Cleveland Hobbing Machine Co.

In the Matter of CLEVELAND HOBBING MACHINE COMPANY and UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL #631 (A. F. OF L.) Case No. R-1571-Decided December 18, 1939 Machine Tools Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees: rival organizations; refusal by employer to deal with either of the unions involved as the exclusive repre- sentative of employees-Unit Appropriate for Collective Bargaining: all em- ployees, including demonstrators, painters, and stock clerks, but excluding the foremen, the superintendent, the general manager, watchmen, the clerical force, the engineering department, and employee who is listed as a demonstrator on the seniority list but who has been promoted to the position of salesman- Representatives: eligibility to participate in choice : employees within the appro- priate unit on the pay roll next preceding the date of election and those on the seniority list of the Company as of May 11, 1939-Election Ordered Mr. Max W. Johnstone, for the Board. . Mr. William H. Staples, of Cleveland, Ohio, for the Company. Mr. William L. Brooker and Mr. Frank Evans, of Cleveland, Ohio, for Local #631. Mr. Jack N. Tucker and Mr. Maurice Sugar, of Detroit, Mich., for Local No. 409. Mr. Richard E. Reisinger, of Cleveland, Ohio, for U. A. W. A., C. I. O. Mr. A. J. Toth, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 19, 1939, United Automobile Workers of America, Local #631, (A. F. of L.), herein called Local #631, filed with the Regional Director for the Eighth Region (Cleveland, Ohio), a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Cleveland Robbing Machine Company, Cleveland, Ohio, herein called the Company, and requesting an in- vestigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called 18 N. L. R. B., No. 61. 412 CLEVELAND ROBBING MACHINE- COOMPAVY 413 the Act. On September 21, 1939, the National Labor Relations Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations 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. On October 2, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, Local #631, and upon Local No. 409, International Union, United Auto- mobile Workers of America, affiliated with the Congress of Industrial Organizations, herein called Local No. 409, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice a hearing was held on October 24, 1939,1 before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board, the Company, Local #631, and Local No. 409 were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, Local No. 409 filed a petition to intervene in the proceedings which was granted by the Trial Exam- iner. 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 Exam- iner and finds no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 2 Cleveland Hobbing Machine Company, an Ohio corporation, with its office and plant in Cleveland, Ohio, is engaged in the manufacture of machine tools. During the year 1938 approximately 30 per cent of the raw materials used by the Company were purchased outside of Ohio and approximately 95 per cent of the finished products were shipped outside of Ohio. During the same period, the Company expended approximately $169,686.43 for raw materials and its sales aggregated approximately $521,281.68 in value. The Company admits that it is engaged in interstate commerce within the meaning of the Act. i The hearing originally scheduled for October 23, 1939, was adjourned until October 24, 1939, with the consent of the parties. 8 These findings are based on a stipulation of facts entered into by all the parties at the hearing, 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED United Automobile Workers of America, Local #631, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company. Local No. 409, International Union, United Automobile Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In May 1937, the Committee for Industrial Organization became active in organizing the employees of the Company. On May 6, 1937, the Company entered into a written contract for 1 year with Local 328, United Automobile Workers of America,3 for its members only. Local No. 409 was established by charter in October 1937. Thereafter, on September 1, 1938, the Company entered into a writ- ten contract for 1 year with Local No. 409, for its members only. In February 1939, some of the employees of the Company changed their affiliation from Local No. 409 to Local #631. In September 1.939, Local #631 and Local No. 409, each claiming to represent a majority of the employees of the Company, sought recognition as the sole bargaining agent of the employees and requested the Company to enter into a written agreement. The Company refused to deal with either labor organization until the question concerning representation was determined by the Board. We find that a question has arisen concerning the representation of employees of the Company. 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 Local #631 and Local No. 409 stipulated that the unit appropri- ate for the purpose of collective bargaining consists of all the em- ployees of the Company, excluding the foremen, the superintendent, the general manager, the clerical force, and the engineering depart- 5 This local was the predecessor of Local No. 409. CLEVELAND HOBBING MACHINE. COM'PA'NY 415 ment. The unions disagreed as to whether all salaried employees, two painters and stock clerks should be included in or excluded from the unit. In addition, Local No. 409 desires to exclude certain other named employees from the unit. The Company took no position in regard to the unit. The salaried employees in controversy are the demonstrators and the watchmen. Local #631 desires their inclusion in the unit while Local No. 409 desires their exclusion. We shall consider these two categories separately. The demonstrators are apparently eligible to membership in Local #631 but not in Local No. 409. They spend part of their time in regular production work at the plant and the