Southwestern Engineering Co.

In the Matter of SOUTHWESTERN ENGINEERING CO. and INTERNA- TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, WELDERS AND HELPERS OF AMERICA LOCAL 92, A. F. L. In the Matter of SOUTHWESTERN ENGINEERING Co. and INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL 311 (A. F. L.) Cases Nos. R-1327 and R-1328, respectively.-Decided August 1, 1939 Machinery Manufacturing Industry-Investigation of Representatives: con- troversy concerning representation of employees: refusal by employer to recog- nize petitioning unions as representatives of employees within their respective crafts; controversy between craft unions and industrial union as to appropriate bargaining unit-Unit Appropriate for Collective Bargaining: lay-out men, fitters, sledgemen, flange men, test floormen, chippers, tackers, welders, burners, crane operators, hook tenders, roll-press. operators, punch-press operators and helpers, excluding supervisory employees with authority to hire and discharge; no question concerning representation found to exist in proposed plant-wide unit and proposed craft unit of machinists-Election Ordered: pay roll immediately preceding Direction of Election chosen as basis for determining eligibility to vote ; name of competing union which sought plant-wide unit omitted from ballot because there was no substantial showing of a desire for representation by that organization-Order: dismissing petition for investigation of representa- tives filed by one union, without prejudice to the right of such union to file a new petition upon showing a desire for representation by that union among a more substantial number of employees in the proposed unit. Mr. David Sokol, for the Board. Latham & Watkins, by Mr. Paul R. Watkins, of Los Angeles, Calif., for the Company. ° Mr. E. V. Blackwell, and 111r. Thomas Crowe, of Los Angeles, Calif., for the Boilermakers. Mr. James Morrison, of Los Angeles, Calif., for the I. A. M. Mr. Ken Hunter, of Los Angeles, Calif., for the S. W. O. C. Mr. Lamgdon West, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE On March 16, 1939, the International Brotherhood of Boilermakers; Iron Ship Builders, Welders and Helpers of America, Local 92, and 14 N. L. R. B., No. 7. 104 SOUTHWESTERN ENGINEERING COMPANY 105 International Association of Machinists, Local 311, both affiliated with the AA:nerican Federation of Labor,' herein called, respectively, the Boilermakers and the" I. A. M., filed with the Regional Director for the Twenty-first Region (Los Angeles, California) separate petitions'/ each alleging that a question affecting commerce had arisen. concerning the representation of employees of Southwestern Engi- neerin'Company,l Los Angeles, California, herein called the Com- pany, and requesting an investigation and certification. of repre- sentatives pursuant to Section 9 ('c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act! On March 22, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules, and Regulations-Series 1, as amended, ordered an investigation on both petitions and author- ized the Regional Director to conduct it and to provide for an appro- priate hearing upon due notice. . The Board, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, further ordered that the cases be consolidated for hearing and other purposes. On March 24, 1939, the Acting Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Boilermakers, the I. A. M., and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1819, acting through the Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, herein called the S. W. O. C., a labor ,organization claiming to represent employees of the- Company directly affected by the investigation. Pursuant to notice, a hearing was held .bn.March 30,.1939,. at . Los. Angeles, California,, before James C. Batten, the Trial Examiner duly designated by the Board. All parties par- ticipated in the hearing, the Board and the Company being represented by counsel, the Boilermakers, the I. A. M., and the S. W. O. C. by their respective representatives. Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce. evidence bearing upon the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several rulings upon motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The petitions and the Board's order directing an investigation incorrectly designated the Company as Southwestern Engineering Co. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following.- FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 2 Southwestern Engineering Company, a California corporation, with its plant situated in Los Angeles, California, is engaged in the manufacture of oil-refining and mining machinery under con- tract. It also acts in the capacity of consulting engineer and is en- gaged in the erection of mining mills under contract. The principal materials used by the Company in the conduct of its business are steel plate and brass tubes. During the calendar year 1938 the value of such materials used by the Company was more 'than $325,000. Dur- ing this period one-third, by value,, of such materials purchased was shipped to the Los Angeles plant of the Company from points out- side the State of California. During the same period the respondent sold finished products valued at $700,000, of which about 37 per cent represented shipments to points outside the State of California. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Boilermakers, Iron Ship Builders,. Welders and Helpers of America, Local 92, is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership the following employees of the Company : Lay-out men, first-' and second-class fitters, sledgemen, flange men, test floormen, chippers,. tackers, welders, burners, crane operators,3 hook tenders, roll-press operators, punch-press operators, and helpers. International Association of. Machinists, Local 311, is a labor or- ganization also affiliated with the American Federation of Labor,. admitting to membership machinists and machinists' helpers employed by the Company. The Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1819, is a labor organization affiliated with Steel Workers Organizing Committee, which in turn is affiliated with the Congress of Industrial Organizations. It admits to membership all hourly paid production and maintenance employees of the Com- pany exclusive of draftsmen, engineers, office workers, and super- visory employees with authority to hire and discharge. 