being- too grasping is to substitute the preconceptions of the Board for the. mandate of the statute. The reliance of the majority on Hollingsworth d Whitney and the, other cases cited in footnote 4 is also, we believe , misplaced. In those. cases, the Board held that a petitioning union which , as part of a. trade union council was already the representative of a production- and maintenance group, was taking inconsistent action by seeking to, severe therefrom a unit of craft employees in whom it was primarily- interested. The distinction between the present case and the situation. in the Hollingsworth type of case is not a superficial one. Here, IAM.: presently represents no employees at all, and is willing to represent the, machine shop employees separately, and the production and mainte- nance employees excluding the machine shop. It is not seeking what it already has, as were the petitioners in the Hollingsworth line of cases. Nor is the IAM attempting to represent the machine shop em- ployees simultaneously in two different units as were the petitioners in those cases. There, the petitioners were taking inconsistent action since they were seeking to represent separately , employees whom they,- 597254-61-vol. 130-72 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD already represented as part of a larger unit. Here, the IAM. is only trying to do in one consolidated action what it would clearly have been permitted to accomplish in separate proceedings. We would therefore permit the IAM to participate in the elections for the two units it seeks-the machine shop group and the produc- tion and maintenance unit, excluding the machine shop. Packard Bell Electronics Corporation and Radio-TV Service Technicians Union, Local 202, International Brotherhood of Electrical Workers, AFL-CIO. Case No. 20-CA-1719. March 3, 1961 DECISION AND ORDER On July 20, 1960, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and finds merit in certain of the Respondent's exceptions. Accordingly, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent with the decision herein. The issue presented 2 is whether the Respondent's lockout of its employees was discriminatorily motivated, as the Trial Examiner found, or was one justified and motivated by special economic consid- erations of the type set forth in the Betts Cadillac case,3 as contended by the Respondent. The Respondent is engaged in the business of manufacturing and selling television and radio receivers and other electronic devices. The Respondent maintains a "service division" which operates through a number of branch establishments. The division's function is to install and repair products manufactured and sold by the firm. There are three service branches involved in this proceeding, one in San Fran- 1 Respondent's request for oral argument is denied as, in our opinion, the record , excep- tions, and brief adequately present the positions of the parties. 2 Absent specific exceptions, we adopt, pro forma, the Trial Examiner's findings that the interrogations of employees Musich, Mealing , and Garcia , and Branch Manager Sessa's threat to employee Gisslow that the employees "would be automatically out of jobs" if they struck, violated Section 8(a) (1) of the Act. Contrary to the Respondent 's conten- tion, we also find , as did the Trial Examiner, that Area Manager Tabor's threat to Munich that "he would be finished'? if the employees struck, violated Section 8(a) (1). 8 Betts Cadillac Olds, Inc., et at ., 96 NLRB 268. 130 NLRB No. 117.