remainder of their time on the road demonstrating and giving instructions in the opera- tion of the Company's machines to customers. They normally spend less than half of their time away from the plant. While on the road, demonstrators are under the supervision of the general mana- ger of the Company but in the plant they do the same work and are supervised by the same foremen as other plant production employees. They are the Company's best mechanics and most of them rank high in seniority, and are carried on the Company's seniority list with the regular production employees. They are usually kept at work in the plant during the slack season. Local No. 409 contends that demonstrators should be excluded from the unit because they are salaried employees, do part-time supervisory work, and are friendly with the management because they work week ends on the farm of William H., Staples, the vice president and general manager of the Company. The demonstrators are paid on a weekly basis, receive approximately 5 per cent more than the hourly production em- ployees and on occasion may engage temporarily in supervisory work by replacing foremen during times of illness. The demonstrators apparently were not covered by Local 328's contract of May 6, 1937, which included all hourly paid employees, but seem to be included, although not expressly, in Local No. 409's contract of September 1, 1938.4 In view of all the facts, we are of the opinion that the differences between the incidents of employment of the demonstrators and other production employees are not sufficient in this case to war- rant their exclusion from an industrial bargaining unit in which they would otherwise be included. We find that the demonstrators should be included within the appropirate unit. 4 They were expressly excluded from a proposed contract submitted by Local No. 409 to the Company on September 18, 1939, but apparently were included in a proposed con- tract submitted to the company by Local # 631 on or about September 15, 1939. 6 See Matter of Diamond Iron Works and United Electrical Radio Machine Workers of America, Local 1140, 6 N. L. R . B. 94; Matter of La Plant-Choate Manufacturing Co., Inc. and United Farm Equipment Workers Organizing Committee, Local 116, affiliated with the C. I. 0., 13 N. L. R. B. 1228; Matter of Wade Manufacturing Corporation and Local 294, United Furniture Workers of America, 14 N. L. R. B. 1133. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The watchmen also are salaried employees, being paid on a weekly basis. They are under the supervision of the plant superintendent and are not included on the Company's current seniority list. Al- though watchmen are considered by the Company to be part of the production system because they sweep the floors and do odd jobs about the plant, such duties are incidental to their regular duties as watchmen. They are apparently eligible to membership in Local #631 but not in Local No. 409. As in the case of the demonstrators, there is no sufficient collective bargaining history with respect to the watchmen to afford a guide in the determination of the issue. It has been our practice not to include watchmen within a bargaining unit composed essentially of production employees where objection to their inclusion is raised by a participating labor organization. We shall, therefore, exclude watchmen 6 from the bargaining unit.? Local #631 desires the exclusion of stock clerks from the unit. Local No. 409 desires their inclusion. There are two stock clerks, a night clerk and a day clerk. They appear to be eligible for mem- bership in both organizations. Local #631 did not seek to exclude them from the unit covered in its proposed contract of September 15, 1939. They were apparently included in both Local 328's and Local No. 409's prior contracts. Their duties consist of distributing parts used in the assembly of machines to the employees in the shop. Although the stock clerks keep a record of all the material in the stockroom and of each part that comes in and leaves the stockroom, their work is more manual than clerical. The stock records and inventory are kept by the cost clerk who reports directly to the office. The stock clerks are under the supervision of the superin- tendent of the plant and not the cost clerk. Although classified on the Company's seniority list as non-production employees, stock clerks are considered by the Company to be a part of the production system and not clerical employees because of the nature of their work in distributing material used directly in the assembly of machines by men in the plant. They will be included in the unit. Local #631 also desires the exclusion from the unit of two painters, one working on the day shift and the other on the night shift, while IThis refers to the three regular watchmen and does not include two employees, Frank Wachter and Stanley Roberts, - who act as relief watchmen on the week ends. 7 See Matter of Plankinton Packing Company and Packing House Workers Organizing Committee, 5 N. L. R. B. 813; Matter or Simmons Company and Steel Workers Organizing Committee, 6 N. L. R. B. 208; Matter of Tennessee Electric Power Company and Inter- national Brotherhood of Electrical Workers, 7 N. L. R. B. 24 ; Matter of Walker Vehicle Company and The Automatic Transportation Company, Divisions of the Yale & Towne Manufacturing Company and Walker-Automatic Independent Labor Association, 7 N. L. R. B. 827; Matter of Consumers Power Company and International Brotherhood of Elec- trical Workers, Local 876, 9 N. L. R. B. 742; Matter of Armour & Company and Amalga- mated Meat Cutters and Butcher Workmen of North America, Local No. 235, 10 N. L. R. B. 912; Matter of F. E. Booth & Company et al. and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491. CLEVELAND H,OBBING MACHINE. COMPANY 417 Local No. 409 wishes them to be included . Local #631 offered no reason for its contention , and the painters are apparently included under its proposed agreement