2 The findings in this section are based upon a stipulation of facts between counsel for the Board and the president of the Company. 3 There is a question as, to whether the Boilermakers admits crane operators, hereinafter discussed. SOUTHWESTERN ENGINEERING COMPANY III. THE QUESTION CONCERNING REPRESENTATION 107 At the hearing counsel for the Board read into the record a stipula- tion agreed to by all the parties, that on June 23, 1938, the Company had refused to recognize the Boilermakers and the I. A. M., respec- tively, as the representative of the Company's employees within the ,unit claimed to be, appropriate by each labor organization. How- :ever, the record indicates that the only question which has arisen con- cerning representation relates to the unit sought by the Boilermakers, consisting of the Company's employees who are eligible to member- ship in. the Boilermakers. The Boilermakers introduced member- ship application cards signed by a majority of the workers in such claimed unit. The I. A. M. requests certification as the bargaining representative .of the machinists in the machine shop. James Morrison, business .agent of the I. A. M. testified that in May 1938, 6 of the 10 employees then eligible for membership in the I. A. M. were members of that organization ; that at the time of the hearing none of the Company's employees eligible for membership in the I. A. M. was a member; and that all former members 4 still in the Company's employ had stopped paying dues and were considered "dropped members" by the I. A. M. On the basis of the evidence adduced, we do not find a substantial showing of a desire for representation by employees in the unit claimed appropriate by the I. A. M. and hence find that no question concerning representation has arisen within such claimed unit. However, in view of the past designation of the I. A. M., by a number of the employees in the unit claimed, we shall dismiss the petition for investigation filed by the I. A. M. without prejudice to the right of the I. A. M. to file a new petition requesting an investi- gation and certification of representatives if and when it is prepared to make a more substantial showing of a desire for representation among such employees. The S. W. O. C. maintains that a plant-wide unit, consisting of all hourly paid production and maintenance employees, exclusive of draftsmen, engineers, office workers, and supervisory employees with authority to hire and discharge, numbering approximately 70 em- ployees, is appropriate. The S. W. O. C. introduced 12 signed cards dated during April and May 1937 which stated that the signers authorized the S. W. O. C. to represent them for purposes of collec- tive bargaining. Eleven of these card authorizations were objected to by both the Company and the Boilermakers on the ground that 4 At one point in Morrison's testimony he stated that all four men in the machine shop were former members, but at another point in his testimony he named six men as being within the unit sought by the I. A. M. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had not been witnessed by Ken Hunter, the S. W. O. C. repre- sentative who introduced them in evidence at the hearing. One authorization 'vas signed by a person who was not listed on either pay roll placed in evidence. Ten of the-other eleven employees who signed S. W. O. C. authorization cards in April and May 1937 ap- plied for membership in the Boilermakers during the spring and summer of 1938, about 1 year later.5 The S. W. O. C. representative asserted a belief that if an election was held, his organization would be selected as a representative by a majority of the employees in a, plant-wide unit. Upon the basis of the evidence adduced, we do not find a sub- stantial showing of a desire for representation by employees in the unit claimed appropriate by the S. W. O. C., and hence, find that no question concerning representation has arisen within such claimed unit. We find that a question has arisen concerning the representation of employees of the Company included in the unit hereinafter found to be appropriate, but that no question exists concerning the repre- sentation of employees of the Company in the units claimed to be appropriate for the purposes of collective bargaining by the I. A. M. and the S. W. O. C. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Boilermakers seeks a unit of the employees in the boiler shop who are eligible to membership in its organization. This unit in- cludes lay-out men, first- and second-class fitters, sledgemen, flange men, test floormen, chippers, tackers, welders, burners, hook tenders, roll-press operators, punch-press operators and helpers, and excludes machinists, machinists' helpers, electricians, carpenters and other maintenance men, truck drivers and other field personnel, shipping employees, draftsmen, engineers, clerks, and supervisory employees with authority to hire and discharge.e The Company and' the e The employee who did not apply for membership in the Boilermakers was a truck driver and therefore ineligible. This statement is based upon the testimony of E. V . Blackwell, business representative of the Boilermakers. SOUTHWESTERN ENGINEERING COMPANY 109 I. A. M. do not object to this unit, and since we have found that no question concerning representation exists in a broader plant-wide unit urged by the S. W. 0. C., the unit sought by the Boilermakers is not effectively challenged. There remains the question concerning the inclusion or exclusion of crane operators and drill-press operators. Although the record is not entirely clear, it appears that the Company's crane operators work in the boiler shop, operating cranes. Blackwell testified that the Boilermakers does not admit these employees' to membership However, the application cards of two employees 7 for membership in the. Boilermakers, witnessed by Blackwell, designate those em- ployees as crane operator and helper, respectively. The two em- ployees are listed as crane operators on the Company's pay rolls of January 14 and March 11, 1939. Under these circumstances, we shall include the crane operators in the unit. According to Blackwell, "drill press operators in the plate shop" are admitted to membership by the Boilermakers, but Roberts de- scribed them as machinists attached to the boiler shop. The record does not disclose just what specific employees are covered by the expression "drill press operators in the plate shop." The Boiler- makers has no