L. B. Lockwood Co.

In the Matter of L. B. LocKWOOD COMPANY and INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS LOCAL UNION #52, (A. F. of L.) Case No. R-153. f.Decided October 17, 1939 Wool Reclaiming Industry-Investigation of Representatives : controversy concerning representation of employees : employer refuses to recognize petitioning craft union because of contract granting industrial labor organization recognition for employees whom it represented ; contract for indefinite duration held no bar to proceeding-Unit Appropriate for Collective Bargaining : factors evenly bal- anced ; powerhouse employees sufficiently distinct to constitute a separate unit ; determining factor desire of employees in the craft; election to determine-Elec- tion Ordered : as to employees within the unit claimed appropriate. Mr. Bernard R. Bralove, for the Board. Mr. Carl W. Shaeffer, of Cleveland, Ohio, for the Company. Mr. R. E. Seitz and Mr. Herbert McCaffery, of Cleveland, Ohio, for the Firemen. Mr. Patrick Quinn and Mr. George L. Myers, of Cleveland, Ohio, for the T. W. O. C. Miss Ann Landy, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 27, 1939, the International Brotherhood of Firemen and Oilers, Local #52, (A. F. of L.), herein called the Firemen, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the L. B. Lock- wood Company, Cleveland, Ohio, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 24, 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 Rela- tions Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 16 N. L. R. B., No. 11. 65 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 24, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the' Company, upon the Firemen, and upon the Textile Workers Organizing Committee, Local #2105 (C. I. 0.), herein called T. W. O. C., a labor organ- ization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on August 28 and 29, 1939, at Cleveland, Ohio, before William B. Barton, the Trial Exam- iner duly designated by the Board. The Board, the Company, the Firemen, and the T. W. O. C. were represented by counsel or official representatives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed all these rulings and finds that no prejudicial error was committed . The rulings are hereby affirmed. At the end of the hearing the Trial Examiner informed the parties that they were entitled to apply for-oral argument before the Board at Washington, D. C., within five (5) days after the hearing. None of the parties availed themselves of the opportunity. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY L. B. Lockwood Company is an Ohio corporation, with its office and manufacturing. plant in Cleveland, Ohio. It is engaged in the business of reclaiming- wool. The raw materials used in the manu- facture of its products are rags, dye-stuff, chemicals, warp, and wool oil: In 1938 the Company purchased raw materials worth approxi- mately $400,000 and sold products worth more than $650;000. The Company obtained approximately 60 per cent of such raw materials from and shipped more than 85 per cent of such finished 'products to points outside Ohio. It employs approximately 200 persons. The Company admits that it is engaged in interstate commerce: H. THE ORGANIZATIONS INVOLVED . The, International Brotherhood of Firemen and Oilers, Local #52, is, a labor' organization affiliated with the American Federation of Labor.' It admits to membership powerhouse employees. The Textile Workers Organizing Committee is a labor organiza- tion affiliated with the Congress of Industrial Organizations. It ad- mits to membership all employees of the Company' except office and supervisory employees. L. B. LOCI WOOD COMPANY III. THE QUESTION CONCERNING REPRESENTATION 67 On April 5, 1937, the T. W. O. C. and the Company entered into a contract, effective for a term of one year from March 11, 1937. The contract contains an automatic renewal clause and is terminable upon ' 30 .days' notice by either party. Although the preamble of the con- tract provides that the Company and "such employees of the Com- pany as are members" of the T. W. O. C. are the parties to it, the body of the agreement recognizes the T. W. O. C. "as the negotiating unit of [the Company's] employees as prescribed by" the Act. Under the terms of the agreement all hourly paid employees "who are eligible for membership" in the T. W. 'O. C., including the power- house employees, received a blanket wage increase. The contract also provides that it is applicable "only to workers in production," and that "all workers shall be classified as workers in production" except office help, superintendents, and certain named foremen. While the contract is drafted in ambiguous language, it appears that it was the intention of the parties to afford recognition to the T. W_ O. C. as the exclusive representative of the Company's employees in a plant-wide unit. In view of the fact that the definite term of the contract expired on March 11, 1938, and since then it has been terminable at any time upon 30 days' notice, it cannot preclude an investigation and -deter- mination of representatives by the Board.' In January 1939 the Firemen, claiming to represent a majority of the powerhouse employees, requested the Company to enter into negotiations with it for a contract to cover the powerhouse employees. The Company took the position that its contract with the T. W. O. C. covered all the employees in the, plant and, therefore, during its existence, it could not negotiate with any other labor organization. We find that a question has arisen concerning the representation of employees of the Company. 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 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. See Matter of Metro-Goldwyn-Maier Studios and Motion Picture Producers Assn., et at. and Screen Writers Guild, Inc., 7 N. L. R. B. 662; Matter of Seiss Manufacturing Coni- pong :end Coin neittee to"r Industrial Organization, 7 N. L. R. B. 481. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT The Firemen claim that the powerhouse employees, including the' chief engineer, constitute an appropriate unit. In connection with A his claim the Firemen point out that the powerhouse employees constitute a special, skilled group with interests differing from those of other employees of the Company; they are located in a separate section.of the plant and their work has no connection with the manu- facturing process. The T. W. O. C. contends that the powerhouse employees should not be established as a separate bargaining unit, but should remain grouped together with the other employees for the purposes of collective bargaining. In 1934 the United Textile Workers of America, affiliated with the American Federation of Labor, organized and represented the employees of the Company. This labor organization succeeded in 1934 in obtaining a collective bargaining agreement from the Com- pany, which agreement was renewed in 1935 and in 1936. The power- house employees were not eligible for membership in the United Textile Workers of America, and were not covered by its contracts. However, when this labor organization became affiliated with the ,Committee for Industrial Organization in 1936 under the name of .the T. W. O. 'C., the powerhouse employees became eligible for mem- bership. Thereafter they joined the T. W. O. C. and were provided for in the 1937 contract, discussed above. The.Firemen have. had. members among., the powerhouse: employees since 1934, but made no attempt to bargain with the 'Company until 1939. Since it appears from the evidence that the powerhouse employees could function either.as a,separate unit or as part of a single indus- trial unit, we hold that the determining factor is the desire of the employees themselves.2 We find in Section VI below that doubt exists as to the desires of powerhouse employees with' regard to representation - for the purposes of collective bargaining. Therefore, an election will be held among the powerhouse employees to determine whether they wish to .be, represented by the Firemen or the T. W. O. C. or neither. If a majority of these-employees cast their votes for the Firemen, we shall .hold. that the powerhouse employees constitute a separate unit and we shall certify the Firemen as the exclusive representative thereof. a ,ltatter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local o. 3; International Association of Machinists, District No. 54; Federal Labor Union 18788 and United Automobile Workers of America, 3 N. L. R. B. 294, and subsequent cases. L. B. LOCKWOOD COMPANY 69 If a majority of these employees cast their votes for the T. W. O. C. or for neither or if the votes cast for the T. W. O. C. and for neither together constitute a majority, we shall conclude therefrom that these employees do not desire to constitute a separate unit. In such event, we shall dismiss the petition of the Firemen for certi- fication as representatives of a unit comprising the powerhouse employees. VI. THE DETERMINATION OF REPRESENTATIVES The Firemen submitted in evidence at the hearing authorization cards signed by eight of the ten powerhouse employees . All these cards were signed in March 1939 . The T. W. O. C. claimed that all powerhouse employees with the exception of the chief engineer were members of its organization , but did not introduce cards in evidence. Three of the powerhouse employees testified at the hear- ing that they desired to be represented by the Firemen. The testi- mony of at least one of them indicated , however, that he considered himself as still retaining his membership in the T. W. O. C. Under the circumstances , we find that an election by secret ballot is neces- sary to resolve the question concerning representation of the powerhouse employees. The names of the powerhouse employees whom the Firemen are seeking to represent were read into the record and are listed in Appendix A. In the election which we shall direct, the employees listed in Appendix A, including employees in the powerhouse who have been hired since the date of the hearing, but excluding those who have since quit or been discharged for cause , shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees of L. B . Lockwood Company, Cleveland, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) 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 Relations Act, and pursuant to Article III, Section 8, of National 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 bargaining with L. B. Lockwood Company, Cleveland, Ohio, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director' for the Eighth 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 powerhouse employees of the Company whose names are listed on Appendix A, including those hired since the date of the hearing, but excluding those who have since quit or been discharged for cause, to determine whether said employees desire to be represented by the International Brother- hood of Firemen and Oilers, Local #52, (A. F. of L.) or by the Textile Workers Organizing Committee, Local #2105 (C: I. 0.) for the purposes of collective bargaining, or by neither, Mn. WILLIAM M. LEISERSON, concurring : While I do not agree with the reasoning of the foregoing opinion, I concur in the result reached in this case. MR. EDWIN S. SMITH, dissenting : I would not grant the powerhouse employees the privilege of .setting themselves apart in a bargaining unit separate from the industrial unit in this case. The reasoning in my dissents in the Allis-Chalmers 3 and subsequent cases is applicable here. There is no bargaining history between the Firemen and the Company, and there has been a plant-wide contract between the Company and the T. W. O. C. since 1937 which has clearly operated and been under- stood by the parties-as an exclusive bargaining contract. The power- house employees have benefited from blanket wage increases and the reduction of hours secured by the industrial organization. Under these circumstances, I would dismiss the petition. a Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248,4 N. L. R. B. 159, and subsequent cases. L. B. LOCKWOOD COMPANY APPENDIX A ENGINEERS Mike Stianche, Chief Engineer Walter Osinski Frank Dombonski FIREMEN Frank Payma Joe Busdosh Steve Hornack COAL PASSERS John Moros Frank Pesancik Michael Moros Mike Basas EXTRA MAN 71 1247383-40-vol. 16-6