Minneapolis-Moline Power Implement Company

In the Matter Of MINNEAPOLIS-MOLINE POWER IMPLEMENT COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL #1037, BY DISTRICT LODGE 77 (A. F. OF L.) Case No. P,1395.-Decided August 23, 1939 Farm Implement, Machinery, Structural Steel, and Industrial Engine and Parts Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations; refusal by employer to recognize petitioning union as exclusive representative of employees until certified by Board because of previous certification by Board of rival union- Contract : entered into subsequent to filing of petition ; no bar to determination of representatives-Unit Appropriate for Collective Bargaining : production em- > ployees, excluding supervisory employees , timekeepers, assistant foremen, and full-time outside truck drivers engaged in delivering products outside of the plant ; agreement by rival organizations and Company as to classification of employees to be included ; single plant basis ; history of union organization and collective bargaining-Representatives : proof of majority representation pre- sented by petitioning union and rival organization found insufficient ; eligibility to participate in choice ; stipulation as to-Election Ordered Mr. Lee Loevinger, for the Board. Mr. George D. McClintock, of Minneapolis, Minn., for the Company. Mr. Earl P. Hogan, of Minneapolis, Minn., for Machinists Local #1037. Mr. Ralph L. Helstein, of Minneapolis , Minn., for United Local No. 1138 and United Local No. 1140. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 26, 1939, International Association of Machinists, Local #1037, herein called Machinists Local #1037, acting through Inter- national Association of Machinists, District Lodge 77,1 herein called At the hearing the petition , filed in behalf of Machinists Local #1037 , was amended to set forth that it was filed in that behalf by District Lodge 77. The petition itself was signed by Earl P. Hogan, Grand Lodge Representative. 14 N. L. R. B., No. 72. 920 MINNEAPOLIS-MOLINE POWER IMPLEMENT COMPANY 921 District Lodge 77, filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Minneapolis-Moline Power Implement Company, herein called the Company, at its Hopkins, Minnesota, plant, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 18, 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 and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 23, the Regional Director issued a notice of hearing, and on May 26, an order and notice of continuance of hearing, copies of which were duly served upon the Company, upon Machinists Local #1037, and upon,-United Electrical, Radio and Machine Workers of America, Local No. 1138, herein called United Local No. 1138, a labor organization claiming to represent employees directly affected by the investigation. On May 26, the Regional Director granted a petition filed with him by United Local No. 1138 on said date to intervene as a party. On June 5, 1939, during the hearing, the Trial Ex- aminer granted a petition to intervene as a party filed on that date with the Regional Director by United Electrical, Radio and Machine Workers of America, Local No. 1140, herein called United Local No. 1140. Pursuant to the order and notice of continuance, a hearing was held on June 5 at Minneapolis, Minnesota, and on June 5 and 6 at Hopkins, Minnesota, before Whitley P. McCoy, the Trial Examiner duly des- ignated by the Board. The Board, the Company, United Local No. 1138, and United Local No. 1140 appeared and were represented by counsel. Machinists Local #1037 appeared and was represented by a duly authorized representative. All participated in the hearing. Full opportunity to be heard, to examine and to cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner reserved decision on the motion made during the hearing by United Local No. 1138 to dismiss the petition on the ground that Machinists Local #1037 had failed to establish that a question concerning representation had 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arisen. For reasons sufficiently appearing hereinafter this motion is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Minneapolis-Moline Power Implement Company, a Delaware cor- poration having its principal office in Minneapolis, Minnesota,2 is en- gaged in manufacturing, buying, selling, and dealing in farm imple- ments and machinery, structural steel, industrial engines, and parts. It has manufacturing plants in Minneapolis, Minnesota; Hopkins, Minnesota; and Moline, Illinois. The question concerning repre- sentation as alleged in the petition concerns only the plant located in Hopkins, Minnesota. The principal raw materials used by the Company are steel, cast- ings, forgings, lumber, copper tubing, babbitt, steel tubing, and scrap iron and steel. More than 50 per cent of these raw materials used by the Company in the course of manufacture at its Minnesota plants are purchased outside the State of Minnesota and are shipped there- from to the Company by railroad and truck lines. Approximately 80 per cent of the finished products of those plants consist of tractors, combines, threshers, and farm implements; approximately 85 per cent of such products are sold and shipped from the plants to points outside the State of Minnesota. All threshers, all combines, and ap- proximately 10 per cent of the farm implements are manufactured in the Hopkins plant. The net sales of the Company for the fiscal year ending October 31, 1938, were $14,630,933.24. The Company's salesmen operate in various States of the United States and in the Dominion of Canada. There are approximately 560 production employees 3 at the Hopkins plant and approximately 1,000 at the Minneapolis plant,4 exclusive of clerical and supervisory employees, timekeepers, assistant foremen, and full-time outside truck drivers engaged in delivering products outside of the plant. 