drill-press operators among its membership applicants and the drill-press operators were not included in a tabulation made during the hearing by the parties, of employees whom the Boiler- makers desired to include. We shall exclude them from. the unit. We find that all lay-out men, first- and second-class fitters, sledge- men, flange men, test floormen, chippers, tackers, welders, burners, crane operators, hook tenders, roll-press operators, punch-press op- erators and helpers of the Company in its Los Angeles plant, ex- cluding supervisory employees with authority to hire and discharge, constitute a unit appropriate for the purposes of collective bargain- ing and that said unit will insure to these employees the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the act. VI. THE DETERMINATION OF REPRESENTATIVES The Company introduced in evidence its pay rolls for the periods ending January 14 and March 11, 1939. According to these pay rolls, there were 50 employees within the appropriate unit on January 14 and 41 on March 11. The Boilermakers introduced into evidence 44 membership application cards dated during March, April, May, June, July, and September, 1938. The Company objected to the receipt of the cards in evidence on the ground that they were not properly identified. 7 H. Menconi and T. H. Hooper. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the circumstances, we find that the question which has arisen concerning representation of the employees in the emit found to be appropriate can best be resolved by holding an election 8 by secret ballot to determine whether or not the employees desire the Boilermakers to represent them, and we shall so direct.' The three labor organizations involved requested that the Com- pany's pay roll of January 14 be used as a basis for determining eligi- bility to participate in the selection of representatives. The Company requested that the pay roll of March 11 be used. The employment force fluctuates according to the amount of contract work available, but there are no substantial seasonal variations. Under these circum- stances, we shall direct that those eligible to vote shall be employees in the appropriate unit whose names appear on the pay roll immediately preceding our Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those employees who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following:. CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Southwestern Engineering Company, Los Angeles, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All lay-out men, first- and second-class fitters, sledgemen, flange men, test floormen, chippers, tackers, welders, burners, crane operators, hook tenders, roll-press operators, punch-press operators, and helpers of the Company in its Los Angeles plant, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. No question concerning the representation of employees of the Southwestern Engineering Company, Los Angeles, California, within the unit claimed to be appropriate by International Association of Machinists, Local 311, affiliated with the American Federation of Labor, and by Amalgamated Association of Iron, Steel and Tin Work- ers of North America, Lodge 1819, acting through the Steel Workers B See Matter of The Cudahy Packing Company and United Packinghouse Workers of Amer- ica, Local No. $1, of the Packinghouse Workers Organizing Committee, 13 N. L. R. B. 526 and Matter of Armour & Company and United Packinghouse Workers, Local Industrial Union No. 13 of Packinghouse Workers Organizing Committee, affiliated with C. I. 0., 13 N. L. R. B. 567. 9 The name of the S. W. O. C. will not be included on the ballot because, as we found above, there is not a substantial showing of a present desire by employees for representa- tion by that organization. SOUTHWESTERN ENGINEERING COMPANY 111 Organizing Committee, affiliated with the Congress of Industrial Organizations, respectively, exists within the meaning of Section 9 (c) of the National Labor Relations Act. DIRECTION OF ELECTION AND ORDER By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Southwestern Engineering Company, Los Angeles, California, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction under the direction and super- vision of the Regional Director for the Twenty-first Region, acting in this' matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations- Series 2, among all lay-out men, first- and second-class fitters, sledge- men, flange men, test floormen, chippers, tackers, welders, burners,, crane operators, hook tenders, roll-press operators, punch-press oper- ators, and helpers employed by Southwestern Engineering Company, Los Angeles, California, in its Los Angeles plant, as of the pay-roll period immediately preceding this Direction, excluding supervisory employees with authority to hire and discharge ; and further, includ- ing employees within the above-described unit who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, Local 92, affiliated with the Ameri- can Federation of Labor, for the purposes of collective bargaining. IT IS HEREBY ORDERED that the petition for investigation and cer- tification of representatives of employees of the Southwestern Engi- neering Company, Los Angeles, California, filed by International Association of Machinists, Local 311, affiliated with the American Federation of Labor, be, and it hereby is, dismissed without prejudice to the right of International Association of Machinists, Local 311, affiliated with American Federation of Labor, to file a new petition requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the Act. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [ SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION August 15, 1939 On August 1, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be held within twenty (20) days from the date of the Direction, under the direction and super- vision of the Regional Director for the Twenty-first Region (Los Angeles, California). The Board, having been advised by the Re- gional Director that a longer period within which to hold the election is necessary, hereby amends the Direction of Election issued on Au- (rust 1, 1939, by striking therefrom the words "within twenty (20) days from the date of this Direction" and substituting therefor the words "within thirty (30) days from the date of this Direction." Mr. EDWIN S. SMITH took no part in the consideration of the above Amendment to Direction of Election. 14 N. L. R. B., No. 7a.