of September 15, 1939, as non-produc- tion employees. They were originally members of Local 328 and, have been members of Local No. 409 since it succeeded the former organization. Although they direct the work of helpers in painting the machines built by the Company, they have no power to hire or discharge. They are hourly employees and under the supervision of the superintendent. They will be included in the unit. Local No. 409 contends that Robert Mayfield, Walter Norton, Fred Doyle, and Louis Rauch should be excluded from the unit because they hold stock in the Company. The first two employees ' holdings range from 10 to 15 shares currently worth $8.00 per share. There was no showing concerning the extent of the other two employees' holdings, if any. The small interest of these employees in the Com- pany is not sufficient reason to exclude them from the unit and they will be included. Local No. 409 also contends that 11 named em- ployees 8 spend part of their time in work on the farm of William H. Staples, the vice president and general manager of the Company, and should be excluded from the unit because of their friendly rela- tionship with the management. Several of the employees named spend 4 or 5 days a month , and the remainder are periodically engaged in work on Staples' farm , generally during the slack season in the plant. They are paid for their farm work by Staples and not by the Company . Such occasional employment does not so align them with the management that they should be barred from a bargaining unit in which they would otherwise be included . We find that the 1.1 named employees should be included in the unit. We find that all the employees of the Company, excluding the foremen, the superintendent, the general manager, the clerical force, watchmen, and the engineering department, constitute a unit appro- priate for the purpose of collective bargaining and that said unit will insure to employees of the Company 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 A classified list of the employees appearing on the Company's pay roll for the period ending October 17, 1939, showing 127 employees in the appropriate unit, was offered in evidence. Local #631 intro- duced 107-membership cards in evidence in support of its claim that the majority of the employees had designated it as their collective 8 Frank Pike, John Parker, Joe Dudek, Mike Dudek, Steve Stachelski, Stanley Stachelski, Frank Rowles, Hanson Presser, Gerald Sutters, Mike Corroscia , and Herman Royer. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agent, but withdrew the cards from evidence at the close of the hearing. Local No. 409 did not offer any proof concerning the extent of its membership.' Both unions desire an election. We shall, accordingly, direct that an election by secret ballot be held.'° The Company normally employs approximately 180 persons in its plant. At the time of the hearing, the Company employed about 127 men in the appropriate unit. Persons engaged for 30 consecutive days in production work acquire seniority standing and must be given preferential treatment when it becomes necessary for the Company to decrease or increase its force.1' Since the employees laid off during the slack season retain their status as employees they will be eligible to vote in the election. Accordingly, we shall direct that all persons who are employees of the Company within the appropriate unit on the pay roll next preceding the Direction of Election and those on the seniority list as of May 11, 1939,12 except B. Abernathy,"' will be entitled to participate in the election. 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 representa- tion of employees of Cleveland Robbing Machine Company, Cleve- land, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and. (7) of the Act. 2. All the employees of the Company, excluding the foremen, the superintendent, the general manager, the clerical force, watchmen, and the engineering department, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Rela- 9 There was testimony concerning a defection of members from the C. I. O. to the A. F. of L. but no indication of the extent of this defection. 10 See Matter of Cudahy Packing Company and United Packinghouse Workers of America, Local No. 21, of the Packinghouse Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, 13 N. L. R. B. 526; Matter of Armour & Company and United Packinghouse Workers, Local Industrial Union No. 13 of Packinghouse Workers Organizing Committee, affiliated wth C. I. 0., 13 N. L. R. B. 567. "The Company representative testified that the Company anticipated reemployment of its normal complement of 180 within the next 3 months. 12 A seniority list as of that date was introduced in evidence without objection. How- ever, certain employees within the appropriate unit who were on the Company 's pay roll of October 17 , 1939, do not appear on the May 11 , 1939, seniority list. 13 Abernathy , listed as a demonstrator on the seniority list, has been promoted to the position of salesman. CLEVELAND ROBBING MACHINE GOMMPA'N!Y 419 tions 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 ordered by the Board to ascertain representatives for the purposes of collective bargain- ing, 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 all the employees of Cleveland Robbing Machine Company, Cleveland, Ohio, on the pay roll next preceding this Direction of Election and those whose names appear on the seniority list of the Company as of May 11, 1939, except Abernathy, and including employees ill or on vacation, but excluding the foremen, the superintendent, the general manager, the clerical force, watchmen, and the engineering department, and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Automobile Workers of America, Local #631, affiliated with the American Fed- eration of Labor, or Local No. 409, International Union, United Automobile Workers of America, affiliated with the Congress of Industrial Organizations, or by neither.