2 The parties so stipulated . Executive officers, however, maintain their private offices in the plant located at Hopkins, Minnesota. 3 As used herein , the term "production employees," in conformity with the usage of the parties, shall be deemed to include employees in the following departments : foundry ; toolroom ; machine ; pattern ; power, heat , and light ; watchmen ; stores ; wood ; drill ; drill point ; blacksmith ; shipping and motor truck ; comb . sepr. shell assm. ; tin shop; combine sheller point ; combine sepr. sub. assm. , In a previous proceeding for certification of representatives of the Hopkins plant, it appeared that in 1938 the Company employed 516 hourly paid employees at the Moline, Illinois, plant . Matter of Minneapolis -Moline Power Implement Company and International Association of Machinists , Local No. 1037, 7 N. L. R. B. 840. MINNEAPOLIS-MOLINE POWER IMPLEMENT COMPANY 923 At the hearing the Company conceded that the business in which it is engaged is such that the Board has jurisdiction of the subject matter. II. THE ORGANIZATIONS INVOLVED International Association of Machinists, Local #1037, is' a labor organization affiliated with the American Federation of Labor, ad- mitting to its membership all production employees 8 of the Company at its Hopkins plant, excluding clerical and supervisory employees, timekeepers, assistant foremen, and full-time outside truck drivers.6 It is one of the locals of the International Association of Machinists in the vicinity of Minneapolis, Minnesota, comprising District Lodge 77, which acts as a coordinating agency for these locals and provides them with business representatives. United Electrical, Radio and Machine Workers of America, Local No. 1138, is a labor organization affiliated with the Congress of In- dustrial Organizations, admitting to its membership the same classes of employees of the Company at its Hopkins plant as Machinists Local #1037. United Electrical, Radio and Machine Workers of America, Local No. 1140, is a labor organization affiliated with the Congress of Indus- trial Organizations admitting to its membership the same classes of employees of the Company at its Minneapolis plant as United Local No. 1138 admits at the Hopkins plant. III. THE QUESTION CONCERNING REPRESENTATION During 1934, International Association of Machinists, Local No. 382, a labor organization affiliated with the American Federation of Labor, hereinafter called Machinists Local No. 382, began to organize the Company's employees at its Minneapolis plant. In June 1935, a shop committee composed of employees who were members of Machin- ists Local No. 382 presented certain demands on behalf of the em- ployees at the Minneapolis plant. After some negotiations, the Company, in July 1935, posted a statement of policy 7 concerning wages and working conditions which it put into effect at both the Minneapolis and Hopkins plants. During the following month, the 6 See footnote 3. B Eligibility to membership in both Machinists Local #1037 and United Local No. 1138 appears in Matter of Minneapolis-Moline Power Implement Company and International Association of Machinists, Local No. 1037, 7 N. L. It. B. 840. In the absence of any show- ing to the contrary, we presume that eligibility to membership in these organizations which we previously found has continued to be the same from then until the present. 7 See Matter of Highland Park Manufacturing Company and Textile Workers Organiz- ing Committee, 12 N. L. It. B. 1238, footnote 8, for a description of "statements of policy." 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational drive was extended to the Hopkins plant. Employees at the Hopkins plant were, however, admitted to membership in Machinists Local #1037, in which other workers in that community had already been organized. Shop committees composed of employees from the two plants, acting jointly, began negotiations with the Company in December 1935 which resulted, in March 1936, in the posting of a new statement of policy covering wages and working conditions at the Minneapolis and Hop- kins plants. Similar negotiations begun in December 1936 culminated, in the spring of 1937, in a collective bargaining agreement between the Company and the shop committees.8 In August 1937 substantially all of the members of Machinists Local No. 382 and Machinists Local #1037 transferred their affiliation to the Committee for Industrial Organization,9 and employees at the Minne- apolis and Hopkins plants were thereupon admitted to United Local No. 1140 and United Local No. 1138, respectively. Despite the disaffection of a large portion of their members, Ma- chinists Local No. 382 and Machinists Local #1037 remained in exist- ence; and in December 1937, District Lodge 77, acting on their behalf, together with the Company and the Board, entered into agreements with United Local No. 1138 and United Local No. 1140 providing for separate consent elections to be held at the Hopkins and at the Minne- apolis plants among the employees at each of these plants to determine whether or not such employees wished to be represented for purposes of collective bargaining by the respective United or Machinists locals. Pursuant to the agreement, elections were conducted at both plants on December 22, 1937. At the Minneapolis plant, United Local No. 1140 won by a decisive majority. At the Hopkins plant, Machinists Local #1037 won by a small majority but the election was voided and a further election held on February 10, 1938. At this election, United Local No. 1138 obtained a majority, but Machinists Local #1037 pro- tested the result and on March 11, 1938, filed a petition with the Regional Director for an investigation and certification of representa- tives. In the proceedings had thereon, the parties stipulated that certain classes of employees at the Hopkins plant constituted an appropriate bargaining unit,10 and we directed an election restricted to such employees. On July 12, 1938, following such election, the Board issued its Certification of Representatives, certifying United Local No. 1138 as the exclusive representative for the purposes of col- The record does not disclose the terms of the agreement nor indicate its duration. e Z4ow the Congress of Industrial Organizations. 11 United Local No. 1138 noted a reservation of its right to raise the question of com- bining the employees of the Hopkins and Minneapolis plants into a single unit in the future. Matter of Minneapolis -Moline Power Implement Company and International Association of Machinists, Local No. 1037, 7 N. L. R. B. 840. MINNEAPOLIS-MOLINE POWER IMPLEMENT COMPANY 925 lective bargaining of the production employees of the Company at its Hopkins plant, exclusive of clerical and supervisory employees, time- keepers, assistant foremen, and full-time outside truck drivers engaged in delivering products outside of the plant." Following the consent election held at the Minneapolis plant, as mentioned above, United Local No. 1140 entered into negotiations with the Company looking toward the making of a collective bargaining agreement. Under date of May 5, 1938, the parties entered into a written contract to expire December 31, 1938, covering rates of pay, wages, hours, and conditions of employment. By its terms the Com- pany agreed to recognize United Local No. 1140 as the exclusive repre- sentative of all employees at its Minneapolis plant excluding foremen, assistant foremen, outside truck drivers, and clerical, office, and tech- nical employees. Certification of United Local No. 1138 as representa- tive of the employees of the Hopkins plant was also immediately followed by negotiation with the Company, and, under date of August 8, 1938, the parties entered into an exclusive bargaining contract sub- stantially identical with, and having the same expiration date as, the contract previously made by the Company and United Local No. 1140. In December 1938 negotiations for new contracts began, but it was not until June 3, 1939, that any agreements were consummated. At that time the Company again entered into separate contracts with United Local No. 1138 and United Local No. 1140. These contracts are by their terms substantially identical and accord recognition to the respective locals as the exclusive representatives of employees in the Hopkins and Minneapolis plants respectively, excluding the same classes of employees as those excluded ih the 1938 contracts.12 On December 28, 1938, United Local No. 1138 called a strike which resulted in the shut-down of the Hopkins plant until February 9, 1939. During this period employees of the Hopkins plant were solicited by an organization committee of Machinists Local #1037 to sign cards authorizing District Lodge 77 to represent them for collective bargain- ing. Under date of March 3, 1939, after the strike had terminated and the plant had reopened, Machinists Local #1037 wrote to the Company claiming to represent a majority of the employees at the Hopkins plant and requesting a meeting for the purpose of negotiating an agreement. The Company replied that in view of the previous certification of United Local No. 1138 it would continue to recognize United Local No. 1138 as the representative of the employees of the Hopkins plant until the Board should have certified to the contrary. As stated above, Machinists Local #1037 petitioned the Board on March 26, 1939, and 118 N. L. R. B. 241. 12 The 1939 contract covering the Minneapolis plant specifically includes tool designers within the definition of "employees." 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter, on June 3, 1939, the Company entered into a contract with United Local No. 1138 as representative of the employees at the Hopkins plant. The existing contract between the Company and United Local No. 1138 and the previous certification of the latter do not bar investigation or certification. The contract, as we have said, was entered into after the petition herein was filed. by Machinists Local #103718 and more than a year has elapsed since the certification.14 Nor can we accept the contention, advanced by the motion made at the hearing by United Local No. 1138 to dismiss the petition, that such previous certification precludes us from finding that a question concerning representation has arisen because Machinists Local #1037 did not establish that a majority of employees within an appropriate unit had designated the latter organization as their representative for purposes of collective bargaining. We find that a question has arisen concerning representation of em- ployees of the Company at its Hopkins plant. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company at its Hopkins plant, described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tends to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Hopkins and Minneapolis plants are approximately 12 miles apart. Pay rolls for both plants are made up at Hopkins. The work performed at both is basically the same, and rates of pay, hours, and working conditions are and, so far as the record discloses, have always been substantially uniform. Each plant could operate inde- 13 Cf. Matter of Union Premier Food Stores, Inc., et al. and United Retail & Whole- sale Employees of America, affiliated with the Congress of Industrial Organizations, 11 N. L. It. B. 270, and cases therein cited in footnote 8; cf. Matter of American Radiator Company and Local No. 17'70, Amalgamated Association of Iron, Steel & Tin Workers of North America, C. 1. 0., 11 N. L. It. B. 1127. 14 Cf. Matter of New York & Cuba Mail Steamship Company and National Organization of Masters, Mates and Pilots of America, 9 N. L. R. B. 51 ; Matter of Waterman Steam- ship Corporation and Pan-Atlantic Steamship Corporation and Commercial Telegraphers Union, Marine Division, A. F. of L., 10 N. L. R. B. 1079; Matter of International Harvester Company, Springfield Works and United Automobile Workers of America, Local 402, 11 N. L. R. B. 471; Matter of Armour & Company and United Packing House Workers, Local Industrial Union No. 893, through Packing House Workers Organizing Committee, affiliated with the C. I. 0., 12 N. L. It. B. 49. MINNEAPOLIS-MOLTNE POWER IMPLEMENT COMPANY 927 pendently, although in practice raw materials for both plants are received at Minneapolis, and one man supervises the parts and stock department of both plants 15 The plants are under the immediate management of separate superintendents. In hiring for regular em- ployment as distinguished from filling temporary vacancies, neither plant has preferred employees of the other plant over persons never employed by the Company, and employees transferring from one plant to the other have not carried their seniority status with them. The labor organizations involved and the Company are agreed that an appropriate unit should be limited to production employees,", excluding supervisory and clerical employees, timekeepers, assistant foremen, and full-time outside truck drivers engaged in delivering products outside of the plant. Machinists Local #1037 claims that employees within this classification at the Hopkins plant constitute the appropriate unit. The United locals urge that employees in this classification at both the Hopkins and Minneapolis plants constitute a single unit, and request, therefore, that the petition be dismissed . 'IT The history of collective bargaining set forth above in Section III fully demonstrates the feasibility of separate bargaining units. In- deed, the United locals themselves, by executing separate contracts with the Company more than 2 months after service of the petition of Machinists Local #1037 claiming that a separate unit for the Hopkins plant is appropriate, have not proceeded in accordance with the claim here made by them. Under all of these circumstances we are of the opinion that a sepa- rate unit composed of employees at the Hopkins plant is an appro- priate bargaining unit, and accordingly we find that all production employees 18 of the Company at its Hopkins plant, excluding super- visory and clerical employees, timekeepers, assistant foremen, and full-time outside truck drivers engaged in delivering products out- side of the Hopkins plant constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company at its Hopkins plant the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 16 Until recently motors were purchased from outside sources for installation in the combines manufactured at Hopkins . At present such motors are produced at the Minneapolis plant. "See footnote 3. "The record indicates that there has been no history of organization among the em- ployees at the Company 's plant at Moline, Illinois , which, we take notice, is approximately 275 miles distant from the other two plants . No claim was made that it should be included in any unit. 15 See footnote 3. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES At the hearing a pay-roll list of names of 563 persons, employed by the Company at its Hopkins plant on June 5, 1939, within the appropriate unit found, was introduced into evidence. The Com- pany, Machinists Local #1037, United Local No. 1138, and United Local No. 1140 stipulated, and on the basis thereof we find, that said list is an accurate statement of the names of such persons. However, the same parties also stipulated that, in the event that the Board should direct an election in accordance with the petition, those eligible to vote in the election shall include all employees within the unit found to be appropriate by the Board whose names appear on the Company's pay roll on December 10, 1938, and all those em- ployees who since that date and up to the date of the Direction of Election 10 have been employed by the Company, excluding all those who have resigned or who have been discharged for cause. In view of the afore-mentioned stipulation we find that all em- ployees employed by the Company at Hopkins on December 10, 1938, and at any time thereafter until June 5, 1939,20 rather than merely those whose names appear on the afore-mentioned pay-roll list of June 5, 1939, constitute the employees who, as of the date of the hearing, were entitled to designate a, representative for the purposes of collective bargaining. For all such employees, unless they re- signed or were discharged for cause prior to the date of an election, would be eligible to vote therein. The record, however, does not show whether the pay-roll list of June 5, 1939, includes all such employees. That it does not is affirmatively indicated by the fact that of the 265 and 365 authorization cards introduced in evidence by Machinists Local #1037 and United Local No. 1138, 65 and 53, respectively, were cards of persons whose names did not appear on said list although some of these persons were identified by testi- mony as employees at the Hopkins plant. From the record, there- fore, it is not possible to find that either organization had at the time of the hearing been designated by a majority of the employees in the unit found appropriate.21 Under all these circumstances we are of the opinion that the question concerning representation can best be resolved by the holding of an election by secret ballot. 19 By "date of the Direction of Election" we understand the parties to mean the pay- roll period immediately preceding such a date . We also construe the stipulation to include as eligible to vote all employees within the appropriate unit who were on the Company's pay roll at any time between December 10, 1938, and the pay -roll period immediately preceding the date of the Direction of Election , inclusive, including employees who, on the latter date, were ill or on vacation or were or have since been temporarily laid off. 20 See footnote 19. 21In fact, the cards offered in evidence by United Local No. 1138 constitute a bare majority of the names on the pay-roll list after elimination of duplicate cards offered in evidence by Machinists Local #1037. MINNEAPOLIS-MOLINE POWER IMPLEMENT COMPANY 929 We see no reason to depart from the wishes of the parties with respect to the determination of employees who shall be eligible to vote, and we shall direct accordingly. On the basis of the above findings of fact and upon the entire record in the proceeding , the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Minneapolis-Moline Power Implement Company, Hopkins, Minnesota, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production employees 22 at the Company's Hopkins plant, exclusive of clerical and supervisory employees, timekeepers, assist- ant foremen, and full-time outside truck drivers engaged in deliv- ering products outside of the plant, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449 , 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 ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with Minneapolis-Moline Power Implement Company, Hop- kins, Minnesota , an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction , under the direction and supervision of the Regional Director for the Eight- eenth 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, among the production 22 employees of the Company at its Hopkins, Minnesota , plant whose names appear on its pay roll at any time between December 10, 1938, and the pay-roll period immediately preceding the date of this Direction of Election, in- clusive, including employees who, on the latter date , were ill or on vacation or were or have since been temporarily laid off , but exclud- ing clerical and supervisory employees, timekeepers , assistant fore- men, and full-time outside truck drivers engaged in delivering products outside of the plant, and those employees who since Decem- ber 10, 1938, have resigned or been discharged for cause , to determine 22 See footnote 3. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether they desire to be represented by International Association of Machinists, Local #1037, affiliated with the American Federation of Labor, or by United Electrical, Radio and Machine Workers of America, Local No. 1138, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEISEESON, concurring. While I do not agree with the reasoning of the foregoing opinion, I concur in the result reached in this case. [ SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION August 31, 1939 On August 23, 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 fifteen (15) days from the date of the Direction, under the direction and super- vision of the Regional Director for the Eighteenth Region (Min- neapolis, Minnesota). The Board, having been advised by the Re- gional Director for the Eighteenth Region that a longer period within which to hold the election is necessary, hereby amends the Direction of Election issued on August 23, 1939, by striking there- from the words "within fifteen (15) days from the date of this Di- rection" and substituting therefor the words "within twenty-two (22) 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. 72a.